Rekha Kumari, J.
1. This appeal is directed against the order dated 2/6/2000 passed by the Subordinate Judge IX, Patna in Misc. Case No. 18 of 1996 filed under Order XXI Rule 99 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) wherein he has ordered for redelivery of possession of the disputed land to the respondents 1st set.
2. Appellant Phulbasi Devi filed Title Suit No. 22 of 1987 for specific performance of agreement for sale against respondent second set regarding 8 katha 11 dhurs of land of plot Nos. 54, 55 and 60, Khata No. 507 of village Dhakanpura (Boring Road), Patna, part of holding Nos. 116/108, Circle No. 249, Ward No. 34 of Patna Municipal Corporation. The land in question belonged to the respondent second set, namely, Bani Dey, her son Debashish Dey and daughter Jayshree Roy, all of whom are now residing at Kolkata. According to the appellant the respondents second set entered into an agreement with the appellant for sale of the above disputed land for a consideration of rupees four lacs. The appellant paid an earnest money of rupees one lack by two Bank drafts. A deed of agreement was executed on 12.7.1984. It was stipulated in the agreement that the respondents would take necessary permission from the authority before executing the sale deeds on payment of balance of consideration money of rupees three lacs. The respondents, however, did not take any step for executing the sale deed after receiving the earnest money in spite of several requests made by the appellant. Legal notices then were sent to the respondents, yet no sale deed was executed. The appellant then filed the above title suit No. 22 of 1987 against the respondents second set on 6.1.1987 before the Subordinate Judge IX, at Patna for the enforcement of the agreement for sale.
3. The case of the appellant further is that respondent Bani Dey appeared in the suit on 18.6.1987 and filed Vakalatnama and sought for time to file written statement. Her son and daughter appeared on 18.8.1987 through their attorney and filed Vakalatnama and petition for time for filing written statement. Thereafter they left attending the Court and also did not file any written statement. The suit, therefore, was heard ex parte. The Subordinate Judge IX, Patna by order dated 8.10.1990 decreed the suit. The respondents 2nd set were directed to execute the sale deed within ninety days. As per decree, the appellant deposited balance of the consideration amount by Challan on 30.11.1990. When no deed was executed by respondent 2nd set, the appellant filed execution case No. 4 of 1991 and prayer was made for execution of the sale deed by Court. Then the sale deed was executed by the Court and the same was registered on 1.6.1993. There was then prayer for delivery of possession. The appellant also filed an application before the executing court for police help during delivery of possession. The decree holder-appellant, Nazir along with the Magistrate and the police force went to the spot on 5.9.1996 and possession was delivered to the appellant without any disturbance and resistance. The Nazir submitted his report that the judgment debtor was not present on the spot and no person had come and claimed possession and the delivery of possession was effected peacefully. The case of the appellant is that after the delivery of possession she started construction work on the land in question. On 20.11.1996 the executing court passed its order of satisfaction with regard to the delivery of possession.
4. It appears that in the meantime on 21.9.1996 the respondents 1st set filed an application under Order XXI Rule 99 of the Code in the execution court for restoration of possession which was registered as Misc. Case No. 18 of 1996.
5. The case of the respondents 1st set in that application is that the respondent second set had sold the land in question in their favour by registered sale deed dated 4.6.1985, 5.6.1985, 29.11.1985 and 2.12.1985. After purchase they came in possession. Their names were mutated in the revenue records as also in the Municipal Corporation. One of the purchasers, namely, Ram Rati Devi died on 1.6.1987 and her son respondent No. 2 got his name mutated in her place and he came and continued in possession along with respondent No. 1. However, in view of the attempt of disturbances in their possession in the evening of 5.9.1996 the son of respondent No. 1 informed the police but to no effect. Hence, on 6.9.1996 a petition was filed before the Sub-divisional Magistrate, Sadar, Patna to preserve peace who called for a report from the local police, but no report was submitted. Then a proceeding under Section 144 of the Code of Criminal Procedure was initiated against the parties by order dated 10.9.1996 and then the respondents came to know about the mischief of the appellant and thereafter took steps to seek information on 6.9.1996 in the Civil Court and on inspection of records they could know about the delivery of possession of the disputed land and so they filed a petition for restoration of delivery of possession as contemplated under Order XXI Rule 99 of the Code. The case of these respondents is that the alleged deed of agreement for sale dated 22.7.1984 purported to be executed by the respondents second set is sham, ante dated, forged and collusive document. The title suit was initiated without impleading the respondents first set though they were earlier purchasers of the property in question and the appellant knew of the purchases and possession of these respondents and, therefore, the judgment of the title suit is not binding on them. It is further stated that these respondents are bona fide purchasers for value without notice of the alleged agreement and as such their right and interest is safe under the provision of Section 19(b) of the Specific Relief Act.
6. Appellant Phulbaso Devi, who was Opposite Party No. 1 in the above Misc. case appeared in Court and filed rejoinder stating, inter alia, that the application was not maintainable. The owners of the land wanted to sell the land in question and they offered to purchase the same. The price of the lands was settled at rupees four lacs. They paid rupees one lace as earnest money on 12.7.1984. The deed of agreement for sale was executed, and when in spite of requests and legal notices, they did not execute the sale deed, they filed the title suit for enforcement of the deed of agreement. Their case also is that Bani Dey herself and Debashish Kumar Dey for self and attorney of his sister Jaishree Roy had signed the agreement. One Mahesh Rai is an attesting witness in the deed of agreement and he is connected with the respondents 1st set and it appears that he informed the respondents and they approached the respondents second set and conspired to defeat the deed of agreement and that the four sale deeds executed in favour of respondents 1st set are the outcome of the said fraud and conspiracy. It is also said that when the respondents second set had entered into an agreement for sale of land on 12.7.1984 for a sum of rupees four lacs, there was no occasion for the respondents 2nd set to sell the property for a paltry sum of Rs. 1,94,000/- in 1985 and that to avoid the knowledge of the sale deeds, the sale deeds were got registered at Calcutta. So, it was also not possible for the applicant to know about the execution of the sale deeds. They had no knowledge about the four sale deeds before the service of notices under Section 144 Cr.P.C. They had also no knowledge of the mutation of the names of the respondents. The respondents were also not in possession of the land in question and so there was no question of dispossession. The case of the appellant, hence, is that the decree passed in the title suit and the delivery of possession effected in the execution case are legal and valid.
7. It appears that on the basis of the pleadings of the parties, the learned Subordinate Judge in the Misc. Case framed several issues including the maintainability of the application under Order XXI Rule 99 of the Code and the issue whether the respondent 1st set had any notice of any prior agreement for sale of the disputed land and whether Title Suit No. 22 of 1987 was maintainable without impleading the respondent 1st set as party.
8. The learned Subordinate Judge after considering the evidence on record decided all issues in favour of respondent 1st set and allowed the application and by order dated 2.6.2000 directed restoration of possession of the property in dispute to the respondents.
9. The appellant filed this appeal against the order of restoration of possession to the respondents. This Court heard the appeal and held that the actual dispossession of the 3rd party is the first ingredient for the purpose of entertaining a petition under Order XXI Rule 99 of the Code but as the Nazir had found the land vacant and as per the petition of the respondents they were in juridical possession and not actual physical possession of the land, the ingredients of Order XXI Rule 99 of the Code was not fulfilled and so the application under Order XXI Rule 99 of the Code filed by these respondents was not maintainable. This Court accordingly by order dated 23.4.2001 allowed the appeal without deciding any other issue. In the order it was also observed that any finding or observation made either in this Court or by the learned Executing Court in, the impugned order on merit, would not, in any way, be binding on the parties if a separate suit is filed by the aggrieved party for title and possession thereof.
10. Aggrieved by the above order dated 23.4.2001 of the High Court, the respondents preferred appeal (Civil Appeal No. 3130 of 2002) in the Supreme Court. The appellant also filed Special Leave Petition (C.C. 8261 of 2001) against the above observation of the High Court. The appeal and the S.L.P. were heard together. The Supreme Court held that the property involved was a vacant land and it could have been possessed only by having ownership and control over it. Mere physical possession at the time of execution of the decree was not a relevant fact to reject the application under Order XXI Rule 99 of the Code. The Supreme Court further ordered that even though the objectors were not in actual physical possession of the vacant land but as a result of delivery of possession of land through Nazir to the decree holder, they lost all right and control over the land to put it to their use and so they will have to be treated to have been 'dispossessed' within the meaning of Order XXI Rule 99 of the Code. The Supreme Court accordingly by order dated 19.11.2003 set aside the order of the High Court maintaining the order of the executing Court as regards the maintainability of the application, and as this Court did not deal in details other issues on merit, the Supreme Court remanded the case to this Court for re examination of the following issues on merits and pass a fresh order in accordance with law:
(1) Whether the decree holder at the time of institution of suit had knowledge of the execution of the registered sale deeds in favour of the Objectors and yet they deliberately avoided to make them as parties to the suit and thus obtained in collusion with the vendors an ex parte decree of specific performance of the contract;
(2) Whether the Objectors had full knowledge of existence of prior agreement of sale executed by the vendors in favour of the decree holder and despite such knowledge they purchased the suit property to frustrate the agreement existing in favour of the decree holder.
11. Thus, so far as the issue of maintainability of the application under Order XXI Rule 99 of the Code, even though the report of the Nazir and the evidence of the Magistrate (O.P.W.9) who had accompanied the Nazir at the time of delivery of possession is that no judgment debtor was present at the spot and there was no other third party to resist and obstruct the delivery of possession to the appellant and the suit property at that time was vacant and the judgment debtor did not claim actual physical possession and had claimed juridical possession on the basis of the sale deeds and mutation of their names, it has been settled that the application is maintainable.
12. Now, coming to the above two issues, admittedly the land in question belonged to the respondent second set. The deed of agreement (Ext. A) filed by the appellant shows that on 12.7.1984 the respondents second set had agreed to sell the disputed land to the appellant for a sum of rupees four lacs for which they had received rupees one lack as earnest money and the balance of consideration amount was to be paid at the time of execution of the sale deed. The case of the contesting respondents is that this is a sham and fabricated document. But there appears no cogent evidence to substantiate the same. The learned Executing Court has held that it has not been established that the earnest money of rupees one lack was actually paid. He has stated that the appellant has produced Bank certificates showing that two demand drafts of Rs. 50,000/- each were purchased in the name of Bani Day but they were not purchased by the appellant and there is no mention about the draft in the deed. But from the deeds it appears that there was a clear averment that 'the purchaser has this day paid to the vendors a sum of rupees one lack by way of earnest money and the vendors hereby acknowledge to have received the said amount.' O.P.W. 10, the appellant in her evidence has also stated that on payment of rupees one lac through two bank drafts, the agreement for sale was executed on 12.7.1984 which was signed by both sides and also the witnesses. Therefore, there cannot be any doubt that the earnest money was paid and the deed of agreement is a genuine document.
13. The respondents first set have also filed four sale deeds (Ext. B to B/3) dated 4.6.1985, 5.6.1985, 29.11.1985 and 3.12.1985 executed by the respondents second set in their favour. They have also filed mutation orders (Exts. 3 and 3/A) to show that they came in possession after purchase of the land. A.W. 8 Lal Babu Rai, who is a witness on the sale deeds (Exts. 2, 2/A, 2/B) has stated that he had gone to Calcutta at the request of Ashan Devi and others and the vendors had executed the sale deed in his presence and he had paid the consideration money by Bank drafts.
14. Now coming to the issue as to whether the appellant had knowledge of the sale deeds executed in favour of respondents first set before the institution of the suit for Specific Performance of the Contract and they deliberately did not make them parties to the suit and thus obtained in collusion with the vendors an ex parte decree, it appears that no direct, oral or documentary evidence has been adduced on behalf of the respondents in this regard. The respondent Ashan Devi has not been examined in this case. Her mother respondent Ramrati Devi is dead but her son who has been substituted in her place, has also not been examined, P.W. 2 Sunil Singh son of Ashan Devi has been examined, but he has not stated anything in this regard. The trend of evidence of O.P.W. 10 shows that she had come to know of the sale deeds when the misc. case was filed.
15. The impugned order shows that the learned executing court has held that the appellant had knowledge of the sale deeds and they deliberately did not make the respondents party and in coming to this conclusion he has relied on (i) the evidence of O.P.W. 10, appellant Phulbaso Devi, wherein she has stated that she had made enquiries about the sale deeds in respect of the disputed land in the registration offices at Calcutta and Patna and (ii) on the two petitions (Exts. 4 & 4/1) of the appellant filed in the executing court, wherein she had prayed for deputation of police force during the delivery of possession.
16. On a perusal of the legal notices dated 16.12.1986 and 19.12.1986 (Exts. E & E/1) sent to respondent 2nd set on behalf of Phulbaso Devi (appellant) it appears that before filing of the title suit the appellant had made requests and even visited the respondent 2nd set for execution of the sale deed but in spite of that, they evaded executing the sale deed and so, she had apprehended some foul play at the hands of the vendors. The evidence of the appellant (P.W.10) in cross examination at paragraph 23, of course, is that in 1986 she had made enquires in the registry office at Calcutta, but from this evidence, it cannot be concluded that actually she had knowledge of the above sale deeds. She has stated in the following paragraph that she does not know whether the sale deeds in respect of the land of Patna could be registered in Calcutta. Besides this, if she had prior knowledge of the sale deeds, she must have stated about it in the legal notices but except apprehensions of some foul play, there is no mention of execution of any sale deed in favour of any third person. Apart from these, if the appellant had prior knowledge of the sale deeds, as the respondents first set were necessary parties there was no reason as to why she would not have made them party to the suit and would have taken risk of further litigation.
17. So only on the above apprehension and the stray statement of the appellant, it cannot be said that actually the appellant had made enquiry in the registration office at Calcutta and, therefore, had come to know of the sale deeds.
18. Then, though the evidence of A.W. 2 is that after her mother and grand mother purchased the land in place of mud built boundry they gave a Pucca boundary around the land and they used to grow vegetables on it, the evidence of O.P.W.9, the Magistrate who had accompanied the Nazir at the time of delivery of possession and is an independent and responsible witness, is that at the time of possession, the land was vacant. There was no structure in it or boundary around it. There were only two huts inside and in one of them there was only one woman.
19. Therefore, when the land was vacant and there was no actual physical possession of the respondents 1st set, on this ground also there was no occasion for the appellant to be certain that the land actually had been sold and that too in favour of respondents 1st set.
20. As regards the two petitions (Exts. 4 & 4/1) filed by the appellant before the executing court for delivery of possession, Ext.4/1 indeed shows that the appellant was apprehending breach of peace and so she had prayed for appointment of Magistrate with armed forces to assist Nazir but the petition does not show that the appellant was apprehending breach of peace at the hands of respondents first set. The learned court below has opined that the appellant knew about the sale deeds and so actually was apprehending trouble at the hands of the respondents 1st set but to suppress the knowledge of the sale deeds she deliberately mentioned that she was apprehending breach of peace at the hands of the judgment debtor. But, I have already shown that the land was vacant and there was nothing to show the possession of the respondents 1st set over it. The legal notices sent by the appellant also suggest that the judgment debtors were evading execution of the sale deed and the appellant was apprehending foul play. The evidence of A.W.8 also shows that though judgment debtor Bani Dey used to live in Calcutta, she used to come to Patna occasionally. Therefore, if the appellant had stated that she was apprehending breach of peace at the hands of the defendants, from this it cannot be inferred that she had knowledge of the sale deeds and deliberately did not take the names of the respondents 1st set. As from the notices it appears that the appellant was very much aggrieved with the vendors inasmuch as she had threatened to file civil and criminal cases against them it cannot be said that there was any collusion between the appellant and the vendors.
21. The impugned order shows that attendance was filed on behalf of defendant-respondent Bani Dey in the title suit on 18.6.1987 and respondents Debashish Dey and Jaishree Roy entered appearance on 19.8.1987 through their attorney. The Vakalatnama filed by Bani Dey was not in printed form, and photo copy of power of attorney was filed. The learned Executing Court on the basis of the above facts and also observing that the signature of Bani Dey was not tallying with her signatures in the sale deeds, held that the appellant did not want that the defendants (respondents 2nd set) should appeared and disclose about the sale deeds and so she manipulated and fabricated false attendance, Vakalatnama etc. of the respondents 2nd set in the title suit. He has further observed that the record of title suit would show that on 4.1.1988 the appellant had filed a petition for publication of notices for appearance of the respondents second set in the news paper of Calcutta and this suggests that actually the defendants (respondents) did not appear in the suit prior to that date.
22. The above finding of the learned Executing Court does not appear to be convincing. The order itself shows that notices were issued to the respondents second set. The petition dated 4.1.1988 of the appellant shows that notices through court's peon and registered notices were sent to them. Therefore, even if the respondents did not appear, the appellant could press for ex parte evidence and ex parte order could be validly passed. There was thus no occasion for manufacturing false attendance. Opposite Party No. 1 has also stated that she had met the respondent Bani Dey in Court. As regards the prayer for publication of notice in the news paper, it appears that by mistake the same was filed, and so, it was not pressed. O.P.W. 1 has also stated that respondent Bani Dey did not disclose about the sale deeds to her.
23. So, it cannot also be said that the appellant wanted an un-contested decree and for that reason, manufactured Vakalatnama etc.
24. Therefore, it is not proved from the materials on record that the appellant-decree holder at the time of institution of the suit had knowledge of the execution of the registered sale deeds in favour of the respondents 1st set, and she deliberately avoided to make them as parties to the suit and thus obtained in collusion of the vendors an ex parte decree of specific performance of the contract.
25. As regards the second issue mentioned above, according to Section 19 of the Specific Relief Act, specific performance of contract may be enforced against (a) either party thereto and (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract.
26. Therefore, in order to show that the decree passed in the title suit was not binding on the subsequent purchasers, the burden was on the respondents to prove that they are purchasers (1) bonafide, (2) for value and (3) without notice of the previous agreement. But it appears that one of the purchasers Ramrati Devi as already mentioned is dead and another purchaser Ashan Devi is alive and is respondent in the case, but strangely enough she has not been examined to discharge this burden. A.W.2 Sunil Kumar, son of Ashan Devi has stated that the agreement for sale was executed without the knowledge of the respondents but he was born in 1970 and, therefore, was a minor at the time of execution of the sale deeds and he otherwise also does not appear to be a competent witness. So, only on his evidence it cannot be said that the respondents had no notice of the agreement prior to the sale deeds. A.W. 8 Lal Babu Rai, who is a witness in the sale deed and who had gone to Calcutta on behalf of the respondents for execution of the sale deeds, though has stated about the payment of consideration money has not stated that the respondents had no notice of the agreement for sale. There is, however, recital in the sale deeds that the vendors had assured the vendees that the property was free from all kinds of charges, encumbrance, lien, attachment and that there was absolutely no defect in title. But mere assertion in the sale deed is not enough to prove that the respondents had no notice of the prior agreement specially when there is no evidence that the buyers made any enquiry in this regard from the sellers.
27. Apart from these, the agreement for sale shows that the respondents 2nd set had agreed to sell the land in question to the appellant for a sum of rupees four lacs. The deed of agreement was executed on 12.7.1984. The sale deeds which were executed subsequently in between 4.6.1985 and 2.12.1985 i.e. after one year of the execution of the deed of agreement shows that the respondents purchased the lands for a total sum of Rs. 1,94,000/- only i.e. less than half the amount for which the agreement for sale was executed. The land in question admittedly is situated within Patna Municipal Corporation and the evidence of A.W. 2 shows that there are shops, residential houses near the land and the land is valuable. A. W. 8 has also stated that the land is by the side of a road. There is no reason as to why such a valuable land would be sold in such a throw away price. This also creates a doubt about the bona fide of the transactions. The sale deed executed by one Vikash Jain in favour of Ram Kali Devi on 6.1.1982 also shows that one Katha of land of plot No. 54 was sold for Rs. 75,000/-. The respondents have also filed sale deeds Exts. 2/4 and 2/5 executed by the respondent 2nd set in favour of Shankar Singh on 14.8.1986 in respect of 2 katha 7 dhurs of land of plot No. 54 for Rs. 48,000/-and sale deed dated 19.9.1983 executed in favour of Sharada Devi in respect of 2 kathas 3 dhurs and 14 dhurkis of land of plot No. 54 and 60 for a consideration of Rs. 40,000/-, in support of the case that the consideration amount of the sale deeds in question was adequate. But the impugned order itself shows that the deed in favour of Sharda Devi was executed during pendency of a title suit. So, this deed cannot be compared with the sale deeds in question. As regards the sale deed executed in favour of Shankar Singh, this deed also cannnot be taken into consideration for ascertaining the value of the suit land in view of the consideration amount shown in the agreement for sale executed one year earlier in respect of the same land.
28. Learned Counsel for the respondents has submitted that the sale deed at a reduced price is not sufficient to show that it is not bonafide. In support of this submission he has relied on the decision of Calcutta High Court reported in A.I.R. 1975 Cal, 445. But the facts of that case were different from the facts of this case. Besides this, though the sale at a reduced rate alone is not sufficient to hold that the transaction is not bona fide, it is a circumstance for considering whether the transaction is bonafide. It may also be mentioned here that the agreement for sale shows that the vendor had to obtain some certificates including a certificate under the Income Tax Act before executing the sale deed, and it is quite probable that in order to avoid it, they agreed to sell the land at a reduced value.
29. Then, though the said property is situated at Patna, no reason has been assigned as to why they were not registered at Patna. Of course the sale deeds could be legally registered at the relevant period at Calcutta but ordinarily the sale deeds are executed where the land is situated. The sale deed (Ext. 2/4) executed by respondent 2nd set in favour of Shankar Singh, which was registered subsequent to the above sale deeds, also shows that the deed was registered at Patna. So, the registration of the sale deeds in favour of the respondents at Calcutta also creates a suspicion about the bonafide of the transaction.
30. Thus, when the vendee of the sale deeds has not been examined and there is no cogent evidence from the side of the respondents that they had no notice of the agreement for sale, and the land was sold to the respondents at a very reduced rate and the sale deeds were executed at Calcutta instead of Patna, a reasonable inference can be drawn that the sale deeds were not bonafide and that the sale deeds were collusive and the vendees of the sale deeds had notice of the prior agreement for sale in favour of the appellant.
31. Thus, considering the facts, evidence and the circumstances of the case, I find that the agreement for sale executed in favour of the appellant is genuine and the respondents 1st set had notice of that agreement before the execution of the sale deeds in their favour and that the appellant had no knowledge of the sale deeds executed in favour of the respondents before the institution of the suit for specific performance of contract. The learned Executing Court, hence, was not justified in allowing the Misc. Case No. 18 of 1996 and directing the appellant to restore possession to the respondents.
32. In the result, the appeal is allowed. The impugned order is set aside, but there would be no order as to costs.