Punjab-Haryana High Court
Joginder Singh vs Surinder Pal Singh on 10 January, 2001
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. By an agreement to sell dated 27.1.1989, Karam Chand agreed to sell 1/3rd share of land measuring 7 bighas 5 biswas = 2 bighas 8 biswas situated in village Mullanpur Garibdass, Tehsil Kharar with Surinder Pa! Singh, Harkirtan Kaur plaintiffs and Avtar Singh s/o Sarwan Shigh, defendant for a sum of Rs. 20,000/-. A sum of Rs. 2,000/- was paid to Karam Chand by way of earnest money. He was to execute sale deed on receipt of the remaining sum of Rs. 18,000/- on or before 27.1.1990. This agreement was entered into on behalf of the plaintiffs and Avtar Singh defendant through Surinder Pal Singh plaintiff No. 1 on behalf of the purchasers with Karam Chand defendant No. 1 in the presence of Babu Singh and Dalip Singh. Karam Chand gave receipt in the presence of Babu Singh and Dalip Singh in token of receipt of Rs. 2000/- as earnest money by him. Plaintiffs were already co-sharers in !he land measuring 7 bighas 5 biswas. With a view to having more share in the property they entered into agreement dated 27.1.1989 with Karam Chand. Joginder Singh, Gian Singh, Gurdial Singh @ Dial Singh, Nasib Singh, Amrik Singh, Amarjit Singh ss/o Ralla Singh (defendants No. 2 to 7) were already co-sharers in the suit property with the plaintiffs. They also wanted more share in the suit property but they could not persuade Karam Chand to sell to them his share of the suit, property. When they came to know that Karam Chand had already entered into agreement with the plaintiffs, they (Joginder Singh etc.) offered him more for 1/3rd share of 7 bighas 5 biswas. Knowing fully well that Karam Chand had already executed an agreement to sell dated 27.1.5989 with the plaintiffs, they got a sale deed executed in their favour on 9.6.1989 from Karam Chand. Sale deed dated 9.6.1989 executed by Karam Chand defendant in favour of Joginder Singh etc. (defendant Nos. 2 to 7) is of no effect so far as the rights of the plaintiffs and defendant No. 8 are concerned which have accrued to them through agreement dated 27.1.1989. Plaintiffs and Avtar Singh defendant No. 8 have always been ready and willing to obtain sale deed from Karam Chand defendant. Karam Chand defendant defaulted. Before arrival of the stipulated date i.e. 27.1.1990. he sold the land to Joginder Singh etc. (defendants No. 2 to 7) vide sale deed dated 9.6.1989 and thus committed breach of the agreement dated 27.1.1989. On these allegations, Surinder Pal Singh and Harikirtan Kaur plaintiffs filed suit for possession as owners through specific performance of land measuring 2 bighas 8 biswas i.e. l/3rd share of land measuring 7 bighas 5 biswas on the basis of agreement to sell dated 27.1.1989. They prayed for direction to Karam Chand. Joginder Singh etc. (defendants No. 2 to 7) to execute sale deed for a sum of Rs. 20,000/- in favour of the plaintiffs and Avtar Singh defendant No. 8 after adjudging sale deed dated 9.6.1989 executed by Karam Chand defendant in favour of Joginder Singh etc. (defendants No. 2 to 7) as of no effect and null and void so far as their rights are concerned. By way of consequential relief, they prayed for restraint on the defendants from alienating the suit property and from receiving any money as compensation in case the suit properly was acquired. It was alleged in the plaint that Village Shangariwala is a small village where the plaintiffs, Avtar Singh and Joginder Singh etc. (defendants No. 2 to 7) are residing. Joginder Singh etc. (defendants No. 2 to 7) were aware of agreement dated 27.1.1989 when they purchased this land vide sale deed dated 9.6.1989 from Karam Chand.
2. Karam Chand defendant No. 1 con tested the suit of the plaintiffs, it was urged that he sold the land in sui! to Joginder Singh etc. (defendants No. 2 to 7) on 9.6.1989 when Ihe plaintiffs and Avtar Singh defendant had failed to abide by the terms and conditions of the agreement. He was in need of money for performing the marriage of his daughter and. therefore, he asked the plaintiffs and defendant No. 8 to pay him the remaining sum of money and obtain sale deed and not wait up to 27.1.1990. They did not comply with his request as such he had (o sell the land in suit to Joginder Singh etc. (defendants No. 2 to 7) on 9.6.1989 for a sum of Rs. 20,000/- (actual). Rs. 27,000/- was entered in the sale deed as the sale price because of the value fixed by the officer of Registrar for such lands for purposes of stamp and registration. Possession was delivered to Joginder Singh etc. (defendants No. 2 to 7) on 9.6.1989.
3. Joginder Singh etc. (defendants No. 2 to 7) contested the suit of the. plaintiffs. It was denied (hat they (defendants No. 2 to 7) ever requested Karam Chand to sell land !o them. It was denied that they offered a higher price of Rs. 27,000/- for the land in suit to Karam Chand. It was land of a poor quality. They were never aware of the agreement to sell dated 27.1.1989 alleged (o have been executed by Karam Chand in favour of the plaintiffs and Aviar Singh de-
fendant No. 8. They purchased the land in suit vide sale dated 9.6.1989 from Karam Chand defendant who never told them that this land was already the subject-matter of sale vide agreement dated 27.1.1969. They did not have any notice of agreement to sell dated 27.1.1989 when they purchased this land on 9.6.1989. They are bona fides purchasers for value without any notice of agreement dated 27.1.1989.
4. On the pleadings of the parties, the following issues were framed by the trial Court :-
1. Whether the sui! is bad for mis-joinder of parties ? OPD
2. Whether the suit is bad for non-joinder of parties ?
3. Whether the plaintiffs are estopped by their act and conduct from filing the suit ? OPD
4. Whether the suit is not maintainable in view of preliminary objection No. 1 ? OPD
5. Whether plaintiffs were ready and willing to perform their part of agreement to sell dated 27.1.1989 ? OPP
6. Whether plaintiffs are entitled to possession as owners by way of specific performance of agreement to sell dated 27.1.1989 ? OPP
7. Whether the plaintiffs are entitled to injunction prayed for ? OPP
8. Whether defendants No. 2 to 7 are the bona fide purchasers for consideration and wilhout notice ? OPD
9. Relief.
5. Vide order dated 14.8.1992, Sub Judge 1st Class, Kharar decreed the plaintiffs' suit for possession as owners of land measuring 2 bighas 8 biswas as detailed in the heading of the plaint by way of specific performance of the agreement to sell dated 27.1.1989 and Kararn Chand defendant was directed to execute the sale deed on receipt of the remaining amount of Rs. 18,000/- and the sale deed dated 9.6.1989 executed by Karam Chand in favour of Joginder Singh etc. (defendants No. 2 to 7) was declared null and void having no effect on the rights of the plaintiff, in view of his findings, that Joginder Singh (defendants No. 2 to 7) were not bonaftde purchasers of the land in suit from Karam Chand defendant as on 9.6.1989, they were aware of the agreement dated 27.1.1989 executed by Karan. Chand defendant in favour of the plaintiffs and Avtar Singh defendant No. 8 for a sum of Rs. 20,000/-. It was also found that the plaintiffs were always ready and wiling to pay the remaining sale consideration to Karam Chand defendant and obtain sale deed from him.
6. Joginder Singh etc. (defendants No. 2 to 7) went in appeal against the order of Sub Judge 1st Class, Kharar dated 14.8.1992. Vide order dated 5.4.1997 Additional District Judge, Ropar dismissed the appeal. Still not satisfied, Joginder Singh etc. (defendants No. 2 to 7) have come up in further appeal to this court.
7. I have heard the learned Counsel for the parties.
8. In this case. Karam Chand defendant is occupying the provolal position. Karam Chand defendant No. (DW.3) stated that he entered into agreement to sell land measuring 2 bigwas 8 biswas with the plaintiffs and Avtar Singh defendant on 27.1.1989 for a sum of Rs. 20,000/-. He received Rs. 2,0007- as advance/car-nest money. At the time of the execution of the agreement, it was agreed that half of the amount shall be paid within one month. Plaintiffs, however, failed to pay that amount to him. He requested the plaintiffs many times to pay him half the amount as agreed upon but they showed their reluctance and also showed that money was not ready with them. He required money for the marriage of his daughter. After 3 months he re-quesled them to obtain sale deed him but they said that agreement was for one year. After that he sold land to Joginder Singh and others for Rs. 20,000/-. In the sale deed Rs. 27,500/- was shown as it was the price for so much land fixed by the Government for purposes of stamp and registration. He, however, got only Rs. 20,000/- from the vendees i.e. Joginder Singh etc. He requested the plaintiffs to get back their Rs. 2,000/-paid to him as earnest money but they refused to do so. In his cross-objection, he staled that he did not disclose about the agreement dated 27.1.1989 to Joginder Singh etc. at the time when he sold the land to them. He did not issue any not ice to the plaintiffs telling them that they should purchase the land from him or else he would sell the land to Joginder Singh etc. He did not tell Surinder Pal Singh plaintiff that in case he did not purchase the land he would sell it to Joginder Singh etc. (defendants No. 2 to 7). He did not ask any responsible person of the village to ask the plaintiffs to purchase the land from him. He did not disclose this fact to anybody that the plaintiffs did not purchase the land from him even in spite of his asking them again and again. He does not know if the purchasers first tried to persuade the plaintiffs not to purchase the suit property. They did not pressurise him to get the bargain of the plaintiffs cancelled. He did not talk anything wilh the purchasers. However, he told the purchasers that since the plaintiffs did not have any money, therefore, he was selling this property to them (defendants No. 2 to 7).
9. Joginder Singh PW4 (subsequent vendee) stated that they had no knowledge about the agreement of sale between the plaintiffs and Karam Chand. They did not purchase the land for a higher price. Rather they purchased the land at the market rate. Land in dispute is situated in village Mullanpur Garibdass and Karam Chand also belongs to village Mullanpur Garibdass. They purchased the land for a sum of Rs. 20,000/-. They made inquiry from the Patwari regarding the agreement who replied that there was no agreement. Karam Chand did not tell them that he had entered into an agreement to sell land with the plaintiffs. He did not tell them that the plaintiffs did not have money and as such were unable to proceed ahead with the transaction. Sale deed dated 9.6.1989 was not preceded by any agreement to sell. Bargain was settled a day ear-
lier and the sale deed was executed on the following day. None else was present at the time of the bargain. Karam Chand came to their lube-well and told him that day oniy that he was in need of money for the marriage of his daughter and they should purchase his land.
10. Dalip Singh, PW1 stated that agreement Ex.P1 was executed between the plaintiffs and defendant No. 1 in his presence whereby Karam Chand defendant No. 1 agreed to sell land for a sum of Rs. 20,000/- to the plaintiffs and defendant No. 8 and that he is the at-lesling witness of the agreement. He stated that Joginder Singh defendant asked him to persuade the plain-tiffs not to purchase the suit land and then he. Surinder Pal Singh plaintiff and Inderjit Singh met at the house of Babu Singh Sarpanch. Surinder Pal Singh plainliff was asked to give up their rights in the land. He demanded a sum of Rs. 10,000/- but Joginder Singh was prepared to pay a sum of Rs. 2,000/- to the plaintiffs and, therefore, no compromise could take place.
11. Babu Singh PW2 is another attesting witness of agreement Ex.Pl. He also stated that about 3 months of the execution of agreement (Ex. PI) ameeting was convened at his house which was attended by Joginder Singh, Dalip Singh, Surinder Pal Singh. Inderjit Singh. Joginder Singh was ready to pay a sum of Rs. 2,0007-to the plaintiffs for giving up their rights in the land but the plaintiffs wanted a sum of Rs. 10,000- and. therefore, no compromise could take place. Surinder Pal Singh plainliff staled that he had always been ready and willing to perform his part of the agreement (Ex.P1). He stated that when he did not agree to surrender his rights in the land in suit in favour of Joginder Singh which has accrued to them by virtue of agreement Ex. P1, Joginder Singh etc. got the sale deed executed from Karam Chand by paying him more.
12. Sale deed dated 9.6.1989 is for consideration of Rs.27,000/- while per agreement dated 27.1.1989 land was to be sold for Rs. 20,000/-. Explanation of Karam Chand was that actually he received Rs. 20.000/- for the land but Rs. 27,000/- was entered as this was the market value of the land fixed by the Government for sale for purposes of stamp and registration. Agreement Ex.Pl was to be performed within one year of 27.1.1989. There is no slipulalion that half the amount was to be paid within one month of 27.1.1989. Karam Chand gave no notice to the plaintiffs that he was going to sell the land to Joginder Singh etc. and, therefore, the plaintiffs should immediately purchase the land from him in terms of agreement Ex.Pl. Karam Chand DW has stated that he told Joginder Singh etc. that since the plaintiffs did not have money, therefore, he was selling this property to them. This version appears to be correct. Plaintiffs and defendants No. 2 to 7 belong to the same village i.e. Village Shangariwala. There they are recorded as voters in the same village. There are only 41 houses in village Shangariwala and 210 voters. It is, thus, a small village. No agreement was executed by defendant No. 1 Karam Chand with Joginder Singh etc. to sell the land. Bargain was set-lied only on 8.6.1989 and sale deed was executed on 9.6.1989. House of the plaintiffs is at a small distance from the house of Joginder Singh defendant. Plaintiffs and the defendants are co-sharers in the land. Plaintiffs wanted to purchase the land because they had already purchased 1/3rd share of the land from Karam Chand earlier. Joginder Singh etc. are also co-sharers in the land per jamabandi Ex.P3. Plaintiffs were interested in the purchase of the land. Joginder Singh etc. were equally interested in the purchase of the land. In the first instance, plaintiffs and defendant No. 8 were able to obtain agreement to sell from Karam Chand defendant on 27.1.1989 with regard to this land for a sum of Rs. 20,000/-. Thereafter, Joginder Singh started persuading the plaintiffs not to purchase the land. Sur-inder Pal Singh agreed not to purchase the land if he was given Rs. 10,000/- but Joginder Singh agreed to give him Rs. 2,000/- for giving up his rights in the land. Plaintiffs and the defendants were co-sharers and they were also residing in a small village. It is not believable that agreement Ex. P1 dated 27,1.1989 remained a secret. It lay upon Joginder Singh etc. to prove that when they purchased the land on 9.6.1989 they were not aware of agreement dated 27.1.1989 being held by the plaintiffs and defendant No. 8 from Karam Chand defendant with regard to this land. Joginder Singh etc. have already their other iand on three sides of the disputed land. They are already co-sharers in this land. With the purchase of the share of Karam Chand of this land, it appears that their anxiety was to have a consolidated Tak at one place.
13. It was held in Joginder Singh v. Nidhan Singh and another, 1996(1) PLR 431 : 1996(3) RRR 710 (P&II) that where a person who is holding a prior agreement to sell in his favour brings a suit for specific performance of the contract against the vendor and transferee from him, the onus is on the transferee to prove thaT he had no notice of the prior agreement to sell in favour of that person. This onus can only be discharged by evidence led in the case. Mere denial by the transferee will not discharge the onus that rests on him.
14. In Dr. Govinddas and another v. Shrimati Shan-tibai and others, 1972 PLR 227, it was held by the Hon'ble Supreme Court (hat under Section 19(b) of the Specific Relief Act a contract cannot be specifically performed against a transferee for value who paid his money in good faith and without notice of the original contract. Where all the parties are residents or have shops in the same vicinity in a small locality, it is not possible that the transferee could not have come to know of the execution of the original agreement of sale of the property. Unusual haste with which the contract was executed and got registered also shows that parties had notice of the previous agreement.
15. The learned Counsel for the appellants has submitted that agreement to sell (Bx.P1) is a collusive affair, designed with a view to affecting the rights of the appellants. There was no reason for the plaintiffs-respondents to defer the execution of the sale deed for a period of one year when the transaction was for a sum of Rs. 20,000/- only out of which Rs. 2,000/- had already been given. Jt was also submitted that agreement Ex.P1 was executed at Chandigarh. It could have been executed at Kharar when the land is situated at village Mullanpur Garibdass. It was also submitted that possession of the land was delivered to the defendant vendees (appellants herein) in pursuance of sale deed dated 9.6.1989. It was submitted that it was unnatural that a person who asserts to have entered into an agreement and claims to have received possession under the said agreement would deliver possession to the vendee without any demur.
16. In my opinion, defendants-vendees (appellants herein) had knowledge of the agreement to sell dated 27.1.1989 in favour of the plaintiffs and defendant No. 8 Avtar Singh. If they had no knowledge of this agreement they would not have acted with such a haste. They would have entered into an agreement first with Karam Chand. They would have paid him some earnest money. There would have been stipulation of some date in the agreement for its performance and the payment of the remaining sale money. In this case, sale deed dated 9.6.1989 was not preceded by any agreement to sell. Bargain was struck on 8.6.1989 and sale deed was executed on 9.6.1989. Karam Chand defendant who was through and through defendants-vendees' own man could not help stating that he (old the vendees that since the plaintiffs did not have any money, therefore, he was selling this property to them. This shows that on 9.6.1989, the defendant-vendees had knowledge of agreement dated 27.1.1989 in favour of the plaintiffs and defendant No. 8 regarding this land executed by Karam Chand. It was held in Gurmukhvir Singh and others v. Sohan Singh Bela Singh and another, 1963(65) PLR 697, relying upon AIR 1934 Privy Council 68 and AIR 1946 Privy Council 97 that where on the land in respect of which an agreement to sell had been entered into is sold by the vendor to another person in breach of the contract of sale and a suit for specific performance of the contract against the vendor and the transferee is instituted, the onus is on the transferee to prove that he had no notice of the prior agreement to sell in favour of the plaintiff. The onus can only be discharged by the evidence led in the case. The mere denial by the transferee to the effect that he had no notice of the previous contract for sale will not discharge the onus that rests on him.
17. In a small village if one agrees to sell or purchase, this fact spreads like would fire and gains immediate circulation. Village Shangariwala is a small village. Fact that Surinder Pal Singh etc. had agreed to purchase land from Karam Chand vide agreement dated 27.1.1989 must have spread like wild fire and reached the ears of Joginder Singh etc. who were co-sharers with them and Karam Chand. As between co-sharers there is always a tug of war. If one co-sharer is willing to sell, the other co-sharers vie with each other to purchase his share. As the saying goes, nobody acts on the policy of live and let live, everybody is anxious to oust the other from the area of purchase.
18. Faced with this position, learned Counsel for the appellants submitted that specific performance should not have been allowed in favour of the plaintiffs (respondents) and defendant No. 8. Grant of specific performance is in the discretion of the court. This discretion should not have been exercised in their favour when they themselves were asking for a sum of Rs. 10,000/- and Joginder Singh etc. vendees were wiling to pay them only Rs. 2,000/-. In was submitted ihat money decree could have been passed in their favour and they could have been silenced. He drew my attention to Kansi Ram v. Om Parkash Jawal and others, 1996(4) SCC 593 where it was held that though the rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance but granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretion to be exercised on sound principle. When the court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties. It was an agreement of sell dated 7.4.1969 respecting plot of land measuring 100 sq. yds. situated in Daya Nand Colony, Lajpat Nagar in Delhi for Rs. 16,000/- where Rs. 2,500/- was paid as earnest money. Suit was filed on 13.7.1970 by the respondent for specific performance of the agreement and also for damages alternatively of a sum of Rs. 12,000/- with interest payable thereon. Hon'ble Supreme Court set aside the decree for specific performance and instead allowed him Rs. 10 lacs as damages as the grant of relief of specific performance was felt to be unrealistic and unfair.
19. In this case, however, I do not see any reason to refuse relief of specific performance to the plaintiffs and defendant No. 8. Plaintiffs filed suit on 1.9.1989 i.e. soon after sale deed was executed in favour of the defendant-vendees. Relief of specific performance could have been refused to the plaintiffs if they had filed the suit on the last day of limitation i.e. in the end of 1993. In that event the court could have thought that relief for specific performance should not be granted to the plaintiffs and defendant No. 8 when value of the land had risen considerably after January, 1989. In this case, there is no equity in favour of the defendant-vendees so that sale in their favour could be upheld. If defendant-vendees held any inquiries they would have come to know that this land was already the subject-matter of agreement to sell dated 27.1.1989. If they had erased Karam Chand, Karam Chand would have told them that this land is already the subject-matter of sale. It appears that Karam Chand was erased by them and when he was erased by them, he told them that he was not willing to sell the land to the plaintiffs as they did not have money and, therefore, he was selling this land to them (defendant-vendees). There is overwhelming evidence on the record to charge defendant-vendees with the knowledge of agreement dated 27.1.1989 in favour of the plaintiffs and defendant No. 8 when they purchased this land from Karam Chand on 9.6.1989. Defendant-vendees must suffer.
20. The plea that plaintiffs and defendant No. 8 were not ready and willing to purchase is not available to defendant-vendees and it was available only to Karam Chand alone, finds support in Jagraj Singh and another v. Labh Singh and others, AIR 1995 SC 945.
21. Both courts below have concurrently found in favour of the defendant- vendes charging them with the knowledge of agreement to sell dated 27.1.1989 when they purchased the land on 9.6.1989 from Karam Chand. Finding of fact arrived at by them is based on appreciation of evidence. There cannot be appreciation of evidence by the High Court for the third time. High Court cannot interfere with the finding of fact even if il is based upon erroneous appreciation of evidence. High Court can set aside a finding of fact if it is not supported by any evidence.
22. For the reason given above, this appeal fails and is dismissed. No order as to costs.
23. Appeal dismissed.