SARWAN SINGH Vs. KANKAR SINGH

JUDGEMENT

(1.) This letters patent appeal is directed against the judgment and decree of the learned Single Judge whereby the decree of the trial Court granting specific performance of the agreement of sale was set aside and a decree for Rs. 16,000/- was passed against the vandor-defendant with interest

(2.) Kankar Singh, entered into an agreement of sale on March 3, 1971, with the plaintiff-appellant Sarwan Singh, for a sum of Rs. 1,98,312/-. The sale deed was to be executed on or before February 28, 1972. A sum of Rs. 61,000/- was paid as earnest money. According to the plaintiff, Kankar Singh executed a sale deed dated March 17, 1971, in favour of defendants Nos. 2 and 3 Zora Singh and Devinder Singh, for a sum of Rs. 1,88,144/-. According to the plaint, the plaintiff was always ready and willing to perform his part of the contract. Not only that, he even made an application before the Registrar on March 17, 1971, Exhibit P.W.4/1, to bring to his notice that already there was an agreement of sale in his favour and, therefore, the sale deed be not executed. However, the said application was rejected with the endorsement that there was no stay order of any civil Court as not to execute the sale deed. The plaintiff-filed the suit on March 19,1971. In the written statement filed by Kankar Singh, he denied having executed any agreement or received a sum of Rs. 61,000/- as earnest money. He alleged that the so-called agreement was the result of the fraud practised upon him by the plaintiff. In the written state ment filed on behalf of the subsequent vendees, they denies the factum and validity of the agreement of sale in favour of the plaintiff and pleaded lack of knowledge regarding its terms. It was maintained that the said defendants who had no notice of the agreement set up by the plaintiff had bona fide purchased the suit land from Kankar Singh defendant, for a sum of Rs. 1,88,144/- out of which they paid a sum of Rs. 30,000/- on December 31, 1970, on the basis of the receipt executed by him whereas the balance amount was paid before the Sub-Registrar. It was also pleaded that they were thus bona fide transferees for value without notice of the plaintiff's rights over the suit land. The trial Court found that the defendant in the face of the subsisting antecedent valid agreement in favour of the plaintiff could not claim protection of section 41 of the Transfer of Property Act. The plaintiff had at all material times been ready and willing to perform his part of the Agreement whereas defendant No. 1 had committed the breach of the agreement. In view of these findings, the plaintiff's suit for specific performance of "he agreement was decreed. In the appeal filed on behalf of the subsequent vendees, the learned Single Judge came to the conclusion that the subsequent sale in favour of the defendants was without notice of the earlier agreement of sale in favour of Sarwan Singh, plaintiff. It was further found that the subsequent vendees had purchased the land, in dispute, without notice of the agreement in favour of the plaintiff and that the payment of the entire consideration was admitted by the vendor and consequently their sale has to be considered to be protected under section 41 of the Transfer of Property Act. In view of these findings, the decree for specific performance of the agreement was set aside and the decree for the recovery of Rs. 61,100/- with interest at the rate of six per cent per annum from the date of the filing of the suit till the realisation was passed in favour of the plaintiff against Kankar Singh, defendant. Dissatisfied with the same, the plaintiff has filed this letters patent appeal.

(3.) At the time of the motion hearing, it was contended that the observations of the learned Single Judge that the application before the Sub-Registrar in March 17, 1971, was not referred to in the plaint is factually erroneous. According to the learned counsel for the appellant, the application made to the Registrar was very much mentioned in the plaint in paragraphs 2 and 3 thereof and, therefore, it could not be said to be afterthought. Moreover, the suit was filed after two days of the sale deed executed on March 17, 1971 and, therefore, it could not be successfully argued that the said application was a fabricated one. In any case, argued the learned counsel, the subsequent vendees belong to the same village and being co-villagers with the plaintiff had notice of the agreement Exhibit P.1, in favour of the 9 plaintiff. The sale deed was got executed hastily and no consideration was paid to the vendor Kankar Singh, as the subsequent vendees had no money with them. According to the learned counsel, the protection of section 41 of the Transfer of Property Act was not available to the vendees.