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GURBACHAN RAM versus NANAK SINGH & ANR.

High Court of Punjab and Haryana, Chandigarh

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Gurbachan Ram v. Nanak Singh & Anr. - RSA-2500-2006 [2006] RD-P&H 5195 (3 August 2006)

Regular Second Appeal No.2500 of 2006.

In the High Court of Punjab and Haryana at Chandigarh.

Regular Second Appeal No.2500 of 2006.

Date of decision:25.7.2006.

Gurbachan Ram

Appellant.

Versus

Nanak Singh and another.

...Respondents.

...

Coram: Hon'ble Mr. Justice S. N. Aggarwal.

...

Present: Mr.S.K.S.Bedi Advocate for the appellant.

...

Judgment.

S.N.Aggarwal, J.

Ram Kumar, respondent No.2 was co-owner to the extent of land measuring 8 Kanals 10 Marlas being 1/10 share in the total land measuring 89 Kanals 13 Marlas. He executed an agreement of sale in favour of Nanak Singh,respondent for this land on 28.1.1994 for a total amount of Rs.one lac. Rs.70,000/- were received as earnest money. The sale deed was to be executed on or before 30.6.1994. Nanak Singh, respondent No.1 was ready and willing to perform his part of the contract but respondent No.2 failed to execute the sale deed. Respondent No.2 executed the sale deed of this land in favour of the Regular Second Appeal No.2500 of 2006.

appellant on 5.7.1996. Hence, respondent No.1 filed a civil suit for specific performance of the agreement of sale deed dated 28.1.1994 and in the alternative suit for recovery of Rs.1,40,000/- i.e. double the amount of earnest money.

Subsequent purchaser was also impleaded and prayer for cancellation of sale deed dated 5.7.1996 in favour of the appellant was also made.

Ram Kumar respondent denied having executed any agreement of sale dated 28.1.1994 in favour of Nanak Singh,respondent No.1 or having received an amount of Rs.Seventy thousands as earnest money on 28.1.1994.

Rather, he alleged that the suit land was mortgaged by his father Basheshar Nath in favour of Gurbachan Singh (appellant) for a sum of Rs.60,000/- vide registered mortgage deed dated 1.2.1990. It was also pleaded by Ram Kumar respondent No.2 that he had executed an agreement of sale dated 14.1.1994 in favour of Gurbachan Singh appellant for the sale of this land at the rate of Rs.1,63,000/- per acre and had received earnest money of Rs.60,000/-. Sale deed was to be executed on or before 15.7.1996. Hence, dismissal of the suit was prayed.

The appellant also contested the suit. He also took the plea that he was a bona fide purchaser without notice.

The learned trial Court, however, decreed the suit of Nanak Singh respondent for specific performance of the contract vide judgment and decree dated 7.5.2002.

Regular Second Appeal No.2500 of 2006.

The appellant filed an appeal. The learned Lower Appellate Court up-held the findings of fact recorded by the trial Court and dismissed the appeal vide judgment and decree dated 10.10.2005.

Hence the present appeal.

The submission of learned counsel for the appellant was that the appellant is a bona fide purchaser for consideration without notice. The agreement of sale in his favour was of earlier date than the agreement in favour of Nanak Singh. Moreover, the appellant was the mortgagee in possession of suit property.

These submissions have been considered, but, do no weigh with me. The facts of this case are peculiar. The suit for specific performance of agreement of sale dated 28.1.1994 was filed by Nanak Singh respondent against Ram Kumar respondent No.2 on 13.6.1995 and on the same day he (Ram Kumar) was restrained from alienating the suit property. Ram Kumar, respondent (vendor of the appellant) was served but he failed to appear and was proceeded against ex parte on 16.12.1995. Thereafter, said Ram Kumar had filed an application on 25.5.1996 for setting aside the ex parte order and accordingly the ex parte proceedings were set aside. Therefore, on 25.5.1996, Ram Kumar owner and vendor of the appellant became aware about the said order passed by the Court staying alienation by him. Thereafter, Ram Kumar delayed the filing of written statement and in the meantime he executed sale deed in Regular Second Appeal No.2500 of 2006.

favour of the appellant on 5.7.1996. Thereafter he filed written statement on 19.9.1996 pleading that he has already sold the land to the appellant. These facts clearly reveal that Ram Kumar was fully aware about the stay order restraining him from alienating the suit property and still he alienated the suit property. Therefore, this sale deed dated 5.7.1996 is hit by the rule of lis pendens. In the circumstances of this case, it cannot be believed if the appellant was not aware about the pendency of civil suit or about the passing of stay order restraining alienation by Ram Kumar. The mere fact that the appellant was a mortgagee or that his agreement was of earlier date is absolutely insignificant factor when it is proved that this sale deed dated 5.7.1996 was hit by the rule of lis pendens.

The next submission of learned counsel for the appellant was that Nanak Singh has also prayed for alternative relief and, therefore, the alternative relief be granted to him instead of granting him specific performance of agreement of sale dated 28.1.1994.

This submission has also been considered. Normally, in every suit for specific performance of agreement of sale, the prayer for alternative relief is also made. Therefore, it is the prerogative of the learned trial Court to exercise judicial discretion in the facts and circumstances of each case. In the present case, both the Courts have also exercised judicial discretion in granting decree for specific performance. When the Regular Second Appeal No.2500 of 2006.

vendor of the appellant and the appellant himself have tried to flout the Court orders granting stay against alienation,still they dared to enter into sale transaction. Therefore, in these circumstances, the exercise of judicial discretion in granting the alternative relief would mean the victory of false designs and mala fide manipulations which the Court must curb.

There are concurrent findings of fact recorded by the Courts below and as discussed above, I find no ground to disturb the concurrent findings of fact recorded by the Courts below.

No merit.

Dismissed.

July 25,2006. ( S. N. Aggarwal )

Jaggi 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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