GURDEV SINGH Vs. JAGDEEP SINGH AND ORS.

JUDGEMENT

(1.) Mr. P.K.S. Phoolka, Advocate submits that he has no instructions to appear on behalf of respondent No. 2. Since defendant No. 1 has no interest and is parted with the interest in the land, therefore, the dispute is with the subsequent vendees and the plaintiff accordingly I proceed to decide the appeal in the presence of the counsel for the plaintiff and subsequent vendees.

(2.) The appellant -plaintiff is aggrieved of the judgment and decree of the lower Appellate Court, whereby judgment and decree of the trial Court decreeing the suit granting the specific relief in respect of agreement to sell dated 02.01.2006, has been set aside.

(3.) Mr. Anand Chhibbar, learned Senior Counsel assisted by Mr. Gaurav Mankotia, learned counsel appearing on behalf of appellant -plaintiff submits, that the trial Court earlier had decreed the suit. However, the lower Appellate Court remanded back the matter by framing issue No. 4 -A as to whether defendant No. 2 had purchased the property during the currency of the agreement to sell being bona fide purchaser or not. The trial Court on the basis of the evidence brought on record found that the witness to the sale deed dated 27.03.2006 entered into by the Vendor -defendant No. 1 in favour of defendant No. 2 -respondent No. 1 herein were none else but the neighbours of the vendor and they were members of one family and, therefore, it cannot be believed that the aforementioned witnesses including the vendor did not pass the information with regard to the execution of agreement to sell dated 02.01.2006 while selling the land to defendant No. 2 on 27.03.2006. He further submits that agreement to sell in respect of land measuring 48 kanals was entered into on 02.01.2006 with respondent No. 2 -defendant No. 1 against the total sale consideration of Rs. 9,25,000/ - whereby earnest money of Rs. 5,25,000/ - was paid. The agreement to sell, aforementioned, has been proved through the testimony of both the attesting witnesses and not only this, even readiness and willingness has also been proved inasmuch as that on acquiring the knowledge of the alleged breach, the suit was filed on 30.03.2006 much before the stipulated date because the vendor/defendant No. 1 (respondent No. 2) had sold the land agreed to be sold to the respondent No. 1 -defendant No. 2 vide sale deed dated 27.03.2006. He further submits that the defendant No. 2 cannot take the aid of provision of Sec. 41 of the Transfer of Property Act as they had the knowledge of the agreement to sell and rightly finding on issue No. 4 -A was rendered in favour of plaintiff. However, the lower Appellate Court being the last Court of fact and law did not discuss the evidence on record and in the most erroneous and perverse manner reverse the findings and thus prays that following substantial questions of law would arise for determination: -