FIRST APPEAL 1586 of 2008 on 27 November 1991

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH

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RSA No.1586 OF 2008DATE OF DECISION: 3rd March, 2011

Harchand Singh & others

Darshan Singh & others

Versus

.... Appellants

.... Respondents

CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.

PRESENT: Mr. Sanjay Majithia, Senior Advocate with Mr. Samarth Sagar, Advocate for the appellants.

Mr. I. S. Brar, Advocate for

Mr. S. S. Tiwana, Advocate for respondent No1.

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L.N. MITTAL, J. (ORAL)

Defendants No.2 and 5 to 7 having lost in both the courts belowhave filed the instant second appeal.

Respondent No.1-plaintiff Darshan Singh filed suit against TejaSingh respondent No.2/defendant No.1 and against appellants and proformarespondents No.3 to 7 as the remaining defendants.

Case of the plaintiff is that defendant No.1 was owner of 55Kanals 6 Marlas land i.e. 5/6th share of 66 Kanals 8 Marlas land. DefendantNo.1 agreed to sell 24 Kanals land out of it to the plaintiff at the rate ofRs.50,000/- (Rupees fifty thousand only) per acre i.e. for total consideration ofRs.1,50,000/- (Rupees one lac fifty thousand only) and received Rs.80,000/-(Rupees eighty thousand only) as earnest money and executed impugnedagreement dated 23.07.1991. Sale deed was agreed to be executed up to

30.12.1991. Defendant No.1 executed sale deed dated 27.11.1991 for 6Kanals 14 Marlas land in favour of plaintiff's minor son Amandeep Singhdefendant No.10 and adjusted Rs.22,333/- (Rupees twenty two thousand threehundred thirty three only) out of the earnest money towards sale considerationof this land. Prior to it, on 19.11.1991, defendant no.1 executed sale deed of24 Kanals land out of total joint land in favour of defendants No.2 to 7. At thetime registration of the said sale deed, plaintiff appeared before the Sub-Registrar and intimated the Sub-Registrar as well as defendants No.2 to 7regarding the impugned agreement by moving application. Necessaryendorsement to this effect was made on the said sale deed by the Sub-Registrar. Thus inspite of knowledge of the impugned agreement,defendants No.2 to 7 purchased 24 Kanals land from defendant No.1. Plaintiffalleged that he has always been ready and willing to perform his part of thecontract, but defendant No.1 committed breach thereof. Accordingly, plaintiffsought the decree for joint possession of the remaining land in suit measuring17 Kanals 6 Marlas by specific performance of the impugned agreement tosell.

Defendant No.1 was proceeded ex parte. Defendants No.2 to 7contested the suit and denied the impugned agreement. They also pleaded tobe bonafide purchasers of the suit land for consideration without notice of thealleged agreement. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Ludhiana vide judgmentand decree dated 14.12.2004 decreed the plaintiff's suit. Sale deed dated19.11.1991 in favour of defendants No.2 to 7 was held to be null and void ifand to the extent share of defendant No.1 in the joint land was less than 17Kanals 6 Marlas. First appeal preferred by defendants No.2 and 5 to 7 has

been dismissed by learned Additional District Judge, Fast Track Court,Ludhiana vide judgment and decree dated 20.09.2007. Feeling aggrieved,defendants No.2 and 5 to 7 have filed the instant second appeal.

I have heard learned counsel for the parties and perused the case file.

Learned counsel for the appellants vehemently contended that thesuit was time barred as it was instituted on 24.12.1994 i.e. after expiry of morethan three years from the date of the sale deed dated 19.11.1991 in favour ofdefendants No.2 to 7, because plaintiff had knowledge of the said sale deed onthe date of its execution. The contention cannot be accepted. According toimpugned agreement, sale deed was to be executed in favour of the plaintiff upto 30.12.1991. Consequently, cause of action for filing the suit for specificperformance accrued to the plaintiff when defendant No.1 failed to execute thesale deed upto 30.12.1991 and therefore, the suit filed on 24.12.2004 i.e.within three years of the accrual of cause of action was filed within limitationand cannot be said to be time barred.

Learned counsel for the appellants also contended that sale deedregarding 6 Kanals 14 Marlas land has also been executed in favour ofplaintiff's son thereby depicting that the agreement stood annulled regardingthe said land. The contention is meritless. As per agreement, sale deed couldbe executed either in favour of plaintiff or in favour of anybody else at theinstance of plaintiff. Even otherwise, sale deed Exhibit P-10 dated 27.11.1991for 6 Kanals 14 Marlas in favour of plaintiff's son depicts that the said saledeed was executed pursuant to the impugned agreement and even part earnestmoney paid through the agreement was adjusted towards sale consideration ofthe said sale deed. Consequently, the said sale deed did not have the fact of annulling the impugned agreement. On the contrary, the said sale deed ratherstrengthened the impugned agreement because defendant No.1-vendoradmitted the existence of the impugned agreement by recital in the said saledeed Exhibit P-10.

Impugned agreement has been duly proved by the plaintiff byleading cogent evidence. Defendant No.1 has not dared to enter the witnessbox. Defendant No.2 to 7 did not examine defendant No.1 to controvert theimpugned agreement. In fact, no meaningful argument could be advanced onbehalf of appellants relating to concurrent finding of the courts below that theimpugned agreement stands proved.

Appellants cannot be said to be bonafide purchasers of the suitland as pleaded by them. It is admitted case that at the time of execution andregistration of the sale deed dated 19.11.1991 Exhibit P-1 in favour ofdefendants No.2 to 7 including the appellants, the plaintiff brought theimpugned agreement to the notice of the said purchasers by movingapplication Exhibit P-2 before the Sub-Registrar, who made endorsement onthe said application as well as on the sale deed. Thus defendants No.2 to 7including the appellants were having knowledge of the impugned agreement,but inspite thereof, they opted to purchase the suit land from defendant No.1.Consequently, defendants No.2 to 7 cannot be said to be bonafide purchasersof the suit land.

It may be added that defendant No.1 was said to be owner of 55Kanals odd Marlas land being 5/6[th] share of 66 Kanals 8 Marlas land and,therefore, defendant No.1 could still possibly be owner of 17 Kanals 6 Marlasland out of the joint land as claimed by the plaintiff and right of defendantsNo.2 to 7 has been protected by the courts below by stipulating that sale deed

Issues

dated 19.11.1991 in favour of defendants No.2 to 7 shall be null and void ifand only to the extent that defendant No.1 did not have 17 Kanals 6 Marlasland in the joint land. In other words, if defendant No.1 was still left with 17Kanals 6 Marlas land in the joint land, then the sale deed in favour ofdefendants No.2 to 7 would not be adversely affected.

For the reasons aforesaid, I find no merit in the instant secondappeal. No question of law, much less substantial question of law, arises fordetermination in the instant second appeal. Accordingly the appeal isdismissed.

3[rd] March, 2011 'raj'

(L. N. MITTAL) JUDGE