IMPORTANT POINT
Agreement to sell – Suit for Specific Performance – Once sale agreement is proved and subsequent sale was during pendency of suit hit by doctrine of lis pendens, decree for specific performance can be passed.

JUDGMENT :

PRASHANT KUMAR MISHRA, J.

1. The defendant No. 2 in the suit has preferred this appeal challenging the judgment and decree passed by the High Court allowing the appeal preferred by the plaintiff/Daljit Singh to set aside the judgment and decree of the Trial Court and the First Appellate Court which concurrently decreed the suit partially only for the alternative relief of recovery of Rs. 40,000/- along with interest while dismissing the suit in respect of specific performance of the agreement dated 17.08.1990.

2. The facts of the case emerging from the pleadings of the parties are that plaintiff/Daljit Singh instituted the suit on 24.12.1992 claiming specific performance of the agreement to sell dated 17.08.1990 in respect of the land measuring 79 Kanals 09 marlas @ of Rs. 80,000/- per acre against the payment of earnest money of Rs. 40,000/- and the balance amount of Rs. 7,54,000/- at the time of execution and registration of the sale deed on or before 30.11.1992.

3. According to the plaintiff, he remained present in the office of the Sub-Registrar on 30.11.1992 with the balance sale consideration and all the expenses for stamp papers but defendant no. 1 did not turn up to perform his part of the agreement. The plaintiff marked his presence by submitting an affidavit before the Executive Magistrate. The suit was preferred within 23 days as stipulated in the agreement. Defendant no. 1 initially denied the execution of the agreement to sell, much less, receipt of the earnest money with further averment that the subject land was a Joint Hindu Family property. During the pendency of the suit, the present appellant/defendant no. 2/Shingrara Singh was impleaded on 25.01.1993 on the basis that defendant no. 1/ Janraj Singh executed a sale deed in his favour on 08.01.1993 in respect of the suit land on the basis of alleged agreement to sell dated 19.11.1990 for a sum of Rs. 6,45,937.50. It is to be noted that the Trial Court passed an order of status quo on 24.12.1992 qua alienation with regard to the share of defendant no. 1.

4. Defendant No. 2/appellant filed his separate written statement stating that defendant no. 1 has sold the property to him by executing a registered sale deed on 08.01.1993 and delivered possession after which mutation has also been carried out. According to the appellant/defendant no. 2, the agreement, basing which the suit is filed, is a fabricated antedated document because defendant no. 1 did not disclose the factum of this agreement while executing the sale deed in his favour and thus, the appellant/defendant no. 2 is a bona fide purchaser.

5. In the Trial Court plaintiff examined himself as PW-2, Deed Writer/ Kulwant Singh as PW-1, Jasjit Singh as PW-3 whereas defendants examined Kirpan Singh as DW 1, Shangara Singh as DW 2, B.M. Sehgal as DW 3 and Subhash Chander as DW4. The Trial Court vide its judgment dated 27.04.2007 held that the plaintiff has proved the agreement to sell wherein defendant no. 2 has failed to prove that the agreement is a result of fraud and fabricated document. However, the Trial Court denied the decree for specific performance on the ground that since defendant no. 2 is the owner in possession of the suit land upon execution of the sale deed dated 08.01.1993, defendant no. 1 has left with no right or title of the suit land. Thus, he is unable to execute the sale deed in favour of the plaintiff and moreover the plaintiff and defendant no. 1 are close relative. The Trial Court also held that the plaintiff was ready and willing to perform his part of the contract. It was also held that defendant no. 2 is a bona fide purchaser as he was not having any knowledge about the agreement to sell between the plaintiff and defendant no.1. The Trial Court eventually dismissed the suit in respect of the specific performance but allowed the alternative prayer for recovery of Rs. 40,000/- with interest @ 12% per annum.

6. The First Appellate Court maintained the Trial Court’s judgment and dec