A prior agreement to sell takes precedence over a subsequent one. A plaintiff seeking specific performance against a subsequent registered sale deed must explicitly seek a declaration that the deed is not binding, and failure to examine a material witness warrants an adverse inference.

JUDGMENT :

DEEPAK GUPTA, J.

Introduction : The present judgment shall dispose of two Regular Second Appeals, namely RSA No.1520 of 1983, and RSA No.2759 of 1983, as both arise out of the same set of proceedings between the same parties and pertain to the same suit property.

2. The facts, which emerge on perusal of the entire record, are as under:

3. Nature of Property : The dispute relates to land measuring 7 Kanal 19 Marla situated in Village Gajipur, Tehsil Tarn Taran, District Amritsar as detailed in the plaint. The said property was admittedly owned by Gurnam Singh, who had earlier mortgaged the land with possession in favour of Kundan Singh by way of a registered mortgage deed dated 20.05.1971 for a sum ofRs. 5,000/-.

4. Transactions by the Owner : Subsequently, Gurnam Singh entered into an agreement to sell dated 03.10.1978 (Ex.D1) in favour of Ajaib Singh, Ajit Singh and Jagir Singh sons of Ujagar Singh, agreeing to sell the suit land for a total consideration of Rs. 12,000/-. The target date for execution of the sale deed was fixed as 15.06.1979. In furtherance of this agreement, a registered sale deed (Ex.D2) came to be executed by Gurnam Singh in favour of the said vendees on 13.02.1979.

5. However, after executing the agreement dated 03.10.1978, but prior to the execution of the sale deed dated 13.02.1979, Gurnam Singh also ex-ecuted another agreement to sell dated 04.10.1978 (Ex.P1) in favour of Kundan Singh in respect of the same suit property. The sale consideration under this subsequent agreement was fixed at Rs. 12,500/-, out of which Rs. 2,000/- was paid as earnest money, and the date fixed for execution of the sale deed was 21.02.1979.

6. Plaintiff Kundan’s Case (Civil Suit No.39 of 1979) : On the basis of the agreement dated 04.10.1978, Kundan Singh instituted Civil Suit No.39 of 1979 on 27.03.1979 seeking a decree for specific performance of the said agreement. In the alternative, he claimed recovery of Rs. 4,000/-, being double the earnest money. Gurnam Singh was impleaded as defendant No.1, while the subsequent vendees, namely Ajaib Singh, Ajit Singh and Jagir Singh, were impleaded as defendant Nos.2 to 4.

7. It is pertinent to observe that although the subsequent purchasers were arrayed as defendants, no specific relief was sought for setting aside or declaring void the sale deed dated 13.02.1979 based on agreement to sell dated 03.10.1978, executed in their favour.

8. Contesting Defendant’s Stand : During the course of proceedings, defendant No.1 Gurnam Singh and defendant No.4 Jagir Singh failed to contest the suit and were proceeded against ex parte. Defendant Nos.2 and 3, namely Ajaib Singh and Ajit Singh, contested the suit by asserting that they were bona fide purchasers for valuable consideration without notice of the agreement dated 04.10.1978 in favour of Kundan Singh. They further relied upon the prior agreement to sell dated 03.10.1978 executed in their favour.

9. Findings of Trial Court : Upon completion of pleadings, the trial Court framed the necessary issues and recorded evidence led by the parties. After appreciating the entire material on record, the trial Court, vide a detailed judgment & decree dated 31.07.1980, declined the relief of specific perform-ance sought by Kundan Singh. However, the suit was