JAGTAR SINGH Vs. GURMIT SINGH

JUDGEMENT

(1.) This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff-appellant has been able to rprove agreement to sell dated 16-1-1997 executed by his brother defendant-respondent No. 1 in his favour. According to the agreement to sell, land measuring 2 kanal-16 marlas fully described in the title of the plaint was agreed to be sold to the plaintiff-appellant by defendant-respondent No. 1 for the date for execution of the sale deed fixed between the parties was on or before 16-1-1997. However, it has been found that defendant-respondent No. 2 Joga Singh has been sold the land by execution of sale deed dated 19-3-1997. Defendant respondent No. 2, Joga Singh has been found to be bona fide purchaser. The Courts below have found that the plaintiff-appellant and defendant-respondent No. 1 are real brothers and they had been residing jointly in one house. It has been held that agreement was executed later on to defeat the rights of defendant-respondent No. 2. The application filed before the Sub-Registrar by the plaintiff-appellant intimating that no sale deeds could be executed in favour of the defendant-respondent No. 2 has been disbelieved. The aforementioned application is Mark C. The ground of discarding the aforementioned evidence is that there was no endorsement of the Sub Registrar showing on which date the application was filed. The Registration Clerk Brij Mohan Sehgal P.W. 2 produced by the plaintiff-appellant categorically stated that the application was not entered in any register of the office of the Sub-Registrar. Therefore, it has been concluded that such like application could be prepared at any time and no knowledge about agreement to sell dated 16-1-1997 could be imparted to defendant-respondent No. 2. It is further evident that sale deed executed on 19-3-1997 in favour of defendant-respondent No. 2 was for a consideration of Rs. 50,000/- which was paid before the Sub-Registrar. On the basis of the appreciation of evidence by both the Courts below, defendant-respondent No. 2 has been held to be bona fide purchaser of the suit land for the valuable consideration and without notice of agreement dated 16-1-1997. On account of the aforementioned facts, prayer for specific performance of agreement to sell dated 16-1-1997 was declined. However, alternative prayer has been allowed by the learned lower Appellate Court and the suit has been partially decreed. Defendant- respondent No. 1 has been held liable to pay Rs. 80,000/- (Rs. 40,000/- as earnest money and Rs. 40,000/- as damages) along with Interest alias 12%p.a. from 16-1-1997 till its realisation. The cost has also been awarded in favour of the plaintiff-appellant.

(2.) Having heard the learned counsel at a considerable length, I am of the considered view that there is no room to interfere in the concurrent findings of facts recorded by both the Courts below. It has been rightly found by the Courts below that the plaintiff-appellant and defendant-respondent No. 1 were living together and that there was dqubt about the boha fide, genuineness and actual execution of agreement to sell dated 16-1-1997. It was also held by the Courts below that defendant-respondent No. 2 has been found to be bona fide purchaser for valuable consideration and without notice about the' agreement to sell. Nothing has been placed on record showing that defendant-respondent No. 2 was supposed to be aware about the existence of agreement to sell dated 16-1-1997 between the plaintiff appellant and defendant-respondent No. 1. The effort made by producing document Mark-C which is a letter written by the plaintiff-appellant to the Sub-Registrar intimating about the existence of agreement to sell dated 16-1 -1997 has not succeeded because there is no endorsement on the aforementioned letter. Even Registration Clerk, P.W. 2 has deposed that the aforementioned letter has not been entered in any register of the Office of Sub-Registrar. Even otherwise no interference of this Court in exercise of power under Section 100 of the Code would be warranted for setting aside concurrent findings of facts. Therefore, there is no room to interfere in the concurrent findings of fact and the relief granted to the plaintiff-appellant that he would be entitled to recover back Rs. 40,000/- as earnest money and award amount as liquidated damages along with interest @ 12 percent p.a. from" 16-1-1997 till its realisation.

(3.) The argument of the learned counsel for the plaintiff-appellant that onus to prove has not been discharged by the defendant-respondent No. 2 by proving that he is a bona fide purchaser would not require any detailed consideration. It is well settled that after both the parties have adduced their evidence the question of onus loses its significance and it becomes an academic issue. Reference in this regard may be made to para 14 of the judgment of the Supreme Court in the case of Union of India v. Sugauli Sugar Works (P) Ltd., AIR 1976 SC 1414. Similar view has been taken in para 36 of the judgment in the case of M/s. Cox and Kings (Agents) Ltd. v. Their Workmen, AIR 1977 SC 1666 and also another judgment of the Supreme Court in the case of Sushil Kumar v. Rakesh Kumar, 2003 (8) SCC 673 : (AIR 2004 SC 230).