Punjab-Haryana High Court
Joginder Singh And Others vs Nidhan Singh Son Of Pala Singh Son Of ... on 20 September, 1995
Equivalent citations: AIR1996P&H120, (1996)112PLR431, AIR 1996 PUNJAB AND HARYANA 120, (1996) 112 PUN LR 431, (1996) 3 RECCIVR 710, 1996 PUNJ LJ 307
JUDGMENT
1. Briefly stated, the factual position stated by the plaintiff-appellants in their plaint is that defendant No. 1 Puran Singh mortgaged with possession the suit land in their favour vide registered mortgage deed. Subsequently, Puran Singh defendant entered into an agreement to sell the same land with the plaintiffs on 21-7-1977 and obtained a sum of Rs. 5,000/- as earnest money. The agreement to sell was executed in their favour in the presence of the witnesses. Defendant Puran Singh had agreed to execute the sale deed in their favour on f-6-1978 after receiving the balance amount of Rs. 19,255/-. Puran Singh in contravention of the terms and conditions of the agreement, sold the land to defendant No. 2 Nidhan Singh vide registered sale deed dated 8-11-1977 for a sum of Rs. 18,000/-. The plaintiffs were and are still ready to perform their part of the contract whereas defendant No. 1 is avoiding the same to execute the sale deed in favour of defendant Nidhan Singh.
2. Defendant No. 1 Puran Singh appeared at the initial stage of the suit and filed his written statement wherein he admitted all the pleas of the plaintiffs. He pleaded that defendant No. 2 Nidhan Singh pressurised him to get the sale deed registered in his favour promising extra payment to him but at the time of the execution of the sale deed, defendant No. 2 Nidhan Singh played fraud with him and he did not pay him the promised money. He further stated in his written statement that he had made it clear to Nidhan Singh defendant No. 2 that he had already entered into an agreement to sell this land in favour of the plaintiffs and this fact of the agreement to sell with the plaintiffs was known to the whole of the village but defendant No. 2 openly declared that he would take forcible possession of the land if he got the sale deed registered in his name. He further stated in his reply that the suit was not maintainable in the present form as now he was ready and willing to execute the sale deed in favour of the plaintiffs if the Court gave him the sanction for the execution of the same. Subsequently, defendant No. 1 absented himself and was proceeded ex parte. It is pertinent to note here that before the framing of the issues, the trial Court recorded the statement of both Puran Singh defendant No. 1 and Nidhan Singh defendant No. 2 on oath on solemn affirmation. Puran Singh defendant No. 1 had stated before the trial Court that he had entered into an agreement to sell the land with Joginder Singh plaintiff. The whole of the village knew about the agreement. Defendant No. 2 Nidhan Singh had promised him that he would give him more money and that he should get the land registered in his name but later he did not give him more money as promised. He had told Nidhan Singh defendant No. 2 that he had entered into an agreement to sell the land to Joginder Singh but Nidhan Singh told him that he would take forcible possession of the land.
3. The suit was contested by defendant No. 2. It was stated by him in his written statement that no doubt the land was mortgaged with possession with the plaintiffs, but the alleged agreement to sett dated 21-7-1977 was fictitious and fake document and the same was vague. The agreement, according to defendant No. 2, was without consideration and unenforceable. It was further stated by him in the written statement that defendant No. 1 Puran Singh sold the suit land to him for a consideration of Rs. 18,000/- through registered sale deed dated 8-11-1977 and he was not aware of any agreement to sell in favour of the plaintiffs. He was a bona fide purchaser for consideration without any notice of the agreement.
4. The replication was filed on behalf of the appellants wherein the contentions raised by defendant No. 2 in his written statement were denied. The following issues were framed on the basis of the pleadings of the parties :--
1. Whether the defendant No. 1 entered into an agreement to sell the suit land with the plaintiff on 21-7-1977? OPP
2. Whether the agreement of sale dated 21-7-1977 is fictitious and fake transaction as alleged? OPD
3. Whether defendant No. 2 is a bona fide purchaser for consideration and without notice of earlier agreement with the plaintiff? OPD
4. Whether the agreement dated 21-7-1977 is vague, without consideration and unenforceable? OPD-2.
5. Whether the plaint has been properly valued for the purposes of court fee and jurisdiction? OPP
6. Whether defendant No. 2 had effected any improvements in the property in dispute after the purchases? If so, of what value and to what effect? OPD
7. Whether defendant No. 2 is entitled to the sate consideration of Rs. 18,000/- besides a sum of Rs. 3,000/- spent by him for registration expenses etc.? OPD-2.
8. Relief.
5. The trial Court decided issues Nos. 1 and 2 in favour of the plaintiffs and against the defendants. Issue No. 3 was decided in favour of the plaintiffs and against defendant No. 2. Issues Nos.4, 6 and 7 were not pressed at the time of arguments before the trial Court so they were decided against the defendants and in favour of the plaintiffs. Issue No. 5 was also decided in favour of the plaintiffs and against the defendants. Resultantly, the suit of the plaintiffs was decreed with cbsts and defendant No. 1 Puran Singh was directed to execute the sale deed in favour of the plaintiffs on the basis of the agreement to sell and defendant No. 2 Nidhan Singh was directed to join defendant No. 1 in execution of the sale deed and the plaintiffs were directed to pay the balance amount within a period of two months. Defendant No. 2 Nidhan Singh filed an appeal against the judgment and decree of the trial Court. The learned Lower Appellate Court accepted the appeal and set aside the judgment and decree of the trial Court. Suit of the plaintiffs for specific performance of the agreement to sell was dismissed. However, a decree was passed in favour of the plaintiff against Puran Singh vendor for recovery of Rs. 5,000/- with proportionate costs.
6. The plaintiffs have filed this regular second appeal which has come up for consideration and decision hefore this Court.
7. The plaintiff-appellants produced Balak Ram petition-writer scribe of the agreement to sell dated 21-7-1977 Ex.PA and Chhota Singh attesting witnesses of the agreement at the trial as PW2 and PW3 respectively to prove the execution of the agreement to sell and plaintiff Joginder Singh himself appeared as PW1 before the trial Court to prove the same. Joginder Singh plaintiff-appellant while appearing as PW 1, stated before the trial Court that the land in dispute was mortgaged with him and his brothers by Puran Singh defendant No. 1. Puran Singh defendant later on entered into an agreement to sell this land on 1-6-1978 with them. The agreement was executed by Puran Singh who thumb-marked the same in the presence of Chhota Singh and Harnam Singh witnesses. He testified that this agreement Ex.PA was scribed by Balak Ram petition-writer and they had paid Rs. 5,000/- to Puran Singh defendant No. 1 as earnest money. He had also put his thumb impression on the agreement Ex.PA. The whole of the villagers knew the fact of agreement Ex.PA. He was and is still ready and willing to get the sale deed registered in his favour. Balak Ram petition-writer appeared as PW2 in the trial Court to prove the execution of the agreement to sell Ex.PA by Puran Singh defendant No. 1 in favour of the plaintiff-appellants. He stated on oath that he scribed the agreement Ex.PA which was read over to the parties who admitted it to be correct and he made an entry in his register to that effect. PW3 Chhota Singh attesting witness of the agreement Ex.PA stated on oath that the agreement Ex.PA was executed in Patiala Tehsil and he attested the agreement as a witness. He further stated on oath that Rs. 5,000/- were paid by the plaintiff-appellant to Puran Singh defendant as earnest money.
8. The following arguments were advanced against the genuineness of the agreement Ex.PA by the learned counsel appearing for defendant-respondent No. 2 Nidhan Singh before the trial Court :--
(i) That the document Ex.PA was entered by the deed-writer on the first page of his register and there were cuttings and overwriting in the register;
(ii) That Chhota Singh PW 3 was related to the plaintiff-appellant and the date fixed in the agreement, i.e., 1-6-1978 for the execution of the sale deed was a longer one.
9. The trial Court repelled the arguments of the learned counsel for defendant-respondent Nidhan Singh and held as under :--
10. The plaintiff-appellants had produced the direct evidence for proving the execution of the agreement to sell Ex.PA in their favour. Merely because this document has been entered by the deed-writer on the first page of his register and there were some cuttings and over-writing on it, were not enough to doubt the entire evidence produced by the plaintiff-appellants. The relationship of the witness Chhota Singh PW 3 along with the plaintiff-appellants, according to the trial Court, was no ground to ignore his statement altogether. It was further held by the trial Court that an agreement to sell was not required to be attested under the law and any document which is not required to be attested, can be proved as an unattested document though the same has been attested by the witnesses.
11. Another reason given by the trial Court for holding the agreement as legal and valid was that the agreement to sell Ex.PA was scribed on 21-7-1977 and the stamp paper for that purpose was purchased on the same day, as was clear from the stamp paper on the back page of the stamp paper which showed that the agreement was executed on the same day when the stamp paper was purchased. This fact, according to the trial Court, ruled out altogether the possibility of the forging of the agreement.
12. It was then held by the trial Court that even if the statement of the attesting witness is ignored, there is un-rebutted statement of plaintiff-appellant Joginder Singh for proving due execution of this agreement. Simply because the parties fixed a longer date for the execution of the sale deed, was also not found to be a good ground for doubting the genuineness of the agreement as it was for the parties to fix any date for the execution of the sale deed.
13. The learned Lower Appellate Court has set aside the finding of the trial Court on the following grounds :--
(1) It remained unexplained on the part of the plaintiff-appellants as to why the vendor Puran Singh executed the sale deed on 8-11-1977 in favour of the defendant-respondent Nidhan Singh for a consideration of Rs. 18,000/- only when the plaintiff-appellants were ready and willing to purchase the suit land from the vendor Puran Singh for a consideration of Rs. 24,255/-.
(2) The explanation of Puran Singh that the defendant-respondents offered him a better price and pressurised him to execute the sale deed in his favour and on that pressure, he executed the sate deed in favour of the plaintiff-appellants, is proved to be false from the evidence produced by the plaintiff-appellants.
14. The evidence taken into consideration for that purpose by the Lower Appellate Court is the agreement Ex.PA wherein Puran Singh was paid Rs. 5,000/- as earnest money and a balance of Rs. 19,255/ - was to be paid at the time of registration. In Puran Singh's statement which was recorded before the trial Court before framing the issues, according to the Lower Appellate Court, he had stated that the appellant offered him a better price and pressurised him to execute the sale deed in his favour. This explanation, according to the Lower Appellate Court, has been proved to be false as Puran Singh had entered into an agreement to sell with the plaintiff-appellants in respect of the suit land on 21-7-1978 and on that date, they had paid an amount of Rs. 5,000/ - as earnest money and the remaining amount of Rs. 19,255/- was to be paid by them to the vendor at the time of execution of the sale deed which was to be executed on or before 1-6-1977. The learned Lower Appellate Court held that under these circumstances, the one and the only inference that could be drawn is that the vendor Puran Singh could not have sold the land to the defendant-respondents for a consideration of Rs. 18,000/-.
15. The learned Lower Appellate Court then found support to come to its conclusion from the following circumstances which were found to be suspicious circumstances with regard-to the execution of the agreement to sell Ex.PA :--
(1) The agreement is entered as the first party in the deed-writer's register;
(2) There are cuttings and over-writing in this entry;
(3) Chhota Singh PW3 is the attesting witness. The plaintiff-appellant Joginder Singh has admitted in his cross-examination that Chhota Singh PW 3 was his relation but Chhota Singh has denied his relationship with the plaintiff-appellant.
16. This was the whole evidence which led the learned Lower Appellate Court to hold that the agreement to sell Ex.PA was fabricated and forged by the plaintiff-appellants in connivance with the vendor Puran Singh after the execution of the sale deed on 8-11-1977 in favour of the respondent Nidhan Singh.
17. Learned counsel for the appellants submits that the judgment and decree of the Lower Appellate Court is liable to be set aside on the following grounds :--
(i) That the Lower Appellate Court has misread the evidence and mis-construed the documents on the file. According to the learned counsel, it is proved from the evidence on record that agreement to sell was validly executed by Puran Singh defendant No. 1 in favouir of the plaintiff-appellants prior to the sale deed;
(ii) That Puran Singh resiled from his agreement to sell Ex. PA with the palintiff-appetlants on the basis of a promise made by Nidhan Singh defendant No. 2 to pay him more money than the plaintiff-appellants when they were and are still willing to purchase the property agreed to vide Ex. PA;
(iii) That Nidhan Singh defendant-respondent was well aware of the agreemenl to sell Ex. PA executed by Puran Singh in favour of the plaintiff-appellants before the execution of the sale deed and his claim that he was a bona fide purchaser for consideration and without any notice of the agreement to sell executed between the plaintiff-appellants and Puran Singh defendant No. 1 is wrong and falsified from the evidence on the record.
18. The learned counsel has cited M/s. Variety Emporium v. V. R. M. Mohd. Ibrahim Naina, AIR 1985 SC 207,Dilbagri Punjabi v. Sharad Chandra, AIR 1988 SC 1858, Hira Lal, v. Gajjan, AIR 1990 SC 723, Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604 and Shrimati Sonwati v. Sri Ram, AIR 1968 SC 466, for setting aside the judgment and decree of the Lower Appellate Court and to restore the judgment and decree of the trial Court.
19. On the other hand, the learned counsel for the respondent-Nidhan Singh has argued that there is no illegality and infirmity in the judgment of the Lower Appellate Court. The learned counsel has contended that it is amply proved on the file that the agreement itself is fictitious and forged document. The learned counsel has reiterated the grounds taken up by the Lower Appellate Court to contend that the fictitiousness and forgedness of the agreement to sell is proved from the fact that Puran Singh vendor defendant No. 1 was not expected to sell the land for a sum of Rs. 18,000/- if he had already entered into an agreement to sell with the plaintiff-appellants for a higher sum of Rs. 24,255/-. He further submitted that the document Ex. PA was entered by the deed-writer on the first page of his register and there were cutting and over-writing in the register and that Chhota Singh P.W. 3 was related to the plaintiff-appellant and thus, his evidence could not be relied upon. The learned counsel further argued that the finding of fact reached at by the Lower Appellate Court could not be set aside by the High Court in second appeal. He then argued that the defendant-respondent No. 2 Nidhan Singh was a bona fide purchaser for consideration and without any notice of the earlier agreement alleged to have ben executed between the plaintiff-appellants and Puran Singh defendant No. 1. In order to substantiate his arguments, he. referred to the following rulings :--
(1) Lekh Singh v. Dwarka Nath, AIR 1929 Lahore 249;
(2) Bonubai Framji Commissiriat v. Mani Lal Jugaldas, AIR 1923 Allahabad 408;
(3) Dhandi Dalai v. Basudeb Satpathy, AIR 1961 Orissa 129;
(4) Des Raj v. Ram Narain, AIR 1979 Allahabad 328;
(5) Smt. Surjo Devi v. M/s. Arvind Overseas Project Services Pvt. Ltd., 1993 PLJ 675;
(6) Satya Dew. Behariji Maharaj Birjman Mandir, AIR 1980 Allahabad 220;
(7) Ram Briskha Singh v. Rudra Narain Singh, AIR 1986 Allahabad 19, and (8) Bhola Ram v. Ameer Chand, 1981 (2) SC 414 : (AIR 1981 SC 1209)
20. I have heard learned counsel for the parties and have gone through the evidence on the record with their help.
21. It was incumbent upon the final Court of fact, i.e. the Lower Appellate Court; and particularly when the judgment and decree of the trial Court was reversed, to meet the reasoning of the trial Court while decreeing the suit and to indicate its own reasons for arriving at a contrary conclusion. It is the duty of the Lower Appellate Court to discuss the entire evidence afresh, take notice of the grounds taken and the reasons advanced by the trial Court to reach its decision.
22. The Lower Appellate Court in arriving at its conclusion while reversing the judgment and decree of the trial Court, had ignored and misread the important evidence on record and has failed to refer to the important pieces of evidence and also failed to deal with the grounds taken and the reasons advanced by the trial Court for decreeing the suit of the plaintiff-appellants for specific performance. The Lower Appellate Court has also failed to take stock of the entire material on record and has come to its conclusion while reversing the judgment of the trial Court which is not supportable from the evidence on record.
23. In my considered opinion, the learned Lower Appellate Court has drawn a wrong inference from the agreement to sell dated 21-7-1977 Ex. PA and the statement of Puran Singh that the agreement to sell is fictitious and fake document. The relevant portion of the English translation of the statement of Puran Singh is reproduced here-under for ready reference :--
"I entered into an agreement to sell the land with Joginder Singh plaintiff. The whole of the village knew about this agreement. Nidhan Singh told me that he would give me more money and that I should get the land registered in his name but he did not give me more money: I told Nidhan Singh that I had entered into an agreement to sell the land with Joginder Singh but Nidhan Singh told that he would take forcible possession of the land."
24. It seems that the learned Lower Appellate Court has misread the staternent of Puran Singh and has mis-construed the document Ex. PA in order to draw an inference that the document Ex. PA is a fake and fictitious document. It is rather proved from the statement of Puran Singh that Nidhan Singh gave him false promises to give him more money for his land for which he had already executed the agreement to sell Ex. PA. It is proved on the file and has been so held by the trial Court and rightly so that the agreement to sell Ex. PA was executed on 21-7-1977, i.e. prior to the execution of sale deed by Puran Singh in favour of Nidhan Singh on 8-11-1977. Admittedly, Puran Singh's statement was also recorded by the trial Court on 21-10-1978 after the execution of the agreement to sell Ex. PA. It is further proved from the record and so held by the trial Court that the stamp papers were purchased on 21-7-1977, as is clear from the endorsement of the stamp vendor on the back of the stamp papers and the agreement to sell Ex. PA was also executed on the same date by Puran Singh in favour of the plaintiff-appellants.
25. Nidhan Singh defendant-respondent had not said even a word in his statement before the trial Court that agreement to sell Ex.PA was a fictitious or a fake document. No evidence has been produced by him to that effect. The Lower Appellate Court has tried to make out a new case for Nidhan Singh and for the purpose, it has misread the statement of Puran Singh and has misinterpreted the document Ex. PA by holding that the document Ex. PA falsified the statement of Puran Singh. When it is a fact proved on the record that the document Ex. PA was executed on 21-7-1977, i.e. much before the statement of Puran Singh made before the trial Court in which he had validly explained as to what were the considerations which led him to execute the sale deed in favour of Nidhan Singh respondent in spite of his prior agreement to sell with the plaintiff-appellants. It was not for the plaintiff-appellants to explain as to why Puran Singh sold the land to Nidhan Singh respondent. It was for defendant No. 1 Puran Singh to explain the same and which explanation he has furnished vide his statement before the trial Court as reproduced above.
26. The execution of the agreement has been duly proved by the statement on oath before the trial Court by the attesting witness Chhota Singh P. W. 3, deed-writer Balak Ram P.W. 2 as well as by the sworn testimony of the plaintiff-appellant Joginder Singh P.W. 1 himself. As stated above, Nidhan Singh defendant No. 2 has not said even a single word with regard to the fact that the agreement Ex. PA was fictitious and forged document. The inference thus drawn by the Lower Appellate Court from the statement of Puran Singh and the document Ex. PA is based only on an imagination and not from any record.
27. The suspicious circumstances taken into consideration by the Lower Appellate Court while declaring the agreement to sell as fake and fictitious are also without any basis or foundation.
28. The entry of agreement to sell Ex. PA on the first page as the first entry in the register of deed-writer (Balak Ram) cannot be considered as a suspicious circumstance. The entry has been proved by the deed-writer before the trial Court while stating on oath. He has stated on oath before the trial Court that he scribed the agreement to sell Ex. PA. It was read over to the parties who admitted it to be correct and he made an entry in his register. The learned Lower Appellate Court has not given any reason as to how and under what circumstances, the agreement to sell Ex. PA became fictitious and take simply because it was entered on the first page of the deed-writer's register.
29. The next suspicious circumstance taken into consideration by the Lower Appellate Court is the cutting and over-writing in the entry of the register of the deed-writer. Before reaching to this conclusion, the Lower Appellate Court has not taken into consideration the statement of Balak Ram which he made on oath explaining the over-writing and cutting in his cross-examination which reads as under :--
"The names of Joginder Singh was written twice and as such it was scored."
30. Moreover, the learned Lower Appel-
late Court has not indicated as to what was the other cutting and over-writing on the entry in the register which, in any way, was indicative of the fact that the agreement to sell Ex. PA was fake and fictitious. The learned Lower Appellate Court has not advanced any reason for that purpose. Obviously, the learned Lower Appellate Court has ignored the very important evidence of the deed- writer Balak Ram P.W. 2.
31. The other suspicious circumstance taken into consideration by the Lower Appellate Court was that the plaintiff-appellant Joginder Singh had admitted in his cross-examination that Chhota Singh P.W. 3 was his relation but Chhota Singh had denied his relationship with the plaintiff-appellant, Joginder Singh. While treating this circumstance to be suspicious, perhaps the learned Lower Appellate Court has not taken into consideration the proper words used by Joginder Singh in his statement before the trial Court. Joginder Singh has simply replied in his cross-examination as under :--
"Chhota Singh belongs to Village Dhakeva and belongs to my Thullla. Chhota Singh is related to me as uncle."
These words uttered by Joginder Singh cannot be understood to mean that Chhota Singh was his real uncle. Otherwise, he could have stated so that he was his real uncle. The word 'uncle' is ordinarily used in villages by a person to name another person who is of the age of his father or is somewhat younger or older than him. Chhota Singh P.W. 3 was not confronted with the statement of Joginder Singh, nor it was put to Joginder Singh at the trial as to whether Chhota Singh was his real uncle. It is not proved on the file that Chhota Singh was the real uncle of Joginder Singh plaintiff-appellant. For argument sake, even if Chhota Singh was proved to be the real uncle, it would not detract the genuineness of the execution of the document Ex. PA by Puran Singh in favour of the plaintiff-appellants.
32. The suspicious circumstances thus taken into consideration by the Lower Appellate Court for holding the document Ex. PA as fake and fictitious are unfounded and not based upon any cogent or reliable evidence on the record. The learned Lower Appellate Court, in my considered opinion, has not taken into consideration the statement of P.W. 2 Balak Ram deed-writer and has misread and mis-construed the statement of Puran Singh vendor and the document Ex. PA on the record. He has reached his conclusion merely on the basis of congectures and surmises.
33. In view of my discussion above, execution of the agreement to sell Ex. PA by defendant No. 1 Puran Singh in favour of the plaintiff-appellats stands proved and the defendant No. 2 (Now respondent Nidhan Singh) has failed to prove that this agreement to sell Ex. PA is fictitious and forged document. The finding of the First Appellate Court on issue Nos. 1 and 2 is thus reversed and the finding of the trial Court on both these issues stands affirmed.
34. Let me now take up issue No. 3 under which the defendant No. 2 Nidhan Singh had to prove that he was a bona fide purchaser for consideration and without notice of the earlier agreement to sell Ex. PA with the plaintiff-appellants. Though it is proved that the sale in favour of Nidhan Singh is for consideration, but it has to be seen as to whether Nidhan Singh has been able to prove that he had no prior notice of the agreement to sell Ex. PA, i.e. the agreement which was executed by Puran Singh in favour of the plaintiff-appellants.
35. It may be stated at the outset that where, on the land in respect of which an agreement to sell had been entered into, being sold by the vendor to another person in breach of contract of sale, the person in whose favour an agreement to sell was executed by the vendor earlier brings a suit for specific performance of the contract against the vender and the 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 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.
36. The plaintiff-appellants have examined number of witnesses including Joginder Singh P.W. 11 to prove that Nidhan Singh had notice and knowledge of the agreement to sell Ex. P. A. in his examination-in-chief, Joginder Singh P.W. 1 has stated on oath that whole of the village knew about the factum of the agreement to sell Ex. PA executed by Puran Singh defendant to him and his brothers. Earlier to the agreement, the land in dispute was mortgaged with possession to him and his brothers before the agreement to sell was executed. He had stated that he was ready and still ready and willing to get the sale deed registered in his favour. In reply to a question put to him in the cross-examination, he stated that he had told the villagers about the agreement., Baladev Singh and Pritam Singh also knew about it. (Admittedly, Nidhan Singh respondent belong to the village of the plaintiff-appellants). Jarnail Singh P.W. 4 who was the marginal witness of registered sale deed which was executed by Puran Singh in favour of Nidhan Singh D.W. 2, has stated on oath before the trial Court in his examination-in-chief that Puran Singh vendor had already entered into an agreement to sell the land in dispute but he had replied to him that he would take care of it and will take possession of the land with his might. Though in the cross-examination, he denied about this agreement to sell with Puran Singh. P.W. 5 Ajmer Singh had stated on oath that many villagers knew about the factum of agreement to sell Ex. PA executed by Puran Singh in favour of the plaintiff-appellants. He had told about this factum of agreement to Nidhan Singh and that Nidhan Singh knew about it earlier to the execution of the sale deed in his favour by Puran Singh.
37. Even the statement of Nidhan Singh defendant-respondent himself is very much relevant for the decision of this issue. It has been admitted in his statement by Nidhan Singh that at the time of execution of the sale deed in his favour, by the plaintiff, the possession of the land was with the plaintiffs in their capacity as mortgagees. He had stated that he had purchased this land from defendant Puran Singh vide sale deed Ex. D.1 for Rs. 18,000/- and this land was previously mortgaged with the plaintiffs. He admitted in his cross-examination that the plaintiffs belonged to his village and he knew it earlier that this land which he had purchased was in the possession of the plaintiffs as mortgagees. He never approached the plaintiffs showing his intention to purchase this land, nor he requested them as to whether they would surrender the land after he purchased it from Puran Singh.
38. The onus was on the defendant transferee Nidhan Singh to prove that he had no notice of the prior agreement to sell Ex. PA in favour of the plaintiff-appellants. The onus being on the defendant, can only be discharged by the evidence led in the case. Though it was pleaded by the defendant-respondent Nidhan Singh that he was a bona fide purchaser for consideration without notice, yet he did not prove that defence. The learned lower Appellate Court has not referred to any evidence led by the defendants which could show that the defendant had no prior notice of the agreement to sell. The tower Appellate Court rather held that there was no need for the defendant-respondent Nidhan Singh to make enquiries from the plaintiff-appellants about the previous agreement to sell as he knew that the plaintiff-appellants were in possession as mortgagees. It has to be seen in this case as to whether there was sufficient evidence led by the defendant to prove that he had no prior notice of the execution of the agreement to sell Ex. PA by Puran Singh in favour of the plaintiff-appellants. The correct approach, according to me, is to find out as to whether the defendant in the instant case, has led evidence to show that he had no notice of the previous agreement to sell in favour of the plaintiff-appellants. The lower Appellate Court has not referred to any evidence led by the defendant-respondent Nidhan Singh to this effect. It merely came to the conclusion that the defendant had the notice of the agree-mentto sell Ex. PA without referring to any evidence on the file. I am fortified in my view by a Division Bench judgment of this Court in Gurmukhvir Singh v. Sohan Singh Bela Singh, AIR 1963 Pb. 407 (sic), relying upon AIR 1934 Privy Council 68 and AIR 1946 Privy Council 97, wherein it has been held that where, on the land in respect of which an agreement to sell had been entered into is being 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 they had no notice of the previous contract for sale will not discharge the onus that rests on them.
39. There is another aspect of the matter which needs consideration.
40. The defendant-respondent Nidhan Singh did not make enquiries from the plaintiff-appellants regarding the nature of their possession on the suit land and about any agreement to sell etc. before getting the sale deed executed in his favour from the vendor Puran Singh. It was rather obligatory for the defendant to make enquiries about the nature of possession of the plaintiffs and about any other subsisting agreement with regard to this land with anyone before purchasing the suit land as the plaintiffs were in possession of the land at the time the sale deed was executed in his favour; and even this fact is also admitted by defendant Nidhan Singh in his cross-examination that the, plaintiffs belonged to his village and he knew it earlier that this land was in their possession as mortagees. The learned trial Court, relying on a Division Bench judgment of the Bombay High Court in Faki Ibrahim v. Faki Gulam Mohidin, AIR 1921 Bombay 459 and Par-vathathammal v. Sivasankar Bhattar, AIR 1952 Madras 265, has held that it was obligatory for the defendant to make enquiries from the plaintiffs about the nature of their possession and having omitted to do so, must be taken to have constructive notice of the agreement to sell in their favour. The learned trial Court has simply ignored this finding of the trial Court and the judgment relied upon by it simply on the ground that those judgments were not of the Punjab and Haryana High Court and those authorities related to the years 1952 and 1952 (sic) when there was no value of the land and it did not yield as much income as it yields in these days. It was further expressed by the First Appellate Court that it was a matter of common experience that these days, the transactions of immovable property are entered very secretly. The lower Appellate Court has not given any sound reasoning in not relying upon these two judgments, i.e. Faki Ibrahim's case, AIR 1921 Bom 459 (supra) and Parvathathammal's case, AIR 1952 Mad 265 (supra). Moreover, as has been stated by me above, and as has already been held by a Division Bench judgment of this Court in Gurmikhvir Singh's case, AIR 1963 Punjab 407 (sic) (supra), that the onus of proof in such cases is on the transferee that he had no notice of the prior agreement to sell in favour of the plaintiffs and the onus can be discharged only by the evidence led in the case. 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 and this is one of such cases where no evidence has been led by the defendant-respondent which could show that he has discharged the onus of proof required of him.
41. The facts of the case in hand are rather identical to those of a judgment of the Bombay High Court in Faki Ibrahim's case, AIR 1921 Bom 459 (supra) and by the Madras High Court in Parvathathammars case, AIR 1952 Mad 265 (supra). The facts in Faki Ibrahim's case, AIR 1926 Bom 459 (supra) were as under :--
"The plaintiff sued to get as sale deed of the plaint property executed, alleging that the defendant No. 1 had agreed to pass a sale deed in his name on 4th of March, 1917 but afterwards refused to convey the plaint property to the plaintiff. The 2nd defendant relied upon a sale deed executed by the Ist defendant in his favour on 19th January, 1918. It is admitted that the plaintiff was in possession, and that the 2nd defendant knew that the plaintiff was in possession, and made no inquiry as to the circumstances in which the plaintiff was in possession."
The trial Judge dismissed the suit on the ground that the 2nd defendant had no notice, actual or constructive, of the contract between the Ist defendant and the plaintiff. The plaintiff had been in possession since 1914, and admittedly was a mortgagee. The learned trial Judge seemed to think that although defendant No. 2 might be fixed with notice of the plaintiff's possession as mortgagee, he could not be fixed with the notice of the agreement to sell. In appeal, this decision was confirmed. The same distinction was made by the learned Appellate Judge, namely, that the constructive notice would only be of the plaintiff's holding as mortgagee and not as a person having an agreement to sell from the Ist defendant."
It was held by Macleod, C.J. as under :--
"The result, therefore, must be that the 2nd defendant having knowledge of the plaintiff being in possession, and having made no inquiry why the plaintiff was in possession, must be taken to have had constructive notice of all the equities in favour of the plaintiff. It would have been a different matter if he had made inquiries and had been told that the plaintiff was only in possession as mortgagee, but if he chooses to make no inquiries at all, then he is liable to all the risks that might result from the discovery that the person in possession was entitled to equities against the vendor. The result, therefore, must be that the appeal must be allowed. The plaintiff will be entitled to a conveyance of the suit property from the 2nd defendant who has a registered sale deed from the defendant. The plaintiff will be entitled to his costs throughout."
42. Fawcett, J. while concurring with the judgment of Macleod, C.J., held as under :--
"I concur. I would also refer to the 3rd illustration to clause (b) of Section 27 of the Specific Relief Act which authoritatively declares the law in accordance with the case of Daniels v. Davison.
"A contracts to sell land to B for Rs. 5,000.
B takes possession of the land. Afterwards A sells it to C for Rs. 6,000. C makes no enquiry of B relating to his interest in the land. B's possession is sufficient to affect C with notice of his interest, and he may enforce specific performance of the contract against C."
Therefore, the lower Courts were not justified in making the distinction upon which they dismissed the plaintiff's suit."
43. It has been held in Parvathath-ammal's case AIR 1952 Mad 265 (supra) by the Madras High Court that where a mortgagor agrees to sell the property to the plaintiff, a mortgagee in possession, but subsequently sells it to a third person and the mortgagee brings a suit for specific performance of agreement to sell, the purchaser cannot contend that the possession of the plaintiff would put him on notice only of his rights as mortgagee and of no more. Omission by the purchaser in such a case to make inquiries of the mortgagee whether he has any rights other than as a usufructuary mortgagee amounts to wilful abstention or gross negligence and is therefore bound by the existing equities in favour of the plaintiff and cannot obtain the benefit of the principle of the proviso to Section 27-A, Specific Relief Act.
44. I respectfully agree with the law laid down in Faki Ibrahim's case, AIR 1921 Bom 459 (supra) and Parvathathammal's case, AIR 1952 Mad 265 (supra).
45. The judgments in Lekh Singh v. Dwarka Nath, AIR 1929 Lahore 249 and Kanshi Ram v. Ishwardas, AIR 1923 Lahore 108 and Dhadi Dalai v. Basudeb Satpathy, AIR 1961 Orissa 129 cited by respondent's counsel are distinguishable and are not applicable to the facts of the present case, particularly in view of the Division Bench judgment of this Court in Gurmukhvir Singh v. Sohan Singh Bela Singh, AIR 1963 Pb 407 (sic) wherein it has been specifically held that the onus in such cases can only be discharged by the evidence led in the case and the mere denial by the transferees to the effect that they had no notice of the previous contract for sale, will not discharge the onus that rests on them. In this very judgment, the judgment reported as AIR 1961 Orissa 129 (supra) has been distinguished and the same distinction applies to the other two authorities, i.e. AIR 1929 Lahore 249 (supra) and AIR 1923 Lahore 108 (supra) also.
46. Thus the finding of the First Appellate Court on issue No. 3 is also set aside and the finding on this issue given by the trial Court is affirmed and it is held under issue No. 3 that defendant Nidhan Singh had prior notice of the agreement to sell in favour of the plaintiff-appellants and he cannot be held to be a bona fide purchaser without any notice.
47. Though issue No. 4 was decided by the trial Court against the defendant and in favour of the plaintiff-appellants, as this issue was not pressed at the time of arguments before the trial Court, still the tower Appel-lante Court has decided issue No. 4 in favour of the defendant, however, without giving any reason for the same. Consequently, the finding on issue No. 4 of the lower Appellate Court is also set aside as no evidence was led by the defendant to prove the same and was not pressed before the trial Court and the decision of the trial Court on issue No. 4 is affirmed; and consequently, this issue is decided in favour of the plaintiff-appellants.
48. Learned counsel for the respondents further submitts that a finding of fact reached at by the lower Appellante Court while reversing the judgment of the trial Court cannot be interfered by the High Court under Section 100, C.P.C. until and unless it is vitiated by an error of law and he has cited the following judgments to substantiate his submission :--
(1) Satya Dev v. Behariji Maharaj, Biraj-man, AIR 1980 Allahabad 220;
(2) Ram Lakhan v. Ram Govind, AIR 1977 Allahabad 328;
(3) Ram Briksh Singh v. Rudra Narain Singh, AIR 1986 Allahabad 19;
(4) Bhola Ram v. Ameer Chand, 1981 (2) SCC 414 : (AIR 1981 SC 1209);
(5) Smt. Surjo Devi v. M/s. Arvind Overseas Project Services Pvt. Ltd., 1993 PLJ 675;
(6) Keluni Devi v. Kanhel Sahu, AIR 1972 Orissa 28; and (7) Abnash Chander v. Abhimanyu Ansal, 1994 (2) CLR (C. Cr. & Rev.) 637.
49. There is no quarrel with the proposition of law laid down in these authorities but they are not applicable to the facts of the present case, as it has been observed by me in the preceding paragraphs that the lower Appellate Court, in arriving at its conclusion while reversing the judgment and decree of the trial Court, had ignored and misread the important evidence on record and has failed to refer to the important pieces of evidence and has also failed to give any sound reason to rebut the grounds taken and the reasons advanced by the trial Court for decreeing the suit of the plaintiff-appellants for specific performance; and has, rather, failed to take stock of the entire material on record and has come to its conclusion while reversing the judgment of the trial Court which is not supportable from the evidence on record. For this decision of mine, I am fully supported by the judgments referred hereunder :--
(i) Dilbagrai Punjabi v. Sharad Chundra, AIR 1988 SC 1858, wherein it has been held that where in a suit, the lower Courts had without considering any part of the evidence, oral or documentary, come to finding of a fact, the High Court will be right in reversing the finding.
The Court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises of a magnitude gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding.
(ii) In Jagdish Singh Nathu Singh, AIR 1992 SC 1604, it has been held as under :--
"As to the jurisdiction of the High Court to re-appreeiate the evidence in a second appeal, it has to be observed that where the finding by the Court on facts is vitiated by non-consideration of relevant evidence, or by an essentially erroneous approach of the matter, the High Court is not precluded from recording proper findings."
(ii) In Smt. Sonawati v. Sri Ram, AIR 1968/SC 466, it has been held that where the lower Appellate Court, in arriving at its conclusion ignores important evidence on record, its conclusion is not binding in second appeal.
50. In view of my detailed discussion above, the judgment and decree of the lower Appellate Court is set aside and the judgment and decree of the trial Court is affirmed.
Resultantly, this regular second appeal is allowed, however, without any order as to costs.
51. Appeal allowed.