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SATNAM SINGH & ORS. versus SMT.MAN KAUR & ORS.

High Court of Punjab and Haryana, Chandigarh

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Satnam Singh & Ors. v. Smt.Man Kaur & Ors. - RSA-290-2000 [2006] RD-P&H 4370 (19 July 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH.

R.S.A. No.290 of 2000

Date of decision: 17.7.2006

Satnam Singh and others.

............... Appellant

Versus

Smt.Man Kaur and others.

................ Respondents

CORAM : Hon'ble Mr.Justice Mahesh Grover
....

Present: Shri G.S.Bhatia, Advocate for the appellants.

Shri Kuldip Sanwal, Advocate for the respondents.

....

Mahesh Grover,J.

This is the plaintiffs' appeal against the judgments and decrees of the Courts below by which their suit for possession by way of specific performance of an agreement to sell was dismissed.

The appellants filed a suit alleging that one Balwinder Singh, who was impleaded as defendant no.1, was the owner of the house in dispute and he had executed an agreement to sell the same in their favour and in favour of Surinder Singh (impleaded as defendant no.4 in the suit) on 26.3.1993 for a consideration of Rs.40,000/-. Rs.19000/- were paid as earnest money and it was stipulated that the sale deed would be executed on 1.2.1995 and the remaining sale consideration of Rs.21000/- was to be paid at that time. The case of the appellants was that they came to know that said Balwinder Singh was going to execute a sale deed in favour of Sukhjit Singh and Daljit Singh sons of Gurbax Singh, who are now arrayed as respondent nos. 3 and 4 in respect of the house in question. The appellants and the said Surinder Singh requested Balwinder Singh not to execute the sale deed and that they were ready and willing to perform their part of contract, but on 12.7.1993, the sale deed was executed in favour of respondent nos. 3 and 4. It was further contended that the vendees had the knowledge of the prior agreement to sell. It was, thus, prayed that the sale deed be set aside and agreement dated 26.3.1993 be enforced.

Balwinder Singh, the executor of the agreement to sell, had, in the meanwhile died and his legal representatives admitted that an agreement had been executed, but pleaded that a money decree be passed instead of the suit for possession or direction for execution of the sale deed.

The vendees in whose favour the sale deed had been executed by Balwinder Singh, contended that they were the bona fide purchasers without any notice and that they had no knowledge or notice of the earlier agreement to sell and that they had purchased the property on 12.7.1993 for a consideration of Rs.20,000/-. The super structure on the plot in question was also sold by Balwinder Singh to Gurbax Singh, father of respondent nos. 3 and 4 for a sum of Rs.50,000/- on the same day.

On these brief contours of the facts, the trial Court framed the following issues:-

1. Whether Balwinder Singh deceased defendant executed agreement of sale dated 26.3.93 in favour of the plaintiffs?OPP

2. If issue no.1 is proved, whether the plaintiffs have been and are still ready and willing to complete their part of the contract?OPP

3. Whether defendants no.2 & 3 are bonafide purchasers for value and without notice of the alleged agreement?OPP 3(a) What is the effect of purchase of super structure by Gurbaksh Singh?OPD

4. Relief. The trial Court dismissed the suit of the appellants and the learned lower Appellate Court also dismissed the appeal filed by the appellants which has resulted in the present appeal having been filed by them.

The trial Court, while dismissing the suit of the appellants, had come to the conclusion that Balwinder Singh had never executed any agreement to sell and present respondent nos. 3 and 4 are bona fide purchasers of the suit property for value without any notice of the alleged agreement.

The lower Appellate Court, however, reversed the finding of the trial Court on the issue of validity of the agreement to sell, but went on to dismiss the appeal on the ground that Gurbax Singh in whose favour the super structure existing on the suit land was sold, was not impleaded as a party and, therefore, the suit was bad for misjoinder of parties.

Shri G.S.Bhatia, learned counsel for the appellants contended that the execution of the agreement to sell had been established on the record and there is no cross appeal filed by the respondents challenging the same. Therefore, the factum of sale agreement is no longer in question. The only question which survives is that whether respondent nos. 3 and 4 were bona fide purchasers without any notice. It was contended by him that the place where the sale agreement had been executed was a small place and the house in question was in the vicinity of the area where the parties were residing and, therefore, in a small place,it is presumed that every one has the knowledge of such transaction. In support of his contention, he relied on a judgement of this Court in 1997(2) P.L.J. 656- Nirmal Singh (deceased) by LRs and others Versus Smt.Gejo and another and also went on to contend that the onus of proving that there was no knowledge of the earlier agreement would lie on the person, who alleges it and since that onus had not been discharged, it cannot be presumed that the respondents did not have any knowledge of the agreement to sell in favour of the appellants. In support of this contention of his, he relied on AIR 1996 P.&H. 120-Joginder Singh and others Versus Nidhan Singh and others. He also referred to the statement of Ajaib Singh, witness, who was present o the occasion of the execution of the agreement to sell, as also the execution of the sale deed.

Shri Kuldip Sanwal, learned counsel for the respondents contended that the respondents were the bona fide purchasers without any notice and even otherwise, the suit was bad for misjoinder of the parties as the super structure had been sold in favour of Gurbax Singh. Respondent nos. 3 and 4 in whose favour the suit land had been sold are the sons of the said Gurbax Singh and since he was not impleaded as a party, the suit was apparently bad for misjoinder of parties and the learned lower Appellate Court rightly held so.

A fact that needs to be mentioned here is that when the trial Court dismissed the suit of the appellants on 3.6.1997, an appeal was filed which was also dismissed on 17.12.1999 against which the present appeal was filed. On 21.8.2003, this Court, exercising the powers under Order 41 Rule 25 of the Code of Civil Procedure, directed the lower Appellate Court to send a report after hearing the parties on the point whether according to it, defendant nos. 2 and 3 were the bona fide purchasers as pleaded by them and as held by the trial Court. Accordingly, the Additional District Judge, Gurdaspur, after hearing the parties, sent report dated 23.1.2004 to this Court. A categoric finding has been recorded by the learned Additional District Judge that respondent nos. 3 and 4 had no knowledge of the prior agreement to sell in favour of the appellants.

After hearing learned counsel for the parties and perusing the record, I am of the considered view that the appeal does not deserve to succeed. The matter had been remanded back on a limited point, the parties were heard at length and a finding of fact has been recorded by the lower Appellate Court that respondent nos. 3 and 4 were the bona fide purchasers without any notice of the previous agreement to sell. Learned counsel for the appellants has not been able to show anything contrary. Apart from this, the suit was also bad for misjoinder of parties, in-as-much as, Gurbax Singh, who was the beneficiary of the super structure standing on the land in question was not impleaded as a party and this would have gone to the root of the matter because the agreement to sell could not have been accepted without there being any detrimental finding to the interest of Gurbax Singh.

In view of the above discussion, there is no infirmity in the findings recorded by the learned lower Appellate Court both on the issue regarding respondent nos. 3 and 4 being bona fide purchasers without any notice, as also on the issue of misjoinder of necessary parties.

Consequently, the appeal being devoid of merit is dismissed.

July 17,2006 ( Mahesh Grover )

"SCM" Judge


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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