Jawala Singh Vs. Parkash Kaur @ Parkash Rani and ors. - Court Judgment

Excerpt:
- m.m. kumar, j.1. this is plaintiff's appeal filed under section 100 of the code of civil procedure, 1908 (for brevity the 'code') challenging concurrent findings of facts recorded by both the courts below holding that suit of the plaintiff-appellant for specific performance of agreement to sell dated 15.2.1990 could not be decreed in his favour because the defendant-respondent no. 3 and 4 are the bona fide purchasers of the land which was subject matter of a subsequent agreement to sell. however, the suit of the plaintiff-appellant has been decreed by granting him the alternative relief of recovery of rs. 40,000/- with future interest at the rate of rs. 6/- per annum from the date of payment of earnest money i.e., 15.2.1990 till its full and final realisation. the cost was also imposed on the vendors/defendant-respondents no. 1 and 2.2. facts, in brief, which are necessary to decide the controversy raised, are that the plaintiff-appellant filed a suit for possession by way of specific performance of agreement dated 15.2.1990 executed by one jamni devi, defendant-respondent no. 2, being the attorney of parkash kaur defendant-respondent no. 1. it was asserted that parkash kaur was owner in possession to the extent of 1/6th share of the suit land and jamni devi, mother of parkash kaur, was also owner in possession to the extent of 1/6th share and another daughter of jamni devi, kailash rani was also owner in possession of 1/6th share. jamni devi, in her capacity as attorney of both the daughters, agreed to sell 1/6th share of three of them in the suit land on 15.2.1990 for a total consideration of rs. 1,20,000/-. it is alleged that she received the entire sale consideration. according to the terms of the agreement, the plaintiff-appellant who is the vendee, was entitled to get the safe deed executed and registered in his favour any time he liked. the plaintiff-appellant further averred that another power of attorney of defendant-respondent no. 1, jai singh son of rachna ram, sold 4 bighas 19 biswas of land out of the suit land to his sons, namely, narinder singh and baljidner singh vide sale deed dated 22.3.1990 for a total consideration of rs. 27,000/-. jamni devi and kailash rani executed the sale deed in respect of their share of the land in favour of the plaintiff appellant on 1.9.1992 but defendant-respondent no. 1 i.e., parkash kaur did not come forward to perform her part of the contract, which resulted into filing of the suit.3. in the written statement filed by defendant-respondent no. 1, parkash kaur, it was pleaded that her mother jamni devi was not her power of attorney and, therefore, she could not have entered into any agreement to sell with the plaintiff-appellant. it was further alleged that jamni devi, mother of parkash kaur defendant-respondent no. 1, obtained her thumb-impression by mis-representation of facts which led to strained relationship between them. she was asked to thumb-marked some documents on the representation that her thumb-impressions were required for the purpose of getting mutation of inheritance of chanan ram sanctioned in her favour. chanan ram was husband of jamni devi and father of parkash kaur and kailash devi. it is further pertinent to mention that chanan ram and paras ram were real brothers and the plaintiff-appellant jawala singh is son of paras ram. defendant-respondent no. 1 further asserted that when she came to know about the filing of the instant suit, she reiterated the contents of the power of attorney as well as the agreement to sell. according to her, the value of the suit land is more than rs. 10,00,000/-, therefore, there was no question of selling the same for a consideration of rs. 1,20,000/-. she has also disputed the sale deed dated 22.3.1990 in respect of the land measuring 4 bighas 19 biswas to respondent-defendants no. 3 and 4. she has alleged that a fraud has been committed upon by defendant-respondents no. 3 and 4 in collusion with the plaintiff-appellant because not a penny has been paid to her so far.4. defendant-respondents no. 3 and 4 took the stand that defendant-respondent no. 2 had no right to alienate the share of defendant-respondent no. 1. only jai singh, who was the attorney of defendant-respondent no. 1, could have alienated the share of defendant-respondent no. 1, and, accordingly, he has executed the sale deed for a total sale consideration of rs. 27,000/-. they have further asserted that they are the bona fide purchasers. both the courts below found that defendant-respondents no. 3 and 4 are the bona fide purchasers. affirming the finding on the aforementioned issue, the learned additional district judge, patiala observed as under:'the agreement to sell ex.p3 executed by jamni devi has been duly proved on record. dw5 baljinder singh deposed that a sale deed was executed in his favour and in favour of narinder singh on 22.3.1990 by parkash kaur. they had paid the sale confederation at the time of purchase of the property in dispute. they had asked parkash kaur if she had executed any power of attorney in favour of any other person but she had replied in negative. they were in possession of the suit land. a perusal of the jamabandi for the year 1987-88 shows that kailash devi, parkash kaur and jamni devi were owners in possession of the suit land to the extent of l/6th share in the suit land. defendants no. 3 and 4 had purchased the share of parkash kaur who was recorded as owner to the extent of 1/6th share in the revenue record. there is no evidence on record to suggest that defendants no. 3 and 4 were aware of the agreement of sale executed by jamni devi in favour of the plaintiff. the sale deed in favour of defendants no. 3 and 4 was executed in the year 1990 and they are in possession of the property in dispute since then. the learned trial court in these circumstances rightly held that it would not be equitable to compel the defendants to execute sale deed alongwith parkash kaur for property which they had purchased for valuable consideration. defendants no. 3 and 4 had made bona fide enquiry regarding the property. accordingly, the impugned judgment and decree do not call for any interference. defendants no. 3 and 4 were bona fide purchasers of property in dispute. in these circumstances the suit of the plaintiff for specific pcrfonnance of agreement of sale was liable to fail. the learned trial court rightly passed a decree for recovery of rs. 40,000/- in favour of the plaintiff and against defendants no. 1 and 2.'5. i have heard shri r.k. battas, learned counsel for the plaintiff-appellant, who has argued that once agreement to sell is proved, the genera! principle is that the decree for specific performance must follow unless the case is covered by the explanation appended to section 10 of the specific relief act 1963, the learned counsel has further pointed out that onus to prove the plea of subsequent bona fide purchaser for valuable consideration without notice of earlier agreement to sell is upon the subsequent purchasers i.e., defendant-respondents no. 3 and 4. for this proposition, the learned counsel has placed reliance on a division bench judgment of this court in the case of gurdial singh v. darshan singh, (1996-1)112 p.i..r. 102:1995 p.l.j. 401, the learned counsel then argued that the finding should have been recorded as to the power of attorney given to jai singh by defendant-respondent no. 1 because even that power of attorney and sale deed dated 22.3.1990 in favour of defendant-respondents no. 3 and 4 have been disputed by the defendant-respondent no. 1 who has claimed that it is a fraudulent transaction. the learned counsel has placed reliance on a judgment of the supreme court in the case of ram niwas v. banno, a.i.r. 2000 s.c. 2921.6. the learned counsel further pointed out that the agreement to sell between the plaintiff and defendant-respondents no. 1 and 2 is dated 15.2.1990, whereas the sale deed in favour of defendant-respondents no. 3 and 4 is dated 22.3.1990. this shows unnecessary haste on the part of defendants-respondents no. 3 and 4 which should be construed to mean that it was done with the object to defeat the right of the plaintiff-appellant under the agreement to sell date 15.2.1990. mr. battas further contended that subsequent defendant-respondents no. 3 and 4 were under obligation to make proper enquiry and merely asking one or two persons in the locality, would not establish that proper enquiries were made before the sale deed was executed on 22.3.1990. for the aforementioned proposition, the learned counsel has placed reliance on two judgments of the supreme court in the cases of govind dass v. skanti bai, (1972)74 p.l.r. 277 and 2000(3) p.i..r. 502. it has further been pointed out that the agreement is not registered and execution of the agreement has been denied by parkash kaur who has stated that her signatures were obtained on blank papers.7. mr. onkar singh, learned counsel for the defendant-respondents no. 3 and 4 has supported the judgment of the learned additional district judge by arguing that once the vendees have discharged the initial onus by making categorical statement that they were the bona fide purchasers for a valuable consideration and without notice of earlier agreement, then it was for the plaintiff-appellant to adduce evidence to prove otherwise, in support of his submission, the learned counsel has placed reliance on a judgment of this court in the case of ishar dass v. kanwar bhan, (1991-2)100 p.l.r. 578. the learned counsel has further submitted that the agreement to sell in favour of the plaintiff-appellant is dated 15.2.1990 and the sale deed in favour of the defendant-respondents no. 3 and 4 was executed on 22.3.1990 whereas the suit has been filed on 5.0.1993. according to the learned counsel, the suit is hopelessly barred by time. in support of his submission, the learned counsel has placed reliance on a judgment of the supreme court in the case of smt. shakuntala v. narayan gundoji chavan and ors., a.i.r. 2000 supreme court 3621. he has proved that he was ready and willing to perform his part of the contract and in the absence of such a proof, the alternative relief of refund of earnest money is the proper relief and no specific performance of the agreement to sell could be ordered. in support of his submission, the learned counsel has placed reliance on a judgment of this court in the case of amarik singh v. harjeet singh, 2002(1) r.c.c. (civil) 502. it has been pointed out by referring to the statement of the plaintiff-appellant himself, who appeared as pw7, that he did not have sufficient funds.8. i have thoughtfully considered the submissions made by the learned counsel and do not feel persuaded to take a view different than the one taken by courts below. the learned additional district judge in her judgment has held that defendant-respondents no. 3 and 4 are bona fide purchasers of the share of defendant-respondent no. 1 parkash kaur, who is recorded to be the owner to the extent of 1/6th share and there was no evidence on record to suggest that defendant-respondents no. 3 and 4 were aware of the agreement to sell executed by defendant-respondent no. 2 in favour of the plaintiff-appellant. the sale deed was executed in favour of defendant-respondents no. 3 and 4 on 22.3.1990 and since then they have been in possession of the property in dispute. it has further been proved that defendant-respondents no. 3 and 4 have made reasonable enquiries about the land in dispute as to whether it is under some encumbrances or not. it has further been shown by referring to the statement of the plaintiff-appellant who appeared as pw-7, that he did not have sufficient funds to compel the, defendant-respondent no. 1 to execute the sale deed. the plaintiff-appellant has miserably failed to discharge heavy onus by proving that he was always ready and willing to perform his part of the contract as has been held in ishwar dass's case (supra). it is also pertinent to mention that the agreement in favour of the plaintiff-appellant is dated 15.2.1990 and the suit has been filed on 5.6.1993 and according to the judgment of the supreme court in smt. shakuntala's case (supra), there are valid grounds to doubts the conduct of the plaintiff-appellant and even the suit may be time barred.9. it is also well settled that this court under section 100 of the code would not interfere in the findings of facts unless it is shown that only conclusion which would be arrived at on the basis of the available evidence is the one contrary to the findings recorded by the courts below. the mere fact that a view different than the one taken by the courts below is also a possible view would not clothe this court with the power to reverse the findings recorded by both the courts below. the proposition of law has been reiterated by the supreme court in mohd. hadi hussain v. abdul hamid chaudary, 2000(1) s.c.c. 248, ajit chopra v. sadhu ram, 2000(1) s.c.c. 114 and kulwant kaur v. gurdial singh, (2001-2)128 p.l.r. 492 (s.c.). the appeal is without any merit.for the aforementioned reasons, this appeal fails and the same is dismissed.