Dismissed

Bhagvan Saran and Another v. Ram Singh and 7 Others

Allahabad HC27 Jan 2022SAPL/655/2021

Case brief

AI extract

What is this about?

This second appeal challenges a lower appellate court's dismissal of a dispute concerning specific performance of an agreement to sell and the validity of subsequent sales executed during the suit pendency. The court held that purchasers executing sale deeds while the suit was pending are not bona fide purchasers without notice and their titles are barred by lis pendens.

What did the court decide?

The second appeal was dismissed; the specific performance decree and lis pendens findings were upheld.

Bhagvan Saran and Another Vs Ram Singh and 7 Others — Specific Performance | Allahabad HC (2022)

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Court No. - 70

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Case :- SECOND APPEAL No.- 655 of 2021

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Appellant :- Bhagvan Saran And Another Respondent :- Ram Singh And 7 Others Counsel for Appellant :- Pawan Kumar Dubey Counsel for Respondent :- Rajendra Babu Gaur

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Hon'ble J .J. Munir,J.

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The Court is convened vi a Video Conferencing.

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Heard Mr. Pawan Kumar Dubey, learned Counsel for the appellants in support of the motion under Order XLI Rule 11 CPC at length and Mr. Rajendra Babu Gaur, learned Counsel appearing on behalf of the Caveator-respondent No.1.

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This second appeal arises from a suit brought for specific performance and cancellation of a registered sale deed. The suit was instituted by the sole plaintiff-respondent, Ram Singh against defendant-respondent nos.2 to 8 to this appeal and the two defendant-appellants, Bhagwan Saran and Smt. Nanhi Devi, seeking a decree of specific performance against defendant-respondent no.2, Smt. Maina Devi to the effect that in enforcement of her obligations under the registered agreement to sell dated 20.09.1996, she be directed to execute a sale deed of the suit property, subject matter of contract in favour of the plaintiff-respondent, Ram Singh. A further relief of cancellation was sought to the effect that the registered sale deed dated 12.01.2010, with regard to the said property, executed pendente lite in favour of defendant-respondent nos.7 and 8, that is to say, Banke Lal and Smt. Rampyari, and registered with the Sub-Registrar be declared null and void and not binding on the plaintiff-respondent with information to the Sub-Registrar.

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The suit was instituted in the month of September, 1997 for relief of specific performance alone. Later on, when the suit property, subject matter of the contract, was transferred in favour of defendant-respondent nos.7 and 8, Banke Lal and Rampyari, a relief to declare the sale deed void was brought in through amendment. The suit aforesaid was numbered as Original Suit No.415 of 1997 on the file of the learned Civil Judge (Sr. Div.), Shahjahanpur.

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It appears that a registered agreement to sell was executed on 20.09.1996 by Sripal Singh for a contracted sale of Rs.80,000/-, covenanting to transfer the vendor's half share in Gata No.81, admeasuring 1.068 hectares, situate at Village Hansapur, Pargana and Tehsil Powayan, District Shahjahanpur in favour of the plaintiff-respondent, Ram Singh. The property aforesaid shall hereinafter be referred to as 'the suit property' and the agreement aforesaid, that was duly registered on 20.09.1996 with the Sub-Registrar, Powayan, District Shahjahanpur, shall be called 'the suit agreement'.

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The suit property was originally owned by one Tara Singh, who had four sons. The pedigree relating to Tara Singh's family is shown below:

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Tara Singh

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Jagannath Singh (died issueless 16- 17 years prior to date of institution of the suit)	Lakhan Singh (died 35 years prior to institution of the suit)	Nawab Singh (died about 30 years prior to institution of the suit)–	Bachchu Singh (died issueless about 3-4 years prior to institution of the suit)
	Naurang Singh	Sripal Singh (died four months prior to institution of the suit) – Maina Devi (daughter)

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The entire holding of Tara Singh, therefore, went by succession to the extent of half share each in the branches of Lakhan Singh and Nawab Singh, that is to say, to their sons, Naurang Singh and Sripal Singh, who came to be recorded in the revenue records.

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It is the plaintiff's case that apart from the inherited property, Sripal Singh had another five bighas land, which Naurang Singh got transferred on the pretext of some expenditure related to medicines with Sripal Singh's consent, after the suit agreement was executed. After Sripal Singh's death, his sole successor and heir, his daughter, Smt. Maina Devi inherited his half share. She was recorded as such.

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The suit, as originally framed, was brought on the cause of action that the plaintiff-respondent, Ram Singh, during the lifetime of Sripal Singh and after his death as well, has always been ready and willing to secure execution of the sale deed in terms of the suit agreement. It was also pleaded that during the lifetime of Sripal Singh, a notice to execute the covenanted sale deed was caused to be served by the plaintiff, Ram Singh upon Sripal Singh. It was also the plaintiff's case that all the defendants, originally arrayed, that is to say, defendant nos.1 to 5, who are respondent nos.2 to 6 to this appeal, were collaterals and had connived amongst themselves to bring a bogus claim based on a Will before the Naib Tehsildar , Banda, where Jagannath, the deceased, an issueless son of Tara Singh, was shown to have bequeathed his share in the property coming down from Tara Singh in favour of defendantrespondent no.3, Naurang Singh. In the mutation proceedings instituted some 16-17 years, preceding the institution of the suit, Sripal Singh had been defrauded into putting in his written

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statement of admission, accepting Naurang Singh's claim, that would diminish his share in Tara Singh's property, that he had already covenanted to sell through the suit agreement.

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It was also the plaintiff-respondent's case that he objected to the mutation, banking on the suit agreement, which led the defendants to know of the plaintiff's claim. The defendants, in order to defeat the plaintiff's claim based on the suit agreement, got the names of defendant nos.3 and 4, two sons of Naurang Singh mutated in the revenue records, based on the Will from Jagannath. The plaintiff claimed that the mutation was void and ineffective.

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It was the plaintiff's further case that he had called upon the defendants to execute the requisite sale deed after accepting the balance sale consideration, but his demand was ignored. He, therefore, sued for specific performance. Pending suit, defendant-respondent no.2, Maina Devi, transferred the suit property in favour of defendant-respondent nos.7 and 8, Banke Lal and Smt. Rampyari vide registered sale deed dated 12.01.2010. Therefore, through an amendment, the plaintiff sought to declare the registered sale deed dated 12.01.2010 void and inoperative and added a relief to that effect, effecting necessary amendments to the plaint. An alternative relief has also been claimed in the plaint seeking refund of the earnest of Rs.60,000/- with interest.

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A written statement was filed on behalf of the plaintiffrespondent, Smt. Maina Devi, denying the plaint allegations generally. She, however, admitted the plaintiff's case to the effect that the suit agreement was executed by her father in favour of the plaintiff, Ram Singh, that was within her knowledge. She admitted that the suit property had devolved

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upon her father after Nawab Singh's death. She also said that she was ever ready and willing to execute a sale deed according to the suit agreement.

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Defendant-respondent nos.3, 4 and 5 filed a written statement, claiming on the basis of a Will left by Jagannath, which was said to be a registered one. It was said that Sripal Singh had knowledge of the Will. It was also pleaded that the name of Sripal Singh and Smt. Maina Devi, earlier mutated, have been set aside and instead the name of the defendants, Sethpal Singh, Sureshpal Singh and Bharat Singh, all sons of Naurang Singh, have been mutated. They were claimed to be in possession.

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The defendant-respondent no.6, Sureshpal Singh filed a separate written statement, also claiming on the basis of the Will left by Jagannath. Defendant-respondent nos.7 and 8, Banke Lal and Smt. Rampyari, defended the sale deed in their favour, relating to the suit property, executed by Smt. Maina Devi, which they claimed to have purchased for a valuable sale consideration of Rs.4 lakhs. They claimed that they were in possession of the suit property on the basis of the sale deed dated 12.01.2010, executed in their favour by Smt. Maina Devi.

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A counterclaim was filed by defendant-respondent nos.7 and 8 along with their written statement against defendantrespondent nos.2, 3, 4, 5 and 6 and the plaintiff to the effect that after amendment of the suit, the defendant, Maina Devi and the plaintiff want to interfere with the right, title and interest of defendant-respondent nos.7 and 8 in the suit property, based on the registered sale deed dated 12.01.2010. It was claimed in the counterclaim that the plaintiff and defendant-respondent no.2, Maina Devi, are repudiating the right, title and interest of

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these defendants and the plaintiff on 01.05.2010, on being asked not to do so, had refused. A declaration was, therefore, sought through the counterclaim that defendant-respondent nos.7 and 8 be declared the owner in possession of the suit property.

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A written statement was filed by the plaintiff-respondent, traversing the counterclaim. It was pleaded that defendantrespondent nos.7 and 8 had knowledge of the pending suit and in order to defeat his rights, they had purchased the suit property, pending suit. The sale deed was claimed to be not binding upon him by the plaintiff-respondent, Ram Singh. It was pleaded that in the revenue records, Smt. Maina Devi was still recorded over the suit property.

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Pending suit, defendant-respondent nos.7 and 8 executed a registered sale deed dated 30.04.2012 in favour of the two defendants-appellants, purporting to transfer the suit property. The sale deed was again executed for a sale consideration of Rs.4 lakhs. The defendant-appellants were impleaded as defendant nos.8 and 9 to the suit. The said defendants, that is to say, the two appellants filed a written statement claiming that they are owners in possession on the basis of the registered sale deed dated 30.04.2012, executed in their favour by the defendant-respondent nos.7 and 8. It was pleaded that their names have been mutated on the basis of the registered sale deed and they are in possession. The suit has been brought in order to defeat their rights.

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Now, on the basis of the pleadings of parties, the Trial Court framed the following issues (translated into English from Hindi):

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“(1) Whether the plaintiff is entitled to execution of a sale deed on the basis of the agreement dated 20.09.1996?

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(2) Whether the plaintiff has been always ready and willing to get the sale deed executed?

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(3) Whether the plaintiff is entitled to any other relief?

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(4) Whether the counter-claimants/ defendants, Banke Lal and Rampyari, on the basis of the sale deed dated 12.01.2010 executed by Maina Devi relating to Gata No.81, admeasuring 1.068 hectares, situate at Village Hetam Nagla, Tehsil Powayan, Shahjahanpur, registered in Book No.1, Part 4122 at Pages 385-412, bearing Sr. No.371 dated 12.01.2010, are owners in possession of half part (of the suit property)?

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(5) Whether the counter-claimants/ defendant nos.6 and 7 are entitled to recover Rs.4,00,000/paid as consideration for the sale deed from Maina Devi?

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(6) Whether the suit is undervalued?

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(7) Whether the court fee paid is insufficient?”

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On behalf of the plaintiff, Ram Singh examined himself as PW-1 and Janki appeared as executed PW-2. By way of documentary evidence, he filed the suit agreement (Paper No.10-क) and a certified copy of the sale deed by Smt. Maina Devi in favour of defendant-respondent nos.7 and 8, Banke Lal and Smt. Rampyari.

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The defendants examined DW-1, Maina Devi, DW-2, Banke Lal and DW-3, Bhagwan Saran. In the documentary evidence, the defendants filed an extract of the Khatauni (Paper No. 121-ग), an extract of the Khatauni (Paper No. 88-ग) and another extract of the Khatauni (Paper No.90-ग/2), besides an order of the Tehsildar , Powayan, Shahjahanpur. Some further extract of the Khatauni (Paper No.148-ग) and a Khasra (Paper No.149-ग) were also filed.

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The Trial Court determined Issues Nos.1 and 2 together holding in favour of the plaintiff-respondent. In reaching his

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conclusions, the Trial Court has recorded findings to the effect that defendant-respondent nos.2, 3, 4, 5 and 6, between whom a dispute about title based on the Will was pending and put up as a defence to the plaintiff's claim, has been settled in favour of defendant-respondent no.2, Maina Devi. It has been recorded by the Trial Court that the Tehsildar , Powayan, Shahjahanpur has passed an order dated 10.07.2002, whereby the defendants, Naurang Singh and Maina Devi have been recorded over the entire area of Gata No.81, admeasuring 1.068 hectares. Thus, Maina Devi is entitled exclusively to the suit property, which Sripal Singh has covenanted to transfer.

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It has also been recorded that defendant-respondent nos.3 to 6, that is to say, Naurang Singh and his three sons, Sethpal, Bharat and Sureshpal, have not led any evidence in support of their claim based on the Will and they have, therefore, nothing to do further with the dispute involved in the suit. About the stand and evidence of Smt. Maina Devi, defendant-respondent no.2, there is an elaborate reference to her evidence, where she has admitted that the suit agreement was executed by her father, Sripal Singh in favour of the plaintiff. She has admitted the plaintiff's claim to the effect that she has no objection to the relief sought being granted. Maina Devi has also been noticed in the evidence to have said that she had accompanied her father to the Tehsil when the agreement was executed and it was in her presence that her father received Rs.60,000/- out of the contracted sale consideration of Rs.80,000/- from the plaintiff. About the claim of defendant-respondent nos.7 and 8 based on the sale deed dated 12.01.2010, it has been held by the Trial Court to be barred by lis pendens and also that of the defendant-appellants based on the further sale deed dated 30.04.2012 executed by

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defendant-respondent nos.7 and 8. The Trial Court has held that defendant-respondent nos.7 and 8 and the defendantappellants have purchased the suit property pending suit. The defence of bona fide purchaser for value without notice is not available to them.

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Issue No.3, finding that the defendant-respondent, Maina Devi has admitted the plaintiff's claim about everything right from the execution of the suit agreement to the payment of earnest, besides readiness and willingness, the plaintiff has been held entitled to relief of specific performance. The counterclaim has been largely refused on the ground that defendant-respondent nos.7 and 8 had purchased pending suit and further that they cannot be allowed to recover from Smt. Maina Devi because they have transferred the suit property pending suit further in favour of the defendant-appellants. On these findings, the Trial Court has decreed the suit for specific performance and refused the counterclaim brought by defendant-respondent nos.7 and 8.

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An appeal from the original decree has been carried by the defendant-appellants alone, and not by any other defendant. The Lower Appellate Court has framed two points of determination. These read (translated into English from Hindi):

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“(1) Whether the appellant is bona fide purchaser of the suit property?

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(2) Whether the suit of respondent no.1 is timebarred?”

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In answering the first point for determination, the Lower Appellate Court has held that the appellant, Bhagwan Saran, while testifying as DW-3, has admitted the fact that he had previous knowledge of the suit. It has been noticed that the sale deed dated 30.04.2012 was executed in favour of Smt. Nanhi

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Devi, defendant-appellant no.2, and not in favour of Bhagwan Saran, but he had knowledge of the suit. It has also been noted that Bhagwan Saran (incorrectly mentioned as defendant no.8 instead of 9) is an uncle ( Mama ) of defendant no.6, and would, therefore, have knowledge of the suit. Detailed findings of fact have been recorded to the effect that the defendant-appellants had knowledge of the pending suit and yet purchased the suit property.

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About limitation, the Court has held that the defendantrespondent, Maina Devi, Sripal Singh's daughter, who had executed the suit agreement, has admitted the plaintiff's claim. No bar of limitation has been held to arise. It must be remarked here that no plea of limitation was raised before the Trial Court and no issue was framed about it. Limitation, being a mixed question of fact and law, cannot be permitted to be raised in appeal for the first time, unless it is a case where the plaintiff's claim is barred by limitation from a perusal of the plaint itself. It is neither an issue before the Trial Court or evidence to defeat the plaintiff's claim on the ground of limitation.

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So far as the other findings are concerned, one part of the claim that was put forward by defendant-respondent nos.3, 4, 5 and 6 based on title, defeating that of Sripal Singh, the plaintiff's vendor, the said part of the dispute is over with the defendantrespondent nos.3 to 6 settling the matter and giving up their case. The contest, therefore, has survived between Sripal Singh's daughter, Smt. Maina Devi and the two subsequent transferees. So far as Smt. Maina Devi is concerned, she has admitted the plaintiff's claim, including the execution of the suit agreement, the passage of sale consideration to her father and her willingness to execute a sale deed in terms of the suit

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agreement. It is not in dispute that Smt. Maina Devi has inherited the rights of Sripal Singh, the vendor, who had executed the suit agreement in favour of the plaintiffrespondent, Ram Singh.

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Now, the issues that survives are about the subsequent transferees, that is to say, defendant-respondent nos.7 and 8, Banke Lal and Smt. Rampyari, who have taken under the sale deed of 2010 and defendant-appellant no.2, Smt. Nanhi Devi, who has taken through the sale deed of 2012 from defendantrespondent nos.7 and 8, Banke Lal and Smt. Rampyari. Both these sale deeds have been admittedly executed pending suit. These are not sale deeds executed after the suit agreement was executed and before the suit was instituted. The sale deeds have been executed some 12-15 years after institution of the suit. Therefore, the sale deeds, through which the defendant-appellants' claim and the right of defendant-appellant no.2, to be specific, are clearly subject to the pending suit. In other words, the right of defendant-appellant no.2, Smt. Nanhi Devi is hit by the doctrine of lis pendens . She can hardly say that she is a bona fide purchaser for value without notice, because she has purchased pending suit. Quite apart, the Courts of fact below have found that both the defendantappellants had knowledge of the pending suit.

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In the aforesaid conspectus, no substantial question of law arises for consideration in this appeal.

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The appeal fails and is dismissed under Order XLI Rule 11 CPC.

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Order Date :- 27.1.2022 NSC/ Anoop

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Digitally signed by ANOOP KUMAR SINGH Date: 2022.02.17 18:34:49 IST Reason: Location: High Court of Judicature at Allahabad

Bhagvan Saran and Another v. Ram Singh and 7 Others

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What is this about?

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Bhagvan Saran and Another v. Ram Singh and 7 Others

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