JAGAN NATH Vs. JAGDISH RAI

JUDGEMENT

(1.) This appeal on grant of special leave to appeal under Article 136 of the Constitution of India is moved by the original plaintiff whose suit for specific performance of the suit agreement came to be decreed by the trial Court but got dismissed by a learned single Judge of the High Court and which dismissal in turn was confirmed by a Letters Patent Bench of the High Court. We will refer to the appellant as plaintiff and the respondents concerned as defendants, for the sake of convenience, in the latter part of this judgment. We may also mention that pending this appeal original defendant No. 2 has sold the suit property to one Yash Pal, son of Shri Hans Raj who is sought to be joined as party respondent No. 4 by I.A. No. 3 moved by the plaintiff. Similar application is moved by the said purchaser pendente lite being I.A. No. 4. Both these I.As are granted. Consequently the subsequent purchaser has become respondent No. 4 in this appeal. He will be treated as defendant No. 4.

(2.) A few relevant facts leading to this appeal are required to be noted at the outset with a view to appreciating the grievance of the plaintiff. Background Facts

(3.) The suit house consisting of 5 rooms, a verandah and courtyard measuring 7 marlas out of the entire property consisting of 14 marlas situated at Moga town earlier falling within the district of Faridkot and now included in the newly formed Moga District in the State of Punjab belonged to defendant No. 1 Jagdish Rai. The said property was mortgaged by defendant No. 1 in favour of one Rajinder Singh by a registered usufructuary mortgage deed Ex. D-3 dated 26th July, 1973 for a sum of Rs. 5,000/-. Thereafter defendant No. 1 entered into the suit agreement Ex. P-1 dated 28th September, 1973 in favour of the plaintiff. As per the said suit agreement defendant No. 1 agreed to sell his right, title and interest in the suit property for a sum of Rs. 60,000/-. In the said agreement it was provided that defendant No. 1 will execute the registration deed by 30th December, 1973 in favour of the plaintiff. The said agreement recited that defendant No. 1 was the sole owner of the house which was in his exclusive possession and that it was free from all encumbrances of Government or non-Government or any mortgage. By a subsequent agreement dated 26th December, 1973 defendant No. 1 Jagdish Rai got the time for execution of the sale deed under the suit agreement extended up to 30th June, 1974. The said extension agreement is Ex. P-2. It was recited therein that under the agreement of 28th September, 1973 the date of execution of the registration of the house was fixed up to 30th December, 1973. But because he was unable to get the sale deed executed by 30th December, 1973 the date of the execution of the sale deed was extended by mutual agreement up to 30th June, 1974. Thereafter defendant No. 1 Jagdish Rai entered into a sale deed for Rs. 20,000/- conveying his right, title and interest in one half of the suit property which in turn was a part of 14 marlas and which was joint with his brother, in favour of Jagir Singh, son of Kapur Singh. The said sale deed is at Ex. D-1 dated 23rd January, 1974. The said sale deed recited that the entire house consisted of 14 marlas. It was joint with his brother and consequently one half share of defendant No. 1 consisted of 7 marlas which was earlier mortgaged for Rs. 5,000/-. Out of that one half share of defendant No. 1 further one half thereof, that is, 1/4th of the entire house to the extent of 31/2 marlas was being sold to Jagir Singh for a sum of Rs. 20,000/-. The document recited that out of Rs. 10,000/- earnest money of Rs. 5,000/- was received by defendant No. 1 and the balance of Rs. 5,000/- was retained by the purchaser for paying off the mortgagee and the balance of Rs. 10,000/- would be received by defendant No. 1 at the time of execution of the document before Sub-Registrar, Moga. Said Jagir Singh was joined as defendant No. 3 in the suit from which the present proceedings arise. Defendant No. 3 Jagir Singh in turn sold the 1/4th share in the entire house of 14 marlas, which he had purchased from defendant No. 1, by entering into sale deed in favour of defendant No. 2 on 27th March, 1994 for a sum of Rs. 21,000/-. Said document is Ex. D-4. Thus by the said sale deed defendant No. 2 purchased (sic) marlas out of the suit property from defendant No. 3. As noted earlier, the suit agreement in favour of the plaintiff covered 7 marlas being 1/2 share of defendant No. 1 in the entire house originally consisting of 14 marlas. The remaining 31/2 marlas of the suit property was subsequently purchased by defendant No. 2 from defendant No. 1 by a registered sale deed dated 2nd April, 1974 for a consideration of Rs. 30,000/-. Said document is Ex. D-2. It was thereafter that the plaintiff filed Civil Suit No. 211 of 1974 in the Court of Sub-Judge, 1st Class, Moga for specific performance of the suit agreement joining defendant No. 1 Jagdish Rai the original owner of the property of 7 marlas being his 1/2 interest in the entire house. He joined defendant No. 2 who had by then become the full owner of entire 7 marlas of defendant No. 1's share in the suit house and which came to be conveyed to him by two documents Ex. D-4 and D-2 respectively. As noted earlier, the intermediate purchaser of 1/4th share of defendant No. 1 admeasuring 31/2 marlas of the suit property was joined as defendant No. 3 and the present purchaser of the entire right, title and interest of defendant No. 2 in the suit property pending this appeal and who is joined as respondent No. 4 herein is to be treated as defendant No. 4. In the aforesaid suit the plaintiff contended that he was ready and willing to perform his part of the suit agreement and, therefore, defendant No. 1 was bound to convey all 7 marlas of the suit property covered by the agreement in favour of the plaintiff by executing appropriate sale deed and by putting the plaintiff in possession of the suit property. It was also contended that defendant No. 2 and defendant No. 3 were not bona fide purchasers for value without notice and, therefore, appropriate decree for specific performance was required to be passed also against them, especially against defendant No. 2 who was by the time of the suit representing the entire interest of defendant No. 1 in the suit property which was passed on to him pursuant to the aforesaid intermediate transactions of sale prior to the suit. It was alternatively prayed that a decree for Rs. 10,000/- as damages be passed in favour of the plaintiff and against the defendant.