Punjab-Haryana High Court
Balbir Singh vs Manjit Kaur And Another on 22 November, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
R. S. A. No. 148 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 148 of 2011 (O&M)
Date of Decision : November 22, 2012
Balbir Singh .... Appellant
Vs.
Manjit Kaur and another .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. B. R. Mahajan, Advocate
for the appellant.
Mr. Umesh Kumar, Advocate
for respondent no. 1.
Mr. V. K. Sandhir, Advocate
for respondent no. 2.
* * *
L. N. MITTAL, J. (Oral) :
This is second appeal by plaintiff Balbir Singh, who was successful in the trial court, but has been non-suited by the lower appellate court.
Plaintiff initially filed suit against respondent no.1 Manjit Kaur only as defendant, for possession of the suit land by way of specific R. S. A. No. 148 of 2011 (O&M) 2 performance of agreement to sell dated 13.05.1999, alleging that defendant no.1 agreed to sell the suit land (one kanal) to plaintiff @ Rs.4,200/- per marla and received Rs.20,000/- as earnest money and executed agreement dated 13.05.1999. The plaintiff has always been ready and willing to perform his part of the contract, but defendant committed breach thereof, necessitating the filing of the instant suit.
Respondent no.2 Jagdish Singh was impleaded as defendant no.2 during pendency of the suit because respondent no.1 - defendant pleaded in her written statement that she had already sold the suit land to defendant no.2 vide sale deed dated 27.04.2000. The plaintiff alleged that defendant no.2 is also bound by the impugned agreement.
Defendant no.1, in her written statement, admitted the execution of the impugned agreement by her in favour of plaintiff, but pleaded that plaintiff himself was not ready and willing to perform his part of the agreement, and therefore, she sold the suit land to defendant no.2, vide sale deed dated 27.04.2000 and accordingly, defendant no.2 is owner in possession of the suit land.
Defendant no.2 also controverted the plaint averments and pleaded to be bona fide purchaser of the suit land for valuable consideration. It was also pleaded that plaintiff himself was not ready and willing to perform his part of the contract.
R. S. A. No. 148 of 2011 (O&M) 3
Trial court decreed the suit of the plaintiff, but in first appeal, judgment and decree of the trial court have been set aside and suit filed by the plaintiff has been dismissed by the lower appellate court. Feeling aggrieved, plaintiff has filed this second appeal.
I have heard counsel for the parties and perused the case file. Counsel for the appellant reiterated the contentions noticed in the motion order.
On the other hand, counsel for respondent no.2 contended that the plaintiff-appellant has failed to prove that he was ready and willing to perform his part of the agreement, and therefore, he has been rightly non- suited by the lower appellate court. It was pointed out that affidavit by plaintiff regarding his alleged presence on 13.07.1999 (the date stipulated in the agreement for execution of the sale deed) was got attested by the plaintiff from an Advocate, who had not made entry thereof in his Register.
On the other hand, counsel for the appellant, relying on judgment of Hon'ble Supreme Court namely M. M. S. Investments, Madurai and others vs. V. V. Veerappan and others reported as 2007 (2) R. C. R. (Civil) 816 and also on judgment of this Court in the case of Bahadur Ram vs. Lakhwinder Singh and others reported as 2008 (3) R. C. R. (Civil) 457, contended that defendant no.2 - subsequent vendee is not even entitled to raise the question of readiness and willingness of the R. S. A. No. 148 of 2011 (O&M) 4 plaintiff to perform his part of the contract.
I have carefully considered the rival contentions.
Execution of impugned agreement by defendant no.1 in favour of plaintiff stands admitted by defendant no.1 in her written statement. The question, therefore, arises regarding willingness and readiness of plaintiff to perform his part of the contract. The plaintiff has pleaded and stated that he remained present in the office of Sub Registrar on 13.07.1999 to get the sale deed executed in terms of the agreement, but since defendant no.1 did not turn up, the plaintiff got his affidavit attested regarding his presence. Contention of counsel for respondent no.2 that the affidavit of the plaintiff has been attested by an Advocate, who did not make entry thereof in his Register, does not make any difference because defendant no.1 has herself pleaded that in late hours, the Sub Registrar had left the Office and even defendant no.1 got her affidavit attested from Notary Public and not from Sub Registrar or Executive Magistrate. Moreover, the plaintiff thereafter served notice dated 10.11.1999 on defendant no.1 to get the sale deed executed and then, without undue delay, filed the suit on 03.06.2000. All these circumstances are sufficient to depict readiness and willingness of the plaintiff to perform his part of the contract.
In addition to the aforesaid, in view of judgment of Hon'ble Supreme Court in the case of M. M. S. Investments (supra), defendant R. S. A. No. 148 of 2011 (O&M) 5 no.2 being subsequent vendee, cannot even raise this plea of readiness and willingness of the plaintiff to perform his part of the contract. Even otherwise, the plaintiff has duly proved his readiness and willingness to perform his part of the contract.
As regards plea of defendant no.2 that he is bona fide purchaser of the suit land, the same is not proved because defendant no .2 has himself not stepped into the witness-box. It was his personal knowledge that had to be deposed by him only to the effect that he had no knowledge of the impugned agreement and that he is bona fide purchaser of the suit land. Defendant no.2 has of course examined his brother and Attorney Daljit Singh as witness. However, Daljit Singh could not have deposed about the facts, which were specifically in the knowledge of defendant no.2 himself. Consequently, defendant no.2 also cannot be said to be bona fide purchaser of the suit land as practically there is no evidence in this regard.
Contention of counsel for defendant no.2 that alternate relief of recovery of money may be granted to the plaintiff is also not sustainable because the plaintiff has right to seek specific performance of the agreement and there is no ground to decline the said relief to him. Grant of alternate relief is not sufficient compensation to the plaintiff for the relief of specific performance of the agreement.
For the reasons aforesaid, I find that following substantial R. S. A. No. 148 of 2011 (O&M) 6 question of law arises for adjudication in this second appeal :-
"Whether finding of the lower appellate court that plaintiff has not been ready and willing to perform his part of the contract and that defendant no.2 is bona fide purchaser of the suit land is perverse and illegal and is based on misreading and misappreciation of evidence on record ?"
For the reasons already recorded herein before, the aforesaid substantial question of law is answered in affirmative i.e. in favour of plaintiff-appellant.
Resultantly, the instant second appeal is allowed with costs throughout. Judgment and decree of the lower appellate court are set aside. Judgment and decree of the trial court decreeing the suit of the plaintiff are restored. The plaintiff shall deposit the balance sale consideration with the trial court within three months from today.
November 22, 2012 ( L. N. MITTAL ) monika JUDGE