Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(Raj) 1369

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Nisha Gupta, J.
Kalyan and Anr. - Appellant
Versus
Jagdish Narain & Ors. - Respondent
S.B. Civil First Appeal No.312/2001 with S.B. Civil Cross Objection No.32/2002.
Decided On : 16-02-2015

Advocates:
For the Appellant:Dinesh Yadav, Advocate.
For the Respondent:R. K. Agrawal, Advocate.
For the Respondent No. 1:Sunita Pareek, Advocate.

A subsequent purchaser during the pendency of a suit is not a bona fide purchaser and cannot claim the benefit of the exception to Section 19(b) of the Specific Relief Act.

Headnote:
SPECIFIC PERFORMANCE - AGREEMENT TO SELL - COMPENSATION - PROPERTY ACQUIRED BY HOUSING BOARD - AMENDMENT OF RELIEF - RES JUDICATA - BONA FIDE PURCHASER - EQUITY - POSSESSION - READINESS AND WILLINGNESS TO PERFORM CONTRACT - CANCELLATION OF SALE DEED.
Fact of the Case:

Plaintiff filed a suit for specific performance of an agreement to sell property. During the pendency of the suit, the property was acquired by the Rajasthan Housing Board. The plaintiff amended his relief and sought compensation instead of specific performance. The trial court decreed the suit for compensation. The defendants and the plaintiff filed appeals and cross-objections, respectively.
Finding of the Court:

1. The agreement to sell between the plaintiff and the defendant was genuine and executed on 30/01/1989. 2. The agreement to sell dated 14/12/1988, in favor of the defendants, was ante-dated and executed to frustrate the plaintiff's suit. 3. The defendants were not bona fide purchasers as the sale deed in their favor was executed during the pendency of the suit. 4. The plaintiff was ready and willing to perform his part of the contract. 5. The plaintiff was not required to seek cancellation of the sale deed executed in favor of the defendants as the same was hit by Section 52 of the Transfer of Property Act.
Issues: 1. Whether the agreement to sell between the plaintiff and the defendant was genuine. 2. Whether the agreement to sell dated 14/12/1988, in favor of the defendants, was genuine. 3. Whether the defendants were bona fide purchasers. 4. Whether the plaintiff was ready and willing to perform his part of the contract. 5. Whether the plaintiff was required to seek cancellation of the sale deed executed in favor of the defendants.
Ratio Decidendi: 1. The court relied on the evidence of the plaintiff and his witnesses to hold that the agreement to sell between the plaintiff and the defendant was genuine. 2. The court found that the agreement to sell dated 14/12/1988, in favor of the defendants, was ante-dated and executed to frustrate the plaintiff's suit, based on the inconsistencies in the evidence of the defendants and their witnesses. 3. The court held that the defendants were not bona fide purchasers as the sale deed in their favor was executed during the pendency of the suit, relying on the principle of lis pendens. 4. The court found that the plaintiff was ready and willing to perform his part of the contract, based on the evidence of the plaintiff and his witnesses. 5. The court held that the plaintiff was not required to seek cancellation of the sale deed executed in favor of the defendants as the same was hit by Section 52 of the Transfer of Property Act, which provides that a transfer of property during the pendency of a suit is void.
Final Decision: The appeal and cross-objection were dismissed, and the trial court's decree for compensation was upheld.

JUDGMENT

1. The instant civil regular first appeal as well as civil cross objection have been preferred against the common judgment & decree dated 01/11/2001 passed by the court of District Judge, Jaipur District Jaipur whereby, in lieu of specific performance, compensation has been awarded to the plaintiff-respondent. Since the appeal and cross-objection arise out of the same judgment & decree dated 01/11/2001 hence, both are being decided by this common judgment.

2. The facts giving rise to this appeal and the cross objection in brief are that the plaintiff-respondent filed a suit on 16/08/1989 initially against defendant-respondent No.2 for specific performance of agreement dated 30/01/1989. Lateron, the present appellants have been impleaded as party with the contention that respondent No.2 was owner of the suit property bearing old Khasra No.462/1225 (new Khasra No.1323/1324) measuring 20 bigha situated in village Govindpura @Ropara, Tehsil Sanganer. On 30/01/1989, he executed an agreement to sell in favour of the plaintiff-respondent. Total sale consideration was decided to be Rs. 80,000/-. Plaintiff paid a sum of Rs. 10,000/- in advance. Agreement to sell has been executed in presence of the witnesses. Possession of the property has also been handed over to the plaintiff-respondent and after getting possession of the property, plaintiff-respondent invested Rs. 10,000/- for leveling of the suit property and patol has also been erected on the land. Plaintiff-respondent has also deposited lagaan for the samwat year 2042-2046. Further contention of the plaintiff-SBCFA No.312/2001 respondent was that he was ready and willing to perform the part of his contract but defendant was not intending to sell the suit property hence, a notice dated 19/04/1989 has been served on the defendant and, thereafter, on 08/05/1989, news article has been published in the paper and lastly notice dated 30/06/1989 along with draft sale-deed was served on the defendant but defendant has not executed the sale-deed in favour of the plaintiff-respondent hence, suit for specific performance of agreement has been filed. Lateron, suit property has been acquired hence, amendment has been made to modify the relief and instead of specific performance, plaintiff prayed for compensation to be awarded to him. Defendants No.1 to 5 jointly filed a written-statement stating therein that defendant-respondent/cross-objector-Sudarshan Kumar never executed sale-deed in favour of the plaintiff and property has been sold to the present appellants vide sale-deed dated 17/10/1989 in pursuance of agreement dated 14/12/1988. It has also been pleaded that signatures of the cross-objector have been obtained on blank papers with coercive method by Bhoma Ram, who is close relative of the plaintiff-respondent and they want to grab the property and for the alleged incident, FIR No.130/1989 has been lodged and further it has been pleaded that property has been acquired by the Rajasthan Housing Board and now, specific performance of the contract is not possible. The trial court has framed the following twelve issues:-

"(1) Whether defendant No.1 executed an agreement to sell in favour of the plaintiff regarding the land bearing Khasra numbers mentioned in para 1 of the plaint and plaintiff paid Rs. 10,000/- in lieu thereof and got the ownership of the property?

(2) Whether plaintiff is entitled for the relief of specific performance of contract as mentioned in para 2 of the plaint?

(3) Whether Surendra Kumar Power of Attorney Holder of defendant No.1 executed an agreement to sell in favour of defendants No.2 to 5 on 14/12/1988 and handed over possession of the suit property to the purchasers after obtaining sale consideration of Rs. 20,000/- from them, and what is its effect on the suit?

(3A) Whether the said agreement to sell dated 14/12/1988 is not genuine and has been forged with the connivance of the defendants being executed subsequent to agreement to sell dated 30/01/1989, which

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2015 Supreme(Raj) 1369

RAJASTHAN HIGH COURT AT JAIPUR BENCHNisha Gupta, J.Kalyan and Anr. - AppellantVersusJagdish Narain & Ors. - RespondentS.B. Civil First Appeal No.312/2001 with S.B. Civil Cross Objection No.32/2002.Decided On : 16-02-2015

A subsequent purchaser during the pendency of a suit is not a bona fide purchaser and cannot claim the benefit of the exception to Section 19(b) of the Specific Relief Act.

Cases Referred (11)

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Nisha Gupta, J.
Kalyan and Anr. - Appellant
Versus
Jagdish Narain & Ors. - Respondent
S.B. Civil First Appeal No.312/2001 with S.B. Civil Cross Objection No.32/2002.
Decided On : 16-02-2015