This second appeal challenged specific performance of an agreement to sell. The High Court dismissed the appeal, holding appellants were not bona fide purchasers as they had constructive notice of the prior agreement via a registered application at the Sub-Registrar office.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
C.M. Nos. 3581-82-C of 2012 & RSA No. 1333 of 2012 (O&M) Date of Decision: 20.3.2012.
Gurdeep Singh & another
--Appellants
Versus
Balwinder Singh and others
--Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:Mr. R.V.S. Chugh, Advocate for the appellants.
TEJINDER SINGH DHINDSA.J
C.M. Nos. 3581-82-C of 2012
These are applications seeking condonation of delay of 65 days in re-filing and 14 days delay in filing the present second appeal.
For the reasons stated in the applications, which are duly supported by the affidavits, same are allowed. Delay of 65 days in re-filing and 14 days in filing the present appeal is condoned. RSA No. 1333 of 2011 (O&M)
The defendants-appellants are in second appeal before this
Court.
The plaintiffs filed a suit for specific performance of agreement to sell dated 30.1.2007 and permanent injunction for directing defendant no.3 Jagsir Ram to execute a registered sale deed in favour of the plaintiffs of the suit land measuring 8 kanals situated in village Chanewala and further prayed that the sale deed executed by defendant no.3 in favour of defendants no.1 & 2 on 7.5.2007 in respect of the suit land was illegal, null and void and would have no effect on the rights of the plaintiffs. In the
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alternative relief of recovery of Rs.3 lacs along with interest from defendant no.3 had been prayed for. It was pleaded that defendant no.3 was the owner and in exclusive possession of the suit land measuring 8 kanals. He had entered into an agreement to sell in favour of plaintiffs on 30.1.2007 for a sale consideration of Rs.4,50,000/- per acre and had received a sum of Rs.1,50,000/- as earnest money. The sale deed had been agreed to be executed and duly registered on or before 30.6.2007. It was pleaded that the plaintiff had always been ready and willing to perform his part of the contract. However, it had come to the knowledge of the plaintiffs that on 7.5.2007 defendant no.3 was wanting to execute a sale deed in relation to the suit land in favour of defendants no.1 and 2 and accordingly, on 7.5.2007 itself he had obtained a copy of the Jamabandi from the Halqa Patwari and had gone to the court complex at Sardulgarh to file a civil suit for permanent injunction against defendant no.3. It was pleaded that on that day the concerned Judge had been on leave and therefore the plaintiff had proceeded to the office of the Joint Sub Registrar, Jhunir for not executing a registered sale deed in favour of defendants no.1 and 2 as defendant no.3 had already executed an agreement to sell pertaining to the suit land in his favour. It was further pleaded that the plaintiff had requested defendant no.2 for not purchasing the land from defendant no.3 but inspite of having furnished such information, defendant no.3 in connivance with defendants no.1 and 2 had executed the sale deed on 7.5.2007. Accordingly, it was pleaded that the sale deed dated 7.5.2007 in favour of defendants no.1 and 2 is null and void, without consideration and would have no effect on the rights of the plaintiffs. It is against such factual backdrop that the suit had been instituted.
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Defendants no.1 and 2 contested the suit and took up the plea of being bonafide purchasers for valuable consideration and without knowledge or notice of the alleged agreement to sell dated 30.1.2007. Defendant no.3 filed a separate written statement denying the execution of the agreement to sell in favour of the plaintiff and even denied having received any earnest money. The agreement to sell dated 30.1.2007 was termed as a forged and fabricated document. It was stated that defendant no.3 had close relations with Binder Singh and Makhan Singh i.e. brothers of the plaintiffs to whom he had already sold some land and for purposes of partition of such land the aforementioned Binder Singh and Makhan Singh had brought defendant no.3 to the court complex at Mansa and had obtained his thumb impression on a number of blank papers and stamp papers and such papers had been misused to set up the forged and fabricated agreement to sell dated 30.1.2007. Defendant no.3 admitted to the execution of the sale deed dated 7.5.2007 in favour of defendants no.1 and 2 for consideration.
Upon the pleadings of the parties the Trial Court struck the following issues:-
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The Trial Court having heard respective counsel for the parties and scanned the evidence led on record held the sale deed 7.5.2007 executed by defendant no.3 in favour of defendants no.1 and 2 to be bad in law and decreed the suit of the plaintiff for specific performance of the agreement to sell dated 30.1.2007 with a direction to execute a registered sale deed upon receiving the balance sale consideration amount. Defendants no.1 and 2 namely Gurdeep Singh and Bhagwan Singh preferred a civil appeal and the First Appellate Court vide impugned judgement dated 13.8.2011 has dismissed the appeal and upheld the judgement and decree of the Trial Court. Resultantly, Gurdeep Singh and Bhagwan Singh are in second appeal before this Court.
I have heard Mr. R.V.S. Chugh, learned counsel for the appellants at length.
The sole contention raised by learned counsel is to the effect that the courts below had proceeded erroneously to grant the relief of specific performance of the contract dated 30.1.2007 in relation to the suit property as the appellants were bonafide purchasers for consideration without notice of such alleged agreement to sell dated 30.1.2007. Learned counsel would, accordingly, contend that the rights of the appellants stood protected under Section 41 of the Transfer of Property Act, 1882 and on
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such aspect the findings of the courts below are wholly perverse.
The concurrent findings of fact have been recorded by the courts below regarding the due execution of the agreement to sell Ex.P-1 for the sale of the suit property for a total consideration of Rs.4,50,000/- per acre in favour fo the plaintiffs-respondents upon receiving a sum of Rs.1,50,000/- towards earnest money. Apart from raising a bald plea towards fraud and forgery in setting up the agreement to sell dated 30.1.2007, no evidence had been adduced by the defendant no.3 towards corroboration of the plea of forgery and fabrication. Even Binder Singh and Makhan Singh, who had been stated to have allegedly obtained his thumb impressions had not been examined to prove the fraud so committed upon him. Entry Ex.PA has been duly proved by PW-3 Murlidhar Singh which also bears the thumb impressions of defendant no.3 in the register of the Deed Writer/Notary Public.
As such, this Court would proceed on the premises of the agreement to sell dated 30.1.2007 having been duly executed and on such count the learned counsel for the present appellants has no submission to make. Learned counsel for the appellants has confined his submissions towards the present appellants being bonafide purchasers in relation to the suit property for a valuable consideration and without notice of such alleged agreement to sell dated 30.1.2007.
The scope of protection of Section 41 of the Transfer of Property Act, 1882 in favour of a bonafide purchaser was considered by Hon'ble the Supreme Court in case of Hardev Singh Vs. Gurmail Singh (Dead) by Lrs. reported as 2007(2) SCC 404 , wherein it has been observed as under:-
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“9. Application of Section 41 of the Act is based on the law of estopped to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained, he could not question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.
10. The ingredients of Section 41 of the Act are:
had power to transfer.”
In the light of certain findings of fact recorded by the courts below the protection of Section 41 of the Transfer of Property Act, 1882 would not be available to the appellants as they cannot be termed to be bonafide purchasers. It has been held that the plaintiffs-respondents on 7.5.2007 had moved an application in the office of Sub Registrar, Jhunir for non-execution of the sale deed in favour of the present appellants. Janta Singh, PW-1, Reader to the Joint Sub Registrar has proved on record the application dated 7.5.2007 (Ex.PW-1/A) moved by the plaintiffsrespondents before the Sub Registrar, Jhunir for non-execution of the sale deed in favour of the present appellants. Even DW-2 Kala Singh, who had been examined by the present appellants had admitted during crossexamination that such application (Ex.PW-1/A) had indeed been moved by
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the plaintiff-respondent. Even the endorsement mark A and B on the said application was demonstrative of the fact that the contents of the application had been brought to the notice of the purchasers/present appellants but inspite of due notice and knowledge, they had gone ahead to have the sale deed executed in their favour. It is in the light of such due appreciation of evidence adduced on record that the courts below have held the present appellants to be not bonafide purchasers as regards the suit property. Resultantly, the protection of Section 41 of the Transfer of Property Act, 1882 would not be available to them.
Learned counsel for the appellants has not been able to demonstrate any perversity in the concurrent findings recorded by the courts below. I do not find it to be a fit case that would warrant interference in the discretionary exercise of jurisdiction exercised by the courts below in the grant of the main relief towards specific performance of the agreement dated 30.1.2007 in favour of the plaintiffs-respondents.
For the reasons recorded above, the present second appeal must fail as it does not raise any question of law much less a substantial question of law.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE
20.3.2012. lucky
Whether to be reported? Yes.
2 issues framed by the court
Whether appellants are protected bona fide purchasers under Section 41 of the Transfer of Property Act despite notice of the prior agreement to sell.
Whether the second appeal discloses any substantial question of law to merit interference.
Colour shows how this judgement treated each authority
Hardev Singh Vs. Gurmail Singh (Dead) by Lrs.Explained¶42
2007(2) SCC 404 · Who else cites this
1 provisions across 1 enactments
Gurdeep Singh
Bhagwan Singh
Balwinder Singh
TEJINDER SINGH DHINDSA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
