SOM NATH ROLIA Vs. MANOJ KUMAR AND ANR.

JUDGEMENT

(1.) APPELLANT herein is the defendant in the suit for specific performance filed by respondent No. 1 in the Court of Additional Civil Judge (Senior Division), Amritsar. Respondent No. 1 in the suit not only prayed for possession by way of specific performance of the agreement to sell dated 5.2.1999 but also sought annulment of the sale deed dated 3.5.1999 allegedly executed by the appellant in favour of respondent No. 2. Appellant denied the execution of the agreement and also pleaded that on the basis of earlier agreement to sell dated 8.1.1999, he had already sold the property in favour of respondent No. 2 Gurdip Kaur vide sale deed dated 3.5.1999. During the course of trial, execution of agreement has been established. Accordingly, the trial Court returned the finding regarding due execution of agreement to sell. The trial Court, however, declined the relief for specific performance by delivery of possession and execution of the sale deed. This denial was in view of the sale deed executed by the appellant in favour of respondent No. 2. The trial Court, however, decreed the suit and granted the alternative relief of refund of earnest money of Rs. 50,000/ - alongwith interest at the rate of 12% per annum vide its judgment and decree dated 19.1.2004. Respondent No. 1 aggrieved of the judgment and decree of the trial court preferred an appeal before the District Judge, Amritsar, who has allowed the appeal and decreed the suit for specific performance for execution of the sale deed and delivery of possession vide judgment and decree dated 25.5.2005. The Appellate Court reversed the findings on issues No. 6,7 and 8 recorded by the trial Court. The Appellate Court did not agree with the findings of the trial Court with regard to validity of the sale deed in favour of respondent No. 2. Specific finding recorded by the First Appellate Court is that respondent No. 2 is mother -in -law of the appellant herein and though the agreement to sell dated 8.1.1999 has been proved but there is no mention of this agreement in the sale deed nor alleged sale consideration, passed on to the vendor. The Appellate Court accordingly decreed the suit of the respondent No. 1 in toto.

(2.) LEARNED Counsel appearing for the defendant No. 1 appellant has assailed the findings of the First Appellate Court in so far as it has granted the relief of specific performance. It is argued that findings recorded by lower appellate Court are contrary to the evidence on record.

(3.) SECTION 19 of the Specific Relief Act, 1963 clearly empowers the Court to grant specific performance even against the transferee of the property. The only exception is under Section (b) of Section 19 wherein it is established that any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. In the present case, the parties to the sale deed are closely related and it cannot be said that the transferee had no notice of the contract. Otherwise also, as per finding of the First Appellate Court, agreement to sell allegedly executed earlier in time seems to have been procured to defeat the right of respondent No. 1. It is also settled law that the First Appellate Court is the final Court of fact.