JUGRAJ SINGH Vs. LABH SINGH

JUDGEMENT

(1.) THE facts : Defendant No. 1 - respondent No. 3 (hereinafter referred to as the vendor) entered into, an agreement to sell dated 30. 8. 1984 with respondent Nos. 1 and 3 (hereinafter referred to a the plaintiffs) agreeing to sell 10 Kanals 11 Marlas of land bearing Rect No. 51 Killa No. 3 (3-16), 8 (6-15) at the rate of Rs. 40,000/- per killa. The vendor did not execute the sale deed as per the terms of the agreement. On the contrary, in violation of the terms of agreement he sold 3 kanal-16 Maria of land to Jugraj Singh and Buta Singh appellants, vide registered sale deed dated 4. 2. 1985. the plaintiffs filed Civil Suit No. 168-1 of 16. 2. 1985 for a decree of possession by way of specific performance of contract of sale dated 30. 8. 1984. The vendor and the subsequent vendees contested the suit.

(2.) THE trial Court, after examining the evidence led by the parties found that defendant No. 1-vendor had committed the breach of the terms of the agreement and that the plaintiff-vendees were entitled to a decree of specific performance of contract of sale dated 30. 8. 1984; that village Retherian was a small village and everyone was expected to know about the execution of agreements or sale deeds between the residents of the village; that subsequent vendees also had the knowledge of the agreement dated 30. 8. 1984 and hence they were not bonafide purchasers for consideration without notice of the prior agreement in question in favour of the plaintiffs.

(3.) THE subsequent vendees challenged the said judgment and decree vide civil Appeal No. 9 of the 1987 which was dismissed by District Judge, Faridkot on 14. 9. 1990. 5. It is that judgment and decree of the learned first Appellate Court dated 14. 9. 1990 which has been challenged by the subsequent vendees Jugraj Singh and Buta Singh in this Regular Second Appeal and which requires my examination of its sustainability. 6. I have seen the pleadings of the parties in the suit, the evidence adduced by the parties in the suit and have also examined judgments of both the Courts below. 7. Learned counsel for the appellants has made following submissions:1. that the plaintiffs were not ready and willing to perform their part of the contract as they did not possess Rs. 50,000/- for payment to the vendor as balance sale consideration; and 2. that the appellants were bonafide purchasers for consideration without notice of the prior agreement to sell. 8. First argument first. Precise submission of the learned counsel for the appellants is that the plaintiffs have not been able to show that they were in possession of Rs. 50,000/- to be paid to the defendant No. l at the time of the execution of the sale deed. Statement of Behari Lal, Commission Agent, who has proved on record copy of the Khata Ex. DW3/l, has been pressed into service and it has been submitted that this document would show that the plaintiffs had never withdrawn from the said firm of Commission Agents any substantial amount for being paid to the vendor-defendant No. l at the relevant time and, therefore, the Courts below should have held that the plaintiffs did not have Rs. 50,000/- on 23. 1. 1985 for payment to the defendant No. 1 and, therefore, they were not ready and willing to perform their part of the contract. In reply, learned counsel for the respondents has submitted that it has come in evidence that the plaintiffs had gone to the office of the Joint Sub Registrar with the consideration amount of Rs. 50,000/- in cash and had moved an application in this regard. On 6. 2. 1985 the plaintiffs had again approached the vendor-respondent with Rs. 50,000/- at his house but prior thereto he had already sold 3 Kanal-16 Marlas of land to subsequent vendees out of the land agreed to be sold to them. Moreover, the plea that the plaintiffs were not ready and willing to perform their part of the contract is not available to the subsequent vendees. This plea could be taken only by the vendor but he had neither filed any appeal against the judgment and decree of the trial Court nor had filed any cross-objections in the appeal filed by the subsequent vendees. The appellants had purchased only 3 kanal-16 Marlas of the land and had affixed Court fees stamp only to that extent. Therefore, the first argument of the learned counsel for the appellant does not survive. 9. Now on to the second argument. After scrutinizing the entire evidence on record both the Courts below have concurrently found that the appellants were not bonafide purchasers without notice of the previous agreement to sell dated 4. 8. 1984. Concededly, the plaintiffs and defendant No. 1-vendor were brothers inter so. They were co-sharers in agricultural land measuring 152 Kanal-15 Maria situated in the area of village Retherian in equal shares. Defendant No. 1 vide unregistered agreement to sell dated 30. 8. 1984. Ramesh Chander PW who has attested both these documents is a Sarpanch of the village. It cannot be presumed that he had not informed the subsequent vendees of the earlier agreement to sell. It was stipulated in Ex. P-1 that the vendor will execute the registered sale deed on 28. 1. 1985. The sale deed Ex. PW5/2 was executed on 4. 2. 1985. The high haste with which the said sale deed was executed speaks volumes. From the over-all attending circumstances, it is clear that the appellants had the knowledge of the agreement to sell dated 30. 8. 1984. Therefore, they cannot be held to be bonafide purchasers without notice. In holding the above view a reference can be had to: Roshan and Ors. v. Smt. Mamo and Ors. 1987 P. L. J. 385. 10. For the reasons recorded in the preceding paragraph, I do not find any. fault with the concurrent findings of fact recorded by the two Courts below, the well reasoned judgment of the learned District Judge dated 14. 9. 1990 which is impugned in this Regular Second Appeal is hereby upheld. Resultantly, this appeal fails which be and is hereby dismissed. However, the parties are left to hear their own costs.