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ISHWAR SINGH & ANR. versus RAJENDER SINGH & ORS.

High Court of Punjab and Haryana, Chandigarh

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Ishwar Singh & Anr. v. Rajender Singh & Ors. - RSA-1485-2004 [2006] RD-P&H 2983 (8 May 2006)

RSA No.1485 of 2004

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Date of decision: 12.05.2006

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Ishwar Singh and another.

.... Appellants.

Versus

Rajender Singh and others.

.... Respondents

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CORAM: HON'BLE MRS.JUSTICE NIRMAL YADAV
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Present:- Mr. Mahavir Sandhu, Advocate, for the petitioner.

Mr. R.K.Dahiya , Advocate, for the respondent No.1.

JUDGMENT

This is defendants' second appeal against the judgment and decree of the learned First Appellate Court, Jhajjar, dated 17.2.2004 vide which the judgment and decree dated 11.11.1999 passed in a suit for specific performance with consequential relief of declaration and permanent injunction, in favour of the plaintiff has been affirmed.

Plaintiff-respondent filed a suit for specific performance of agreement to sell dated 28.8.1991 as well as permanent injunction against defendant Hardwari, who was the owner in possession of the disputed land measuring 115 kanals 9 marlas situated within the revenue estate of village Dulhera. It is pleaded that the plaintiff had been in cultivating possession of RSA No.1485 of 2004

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the suit land on the basis of an oral agreement between him and defendant No.1. He had constructed his residential house in plot No.555 measuring 2 kanals 2 marlas, a part of the disputed land, in the year 1980 with the permission of defendant No.1. Defendant No.1 executed a lease deed on 13.7.1991 in favour of the plaintiff for a period of five years with effect from 13.7.1991 to 12.7.1996 at the rate of Rs. 21,000/- per annum as lease money. On 28.8.1991 defendant No.1 entered into an agreement regarding sale of disputed property in favour of the plaintiff for a sale consideration of Rs. 8,00,000/-, out of which Rs. 7,00,000/- were paid to him on 28.8.1991 itself. A receipt in this regard was also executed. Defendant No.1 had handed over symbolic possession to the plaintiff, as plaintiff was already in possession of the suit land. He had agreed to execute the sale deed on or before 27.4.1993 on receipt of balance sale consideration of Rs. 1,00,000/-, and in case, defendant No.1 failed to execute the sale-deed, plaintiff was at liberty to get the same executed through Court. Lateron defendant No.1 continued avoiding execution of the sale-deed on one pretext or the other.

Plaintiff kept waiting for defendant No.1 in the office of Sub-Registrar, Bahadurgarh on 27.4.1993 alongwith remaining amount of sale consideration, but defendant No.1 did not turn up. An application was moved by the plaintiff before the Sub-Registrar to mark his presence.

Lateron it came to the knowledge of the plaintiff that defendant No.1 out of greed and with a malafide intention, had alienated the land comprising in Khasra No. 89/5, measuring 6 kanals 16 marlas out of the suit land in favour of defendants No. 3 and 4 vide registered sale-deed No. 2092 dated 20.10.1992 and alienated the land comprised in Khasra No.555 measuring 2 RSA No.1485 of 2004

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kanals 2 marlas in favour of defendants No. 5 to 8, vide registered sale deed No.2093 dated 20.10.1992. It is alleged that defendants No.3 to 8 were fully aware of the fact that plaintiff was in possession of the suit property and agreement to sell executed by defendant No.1 in favour of the plaintiff.

Defendant No.1 also suffered a collusive decree dated 1.12.1992 in favour of defendant No.2 vide civil suit titled `Smt. Bholi Versus Hardwari' and transferred the remaining suit land in favour of defendant No.2, who is his real sister. The plaintiff, therefore, challenged the legality and validity of the sale deeds No. 2092 and 2093 dated 20.10.1992 executed in favour of defendants No.3 to 8 and also judgment and decree dated 1.12.1992 in civil suit No. 947 of 1992 titled as `Smt. Bholi Versus Hadwari'.

The suit was contested by defendants No.1 and 2 jointly stating that defendant No.1 was the owner in possession of agricultural land except the land bearing Khasra Nos. 555 and 89/5, which are owned by defendants No.5to 8 and 3 & 4 respectively. They denied the execution of any lease deed in favour of the plaintiff and/or that the plaintiff was in possession of the suit property on the basis of any oral agreement. Construction of a residential house over plot No.555 is also denied. Execution of agreement to sell dated 28.8.1991 and any receipt executed for receiving the sale consideration has also been denied. It is stated that all these documents were procured by the plaintiff by fraud as defendant No.1 is blind.

Defendant No.1 being un-married and issueless, plaintiff had been residing with him and looking after him. Taking advantage of his fiduciary relationship, plaintiff procured the thumb impressions of defendant No.1 on some stamp papers in the year 1990 on the pretext that an electric RSA No.1485 of 2004

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connection of a tubewell is to be released in favour of defendant No.1.

Plaintiff also procured power of attorney in his favour from defendant No.1 on the pretext that he will have to approach the office of Electricity Board for getting the connection released and those thumb impressions were used by the plaintiff for preparation of alleged agreement to sell, receipt and lease deed. Defendant No.1 denied having received a sum of Rs. 7,00,000/- as part of sale consideration.

Defendants No.3 to 8 filed joint written statement stating that defendant No.1 had himself constructed the house over land bearing Khasra No. 555. They also denied possession of the plaintiff over the suit land.

Defendants No.3 to 8 claimed themselves to be the bonafide purchasers of the suit land for a consideration. It is pleaded that they are in possession of the suit land since the execution of the sale-deeds.

The learned trial Court decreed the suit in favour of the plaintiff and arrived at the conclusion that defendant No.1 had entered into an agreement to sell with the plaintiff on 28.8.1991 and the plaintiff was still ready and willing to perform his part of the contract. It was further held that the thumb impressions of defendant No.1 on agreement as well as receipt dated 28.8.1991 were not obtained by misrepresentation and that the sale- deeds No. 2092 and 2093 dated 20.10.1992 and the judgment and decree dated 1.12.1993 are illegal, null and void and that defendants No.3 to 8 were not bonafide purchasers. Defendants challenged the findings of the trial Court in appeal and the Appellate Court affirmed the same vide judgment and decree dated 17.2.2004 against which they have come up in the present second appeal.

RSA No.1485 of 2004

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I have heard learned counsel for the parties and have carefully gone through the oral as well as documentary evidence on record.

Learned counsel for the appellants argued that the appellants and respondents No.4 to 7 are the bonafide purchasers for valuable consideration. There was no material to show that the appellants had any notice of agreement between the plaintiff and Hardwari respondent, at the time of execution of sale-deeds. It is argued that the alleged agreement to sell dated 28.8.1991 is neither a registered document nor is there any entry in the revenue record in this regard. Accordingly, the appellants being the bonafide purchasers, plaintiff was not entitled to any decree for specific performance of the said agreement or permanent injunction. In support of his contentions, learned counsel for the appellants relied upon Jagtar Singh Versus Gurmit Singh and another, 2006(1) P.L.R.58; Jit Singh etc. Versus Piara, 2003 P.L.J.292 and 2004(4) R.C.R.(Civil) 142.

On the other hand, learned counsel for respondent No.1 argued that in the ordinary course, a reasonably prudent man placed in the position of the appellant, would certainly make enquiries with regard to the nature of possession of the plaintiff as there was an entry in revenue record with regard to the lease deed executed in favour of the plaintiff. It is argued that the appellants were fully aware of the possession of plaintiff as well as about the agreement to sell dated 28.8.1991 executed in favour of the plaintiff by respondent Hardwari. They have not been able to prove with any cogent evidence that they are the bonafide purchasers.

Both the Courts below have returned concurrent findings on the basis of documentary as well as oral evidence of the attesting witnesses that RSA No.1485 of 2004

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defendant Hardwari executed agreement dated 28.8.1991 Ex. PW 6/A and receipt Ex. P 6/B in favour of the plaintiff. It has further been held that thumb impressions of Hardwari were not obtained by any misrepresentation or fraud. It is well established that subsequent purchaser has to be vigilant before execution of the sale-deed. It is not disputed that the lease-deed executed in favour of plaintiff was a registered document, wherein it had been clearly mentioned that possession of the suit property had been handed over to the plaintiff. In such circumstances it was incumbent upon the subsequent purchaser(s) to enquire about the nature of possession of the plaintiff. Even there is clear recital in the sale deed Ex.P.1 that plaintiff has been in possession of the suit land on the basis of lease deed executed for a period of five years. Said recital was a sufficient notice to the appellants and defendants No.4 to 7 that the land was not free from all incumbrances.

The Apex Court in the case of R.K.Mohammed Ubaidullah and others Versus Hajee C.Abdul Wahab (D) by LRs, (2000) 6 Supreme Court Cases 402 has held that actual possession of a person itself is deemed or constructive notice of the title if any person who is for the time being is in actual possession thereof and it is for the subsequent purchaser to make further inquiry in this regard.

In view of the fact that there is a concurrent finding of both the Courts below in favour of the plaintiff Rajender Singh and that the learned counsel for the appellants have not been able to point out any specific question of law involved in the present case, no interference is called for in the judgments and decrees of both the Courts below.

RSA No.1485 of 2004

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Finding no merit this appeal is hereby dismissed leaving the parties to bear their own costs.

( Nirmal Yadav)

JUDGE

May 12, 2006.

Saini


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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