IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Omwa# v. RSA-3985-2011
Case Details
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Omwa# Vs. RSA-3985-2011 (O&M) . . . . Appellant Khursheed and Another . . . . Respondents **** Reserved on: 03.09.2025 Pronounced on: 15.09.2025 **** CORAM: HON’BLE MR JUSTICE DEEPAK GUPTA
Legal Reasoning
Argued by:- Mr. Sudhir Aggarwal, Ld. Advocate for the appellant Mr. Rakesh Dhiman, Ld. Advocate for the respondent. **** DEEPAK GUPTA, J. This appeal has been preferred by defendant No.2 (Smt. Omwa)) against the judgment & decree dated 12.08.2011, passed by the First Appellate Court, whereby the appeal filed by plain)ff Khursheed (respondent No.1 herein) was allowed, reversing the judgment of the Trial Court dated 08.10.2010, and thereby decreeing the suit for specific performance of contract. 2. For convenience and to avoid confusion, the par)es shall be referred to by their status before the Trial Court. 3. Plain)ff Khursheed filed a suit seeking specific performance of an agreement to sell against Defendant No.1 – Mustafa (owner of the property - (respondent No.2 herein); and Defendant No.2 – Smt. Omwa) (appellant herein and purchaser under subsequent sale). As per the plain)ff, Mustafa agreed to sell the suit property to him via agreement dated 05.03.2007 for ₹2,20,000/-. An NEETIKA TUTEJA 2025.09.15 17:58 I attest to the accuracy and integrity of this document RSA-3985-2011 (O&M) amount of ₹20,000/- was paid as earnest money. The sale deed was to be executed and registered on or before 23.04.2007. Plain)ff claimed that he appeared before the Sub-Registrar on the agreed date with the balance amount, but Mustafa did not show up. Later, he came to know that Mustafa had sold the property to defendant No.2 (Omwa)) on 28.08.2007 for ₹80,000/-. The plain)ff, therefore, sought a decree for specific performance of the agreement. 4. Defendant No.1 Mustafa did not contest the suit and was proceeded ex parte. 5. Defendant No.2 Omwa) denied any agreement to sell between plain)ff and Mustafa. She alleged fraud and collusion and claimed to be a bona fide purchaser for value. 6. A?er framing necessary issues and taking evidence, the Trial Court held that the execu)on of the agreement to sell was not proved sa)sfactorily; and that defendant No.2 was a bona fide purchaser. Consequently, the suit was dismissed. 7. However, the appeal filed by the plain)ff was allowed, and the suit for specific performance was decreed. The Appellate Court held that the agreement to sell was validly executed and proved through aBes)ng witnesses (PW-1, PW-2, PW-3) and its writer PW-5; that plain)ff was ready and willing to perform his part of the contract; and that defendant No.2 was not a bona fide purchaser. Consequently, the sale deed in favour of defendant No.2 was declared null and void, and she was directed to join Mustafa in execu)on of the sale deed in favour of the plain)ff upon payment of the balance amount of ₹2,00,000/-. Vacant possession was directed to be delivered to the plain)ff. 8. Assailing the aforesaid reversal, it is contended by learned counsel for the appellant- defendant No.2 that the Appellate Court erred in reversing the Trial Court’s finding regarding the bona fide nature of Omwa)’s purchase; Page 2 of 4 NEETIKA TUTEJA 2025.09.15 17:58 I attest to the accuracy and integrity of this document RSA-3985-2011 (O&M) and that the plain)ff had failed to prove his readiness and willingness to perform the contract. It is urged that Omwa) had made due inquiries before the purchase and found no record of any prior agreement. Besides, Jamabandi entries showed Mustafa as owner, with no men)on of any agreement to sell. 9. On the other hand, learned counsel for the respondent-plain)ff urge that Appellate Court has rightly decreed the suit for specific performance. 10. This Court has considered submissions of both the sides and have perused the record carefully. 11. On analysis of the en)re record, it is found by this court that as far as execu)on of the Agreement to Sell (05.03.2007) is concerned, it was duly proved through tes)monies of aBes)ng witnesses PW-1, PW-2, PW-3; and PW- 5 Sher Mohd., Advocate who dra?ed the agreement. There was no substan)al reason to disbelieve these witnesses. As such, the trial Court erred in doub)ng the execu)on. The finding of the Appellate Court on this issue is upheld. 12. Coming to readiness and Willingness of the Plain)ff, Sale deed was to be executed on or before 23.04.2007. Plain)ff relied on applica)on (Ex.P-2) submiBed before the Sub-Registrar and return endorsement (Ex.P-3). However, the applica)on was submiBed at 10:00 AM and returned immediately. There is no evidence that plain)ff waited for the whole day for the vendor. Further, there is no credible evidence that plain)ff brought or held ₹2,00,000/- on that day— no cash proof, bank statement, or demand dra? shown. S)ll further, no legal no- )ce was served on the vendor a?er he failed to appear. Not only this, plain)ff waited almost 11 months before filing the suit on 27.03.2008. 13. The above facts clearly demonstrate lack of readiness and willing- ness on the part of plain)ff, which is mandatory under Sec)on 16(c) of the Spe- cific Relief Act, 1963. As such, the finding of the First Appellate Court on this point is erroneous and is therefore reversed. 14. Moving ahead, the Jamabandi entries revealed defendant Mustafa Page 3 of 4 NEETIKA TUTEJA 2025.09.15 17:58 I attest to the accuracy and integrity of this document RSA-3985-2011 (O&M) to be owner in possession of the suit property. It has been categorically deposed by DW-2 Smt. Omwa) that before purchasing the land on 28.08.2007, she had made bona fide enquiries in the village regarding any transac)on. So much so, as per her tes)mony, she had asked vendor Mustafa about any agreement by him with anybody else or Khursheed and that he had replied in the nega)ve. There is no evidence to the contrary. As already stated that defendant-vendor Mustafa did not contest the suit. 15. In the aforesaid facts and circumstances, there was no reason for the first Appellate Court to reverse the finding of the trial Court to the effect that defendant No.2 Smt. Omwa)- appellant was the bona fide purchaser for value of the suit land. As such, finding to the contrary of the first Appellate Court in this regard is hereby reversed. 16. Consequent to the en)re discussion as above, the present appeal is accepted. The judgment & decree dated 12.08.2011 passed by the first Appel- late Court are hereby set aside. The judgment & decree dated 08.10.2010 of the trial Court are hereby restored, whereby the suit of the plain)ff- respondent No.1 was dismissed. (DEEPAK GUPTA) JUDGE 15.09.2025 Nee(cid:24)ka Tuteja Whether speaking/reasoned? Whether reportable? Yes/No Yes/No NEETIKA TUTEJA 2025.09.15 17:58 I attest to the accuracy and integrity of this document Page 4 of 4