IMPORTANT POINT
The learned Single Judge rightly held that appellants (defendants 2 and 3) are transferees in good faith for consideration and without notice of later agreement in favour of plaintiff and are protected under Section 41 of the Transfer of Property Act, 1882.

Headnote:Transfer of Property Act, 1882-Section 41-Transfer by ostensible owners-Prior agreement to sell by owner K in favour of Z and D dated 31.12.1970-Later agreement to sell by owner K in favour of S dated 3.3.71-Allegation that when sale deed was registered in favour of Z and D on 17.3.1971, S moved an application before Sub-Registrar not to register-Sub-Registrar returned the application with endorsement but registered the Sale Deed in favour of Z and D-S filing suit for specific performance-Trial Court decreed it-Single Judge of High Court in first appeal dismissed the suit as alleged application and endorsement on it not proved-There was no record of its production-Scribe not examined-Evidence of Sub-Registrar was late and doubtful-D.B. in LPA reversed Single Judge and restored Trial Court-Appeal to Supreme Court-Whether Z and D (Defendants 2 and 3) are transferees in good faith for consideration without notice of agreement in favour of S and protected u/s. 41 of T.P. Act? (Yes) (See Paras 6 to 11)- Result-Appeal allowed-D.B. set aside and Single Judge affirmed.
Held : In the above circumstances, no exception can be taken to the view taken by the Single Judge in first appeal having not relied upon on the alleged application of the plaintiff upon which Sub-Registrar is said to have made an endorsement. Firstly, the application in original after having been received and after making an endorsement on it, it is said to have been returned to the applicant. Again there is no record or entry of the same in the records of the office of the Sub-Registrar. The Sub-Registrar was examined much later while the document is supposed to have remained in the custody of plaintiff throughout until filed in Court. No presumption of correctness of official act can be attached to such a document and the Sub-Registrar has not stated that the document was before him, upon which he may have identified his signatures stating that it was the same document. It was only a chance, that the plaintiff happened to be there in the Tehsil office when he come to know about that the sale deed was going to be registered. The deed writer or the scribe, who is said to have prepared the application, has not been examined. There is an earlier agreement to sell between the defendant No.1 Kankar Singh and vendee-defendants, which unfortunately does not find favour of even being taken notice of by the Division bench much less appreciated. For the discussion held above in our view, the learned Division Bench, in the back ground of the facts and circumstances, wrongly came to the conclusion that the findings of the learned Single Judge were liable to be set aside on the ground of being based on misreading or misinterpretation of pleadings or evidence and presumptions unlawfully drawn. There may be wrong appreciation of the averments made in paragraph 2 of the plaint, but that alone will not be sufficient to upset the findings recorded by the learned Single Judge in the first appeal on appreciation of entire evidence on the record including document D-1 executed by PW-1, Kankar Singh in favour of Zorawar Singh agreeing to sell the property in his favour under the said deed dated 31.12.1970. The submission on behalf of the respondent that it is doubtful since made on the last date of the year has no force at all. It is an agreement earlier in point of time. It lends support to case of bona-fide purchase by the defendant-vendee in pursuance of earlier agreement dated 31.12.1970. The case of the plaintiff that vendee had prior notice of agreement to sell dated 3.3.71 between plaintiff and Kankar Singh on the basis of the alleged application said to have been moved before the Sub-Registrar just before execution of sale deed is not made out. There was no good reason to upset the findings in the Letters Patent Appeal as recorded by the learned Single Judge in the First Appeal. In the result, we allow the appeal set aside the order passed by the Division Bench in the letters patent appeal and restore the judgment and decree passed by the learned Single Judge of the High Court in first appeal. Costs easy. (Paras 11, 12 & 13)

JUDGMENT

Brijesh Kumar, J.-Leave granted.

2. This appeal has been preferred against the Judgment and order dated 28.7.2000 passed by the Division Bench of Punjab and Haryana High Court, allowing the Letters Patent Appeal No. 335 of 1983 preferred by the plaintiff, Sarwan Singh, who since dead, is represented by his legal representatives respondents No. 1/(i), (ii), (iii) & (iv) to this appeal. The order of the Single Judge has been set aside and the decree passed by the Trial Court in Civil Suit No. 67 of 1971 has been restored, by which Suit was decreed in favour of Sarwan Singh for specific performance of agreement of sale.

3. It may be briefly indicated that one Kankar Singh was the original owner of the land in question. Zorawar Singh and Devinder Singh purchased land from Kankar Singh in respect of which Sarwan Singh filed a suit impleading Kankar Singh as defendant No.1 and Zorawar Singh and Devinder Singh son of Zorawar Singh, as defendants No. 2 & 3. The plaintiff, Sarwan Singh and defendant No.1 Kankar Singh are now dead, their legal representatives are on record but for convenience their names are referred instead of that of their heirs.

4. The case of the plaintiff Sarwan Singh is that he entered into an agreement to sale dated 3.3.1971 with Kankar Singh in respect of land measuring 110 Kanal, 13 marlas for consideration of Rs. 1,98,312/-. It is also his case that he paid a sum of Rs. 61,100/- to Kankar Singh. The defendant No.1 Kankar Singh sold the land to defendant No. 2 Zorawar Singh on 17.3.1971 despite the fact that on coming to know about it Sarwan Singh went before the Sub-Registrar with an application informing that land in dispute had already been agreed to be sold to him by Kankar Singh. The defendant No.1 was sought to be stopped from executing the sale deed in favour of defendants No. 2 and 3. It is further averred in the plaint that the defendants had knowledge about the agreement yet they got the sale deed attested in their favour by the Sub-Registrar. He claimed preferential right in terms of agreement. The plaintiff made a prayer for a decree in his favour for specific performance of agreement dated 3.3.1971, on payment of the balance amount as against defendants No.1, 2 and 3. In the alternative decree against defendant No. 1 for a sum of Rs. 1,22,200/- as damages which includes the amounts paid as advance to defendant No. 1. No other prayer was made.

5. The Defendant No.1 denied the allegations made by the plaintiff including alleged agreement to sell in favour of the plaintiff. So far defendants No. 2 and 3 , namely Zorawar Singh and Devinder Singh are concerned, they denied the allegations made by the plaintiff and took up the plea that they are transferees in good faith for consideration without notice. It is specifically denied that they had any knowledge of any agreement to sell as alleged between the plaintiff and defendant No.1. It is also denied that the plaintiff moved any application before the Sub-Registrar. According to the defendant Zorawar Singh, he was already in possession of the land as tenant and had entered into an agreement on 31.12. 1970 with Kankar Singh for sale of the land and had paid a sum of Rs. 38,000/- to Kankar Singh as earnest money in respect whereof be executed a receipt. Whereas according to the plaintiff he had entered into an agreement for sale with Kankar Singh on 3.3.1971. The Owner of the land Kankar Singh executed sale deed in favour of Zorawar Singh on 17.3.1971. On 19.3.1971 Sarwan Singh filed suit No. 67/71 for specific performance of contract dated 3.3.1971. The present appeal arises out of the said suit. Zorawar Singh filed a Civil Suit No. 200/1971 on 26.7.1971 for permanent injunction to restraint the defendants from dispossessing them from the suit land. By an order dated 7.10.1972 suit No. 67/1971 and suit No. 200/1971 were consolidated recording the evidence in suit No.67 of 1971. The Trial Court by a decree dated 31.5.1973 decreed the suit No

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2002 Supreme(SC) 437

IMPORTANT POINTThe learned Single Judge rightly held that appellants (defendants 2 and 3) are transferees in good faith for consideration and without notice of later agreement in favour of plaintiff and are protected under Section 41 of the Transfer of Property Act, 1882.

IMPORTANT POINT
The learned Single Judge rightly held that appellants (defendants 2 and 3) are transferees in good faith for consideration and without notice of later agreement in favour of plaintiff and are protected under Section 41 of the Transfer of Property Act, 1882.