Punjab-Haryana High Court
Bahadur Singh vs Lakhwinder Singh And Ors. on 10 August, 2001
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Unsuccessful plaintiff Bahadur Singh has filed the present regular second appeal and it has been directed against the judgment and decree dated (3.2.1995 passed by Additional District Judge, Kurukshetra, who allowed the appeal of the defendants and set aside the judgment and decree dated 18.2.1993 passed by the Court.
2. Before I proceed further, I may also state that this appeal was filed at the first instance against Lakhvinder Singh, Chadat Singh, Takhvinder Singh, Sukhwinder Singh and Rachhpal Kaur, the subsequent transferees and Surjit Kaur, Darshan Singh and Sukha Singh and Jagiro, the vendors, Lakhvinder Singh died during the pendency of this appeal and impendent No. 5 Richhpal Kaur is the LR of Lakhvinder Singh, Richhpal Kaur was served personally. Similarly, respondents No. 2 to 4 were served by way of publication, but nobody gave appearance on behalf of respondents No. 1 to 5 i.e. the subsequent transferees. In this manner, I am disposing of this appeal only with the assistance rendered by the learned counsel for the plaintiff/appellant.
3. Bahadur Ram filed a suit for specific performance against defendant No. 1 to 9 and the case set up by him in the trial Court was that he was a tenant (Gair Marusi) over the agricultural land measuring 101 kanals 18 marlas, fully described in the head-note of the plaint, situated at village Salpani Khurd, Tehsil Thanesar. Defendants No. 1 to 4 were the owners of the suit land and they executed an agreement dated 21.7.1983 to sell the land measuring 48 kanals 19 marlas being 1/2 share of the land measuring 97 kanals 18 marlas for a consideration of Rs. 35,000/-. At the time of execution of the agreement, a sum of Rs. 9,406/- was paid as earnest money to defendant No. 1 to 4 and the sale-deed was to be executed and registered upto 21.11.1983 on payment of the remaining sale consideration. Since the land measuring 97 kanals 18 marlas was previously lying in the form of jungle, as such plaintiff made it cultivable. Regarding other 1.2 share of 97 kanals 18 marlas, defendants No. 1 to 4 also executed another agreement of sale in favour of Mela Ram son of Bahadur Ram plaintiff. After the agreement, plaintiff had always been ready and willing to perform his part of contract to purchase the suit land and was similarly ready and willing at the time of institution of the suit. It was pleaded by the plaintiff that on the stipulated date i.e. 21.111.1983 he remained present in the office of Sub-Registrar, Thanesar to got the sale-deed executed and registered from respondents No. 1 to 4 but ail these defendants did not turn up. Consequently, he got his presence marked before the Sub-Registrar and also attested an affidavit in this regard. Subsequently, defendants No. 1 to 3 sold the land measuring 62 kanals 12 marlas to defendants No. 5 to 8 in the form of four separate sale-deeds dated 2.1.1984, being three registered on 4.1.1984 and the fourth on 18.4.1984 comprising land measuring 15 kanals 13 marlas each against a sate consideration of Rs. 14,600/-. The aforesaid sale-deeds were executed in the names of individual defendants No-5 to 8. Defendants No. 1 to 4 executed another sale-deed dated 2.1.1984 registered on 14.8.1986 regarding other land measuring 35 kanals 5 marlas for a sale consideration of Rs. 30,000/- in favour of defendant No. 9 in pursuance of civil Court decree dated 8.4.1986 passed by the Senior Sub Judge, Kurukshetra in a suit titled as Smt. Rechhpal Kaur v. Smt. Surjit Kaur etc. In that decree dated 8.4.1986, a previous sale deed dated 24.7.1984 of land measuring 20 kanals 8 marlas earlier executed by Smt. Jagiro in favour of plaintiff has illegally been declared null and void. The suit for specific performance of Smt. Richhpal Kaur, defendant No. 9, culminating into impugned decree dated 8.4.1986 was alleged to be illegal and without merit. All the aforesaid five sale-deeds had allegedly been executed by defendants No. 1 to 4 in favour of defendants No. 5 to 9 in pursuance of another agreement of sale dated 12.12.1983. The impugned agreement as well as sale-deeds have been stated to be null and void in view of previous existence of agreement of sale dated 21.7.1983 in favour of plaintiff. It is also alleged that defendants No. 5 to 9 were in the knowledge of existence of the previous agreement dated 21.7.1983 and in spite of this, they got the execution of impugned subsequent agreement dated 12.12.1983 as well as five sale-deeds from defendants No. 1 to 4, The defendants were repeatedly requested to admit the alleged claim of the plaintiff over the suit land measuring 48 kanals 19 marlas in pursuance of agreement dated 21.7.1983, but to no effect. It may also be mentioned here that the present suit was instituted by the plaintiff on 2.5.1984.
4. Notice of the suit was given to the defendants. On 3.2.1986 defendants No. 1 to 3 were proceeded ex-parte by the trial Court. Similarly, on 30.9.1987 defendant No. 4 was proceeded ex-parte as nobody turned up in spite of the service.
5. The suit was contested by defendants No. 5 to 9 through their general attorney Gurbachan Singh who filed the joint written statement on behalf of all these defendants and it was pleaded that the plaintiff has no locus standi to file the suit; that the suit is not maintainable against Chadat Singh, a minor; that defendants No. 5 to 9 were bona fide purchasers for consideration of the suit land and that the possession of the purchased land was handed over to them by vendors, thai the suit was time barred; that the plaintiff was estopped by his own act and conduct from filing the suit; that the suit was bad for non-joinder of Sukhvinder Singh and that the suit was not properly valued for the purposes of court fee and jurisdiction.
6. On merits, the stand of these defendants was that the plaintiff was never a tenant over the suit land and the alleged tenancy of the plaintiff has not been accepted upto the Hon'ble Supreme Court. Originally, plaintiff was inducted as a lessee on the suit land by Collector and after expiry of the period he has relinquished in writing the possession and had delivered the vacant possession of the original owneRs. The plaintiff had [eft the possession after the crop Rabi, 1982. Defendants No. 5 to 9 asserted themselves to be in physical possession of the suit land. The execution of the agreement dated 21.7.1983 by defendants No. 1 to 4 in favour of the plaintiff has been denied. Rather, it is pleaded that before purchase of suit land and other land defendants No. 5 to 9 had made bona fide enquiries about the purchased land. It is also stated that even if the agreement dated 21.7.1983 is proved to be executed by defendants No. 1 to 4, then plaintiff never remained ready and willing to perfonn his part of contract as he was possessing no sufficient funds. On the other hand, Darshan Singh, on behalf of defendants No. 1 to 4 got his affidavit attested in the office of Sub-Registrar in token of his readiness and willingness to perfonn his part of contract. It is stated that a sale-deed dated 2.1.1984 was got registered from defendants No. 1 to 4 on 8.4.1986 in pursuance of civil Court decree dated 8.4.1984 of the land measuring 20 kanals 8 marlas in favour of Bahadur Ram was declared null and void being not binding on the rights of Richhpal Kaur, defendant No. 9.
7. The plaintiff filed re-joinder to the written statement of defendants No. 5 to 9 in which he reiterated the allegations made in the plaint by denying those of the written statement and from the pleadings of the parties the trial Court framed the following is-sues:-
"1. Whether the defendants No. 1 to 4 entered into an agreement of sale with plaintiff on 21.7.1983 in respect of the suit land?OPP
2. Whether the plaintiff was and is still ready and willing to perform his part of contract?OPP
3. Whether the defendants No. 1 to 4 have received a sum of Rs. 9,406/- as earnest money towards sale consideration and if so its effect?OPP
4. Whether the defendants No. 1 to 4 have committed the breach of contract? OPP
5. Whether the defendants No. 1 to 4 have further transferred the suit land in favour of defendants No. 5 to 9 in contravention of the agreement dated 21.7.1983 and if so its effect? OPD
6. Whether the defendants No. 5 to 9 are bona fide purchasers for value, without notice and as such sales in their favour are protected under Section 41 of T.P. Act? OPD
7. If issue No. 6 is proved, whether the plaintiff is entitled for the return of earnest money? OPD
8. Whether the suit is not maintainable? OPD
9. Whether the defendant No. 6 is a minor and if so its effect? OPD
10. Whether the suit is time barred? OPD
11. Whether the plaintiff is estopped from filing the present suit? OPD
12. Whether the plaintiffs stands ejected from the suit land and if so its effect? OPD
13. Relief."
8. The parties led oral and documentary evidence in support of their respective cases and the trial Court vide judgment and decree dated 18.2.1993 decreed the suit of the plaintiff for specific performance on the basis of agreement of sale dated 21.7.1983 and defendants No. 5 to 9 wee directed to execute and register a sale-deed of the suit land measuring 48 kanats 19 marlas being 1/2 share of the total land measuring 97 kanats 18 marlas on or before 31.3.3993, provided the plaintiff wilt pay the balance sale price of Rs. 25,994/- to them at the time of registration of the sale-deed. In the eventuality of registration of sale-deed, defendants No. 5 to 9 were held entitled to receive Rs. 9,406/- the amount of earnest money earlier paid by the plaintiff, from defendants No. 1 to 4. The requisite expenses of stamps and registration etc. were ordered to be borne by the plaintiff. It was also ordered by the trial Court that in case defendants No. 5 to 9 failed to execute and register the requisite sale-deed by aforesaid stipulated date, then the plaintiff after depositing the remaining sale consideration of Rs. 25,994/- in the Court will be entitled to get execution and registration of such sale-deed through the assistance of the Court. The previous sale-deed dated 24.7.1984 executed by Smt. Jagiro, defendant No. 4, in favour of the plaintiff was held legal and valid and the earlier civil Court decree dated 8.4.1986 was declared null and void to that extent. It was also observed by the trial Court that as per terms of the decree dated 8.4.1986, if the plaintiff had already received Rs. 12,750/- from Smt. Jagiro, defendant No. 5, then defendants No. 5 to 9 will be entitled to receive this amount from him. In case the plaintiff had not received the said amount from Smt. Jagiro, then defendants No. 5 to 9 will be entitled to recover this amount from her.
9. Aggrieved by the judgment and decree of the trial Court the transferees filed appeal before Addl. District Judge, Kurukshetra, who vide impugned judgment and decree dated 13.2.1995 allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff in its entirety. Not satisfied with the judgment and decree of the first Appellate Court, the present appeal by Bahadur Ram.
10. I have heard Mr. Hemant Kumar, learned counsel on behalf of the appellant and with his assistance have gone through the records of this case.
11. The plaintiff has been non-suited by the first Appellate Court on the grounds that he was not ready and willing to perform his part of contract and secondly that the contesting respondents are the bona fide purchasers for consideration. The learned counsel for the appellant submits that it is the common case of the parties that the agreement to sell was executed on 21.7.1983 and the sale-deed could be executed by the vendors in favour of the plaintiff upto 21.11.1983. The learned counsel submitted that there is enough evidence on the record to show that the plaintiff was always ready and willing to perform his part of contract and the breach if any was made by the vendors who have not even filed the written statement to contest the case of the plaintiff. He further submitted that defendants No. 5 to 9 cannot be held to be bona fide purchasers for consideration for the simple reason that the sale-deeds were executed on 2.1.1984 on the basis of the agreement of sale dated 12.12.1983, he also submitted that the plaintiff was a tenant over the property in question. It is a small village and the vendees can always make enquiries from the revenue record and at the spot about the actual physical possession which always remained with the plaintiff. No notice was ever given by defendants No. 1 to 4 to the plaintiff/vendee vide which the time was made the essence of the contract. The onus lies upon the subsequent transferees to show that they are the bona fide purchasers for consideration.
12. Now it is to be seen whether the plaintiff was always ready and willing to perform his part of the contract or not and whether the defendants No. 1 to 4 have committed breach of the contract. The present discussions is being made in the light of issues No. 2 to 4. It is the specific case of the plaintiff that after the execution of the agreement dated 21:7.1983 Ex.P1, he was always ready and willing to perform his part of contract. It has also come in the statement of Bahadur Ram that on 29.11.1983 he along with the remaining sale consideration visited the office of Sub-Registrar, Thanesar but his vendors i.e. defendants No. 1 to 4 did not turn up for the execution of the sale-deed and consequently he got his presence marked in the office of the Sub-Registrar and got attested his affidavit. As I have stated earlier that the suit was never contested by respondents. No. 1 to 4 and in these circumstances I will have to place utmost reliance upon the statement of PW1, especially when there is no suggestion on behalf of respondents No. 5 to 9 that he was not present, the law with regard to readiness and willingness is that it must be pleaded in the plaint that the vendee was always ready and willingness to perform his part of contract and at all material times he is inclined to discharge his obligation under the contract. Otherwise also, it seems to be probability that Bahadur Ram must be ready and willing to perform his part of contract as he has parted a sum of Rs. 9,406/- by way of earnest money. He was to get 48 kanals 9 marlas of land. His case is that earlier he was a lessee. Nobody would like to leave such valuable land. There is no evidence on the record to show that the vendors had given notice to the plaintiff calling upon him to appear for the registration of sale-deed. Also, there is no intimation to the plaintiff from which it an be concluded that the defendants No. 1 to 4 had made time the essence of the contract. In this view of the matter I am of the opinion that the plaintiff was always ready and wiling to perform his part of contract and the breach has been committed on behalf of defendants No. 1 to 4.
13. Now let us see how the first Appellate Court has dealt these two issues. The discussion of the first Appellate Court on these issues is contained in paras No. 11 to 14 of the impugned judgment, which are reproduced as under:-
"11. As regards the main dispute of this case as to whether or not the plaintiff has been ready and willing to perform his part of the contract when the agreement to sell in question, Exhibit P1, was enforce or at the time of filing of the suit undoubtedly, as held in Jaswant Singh v. Karam Singh, (1993-1)103 P.L.R. 145 : 1993(1) Revenue Law Reporter 85, in a suit for specific performance Section 16 of the Specific Relief Act, 1963 does not require that the plaintiff must plead and prove that he had tendered the amount to the defendant and called upon him to perform his part of the contract, and what he is required to plead and prove, is only that he had been and was willing to perform his part of the contract i.e. ready and willing to purchase the land under the agreement, at the relevant time, i.e. as contemplated under the contract, as well as at the time of filing of the suit. In view of the law laid down in the authority Jaswant Singh's case (supra), cited by the learned counsel for respondent-plaintiff, the authority Ishar Dass v. Kanwar Bhan and ORs. , (1991-2)100 PLR 578, cited by the learned counsel for the appellants-defendants No. 5 to 9, wherein it has been held that the plaintiff has to plead and prove that the demand for transfer of the land agreed to be sold by sufficient instrument after payment of balance sale consideration, no longer holds the field.
12. When the present case is examined in the light of the law laid down above, it transpires that plaintiff Bahadur Ram as PW1 has stated that two days prior to the date fixed for getting the sale deed registered he went to the vendors for asking them to get the sale deed registered and they asked him to go to the court where they would meet him, and so he had gone to the office of the Sub-Registrar along with a sum of Rs. 31,000/- accompanied by PW3 Dhari Ram and Buta Ram and that they waited there from 9.00 a.m. to 5 p.m. but the owners i.e. vendors-defendants No. 1 to 4 did not turn up; that, therefore, he (plaintiff) and his companions got themselves marked as present and got his affidavit attested to that effect and thus even on that day he had sate consideration with him and he is still ready with it. The learned trial Court has wrongly observed that there is no cross-examination on the said testimony of the plaintiff, in as much as there is specific cross-examination on this point, in reply to which the plaintiff stated that he does not possess the application moved for marking himself present nor he possesses his affidavit in that behalf and there is an entry about this document in the Roznamcha of the Registrar. Not only this, there is also further suggestion put to the plaintiff in his cross examination that the vendors-defendants had come for getting the sale deed registered, which suggestion he has denied, it cannot, therefore, be said that there being no cross examination on the plaintiff, as held in Hans Raj Pitri v. Haryana State, (1989-1)95 PLR 349, in the absence of any cross-examination to the plaintiff on the point of his being ready and willing to perform his part of the contract and that the vendors- defendants failed to turn up in the office of the Sub-Registrar, though the plaintiff had gone there alongwith the balance sale consideration with two witnesses Dhari Ram and Buta Singh these facts are proved especially because of the reasons, hereinafter mentioned. First the plaintiff in his plaint has averred that the he had gone to the office of the Sub Registrar on 21.11.1983, the date fixed for execution and registration of the sale deed but as PW 1 he has nowhere stated to that effect and on the contrary he has stated having gone to the office of the Sub-Registrar two days prior to the said date and even that testimony of the plaintiff is far from believable, in as much as had he (plaintiff Bahadur Ram) actually gone to the office of the Sub Registrar for getting the sale-deed executed and registered in pursuance of the agreement to sell dated 21.7.1983, Exhibit P1, with the balance sale consideration and had the vendors-defendants No. 1 to 4 not turned up there, either on 21.11.1983 or 19.11.1983, in that even, there could be no difficulty for the plaintiff to get produced and proved the application he moved before the Sub Registrar for getting his presence and that of his said two witnesses Dhari Ram and Buta Singh marked by the Sub-Registrar nor there could be any difficulty for him to produce the affidavit he got attested to that effect on that very date, but the plaintiff has not done so. A strong adverse inference has, therefore, to be drawn against the plaintiff that in fact he did not go to the office of the Sub Registrar for the purposes either on 19.11.1983 or on 21.11.1983. Even PW Dhari Ram does not say that he along with the plaintiff and one more witness came to the office of Sub-Registrar on 19.11.1983 or 21.11.1983 for the purpose of getting the sale-deed in respect of the suit land executed and registered in pursuance of the agreement to sell, Exhibit P1.
13. On the other hand, it is evident from the testimony of Ram Parkash Gulati, petition-writer, when he appeared in the witness box as PW2, on 15.2.1988, that on 21.11.1983 he scribed the affidavit mark 'A' of Darshan Singh who had got it attested to the effect of the vendors' side ..aving come for getting the sale-deed registered on that date.
14. In view of the above position, which emerges from the evidence brought on record, it is clearly established that on 21.11.1983 it is the vendors side i.e. Darshan Singh, etc. who had gone to the officer of the Sub-Registrar for the purpose of getting ' the sale-deed registered in pursuance of agreement to sell dated 21.7.1983, Exhibit P1, and the plaintiff did not turn up there with the balance sale-consideration. There is total absence of evidence that after 21.11.1983 the plaintiff took any step, whatsoever, for getting the sale-deed executed and registered in pursuance of the agreement to sell in question dated 21.7.1983, Exhibit P1, because neither he states having approached the vendors after 19.11.1983 or 21.11.1983 nor he states any notice in writing was ever sent to the vendors for this purpose, much less producing any such notice in writing.''
14. In my opinion, this discussion will not advance the case of the defendants. It is the categorical case of the plaintiff that even prior to 21.111.1983 i.e. 2 days earlier, he went to the vendors for asking them to get the sale-deed registered and they asked him to go to the Court where they could meet him so he went to the office of Sub-Registrar along with a sum of Rs. 31,0007- accompanied by PW3 Dhari Ram and Buta Ram and they waited for defendants No. 1 to 4 from 9 a.m. to 5 p.m. but they did not turn up. In the light of this statement the best person who could rebut the statement of the plaintiff was the defendants themselves, but they had not appeared in the witness-box. Resul-tantly, an adverse inference had to be drawn against the defendants No. 1 to 4. There is nothing on the record to show that defendants No. 1 to 4 ever gave notice to the plaintiff calling upon him that time is the essence of the contract or that if the sale-deed is not executed on or before 21.11.1982, the earnest money of the plaintiff will stand forfeited. In fact, the intention of the defendants No. 1 to 4 became bad and for the reason best known to them, they executed the sale-deeds in favour of defendants No,5 to 9. Thus, I reverse the findings of the first Appellate Court on issues No. 2 and 4 and restore the findings of the trial Court on these issues are decided in favour of the plaintiff and against the defendants No. 1 to 4 by holding that the plaintiff was always ready and willing to perfonn his part of contract.
15. Now it is to be seen whether defendants No. 5 to 9 are the bona fide purchasers for consideration or not. This aspect of the case has been discussed by the trial court under issues No. 5 and 6. Exs.P3 to P7 are the 5 sale-deeds which were executed and registered by defendants No. 1 to 4 in favour of defendants No. 5 to 9. Defendant defendants No. 5 to 9 preferred to get execution of sale-deeds of the suit land in their favour from defendants No. 1 to 4. Statement of Bahadur Ram has also been corroborated by PW2 Dhari Ram. It is further established on the record that plaintiff was in possession of the property because subsequent to the sale the transferees made an application against Bahadur Ram on 3.6.1991 before the Assistant Collector, Thanesar seeing possession of the said measuring 97 kanals 17 marlas. Every sane person will make enquiries from the revenue records as well as from the spot when the parties are residing in the same village as to who is in physical possession of the suit property. The petition filed by the purchasers was dismissed in default by the Assistant Collector, Thanesar on 15.6.1992. Therefore, the stand of defendants No. 5 to 9 that they got the possession under the sale-deeds Exs.P3 to P7 cannot be accepted in view of the clear-cut documentary evidence Exs.P12 and P15, i.e. copy of the petition dated 3.6.1991 and copy of the order dated 15.6.1992. When the plaintiff was in possession of the property how it could be said that the defendants No. 5 to 9 were not aware about the things Onus heavily lies upon the transferees to show that they were the bona fide purchaseRs. When the possession is with the previous vendee, no subsequent vendee will take the risk to purchase the land without verifying its possession. In the absence of reasonable enquiries made by the subsequent transferees, I reverse the findings of the first Appellate Court on these issues and hold that defendants No. 5 to 9 were not the bona fide purchaseRs. The first Appellate Court had reversed the findings of the trial Court on issues No. 5 and 6 on totally untenable grounds.
16. In this view of the matter I am inclined to allow this appeal by setting aside the judgment and decree of the first appellate Court. Consequently, this appeal is allowed, judgment and decree of the first Appellate Court is hereby set aside, the judgment and decree of the trial Court is hereby restored and the suit of the plaintiff is hereby decreed for specific performance of the impugned agreement of sale dated 21.7.1983 contained in Ex.P1. Directions art; given to the defendants No. 5 to 9 to associate with defendants No. 1 to 4, to execute and register the sale-deed in favour of the plaintiff regarding the land measuring 48 kanals 19 marlas being 1/2 share of total land measuring 97 kanals 18 marlas fully described in para No. 4 of the plaint, on or before 30.11.2001, provided the plaintiff will pay the balance sale price of Rs. 25,994/- to them at the time of the registration of sale-deed. The plaintiff shall bear the expenses of the stamp and registration. In the event of default committed by the defendants, it will always be open to the plaintiff to get the-sale deed executed through court of law. There shall be no order as to costs.