JUDGMENT :

Anil Kshetarpal, J.(Oral)

1. The Regular Second Appeal in the States of Punjab, Haryana and Union Territory, Chandigarh, is governed by Section 41 of the Punjab Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure, 1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi (Dead) through LRs Vs. Chandrika and others, (2016) 6 SCC157.

2. In this regular second appeal, defendant No.l assails the correctness of the judgment and decree passed by the First Appellate Court while decreeing the plaintiff's suit for grant of decree of declaration by way of specific performance of the agreement to sell. The trial Court held that defendant executed the agreement to sell in favour of the plaintiff with respect to land measuring 14 kanal and 16 marlas. However, the relief of specific performance was declined while granting alternative relief of refund on the ground that defendant No.2 to 6 are bonafide purchasers. The First Appellate Court on reappreciation of evidence concluded that defendant No.2 to 6 are not bonafide purchasers and in fact they are close relatives of not only the plaintiff but also of the defendant No.l. They are also neighbours and co-villagers. Moreover, Sh. Karnail Singh-defendant No.2 has admitted that Sh. Sawinder Singh-defendant No.l is his uncle, whereas, Sh. Hardev Singh-plaintiff is his cousin. Thus, the First Appellate Court held that defendant No.2 to 6 are not proved to be bonafide purchasers.

3. Defendant No.2 to 6 have not filed any second appeal. This appeal has been filed by defendant No.l (the original vendor).

4. On 09.02.1998, the appeal was admitted on the following substantial question of law:-

"Whether in a suit for specific performance, the plaintiff seeks an alternative relief of the refund of earnest money and that relief has been granted by the trial Court, can the plaintiff fide an appeal seeking the main relief of specific performance. "

5. The learned Senior counsel representing the respondent has submitted that a Full Bench of the Madras High Court in Annapoomi Ammal (died) and others Vs Ramaswami Naicker and others, AIR 1990 (Madras) 361, held that the plaintiff is entitled to file an appeal against the judgment passed by the trial Court while refusing to grant him specific performance of the agreement to sell, even when the suit is decreed with alternative relief of refund of earnest money along with interest.

6. This Bench has heard the learned Senior counsel representing the parties at length and with their able assistance perused the paperbook along with requisitioned record.

7. The learned Senior counsel representing the appellant submits that the First Appellate Court has erred in reversing the finding of the trial Court with respect to defendant No.2 to 6 being bonafide purchasers for valuable consideration. She submits that there is no evidence to prove that defendant No.2 to 6 had the knowledge of the agreement to sell at the time of registration in their favour. She further submits that even if defendant No.2 to 6 have not filed the appeal, still defendant No.l is entitled to assail the correctness of the judgment passed by the First Appellate Court.

8. On the other hand, the learned Senior counsel representing the respondent while drawing the attention of the Court to the finding of fact arrived at by the First Appellate Court in para 12 of the judgment, submits that there is no scope for interference in this appeal.

9. This Court has considered the submission of the learned Senior counsel representing the parties.

10. The findings of fact arrived at by the First Appellate Court in para 12, reads as under:-

"The appellant-plaintiff and respondents No. 1 to 6 are not only co-villagers but they are close relative of each other. Hardev Singh, appellant-plaintiff tells in his statement that Savinder Singh and Dalbir Singh-respondents/defendants are his uncles and that respondents No. 2 to 5 are his cousins. Nishan Singh respondent No. 5 is the son of Jar