Maghar Singh vs Madan Mohan and Another

L.N. Mittal, J.

C. M. No. 1744-C of 2011:

For reasons mentioned in the application, which is accompanied by affidavit, delay of 11 days in re-filing the appeal is condoned.

C. M. No. 1745-C of 2011:

Application is allowed and orders dated 14.11.2003 and 13.09.2010 are taken on record, subject to all just exceptions.

Main Appeal:

Suit filed by Respondent No. 1-Plaintiff for possession of the disputed shop by specific performance of the agreement to sell dated 20.12.1995 stands decreed by both the courts below against Defendant No. 1 Bishan Dass (since deceased and represented by Respondent No. 2 herein) and against Maghar Singh - Defendant No. 2-Appellant. Appellant is subsequent purchaser of the disputed shop vide sale deed dated 31.12.1996. Claim of the Appellant is that he is bona fide purchaser of the disputed shop. The said claim has been negatived by the courts below.

Respondent No. 1-Plaintiff has proved the impugned agreement by examining Kimti Lal (PW-1) and Kulwant Rai (PW-2) - both attesting witnesses of the agreement, besides himself stepping into the witness-box as PW-4. Defendant No. 1 has, vide his pleading in the written statement, impliedly admitted his signatures on the impugned agreement, but pleaded to have signed the same at the instance of Plaintiff for having borrowed some amount from the Plaintiff. However, Defendant No. 1 did not step into the witness-box to substantiate his aforesaid version. Courts below have, therefore, rightly found concurrently that execution of the impugned agreement by Defendant No. 1 in favour of Plaintiff stands fully proved. Plaintiff also always remained ready and willing to perform his part of the contract, as per his unrebutted evidence, whereas Defendant No. 1 was never ready and willing to perform his part of the contract, as per his own pleadings and thus, Defendant No. 1 committed breach of the agreement. Consequently, suit filed by the Plaintiff has been rightly decreed.

Learned Counsel for the Appellant vehemently contended that the Appellant had no knowledge of the impugned agreement and therefore, he is bona fide purchaser of the disputed shop. The contention cannot be accepted. The impugned agreement is for sale consideration of Rs. 5,00,000/-, whereas Appellant purchased the disputed shop for Rs. 83,000/-only. This circumstance, by itself, is sufficient to depict that Appellant is not bona fide purchaser of the disputed shop. In addition to it, Plaintiff was also customer at the shop of Appellant-Defendant No. 2. In these circumstances, Appellant could not have been unaware of the impugned agreement. Concurrent finding recorded by the courts below that Appellant is not bona fide purchaser of the disputed shop is fully justified by the evidence on record and does not suffer from any perversity or illegality nor it is based on misreading or misappreciation of evidence, and therefore, the said finding does not warrant interference in exercise of second appellate jurisdiction.

Learned Counsel for the Appellant also contended that date of execution of sale deed, as stipulated in the impugned agreement, has been altered from 15.06.1996 to 15.08.1996 to bring the suit within limitation. The contention is untenable. Photostat copy of the impugned agreement, as shown by the counsel for the Appellant, depicts that the agreement has been typed. Digit `6'' appears in original form in the year `1996''. The said digit is in completely different shape than the digit `8'' of the month and on naked eye perusal, it can be said that digit `6'', as existing in the year `1996'', could not have been altered to digit `8'', as appearing in the figure denoting month in the agreement in the date `15.08.1996''. Even otherwise, suit was instituted on 15.06.1999 and was, therefore, within limitation, even if it be assumed for the sake of argument only that date stipulated in the agreement for execution of the sale deed was 15.06.1996. However, bare perusal of the agreement reveals that the date stipulated for sale deed was 15.08.1996 and not 15.06.1996.

Learned Counsel for the Appellant contended that the Appellant was tenant in the disputed shop. However, no such plea was even taken by the Appellant in the written statement nor any evidence has been led to substantiate his contention. This factum of alleged tenancy has also not been recited in the sale deed, which was executed in his favour.

For the reasons aforesaid, I do not find any merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine.