Balbir Singh And Anr vs Ashok Kumar Etc.
- Court
- Punjab and Haryana High Court
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
243 RSA-2404-2002 (O&M)
Date of decision :02.11.2026
BALBIR SINGH AND ANR. . .. APPELLANTS
VERSUS
ASHOK KUMAR AND OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE PARMOD GOYAL
Present: Mr. Jitender Singh Chahal, Advocate
for the appellants.
Mr. Vikram Singh, Advocate and
Mr. Abhinav Sood, Advocate
for respondent Nos. 1 and 2.
PARMOD GOYAL, J.
1. Present regular second appeal has been preferred by Appellants-
plaintiffs being aggrieved by the judgment and decree dated 26.03.2002 passed
by the learned First Appellate Court, i.e. the Court of Additional District Judge,
Karnal, whereby appeal preferred by respondents-defendant Nos. 2 and 3, who
had subsequently purchased the suit property from defendant No. 1, which was
the subject matter of the suit for specific performance instituted by the
appellants-plaintiffs, was allowed and the judgment and decree dated
25.09.2000 passed by the learned Civil Judge (Senior Division), Karnal, in
favour of appellants-plaintiffs, was set aside.
2. Appellants-plaintiffs in their suit for specific performance of
agreement dated 02.08.1993, claimed that defendant No. 1-Kishna had agreed
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -2-
to sell the land measuring 8-2/3 marlas for a total sale consideration of Rs.
40,000/-, out of which Rs. 15,000/- was paid as earnest money. It was further
claimed that physical possession of the suit property was duly handed over to
appellants-plaintiffs at the time of execution of the agreement. The sale deed
was agreed to be executed on 31.07.1994. However, instead of executing the
sale deed in favour of appellants-plaintiffs, defendant No. 1 executed a sale deed
in favour of respondents-defendant Nos. 2 and 3. Accordingly, appellants-
plaintiffs had sought a declaration that the sale deed executed in favour of
respondents-defendant Nos. 2 and 3 be held illegal and not binding upon their
rights, besides seeking specific performance of agreement to sell dated
02.08.1993.
3. Kishan-Defendant No. 1 did not put in appearance despite service
and was proceeded against ex parte . During the pendency of the suit for specific
performance, defendant No. 1 died. However, his legal representatives were not
impleaded at any stage of the proceedings.
4. Respondents-Defendant Nos. 2 and 3, who had subsequently
purchased the suit property from defendant No. 1 vide registered sale deed dated
23.11.1993, contested the suit by claiming themselves to be bona fide purchasers
for valuable consideration, in good faith and without any notice or knowledge
of the earlier agreement to sell allegedly executed by defendant No. 1 in favour
of appellants-plaintiffs. In the alternative, they also pleaded that defendant No.
1 had never agreed to sell the suit property to appellants-plaintiffs and that no
agreement to sell was ever executed. It was further claimed by respondents-
defendant Nos. 2 and 3 that they had levelled the suit property by spending an
amount of Rs. 10,000/-. Dismissal of suit was prayed for.
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -3-
5. From the pleadings of the parties, following issues were framed:
1) Whether the defendant entered into agreement to sell on
2.8.1993 in respect of the land mentioned in para no.1 of the
plaint and received Rs. 15,000/- as earnest money as alleged?
OPP.
2) Whether the sale dead executed/registered by defendant no.1
in favour of the defendant no.2 and 3 is null, void, ineffective
and not binding on the rights of the plaintiffs? OPP.
3) Whether the plaintiff is still ready to perform his part of
contract as alleged? OPP.
4) Whether the suit is not legally maintainable in the present
form? OPD
5) Whether the plaintiff has no locus-standi to file the present
suit? OPD
6) Whether the plaintiff has got no cause of action to file the
present suit? OPD
7) Whether the suit of the plaintiffs is false, frivolous and
vexatious to the very knowledge of the plaintiffs? OPD
8) Whether the suit of the plaintiffs is bad for mis-joinder and
non-joinder of necessary parties? OPD
9) Whether the suit is abuse of the process of the court? OPD
10) Whether the sale in favour of the answering defendant by
defendant no.1 was well in the knowledge of the plaintiffs?
OPD
11) Whether the plaintiffs have not come to the court with clean
hands? OPD
12) Whether the plaintiff is estopped from filing the present suit?
OPD
13) Relief.
6. The learned Court of first instance, vide judgment and decree dated
25.09.2000, held the appellants-plaintiffs entitled to specific performance of the
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -4-
agreement to sell dated 02.08.1993, while holding that respondents-defendant
Nos. 2 and 3 who were subsequent purchasers of the suit property, were not bona
fide purchasers for valuable consideration without notice of the earlier
agreement to sell.
7. Learned First Appellate Court, in the appeal preferred by
respondents-defendant Nos. 2 and 3, set aside the findings recorded by learned
Court of first instance qua the rights of respondents-defendant Nos. 2 and 3 and
held that they were bona fide purchasers for valuable consideration without
notice of the earlier agreement to sell. Consequently, instead of granting the
relief of specific performance, the learned First Appellate Court held the
appellants-plaintiffs were entitled to recover the earnest money paid to
defendant No. 1 along with interest.
8. As far as the execution of agreement to sell dated 02.08.1993 is
concerned, both the Courts below have concurrently held that the said agreement
was duly executed by defendant No. 1, on the basis of the testimonies of
appellant-plaintiff-Balbir Singh, who appeared as PW-2, Bhagwan Singh, deed
writer who appeared as PW-4 as well as Sh. Jai Parkash, Notary Public one of
the attesting witnesses of the agreement, ,who appeared as PW-3. However,
Courts below have recorded divergent findings on the question as to whether
respondents-defendant Nos. 2 and 3 were bona fide purchasers for valuable
consideration without notice of the earlier agreement to sell. On one hand, the
learned Court of first instance decreed the suit for specific performance in favour
of appellants-plaintiffs, primarily on the ground that since possession of the suit
property was with the appellants-plaintiffs, respondents-defendant Nos. 2 and 3
could not be held to be bona fide purchasers without notice of the earlier
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -5-
agreement. On the other hand, the learned First Appellate Court reversed the
said finding and held that respondents-defendant Nos. 2 and 3 were bona fide
purchasers for valuable consideration without notice of the earlier agreement to
sell and, therefore, the sale deed dated 23.11.1993 executed by defendant No. 1
in their favour could not be set aside. Accordingly, the relief of specific
performance granted by the learned Court of first instance was substituted with
the relief of recovery of earnest money along with interest.
9. L earned First Appellate Court, after taking into consideration the
evidence led by both the parties and appreciating the material available on
record, had recorded the following findings:-
“ The next point in issue before the court is as to whether the sale
deed dated 24.11.1993 executed by defendant no.1 in favour of
defendants 2 and 3 is illegal and void. It is in the statement of Ashok
Kumar defendant no.2 that they purchased the suit plot from
defendant no.1 for sale consideration of Rs. 32,000/-through
registered sale deed Ex.D1 and they paid entire amount to the
vendor before Sub Registrar. He further added that the defendants
were not aware about the sale agreement as such they are bonafide
purchaser of the suit land. Thus, he has proved the contents of the
sale deed and also testified that contesting defendants were not
aware about the alleged sale agreement rather they purchased the
suit land bonafidely. The sale deed Ex. D1 is the registered
document which has been got executed by defendant No.1 qua the
suit land while there is no where in the record that vendees 2 and 3
were in knowledge of earlier agreement executed by defendant
No.1 in favour of the plaintiffs. Even PW 3 has also not uttered
single word that the vendees were in the knowledge of their sale
agreement. So, without having any evidence on the part of plaintiffs
in this respect it cannot be presumed that the vendeees were in the
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -6-
knowledge of earlier sale agreement in question. Moreover, the
plaintiffs have challenged the validity of the sale deed Ex.D-1
executed by defendant no.1 in favour of defendants 2 and 3. As
such, the burden lies upon the plaintiffs to establish that the
defendants-vendees have purchased the suit land intentionally
knowing the fact of agreement executed by defendant no.1 in their
favour but they have not produced any cogent evidence. Even
Balbir Sngh has not uttered single word the defendants appellants
were in the knowledge of the sale agreement. So, under such
circumstances, the plaintiffs have got no right to get the sale deed
set aside. In fact, it is a valid document which was executed by
defendant no.1 by obtaining Rs. 32,000/- in cash while it is clear
from the statement of witnesses that appellants paid this amount in
good faith, so under such circumstances they are also entitled to
protect their right under the law being bonafide purchaser of the
suit land. Certainly, the plaintiffs have proved the execution of the
sale agreement Ex.P1 and also established that they paid
Rs.15,000/- to defendant no.1 as earnest money but they have failed
to prove that they were ready and willing to perform their part of
the contract, sounder such circumstances after execution of the sale
deed Ex. D1 in favour of defendants 2 and 3 the plaintiffs are only
entitled to effect the recovery of the earnest money with costs and
interest from defendant no.1 but they are not entitled for the decree
of specific performance for execution of the sale deed in their
favour but the learned lower court has committed error for not
appreciating this fact and also declared the sale deed in question
as illegal and void document erroneously. So, under such
circumstances the findings of the learned 1ower court in this
respect is not tenable and it requires interference. Moreover, the
stand of the appellant has also got support from the case law Ram
Lakhan Vs. Ram Govind AIR 1977 Allahabad 328 according to
which if the land is purchased in good faith then benefit of the same
will go in favour of the vendees. However, further it is also the view
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -7-
of the Hon'ble Supreme Court in case Lourdu Mari David Vs. Louis
Chinnaya Arogiaswamy 1996 RCR 286 that grant of decree of
specific performance is discretion of the court and the court should
use its discretion judiciously. This authority is also very helpful to
the version of the appellants because the appellants purchased the
suit land in good faith on payment of Rs.32,000/- from defendant
no.1 and without having any reliable ground the court should not
ignore the sanctity of the registered document that is sale deed. So,
the plaintiffs have no right to get set aside the same. Moreover,
when the alternative relief for effecting recovery of the earnest
money with interest is available with the plaintiffs then there is no
question to disturb the sale deed but the learned lower court has
not appreciated this fact and committed error by declaring the sale
deed in question as illegal and void. So, the finding of the learned
lower court in this respect is not tenable and finding of the learned
lower court under issues No.2 and 3 is reversed.”
10. Therefore, the fate of the present appeal would hinge upon the
question as to whether respondents-defendant Nos. 2 and 3 were bona fide
purchasers for consideration without notice of the earlier agreement to sell. The
learned Court of first instance held that since possession of the suit property had
been handed over to appellants-plaintiffs, respondents-defendant Nos. 2 and 3
could not be held to be bona fide purchasers, as had they made reasonable
inquiries regarding possession of the suit property, they would have come to
know that the suit property was in possession of the appellants-plaintiffs and not
defendant No. 1. Since divergent findings were recorded by both the Courts
below regarding the status of respondents-defendant Nos. 2 and 3, who had
purchased the suit property vide sale deed dated 23.11.1993, therefore, facts and
circumstances of the present case, needs to be appreciated.
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -8-
11. It is the case of the appellants-plaintiffs that agreement to sell dated
02.08.1993 was executed in respect of land measuring 8-2/3 marlas. The parties
had agreed that the sale deed could be executed at the convenience of the
purchaser, i.e. appellants-plaintiffs, on or before 31.07.1994. The total sale
consideration under agreement dated 02.08.1993 was fixed as Rs. 40,000/-, out
of which Rs. 15,000/- was paid as earnest money. It was further agreed that the
entire expenses of registration of the sale deed would be borne by the purchaser
and the remaining sale consideration of Rs. 25,000/- would be payable to
defendant No. 1 at the time of execution of the sale deed.
12. Further perusal of agreement to sell dated 02.08.1993 (Ex. P-1)
reveals that it was specifically mentioned therein that possession of the land
measuring 8-2/3 marlas would be handed over at the time of registration of the
sale deed. However, in the very next line, it was also mentioned that possession
at the spot had been delivered to the purchaser. It was further agreed between
the parties that in case the purchaser defaulted in adhering to the terms and
conditions of the agreement, the earnest money would stand forfeited and the
agreement would stand cancelled. On the other hand, in case of default on the
part of the seller, the purchaser would be entitled either to get the sale deed
executed through the Court or to recover double the amount of earnest money.
13. The relevant portion of the agreement to sell, which requires
consideration as recorded in vernacular, is reproduced hereunder for ready
reference:
"Kabja Bhumi 8-2/3 Marle Ka Malkana Registry Ke Samay Dia
Javega Vakai Kabja Kharidraan Ko De Diya Hai."
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -9-
14. The aforesaid recital, when translated into English, would mean
that possession of the land measuring 8-2/3 marlas would be handed over at the
time of registration of the sale deed and that spot possession had already been
delivered to the purchaser.
15. The aforesaid recitals in the agreement to sell have not been
appreciated in their proper perspective by the learned Court of first instance. It
is worth noticing that an agreement has to be read in its entirety, and no particular
recital can be interpreted in isolation, without taking into consideration the
nature of the property agreed to be sold and the intention of the parties as
reflected from the terms of the agreement. A careful reading of agreement to sell
dated 02.08.1993 (Ex. P-1) clearly reveals that no specific or separately
identifiable portion of the joint land was agreed to be sold. Rather, what was
agreed to be sold by defendant No. 1 in favour of the appellants-plaintiffs was
land measuring 8-2/3 marlas, representing 2/3rd share in the total land
measuring 13 marlas comprised in Khasra Nos. 9/11 (0-2), 127 (0-5) and 128
(0-6), situated in village Dabkoli.
16. The fact that the subject matter of the agreement was an undivided
2/3rd share out of the total land measuring 13 marlas assumes significance while
appreciating the recital regarding delivery of possession. Since no specific
portion of the joint land was identified or demarcated under the agreement, the
recital regarding delivery of spot possession cannot be read in isolation to
conclude that exclusive physical possession of any particular portion of the suit
property was handed over to the appellants-plaintiffs. On the contrary, the
specific stipulation in the agreement that possession would be delivered at the
time of registration of the sale deed indicates that the parties intended the transfer
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -10-
of possession to take place at the time of execution and registration of the sale
deed. Similarly, in default clause no reference regarding return of land to seller
was made.
17. Moreover, it is also significant that at the time of execution of the
agreement to sell, only Rs. 15,000/- was paid as earnest money out of the total
agreed sale consideration of Rs. 40,000/-, whereas the remaining substantial
amount of Rs. 25,000/- was to be paid at the time of execution of the sale deed.
These circumstances, when considered cumulatively along with the nature of
the property agreed to be sold and the recitals contained in the agreement, clearly
indicate that the intention of the parties was to deliver possession at the time of
execution of the sale deed and not at the time of execution of the agreement to
sell. Therefore, the learned Court of first instance fell into error in interpreting
agreement dated 02.08.1993 to hold that possession of the suit property had
already been delivered to the appellants-plaintiffs and, on that basis alone, it was
held that respondents-defendant Nos. 2 and 3 could not be treated as bona fide
purchasers.
18. On the other hand, the learned First Appellate Court has duly
considered and appreciated the evidence led by respondents-defendant Nos. 2
and 3 in support of their plea that they were bona fide purchasers for valuable
consideration without notice of the earlier agreement to sell. Respondent-
Defendant No. 2, while appearing in the witness box as DW-1, categorically
stated that they had no knowledge of agreement to sell dated 02.08.1993
allegedly executed by defendant No. 1 in favour of the appellants-plaintiffs at
the time of purchasing the suit property. Significantly, appellant- plaintiff No. 2,
while appearing as a witness before the Court as PW-2, nowhere stated on oath
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -11-
that respondents-defendant Nos. 2 and 3 had any knowledge of the earlier
agreement to sell dated 02.08.1993. Thus, there is no evidence on record to
establish that respondents-defendant Nos. 2 and 3 had notice of the earlier
agreement to sell dated 02.08.1993. Even the inference of constructive notice
sought to be drawn on the basis of alleged possession of the appellants-plaintiffs
is not sustainable in view of the nature of the property and the terms of the
agreement, as discussed hereinabove.
19. In these circumstances, the learned First Appellate Court had
rightly appreciated the evidence available on record and had recorded finding of
fact that respondents-defendant Nos. 2 and 3 were bona fide purchasers for
valuable consideration without notice of the earlier agreement to sell. The said
finding is based upon a proper appreciation of the oral as well as documentary
evidence and cannot be said to be perverse or contrary to the material available
on record. Merely because the learned Court of first instance had taken a
different view regarding the effect of the recital relating to possession in
agreement dated 02.08.1993, the well-reasoned findings recorded by the learned
First Appellate Court cannot be interfered with in the exercise of jurisdiction
under Section 100 CPC, 1908 particularly when the learned First Appellate
Court had assigned cogent reasons for reversing the findings of the learned Court
of first instance.
20. In view of the foregoing discussion, this Court finds no illegality,
perversity or material irregularity in the findings recorded by the learned First
Appellate Court holding respondents-defendant Nos. 2 and 3 to be bona fide
purchasers for valuable consideration without notice of the earlier agreement to
sell. The findings so recorded are based upon a correct appreciation of the
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document
RSA-2404-2002 (O&M) -12-
evidence and the terms and conditions of agreement to sell dated 02.08.1993.
No substantial question of law arises for consideration in the present Regular
Second Appeal warranting interference by this Court under Section 100 CPC,
1908.
21. Consequently, finding no merit in the present appeal, the same is
hereby dismissed. The judgment and decree dated 26.03.2002 passed by the
learned First Appellate Court is upheld.
22. Pending miscellaneous application(s), if any, shall also stand
disposed of.
02.11.2026 (PARMOD GOYAL)
manoj JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
MANOJ KUMAR
2026.11.04 18:06
I attest to the accuracy and integrity
of this document