M.M. Kumar, J.
1. This second appeal filed by the defendant-appellants is directed against the judgment and decree dated 26-11-2002 passed by the Additional District Judge. Sangrur upholding the judgment and decree dated 24-5-2000 passed by the Civil Judge (Jr. Division). Malerkotla. The Civil Judge vide her judgment and decree has decreed the suit of plaintiff-respondent Nos. 1 to 3 and has passed a decree for possession by way of specific performance of agreement to sell dated 31-5-1990 on payment of balance sale consideration after adjusting the advance money of Rs. 85,250/- within two months. It was further directed that on receiving the balance sale consideration, defendant-respondent Nos. 4 to 6 would execute the sale deed in favour of plaintiff-respondent Nos. 1 to 3 according to terms and conditions of the agreement to sell. The defendant-appellants who were the subsequent purchasers were directed to join the conveyance deed. The findings recorded by the Civil Judge were affirmed by the Additional District Judge.
2. Brief facts of the case necessary to decide the controversy raised in the present appeal are that defendant-respondents Nos. 4 to 6 were the owner of the suit land as they had purchased the suit property vide registered sale deed dated 23-6-1983 from one Ralkiat Singh S/o Santa Singh. Mutation in the name of the defendant-respondents Nos. 4 to 6 was sanctioned. In pursuance of agreement to sell dated 31-5-1990, defendant-respondents agreed to sell the suit land @ Rs. 10250/- per bigha in favour of the plaintiff-respondents Nos. 1 to 3. An amount of Rs. 85,250/- was paid as earnest money by the plaintiff-respondents Nos. 1 to 3 to defendant-respondents Nos. 4 to 6. The date of execution of the sale deed fixed between the parties was 15-6-1992 when the remaining sale consideration was also to be paid. However, the possession of the suit land was delivered by defendant-respondents Nos. 4 to 6 to plaintiff-respondents Nos. 1 to 3 at the time of execution of the agreement to sell. The allegations further are that subsequently defendant-respondents Nos. 4 to 6 dispossessed the plaintiff-respondents Nos. 1 to 3 from the suit land forcibly and illegally. The defendant-respondents Nos. 4 to 6 had also agreed to redeem the suit land before 15-6-1992 from the Punjab Land Mortgage Bank, Malerkotla, which was the date fixed for execution of the sale deed. The repeated requests of plaintiff-respondents Nos. 1 to 3 to defendant-respondents Nos. 4 to 6 for execution of sale deed did not bear any fruit. The plaintiff-respondents came to know that defendant-respondents Nos. 4 to 6 were trying to sell the land on higher price, which led to the filing of a suit for permanent-injunction by them against defendant-respondents Nos. 4 to 6. After the institution of the suit for permanent-injunction, plaintiff-respondents Nos. 1 to 3 came to know that defendant-respondents Nos. 4 to 6 have sold the suit land to defendant-appellants for a consideration of Rs. 60,000/-vide sale deed dated 16-5-1991. It is in these circumstances that suit for possession by way of specific performance of the agreement dated 31-5-1990 and suit for permanent injunction was filed by the plaintiff-respondents Nos. 1 to 3 being civil suit No. 259 of 11-6-1991.
3. Defendant-respondents Nos. 4 to 6 in their written statement denied the execution of the agreement to sell in favour of the plaintiff-respondents Nos. 1 to 3. They also denied the receipt of any earnest money from them. It was alleged that the agreement to sell set up by plaintiff-respondents Nos. 1 to 3 was a forged and fictitious document. However, the execution of sale deed in favour of defendant-appellants has been admitted. Supporting the stand taken by the defendant-respondents Nos. 4 to 6, the subsequent transferees defendant-appellants claimed that they were bona fide purchasers for a valuable consideration and without notice of any earlier agreement to sell. On the basis of the pleading of the parties, following issues were framed :--
'1. Whether defendants Nos. 1 to 3 executed an agreement to sell dated 31-5-1990 in favour of the plaintiffs, if so its effect? OPP
2. Whether defendants Nos. 1 to 3 received Rs. 81,250/- as earnest money from the plaintiffs? OPP
3. Whether the plaintiffs are always ready and willing to perform their part of contract? OPP
4. Whether the suit as framed is not maintainable? OPD
5. Whether defendants Nos. 4 to 6 are bona fide purchasers for value without notice to the rights of the plaintiffs? OPD (4 to 6)
6. Whether the plaintiffs are entitled to the specific performance of the contract or in the alternative, they are entitled to the recovery of Rs. 2,250/-? OPP
7. Relief.'
4. On issues Nos. 1 to 3, the Civil Judge found that the agreement to sell dated 31-5-1990 Ex. P-1 stood proved and as it is proved by the attesting witnesses PW-1 Sukhdev Singh and PW-3 Dev Gupta. It was further found that an amount of Rs. 85,250/- was paid as earnest money. PW-2 Sukhdev Singh, stamp vendor, from whom the stamp papers for agreement to sell were purchased was also examined and Dr. Atul Kumar Singla, handwriting and finger prints expert further supported the case of the plaintiff-respondents Nos. 1 to 3 by proving the signatures of defendant-respondents Nos. 4 to 6. Therefore, the Civil Judge found that there was ample evidence to prove the execution of the sale deed Ex. P-1 dated 31-5-1990 and payment of earnest money to the defendant-respondents Nos. 4 to 6. It was further held that the plaintiff-respondents Nos. 1 to 3 were always ready and willing to perform their part of agreement. Placing reliance on a judgment of the Supreme Court in Jugraj Singh v. Labh Singh, (1995) 2 SCC 31 : AIR 1995 SC 945, the Civil Judge held that defendant-appellants, who were the subsequent transferees from the defendant-respondents Nos. 4 to 6 were not entitled to raise any plea with regard to readiness and willingness of the plaintiff-respondents Nos. 1 to 3 to perform their part of the contract. The firm finding recorded by the Civil Judge reads as under :--
'In view of my above detailed discussion, I proceed to hold that defendants Nos. 1 to 3 in fact entered into an agreement to sell with regard to the suit property in favour of the plaintiff on 31-5-1990. Till date the defendants have not performed their part of contract and rather defendant Nos. 1 to 3 choose to execute the sale deed in favour of defendants Nos. 4 to 6, thereby showing that they were never eager to perform their part of agreement. On the other hand, eagerness, readiness and willingness of the plaintiffs to perform their part has been well established on record. Consequently, issue in hand stands decided in favour of plaintiffs against the defendants.'
5. On the crucial issue as to whether the defendant-appellants were bona fide purchasers for value and without notice of the suit land, the Civil Judge held that no reliable and cogent evidence has been brought on record by the defendant-appellants that they made any effort to know about the encumbrances on the land. For this purpose, reliance was placed on the price of the land, which was agreed to be sold to the plaintiff-respondents @ Rs. 10,250/- per bigha, the total land was 9 bighas. However, it was sold to defendant-appellants for a much less consideration of Rs. 60,000/-. The Civil Judge found that no person would sell his property at a lesser rate than the rate at which he had earlier agreed to sell the same. The omission of defendant-appellants to produce Gurbachan Singh, who had signed the sale deed on behalf of other defendant-appellants was also considered significant because he alone was competent to depose that enquiries were made about the encumbrances on the land. Production of Dalvinder Singh defendant-appellant, who was minor at that time was considered irrelevant because he being the minor was not intelligent enough to make enquiries about the encumbrances on the land. In the cross-examination, he was not able to tell from which of the village, he had made enquiries regarding the land in dispute.
6. On appeal, the Additional District Judge rejected the only argument raised before him that the defendant-appellants were bona fide purchasers of the suit land for valuable consideration without any notice or knowledge of any previous agreement to sell between the plaintiff-respondents Nos. 1 to 3 and defendant-respondents Nos. 4 to 6. The views of the Additional District Judge read as under :--
'I have not been able to find any bona fide in the sale deed dated 16-5-1991 Ex. D-1 vide which the appellants claimed to have purchased the suit land from defendants Nos. 1 to 3 DW-6 Dalvinder Singh his one of the appellants, whose contention is that they are bona fide purchasers of the suit land. During his cross-examination he has stated that no agreement to sell was entered between them and the vendors before registration of sale deed Ex. D-1 which shows that the suit land has been purchased by them in haste and they had no time or intention to make any verification regarding the encumbrance or previous history of the land intended to be purchased by them. He has stated that he along with his brother Gurbachan Singh went to Patwari for obtaining the copy of jamabandi, but he could not tell as to regarding how much of the land they obtained the jamabandi from the patwari. He did not know the total area of the khata from where the land in dispute was purchased. He did not know if the land in question was mortgaged with any bank. At the time of the execution of the sale deed they were not living in village Mohali (Kalan). Significantly the witness stated that he did not know the name of village or any person from whom they inquired about the antecedents of the land or about the prior agreement to sell pertaining to the suit, land. The statement made by one of the defendants to the aforesaid extent goes to establish that neither the appellants are bona fide purchasers nor they made any reasonable inquiries regarding the land intended to be purchased by them. The lower Court rightly refused to accept their plea that they were bona fide purchasers for valuable consideration. The findings recorded by the lower Court to aforesaid effect and do not call for any interference.'
7. I have heard Mr. Govind Goel, learned counsel for the defendant-appellants who has submitted that defendant-appellants were bona fide purchasers vide subsequent sale deed dated 16-5-1991 executed by defendant-respondent Nos. 4 to 6 in their favour. He has further submitted that Section 19(b) of the Specific Relief Act, 1963 (for brevity, 'the Act') provides protection to a bona fide purchasers without notice. But if on making reasonable enquiries, no encumbrance on the property purchased has been found, then such a sale cannot be regarded as bona fide. Learned counsel has placed reliance on a judgment of this Court in the case of Nand Kishore v. Rameshwar Dayal, 1989 Pun LJ 250 to argue that initial onus had been discharged by the defendant-appellants by stating on oath that they had no notice and that they were bona fide purchaser for consideration. learned counsel has further argued that the Courts below have failed to take into account the statements made by the nambardar as well as owners of adjoining land from whom enquiries were made as to whether there was an agreement to sell or there was any encumbrance on the land in dispute.
8. After hearing the learned counsel, I find that the learned lower Appellate Court has referred to the detailed cross-examination of one of the defendant-appellant who has admitted that no agreement to sell the land was executed between the defendant-appellants and defendant-respondent Nos. 4 to 6 which shows that the suit land was purchased in haste and they did not have any intention to make any verification regarding the encumbrance or previous history of the land intended to be purchased by them. The oral statement made by the witness that he went along with his brother to Patwari for obtaining copy of the jamabandi has also been referred to but in cross-examination he failed to tell as to the total area of the land for which the jamabandi was obtained from the Patwari. He did not know the khata number from where the suit land was purchased nor did he know as to whether the land was mortgaged with any bank whereas it was actually mortgaged with Land Mortgage Bank, Malerkotla. The witness further stated that he did not know the name of the village or person from whom he enquired about the antecedents of the land or about the prior agreement to sell before purchasing the suit land.
9. It is also appropriate to mention that the price of Rs. 60,000/- for 9 bighas of land was less than 2/3rd of the price, for which the land was agreed to be sold by the defendant-respondents Nos. 4 to 6 to plaintiff-respondents Nos. 1 to 3. This fact itself speaks volume about the lack of bona fide on the part of the defendant-appellants, Moreover, there was no reason not to produce Gurbaehan Singh, who had signed the sale deed on 16-5-1991 on behalf of the other two defendant-appellants. Only Delvinder Singh defendant-appellant No. 1 was produced, who was at that time a minor.
10. On the basis of aforementioned statement made by the witness, the plea of bona fide purchaser was repelled by both the Courts below. In order to succeed for obtaining protection provided by Section 19(b) of 1963 Act, a transferee is required to satisfy that (a) he has purchased for value the property in respect of which specific performance of a contract has been claimed (b) he has paid the sale proceeds to the vendor in good faith and (c) he had no notice of the earlier contract for sale.
11. The absence of making any enquiry with regard to encumbrances on the property would lead to the conclusion that the defendant-appellants have purchased the property with notice. Section 3 of the Transfer of Property Act, 1882 defines that a person is said to have notice of a fact when he actually knows that fact, or when but for wilful abstention from an enquiry or search which he ought to have made or gross negligence, he would have known it. This view has been taken by the Supreme Court in Ram Niwas v. Smt. Bano, (2000) 6 SCC 685 : AIR 2000 SC 2921. The observations of their Lordships on this aspect read as under:--
'3. Section 19 provides the categories of persons against whom specific performance of a contract may be enforced. Among them is included, under Clause (b) any transferee claiming under the vendor by a title arising subsequently to the contract of which, specific performance is sought. However, a transferee for value, who has paid his money in good faith and without notice of the original contract, is excluded from the purview of the said clause. To fall within the excluded class, a transferee must show that : (a) he has purchased for value the property (which is the subject matter of the suit for specific performance of the contract); (b) he has paid his money to the vendor in good faith : and (c) he had no notice of the earlier contract for sale (specific performance of which is sought to be enforced against him).
4. The said provision is based on the principle of English law which fixes propriety between a legal right and an equitable right. If 'A' purchases any property from 'B' and thereafter 'B' sells the same to 'C', the sale in favour of 'A', being prior to time, prevails over the sale in favour of 'C' as both 'A' and 'C' acquired legal rights. But where one is a legal right and the other is an equitable right 'a bona fide purchaser for valuable consideration who obtains a legal estate at the time of his purchase without notice of a prior equitable right is entitled to priority in equity as well as at law'. (Snell's Equity-Thirtieth Edition-P.48).
This principle is embodied In Section 19(b) of the Specific Relief Act.
5. It may be noted here that 'notice' may be (i) actual (ii) constructive or (iii) imputed.
6. Section 3 of the Transfer of Property Act defines, inter alia, 'a person is said to have notice' of a fact when he actually knows that fact, or when but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. And Explanation II appended to this definition clause says :
'Any person acquiring any immovable properly or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.'
7. Thus, it is seen that a statutory presumption of 'notice' arises against any person who acquires any immovable property or any share or interest therein of title, if any, of the person who is for the time being in actual possession thereof.
12. It appears that the defendant-appellants have sold the land in order to defeat the rights of the plaintiff-respondents. In such situation, the principle laid down by the Supreme Court in Tek Chand v. Deep Chand, (2001) 4 SCC 488 : AIR 2001 SC 1392 would be fully applicable. It is worthwhile to mention that the question of good faith and a bona fide purchaser are questions of facts and the onus to prove good faith and bona fide purchaser is on the one, who set up such a plea. In R.K. Mohd. Ubaidullah v. Hajee C. Abdul Wahab, (2000) 6 SCC 402 : AIR 2001 SC 1658, their Lordships interpreting Section 19(b), held as under (Para 14) :
'Section 19(b) of the Specific Relief Act, 1963 protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of an exception to the general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasises due care and attention in relation to good faith. In the General Clauses Act emphasis is laid on honesty.'
13. It is further pertinent to mention that the fact with regard to agreement to sell dated 31-5-1990 between the plaintiff-respondents Nos. 1 to 3 and defendant-respondents Nos. 4 to 6 must have become talk of the village because initially plaintiff-respondents were put in possession and the defendant-respondents Nos. 4 to 6 dispossessed them again. Therefore, it was not difficult for the defendant-appellants to ascertain as to whether the land was free from encumbrances. These principles have been reiterated in R. K. Mohd. Ubaidullah's case (supra) and also in the ease of Vasantha Viswanathan v. V.K. Elayalwar, (2001) 8 SCC 133 : AIR 2001 SC 3367. Therefore, I do not find any ground to interfere in this appeal, which is liable to be dismissed.
14. The argument of the learned counsel based on the judgment in the ease of Nand Kishore, 1989 Pun LJ 258 (supra) would be of no consequence because once the evidence is led by both the parties, the question of initial onus of proof is rendered insignificant. In this regard, the observations of the Supreme Court in Jagan Nath v. Jagdish Rai, (1998) 5 SCC 537 : AIR 1998 SC 2028 may be referred (Para 10) :
'It is well settled that the initial burden to show that the subsequent purchaser of suit property covered by earlier suit agreement was a bona fide purchaser for value without notice of the suit agreement squarely rests on the shoulders of such subsequent transferee. In the case of Bhup Narain Singh v. Gokul Chand Mahton, 1934 PC 68, the Privy Council relying upon earlier Section 27 of the Specific Relief Act of 1980 which is in pari materia with Section 19(1) (b) of the present Act, made the following pertinent observations at p. 70 of the Report in this connection :
'Section 27 lays down a general rule that the original contract may be specifically enforced against a subsequent transferee, but allows an exception to that general rule, not to the transfer or, but to the transferee, and therefore it is for the transferee to establish the circumstances which allow him to retain the benefit of a transfer which prima facie, he had no right to get.'
However, it has to be kept in view that once evidence is led by both the sides the question of initial onus of proof pales into significance and the court will have to decide the question in controversy in the light of the evidence on record. Even this aspect of the matter is well settled by a decision of the Privy Council in the case of Mohd. Aslam Khan v. Feroze Shah, 1932 PC 228 wherein it was observed with reference to the very same question arising under Section 27 of the earlier Specific Relief Act of 1877 that :
'It is not necessary to enter upon a discussion of the question of onus where the whole of the evidence in the case is before the Court and it has no difficulty in arriving at a conclusion in respect thereof. Where a transferee has knowledge of such facts which would put him on inquiry which if prosecuted would have disclosed a previous agreement, such transferee is not a transferee without notice of the original contract within the meaning of the exception in Section 27(b)'.
15. Even otherwise, it is well settled that this Court in the second appeal filed under Section 100 of the Code of Civil Procedure, 1908 cannot interfere in the findings of fact even if another view is possible on reading of the evidence which the learned counsel has invited me to read. In this regard the law is well settled and reliance can be placed on numerous judgments of the Supreme Court such as Tirumala Tirupati Devasthanams v. K.M. Krishnaiah, (1998) 3 SCC 331 : (AIR 1998 SC 1132); Satya Gupta v. Brijesh Kumar, (1998) 6 SCC 423; Chandrabhagabai v. Ramakrishna (1998) 6 SCC 207 : (AIR 1998 SC 2549); Ram Prasad Rajak v. Nand Kumar and Bros. (1998) 6 SCC 748 : (AIR 1998 SC 2730); M.G. Hegde v. Vasudev, (2000) 2 SCC 213; State of Rajasthan v. Harphool Singh (dead) through L. Rs., (2000) 5 SCC 652; M. Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar, (2000) 10 SCC 244; Baidyanath Bhattacharya v. S. Karmakar, (2000) 9 SCC 505; Manorama Thampuratti v. C.K. Sujatha Thampuratti (2000) 9 SCC 233 : (AIR 2000 SC 3400); Chandragouda v. Shekharagouda S. Pittanagoudar, (2000) 10 SCC 617; Thimmaiah v. Ningamma, (2000) 7 SCC 409 : (AIR 2000 SC 3529); Mohd. Abdul Muqtedar v. Sk. Fakruddin, (2000)9 SCC 384; G. Thankamma Amma v. N. Ragha Kurup, (2000)9 SCC 517 : (2000 AIR SCW 3134); Ananta Kalappa Jaratakhane v. Krishtappa, (2000) 9 SCC 735 : (2000 AIR SCW 1796); Kempaiah v. Doddanaraiah, (2000) 9 SCC 60 : (2000 AIR SCW 2666); Mohd. Hadi Hussain v. Abdul Hamid Choudhary, (2000) 10 SCC 248 and Ajit Chopra v. Sadhu Ram, (2000) 1 SCC 114 : (AIR 2000 SC 212)
16. For the reasons recorded above, this appeal fails and the same is dismissed.