AT CHANDIGARH RSA 1023 of 2011(O&M) Date of Decision : November 21 v. Teja Singh & Ors.

performance of the agreement, the appellant filed the first appeal which was dismissed by the lower appellate Court. He is now RSA 1023 of 2011(O&M) -2- before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. According to the appellant, respondent No.1 was owner of the suit property and on 13.1.1983, he entered into an agreement to sell the same to him for Rs. 1,20,000/- and received Rs. 1,10,000/- as earnest money. The sale-deed was to be executed on or before 13.1.1988. Before 13.1.1988, respondent No.1 sold some of the land to respondents No.2 and 3 whereas respondent No.4 obtained ex parte decree for specific performance of the agreement with respect to land measuring 4 kanals 16 marlas out of the suit land and, thereafter, sold his share to respondents No.5 and 6 by way of registered sale-deed. Alleging that he was ready and willing to perform his part of the agreement to sell but respondent No.1 failing to execute the sale- deed, the appellant filed suit for possession by way of specific performance of the agreement to sell dated 13.1.1983. The suit was contested by all the respondents. In his written statement, respondent No.1 denied his entering into an agreement to sell the land in question or receiving earnest amount of Rs. 1,10,000/-. Respondents No.2 and 3 took up the stand that they have purchased the land measuring 23 kanals 13 marlas including the suit land vide three registered sale-deeds from respondent No.1 and his brother Mohinder Singh and that RSA 1023 of 2011(O&M) -3- they were bona fide purchasers without any notice of the agreement to sell. Respondent No.4 averred in his written statement that the appellant and respondent No.1 were real brothers. Respondent No.1 had sold 4 kanals 16 marlas of land out of the suit property to him on 1.6.1988 after receiving earnest money of Rs. 18,000/-. He was a bona fide purchaser for consideration. The suit was filed by the appellant in collusion with respondent No.1. Similarly respondents No. 5 and 6 claimed to have purchased 4 kanals 16 marlas land out of the suit land from respondent No.4 on 12.4.1993 after said respondent No.4 had obtained a decree for specific performance against respondent No.1 on 29.11.1989 and sale-deed executed during execution of the said decree. Having heard counsel for the appellant and going through the evidence available on the file, the trial Court held that the appellant was not entitled for any relief of specific performance of the agreement to sell as he had failed to prove his readiness and willingness to perform his part of contract but at the same time, he was entitled for the alternative relief of recovery of Rs. 1,20,000/- being refund of the earnest money and damages by way of penalty. The said judgment and decree passed by the trial Court was upheld by the lower appellate Court, as mentioned above. RSA 1023 of 2011(O&M) -4- Though the present appeal is barred by limitation and the appellant has filed miscellaneous application, i.e. CM 2850-C of 2011 for condonation of delay of 386 days in filing of the appeal yet this Court, without being influenced by the said fact, has heard counsel for the appellant on merits and perused the judgments and decrees passed by the Courts below. Counsel for the appellant has submitted that as the execution of the agreement to sell stood duly proved, there was no reason to deny the relief of its specific performance. Further, the Courts below have wrongly held that respondents No.2 to 6 were bona fide purchasers for consideration. Having heard counsel for the appellant, this Court finds that the agreement to sell Ex. P1 scribed on 13.1.1983 was admitted by respondent No.1. Apparently, there was collusion between the appellant and respondent No.1. Respondent No.1 while appearing before the trial Court as DW2 admitted in his cross-examination that the appellant executed power of attorney in his favour which was later on cancelled. He also admitted that the appellant was permanently residing abroad and had returned to India only for 15 days for execution of the agreement to sell. He further admitted that the entire property was in possession of his family. As regards the agreement to sell Ex. P1, it may be noticed that the total sale consideration was mentioned therein as RSA 1023 of 2011(O&M) -5- Rs. 1,20,000/- out of which Rs. 1,10,000/- was paid at the time of its execution. The sale-deed was to be executed after a period of five years. The appellant has not been able to convince the Court as to why the execution of the sale-deed was deferred for a period of five years when only an amount of Rs. 10,000/- out of the total sale consideration of Rs. 1,20,000/- was required to be paid while executing the sale-deed. On the other hand, the appellant also did not step into the witness box. His attorney Charan Singh, who appeared as PW3, deposed that after 5/7 days of the execution of the agreement to sell, the appellant had left for Canada and later on he had received a letter from him with respect to the agreement to sell but he did not bring on record the said letter. Under these circumstances, it cannot be said that there is sufficient evidence on the file to show the readiness and willingness of the appellant to perform his part of the agreement and respondent No.1 failing to execute the sale-deed. Apparently, there was a collusion between the appellant and respondent No.1 being real brothers just to defeat the rights of defendants No.2 to 4 in whose favour he had executed the sale- deeds. Even otherwise, no evidence was brought on the record that any notice was issued by the appellant to respondents No. 2 to 4 about there being any agreement to sell already executed by respondent No.1 in his favour. In such a situation, respondents No.2 to 4 were bona fide purchasers and for consideration and, RSA 1023 of 2011(O&M) -6- therefore, not bound by the terms and conditions as contained in the purported agreement to sell Ex. P1. As a consequence thereof, the rights of respondents No.5 and 6 in the property purchased by them from respondent No.4 did not get affected. It may not be out of place to mention here that the suit filed by the appellant against respondents No.2 and 3 was barred by limitation. It was on 12.4.1984 that respondent No.1 sold some portion of the suit land in favour of respondents No.2 and 3. The suit having been filed on 7.1.1988 was clearly barred by limitation. In view of the above, no case is made out for any interference in the judgments and decrees passed by the Courts below whereby suit filed by the appellant for possession by way of specific performance of the agreement to sell stands dismissed. The substantial questions of law formulated by the counsel for the appellant do not arise for determination. The appeal is without any merit and, therefore, dismissed. November 21, 2012 ajay-1 ( T.P.S. MANN ) JUDGE