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PETITIONER: JAGAN NATH

       Vs.

RESPONDENT: JAGDISH RAI & ORS.

DATE OF JUDGMENT:       28/04/1998

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J.      This appeal  on grant  of special leave to appeal under Article 136  of the  Constitution of  India is  moved by the original plaintiff  whose suit  for specific  performance of the suit agreement came to be decreed by the Trial Court but got dismissed  by a  learned Single  Judge of the High Court and which  dismissal in  turn was  confirmed  by  a  Letters Patent Bench  of the  High  Court.  We  will  refer  to  the appellant as  plaintiff and  the  respondents  concerned  as defendants, for  the sake of convenience, in the latter part of this  judgment. We  may also  mention that  pending  this appeal original defendant no.2 has sold the suit property to one Yash  Pal, son  of Shri  Hans Raj  who is  sought to  be joined as  party respondent  no.4 by I.A. No. 3 moved by the plaintiff.  Similar   application  is   moved  by  the  said purchaser   being I.A.  No.4. Both  these I.As  are granted. Consequently the  subsequent purchaser has become respondent no.4 in this appeal. He will be treated as defendant no.4.      A  few  relevant  facts  leading  to  this  appeal  are required  to   be  noted  at  the  outset  with  a  view  to appreciating the grievance of the plaintiff.      Background Facts      The suit  house consisting  of 5  rooms, a verandah and courtyard measuring  7 marlas  out of  the  entire  property consisting of  14  marlas  situated  at  Moga  town  earlier falling within  the district of Faridkot and now included in the newly  formed Moga  District  in  the  State  of  Punjab belonged to  defendant no.1  Jagdish Rai.  The said property was mortgaged  by defendant  no.1 in  favour of one Rajinder Singh by  a registered  usufructuary mortgage  deed Ex.  D-3 dated 25th  July 1973  for a  sum of Rs. 5,000/-. Thereafter defendant no.1  entered into the suit agreement Ex.P-1 dated 28th September  1973 in  favour of the plaintiff. As per the said suit agreement defendant no.1 agreed to sell his right, title and  interest in  the suit  property for  a sum of Rs. 60.000/-.  In  the  said  agreement  it  was  provided  that defendant no.1  will execute  the registration  deed by 30th December 1973 in favour of the plaintiff. The said agreement recited that  defendant no.1 was the sole owner of the house

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which was  in his  exclusive possession and that it was free from all  encumbrances of  Government agreement  dated  26th December 1973  defendant no.1  Jagdish Rai  got the time for execution of the sale deed under the suit agreement extended upto 30th  June 1974. The said extension agreement is Ex. P- 2. It  was recited  therein that under the agreement of 28th September 1973  the date of execution of the registration of the house  was fixed upto 30th December 1973. But because he was unable  to get  the sale  deed executed by 30th December 1973 the date of the execution of the sale deed was extended by  mutual   agreement  upto   30th  June  1974.  Thereafter defendant no.1  Jagdish Rai entered into a sale deed for Rs. 20,000/- conveying his right, title and interest in one half of the  suit property  which in turn was a part of 14 marlas and which  was joint  with his  brother, in  favour of Jagir Singh, son  of Kapur Singh. The said sale deed is at Ex. D-1 dated 23rd January 1974. The said sale deed recited that the entire house  consisted of  14 marlas. It was joint with his brother and  consequently one  half share  of defendant no.1 consisted of  7 marlas  which was  earlier mortgaged for Rs. 5,000/-= Out  of that  one  half  share  of  defendant  no.1 further one half thereof, that is, 1/4th of the entire house to the  extent of 3-1/2 marlas was being sold to Jagir Singh for a  sum of Rs. 20,000/-. The document recited that out of Rs. 10,000/-  earnest money  of Rs.  5,000/- was received by defendant no.1  and the  balance of Rs. 5,000/- was retained by the  purchaser for  paying  off  the  mortgagee  and  the balance of  Rs. 10,000/- would be received by defendant no.1 at the  time  of  execution  of  the  document  before  Sub- Registrar, Moga.  Said Jagir  Singh was  joined as defendant no.3 in  the suit  from which the present proceedings arise. Defendant no.3  Jagir Singh  in turn sold the 1/4th share in the entire  house of  14 marlas, which he had purchased from defendant no.1,  by entering  into sale  deed in  favour  of defendant no.2 on 27th March 1974 for a sum of Rs. 21,000/-. Said document  is Ex.  D-4.  Thus  by  the  said  sale  deed defendant no.2  purchased  1-1/2  marlas  out  of  the  suit property from  defendant no.3.  As noted  earlier, the  suit agreement is  favour of the plaintiff covered 7 marlas being 1/2 share  of defendant  no.1 in the entire house originally consisting of  14 marlas.  The remaining 3-1/2 marlas of the suit property  was subsequently  purchased by defendant no.2 from defendant  no.1 by  a registered  sale deed  dated 02nd April  1974  for  a  consideration  of  Rs.  30,000/-.  Said document is  Ex.D-2. It  was thereafter  that the  plaintiff filed Civil  Suit No. 211 of 1974 in the court of Sub Judge, 1st  Class,  Moga  for  specific  performance  of  the  suit agreement joining  defendant no.1  Jagdish Rai  the original owner of  the property of 7 marlas being his 1/2 interest in the entire  house. He  joined defendant no.2 who had by then become the full owner of entire 7 marlas of defendant no.1’s share in the suit house and which came to be conveyed to him by two  documents Ex.  D-4 and  D-2 respectively.  As  noted earlier,  the  intermediate  purchaser  of  1/4th  share  of defendant no.1 admeasuring 3-1/2 marlas of the suit property was joined  as defendant  no.3 and  the present purchaser of the entire  right, title  an d interest of defendant no.2 in the suit  property pending  this appeal and who is joined as respondent no.4  herein is  to be treated as defendant no.4. In the  aforesaid suit  the plaintiff  contended that he was ready and  willing to perform his part of the suit agreement and, therefore,  defendant no.1  was bound  to convey  all 7 marlas of  the suit  property covered  by the  agreement  in favour of  the plaintiff  by executing appropriate sale deed and by  putting the  plaintiff in  possession  of  the  suit

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property. It  was also  contended that  defendant  no.2  and defendant  no.3  were  not  bonafide  purchasers  for  value without  notice   and,  therefore,  appropriate  decree  for specific performance  was required to be passed also against them, especially  against defendant no.2 who was by the time of the  suit representing  the entire  interest of defendant no.1 in  the suit  property  which  was  passed  on  to  him pursuant to  the aforesaid intermediate transactions of sale prior to the suit. It was alternatively prayed that a decree for Rs.  10,000/- as  damages be  passed in  favour  of  the plaintiff and against the defendant.      The suit  was contested  by the  defendants.  Defendant no.2 being  a minor  was represented  by his guardian Kishan Chand, his  father who contested the suit on his behalf. The learned Trial  Judge  after  framing  issues  and  recording evidence came  to the  conclusion that  defendant  no.1  had agreed to  sell the house in dispute to the plaintiff on the terms given  in the agreement Ex.P-1, that the plaintiff was ready and  willing to  perform his part of the agreement and that defendant  no.2 was  not a  bona fide  purchaser of the suit  property   for  value  without  notice  and  that  the plaintiff  was  entitled  to  specific  performance  of  the agreement. The  learned Trial  Judge, therefore, decreed the plaintiff’s suit  for specific  performance of the agreement against defendant  nos.1 and 2. In addition to the aforesaid decree for  specific performance  defendant  no.1  was  also called upon  to pay to the plaintiff Rs. 10,000/- as damages as stipulated  in the agreement Ex. P-1, as according to the learned Trial  Judge defendant  no.1 had  gone back upon the agreement and  had not  executed the  sale deed according to the terms of the agreement. Defendant no.1 was also asked to bear the cost of the suit.      The aforesaid  decree passed  by  the  Trial  Court  in favour of the plaintiff on 21st October 1976 resulted in two appeals before  the High  Court of  Punjab  and  Haryana  at Chandigarh. One  appeal was  moved by  defendant no.1  while another companion  appeal was  moved by  defendant no.2. The learned Single  Judge of the High Court noted in paragraph 3 of his  judgment  that  the  main  controversy  between  the parties in  these appeals  was as  to whether  Lalit  Mohan, defendant no.2,  was a bona fide purchaser without notice or not and whether the plaintiff was entitled to the relief for specific performance  of the  agreement to  sell or not. The findings of the Trial Court on other issues in favour of the plaintiff were  not challenged by the appellants in the High Court. So  far as  the aforesaid point for determination was concerned the learned Single Judge of the High Court came to the conclusion  on  re-appreciation  of  the  evidence  that defendant no.2  was a  bona fide purchaser for value without notice and  hence specific  performance could not be granted against him. However, the decree for damages of Rs. 10,000/- as passed  by the  Trial Court  against defendant  no.1  was required to  be confirmed. Accordingly both the appeals were allowed. Judgment  and decree  of the  Trial Court  were set aside and the plaintiff’s suit was decreed against defendant no.1 Jadgish  Rai for  recovery of  Rs. 10,000/-  as damages only. Interest was awarded to the plaintiff on the aforesaid amount at  6% p.a.  from the date of the decree of the Trial Court till  its  realisation.  The  aforesaid  decision  was rendered by  the learned  Single Judge  of the High Court on 31st October  1985. The  plaintiff  carried  the  matter  in Letters Patent  Appeal before  a Division  Bench of the High Court. The  Division Bench  of the  High Court  by its order dated 03rd April 1986 held that no case for interference was made out  by the  plaintiff and  hence appeal was dismissed.

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That is how the dissatisfied plaintiff has filed the present appeal  on grant of special leave by this Court.      Rival Contentions      Learned   senior counsel Shri Rajinder Sachar appearing for the  plaintiff vehemently  contended that  the burden of proof was  very heavy  on defendant no.2 for showing that he was a  bona fide purchaser for value without notice and that burden was  not legally discharged by him. That the evidence on record  clearly indicated  that with  a view to frustrate the plaintiff’s agreement and in full know thereof defendant no.2 had entered into the transactions of sale in his favour and, therefore,  the solitary contention canvassed in appeal by these  contesting defendants should have been answered by the learned  Single Judge  against  the  defendants  and  in favour of  the plaintiff  and the decree passed by the Trial Court ought  to have  been  confirmed.  In  support  of  his contentions  Shri   Sachar  took  us  through  the  relevant documentary and  oral evidence  on record  of this  case  to which we  will make a reference hereinafter. He also invited out  attention  to  one  decision  of  this  Court  and  two decisions of  Privy Council  to which  also we  will make  a reference at an appropriate stage in the latter part of this judgement.      Refuting these  contentions Shri  M.L.  Verma,  learned senior counsel  appearing for  the  newly  added  respondent defendant no.4,  who in  substance is  the  only  contesting party at  the present  stage as  he is the owner of the suit property   having   purchased   the   same   pending   these proceedings,   submitted   that   his   predecessor-interest defendant no.2  was rightly  held as bona fide purchaser for value without notice by the learned Single Judge of the High Court and  that finding  was rightly  upheld by the Division Bench of  the High  Court. That the finding is based on pure appreciation of evidence and is not perverse or uncalled for and hence in exercise of our powers under Article 136 of the Constitution of  India we  may not  interfere with  the said pure finding  of fact.  He further  submitted  that  he  has purchased this  property pending  this appeal when there was no injunction  against the  original  defendants  especially defendant  no.2   restraining  him  from  dealing  with  his property or  disposing it  off. He,  however, fairly  stated that as  the transaction  is  pending  this  appeal  on  the principle of  1st penance  he would  be liable to answer the claim of  the plaintiff  and to  satisfy the  claim  of  the plaintiff  if   ultimately  plaintiff  succeeds  on  merits. However, Shri   Verma  submitted  that  defendant  no.4  has purchased the  property by parting with hard earned money of Rs. 1,20,00/-  and  odd  in  1993.  That  according  to  him situation in  Punjab at  that time was very uncertain due to terrorism. That defendant no.4 had purchased the property in question after  making inquiries  from the present appellant who agreed  that he  had no  interest in the property as the litigation had  already taken  20 years. This submission was made on  the basis  of the  averments made in paragraph 6 of I.A. No.4  moved by  him for  being joined  as party in this appeal invoking  provisions of  O. XXII  R.10. Code of Civil Procedure. Shri Verma submitted that though the copy of this I.A. was  served on the learned counsel for the appellant no counter has  been filed. He next submitted, placing reliance on relevant  aspects of  t he  evidence both documentary and oral to  which eh  invited our  attention, that  in any case defendant no.4’s  predecessor-in-interest defendant no.2 was clearly shown  to be a bona fide purchaser for value without notice of the plaintiff’s agreement. That the learned Single Judge of the High Court had held on appreciation of evidence

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that defendant  no.2’s father was a sitting tenant and as he had purchased  t he  suit property  in two instalments there was no occasion for him to enter into this transaction if he had known about the suit agreement. He lastly contended that in any case this being equity jurisdiction the plaintiff who is in  a very  affluent condition  as seen from the evidence and having  number of immovable properties in the town while defendant no.4  is  having  the  only  suit  house  for  his residential purposes  which he  is occupying since more than five years, this Court may not exercise powers under Article 136 of  the Constitution of India for upsetting the decision of the  High Court  in favour of his predecessor-in-interest defendant no.2.  Shri Sachar, learned senior counsel for the plaintiff in rejoinder reiterated his contentions in support of the appeal.      Points for determination      In the  light of  the aforesaid  rival contentions  the following points arise for our consideration : 1.   Whether the decision of the learned Single Judge of the      High Court  as  confirmed  by  its  Division  Bench  in      Letters Patent Appeal to the effect that defendant no.2      was a  bona fide purchaser for value without notice, is      erroneous and liable to be set aside. 2.   Even if  the finding  on Point  No. 1  is  against  the      contesting defendants whether the plaintiff is entitled      to a  decree for  specific performance in the facts and      circumstances of the case. 3.   What final order ?      We shall deal with these points seriatim. Point No. 1      The aforesaid  resume of facts makes it very clear that the real  question in  controversy between the parties which now survives  for consideration  is whether defendant no.4’s predecessor-in-interest  defendant  no.2  was  a  bona  fide purchaser for value without notice of the suit agreement. If the answer  to this  question is  in the affirmative nothing further would survive in this appeal.      In order  to appreciate the rival contentions centering round this  limited controversy  it is necessary to note the well settled  legal position  governing the same. Section 19 of the  Specific Relief Act, 1963 lays down that, ‘except as otherwise provided  by this Chapter, specific performance of a contract  may be  enforced  against  -  (a)  either  party thereto; (b)  any other person claiming under him by a title arising subsequently  to the contract, except a transfer for value who  has paid  his money  in good  faith  and  without notice of the original contract;’. We are not concerned with other sub-clauses  of Section  19.  It  is  not  in  dispute between the  contesting  parties  that  defendant  no.2  was partly claiming through defendant no.1 who is a party to the suit agreement  and was partly through defendant no.3 who in his  turn  was  claiming  through  defendant  no.1  who  was admittedly party  to the  suit agreement.  As ultimately the entire suit  property came  to be  vested in  defendant no.2 prior to the date of the suit, the moot question examined by the Trial  Court as  well as  by the  Appellate Court  as to whether defendant  no.2 was  a transferee  for value without notice of  the original  contract requires resolution in the light of the evidence on record. It is well settled that the initial burden to show that the subsequent purchaser of suit property covered  by earlier  suit agreement was a bona fide purchaser for  value without  notice of  the suit  agreement squarely  rests   on  the   shoulders  of   such  subsequent transferee. In  the case of Bhup Narain Singh v. Gokul Chand Mahraj and Others [Air 1934 PC 68] the Privy Council relying

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upon earlier  Section 27  of the Specific Relief Act of 1877 which is  in Pari  Materia  with  Section  19(1)(b)  of  the present Act,  made the  following pertinent  observations at page 70 of the Report in this connection ;      "Section 27  lays  down  a  general      rule that the original contract may      be specifically  enforced against a      subsequent transferee,  but  allows      an exception  to that general rule,      not to  the transferor,  bu to  the      transferee, and therefore it is for      the  transferee  to  establish  the      circumstances which  will allow him      to retain the benefit of a transfer      which prima facie, he h ad no right      to get :"      However, it  has to  be kept in view that once evidence is led  by both  the sides  the question  of initial onus of proof pales into insignificance and t he Court will  have do decide the  question in  controversy in  the  light  of  the evidence on  record. Even  this aspect of the matter is well settled by  a decision  of Privy  Council  in  the  case  of Mohammad Aslam  Khan and  Others v. Neraze Shah [AIR 1932 PC 228] wherein it was observed with reference to the very same question arising under Section 27(b) of the earlier Specific Relief Act of 1877 that ‘it is not necessary to enter upon a discussion in  the case  is before  the Court  and it has no difficulty arriving  at a  conclusion  in  respect  thereof. Where a  transferee has  knowledge of such facts which would put him  on inquiry which if prosecuted would have disclosed a previous  agreement, such  transferee is  not a transferee without notice  of the  original contract within the meaning or the exception in Section 27(b).’      Under  these   circumstances,  therefore,   it  becomes necessary for  us to  quickly glance  through  the  relevant evidence on  record both  oral and  documentary,  which  was considered by  the Trial  Court in  the first  instance  and which was  re-considered by  the first  Appellate  Court  of learned Single  Judge of  the High Court subsequently in the appeals moved  by the contesting defendants. We have already noted the  sequence  of  events  reflated  by  the  relevant documents on record dealing with the suit property from time to time.  We have  to keep  in view  the salient  fact  that defendant no.1’s  one half  interest in  the  suit  property consisting  of   7  marlas  was  already  subjected    to  a usufructuary mortgage in favour of Rajinder Singh as per Ex. D-3 dared 26th July 1973. When this registered usufructurary mortgage deed  was executed  by defendant  no.1 in favour of the mortgagee  the suit  agreement had not seen the light of the day.  The said  mortgage document  clearly recites  that defendant no.1  had mortgaged  one half  share in the entire suit house  of 14  marlas, meaning  thereby, entire 7 marlas which subsequently  got covered  by the  suit  agreement  in favour of the plaintiff. The usufructuary mortgage was for a consideration of  Rs. 5,000/-/.  It is  interesting to  note that though  the suit property was subjected to usufructuary mortgage and  it was  clearly recited  in the  mortgage deed that possession  was handed  over to  the mortgagee from the date of the document, when we turn to the suit agreement Ex. P-1 we  find that  the  very  same  mortgagor  Jagdish  Rai, defendant no.1  while entering  into the  suit agreement  in favour of  the plaintiff  and agreeing  to sell  his  right, title and  interest in  the suit  property for Rs. 60,000/-, had the  cheek to  mention that  the house was free from all encumbrances and  mortgages and he was the sole owner of the

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house  which   was  in  his  exclusive  possession.  It  is, therefore, clear  that in  order to  lure the  plaintiff  to agree to  purchase the  house for  a  consideration  of  Rs. 60,000/- defendant  no.1 made  a wrong statement in the said agreement. Shri  Sachar,  learned  senior  counsel  for  the plaintiff  was   right  in  his  submission  that  the  suit agreement never  informed the  plaintiff that the suit house was already  burdened by  way of  usufructuary  mortgage  in favour of  Rajinder Singh  only two months back. He was also right when he contended that a recital was made therein that defendant no.1  was in exclusive possession thereof, meaning thereby, the fact that the very same suit property was under usufructuary mortgage  with the mortgagee Rajinder Singh was suppressed from  the plaintiff by defendant no.1. Be that as it may,  Shri Sachar  submitted that he does not dispute the burden of  said  mortgage  on  the  suit  property  and  was prepared to  stand by the suit agreement even subject to the burden of  the said mortgage. However, that will not  be the end of  the matter.  It becomes  almost at  once clear  that recital  in  the  agreement  to  sell  to  the  effect  that defendant no.1  was in  exclusive possession  at the time of the suit  agreement in favour of the plaintiff was clearly a false recital.  So far as the plaintiff is concerned he also cannot get  away from  the fact  that on  the very same suit property which  was agreed  to be sold to him under the suit agreement there was a burden of usufructuary mortgage as per Ex. D-3  which was  a registered  document and  which  would obviously visit  the  plaintiff  with  the  notice  of  such encumbrances. It is this agreement which came to be extended by mutual  consent because  defendant  no.1  was  not  in  a position to  execute the sale deed by 30th December 1973 and consequently the  time for  execution of  the sale  deed was extended upto 30th June 1974 as seen from Ex. P-2.      It is in the light of the aforesaid events that we have to see  as to  what happened  after Ex.P-2 was executed. The documentary evidence  shows that  defendant no.1 who had got time upto  30th June  1974 to  execute the sale deed and get the balance of money from the plaintiff pursuant to the suit agreement appeared  to be in great financial need and wanted early  money.   That  resulted  in  his  entering  into  two transactions by which he sold the very same suit property of 7 marlas  in two  instalments. Firstly  he sold 3-1/2 marlas for Rs. 20,000/- by Ex. D-1 in favour of defendant no.3 Jagir Singh.  This defendant no.3 by earning a profit of Rs. 1,000/- sold  the very  same 3-1/2  marlas purchased  by him from defendant no.1 to defendant no.2 on 27th March 1974, as seen from  Ex. D-4.  Defendant no.1  on his  part  sold  the remaining  3-1/2   marlas  consisting  of  the  other  1/4th interest in  the suit property, which had remained with him, to defendant  no.2 by  sale deed Ex. D-2 for Rs. 30,000/- on 02nd April 1974. Thus it appears that before the time  limit of 30th  June 1974  for executing  the sale  deed as per the suit agreement  Ex. P-1  read with Ex. P-2 expired defendant no.1 who  appeared to  be in great need of money sold off in two instalments  the very  same suit  property for  a  total amount of  Rs.  50,000/-  thus,  suffering  a  loss  of  Rs. 10,000/- in  the bargain.  The learned  Single Judge  of the High  Court   rightly  placed   strong  reliance   on   this circumstance to  show that  as defendant  no.1 had  sold the property in  two instalments  which ultimately  came in  the hands of  defendant no.2  as the  full owner  who had parted with the total consideration of Rs. 51,000/-. In the process defendant  no.1   suffered  a  loss  of  Rs.  10,000/-.  Had defendant no.1 stood by the suit agreement he would have got Rs. 50,000/-,  instead he  sold the  property earlier in two

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instalments  getting   only  Rs.  50,000/-.  Learned  senior counsel Shri  Sachar for  the plaintiff submitted that it is easy to  visualise that  the sale  price  mentioned  in  the document may  not reflect  the real  amount and there may be some     under-hand  dealing  between  the  parties.  It  is difficult to  appreciate  this  contention  for  the  simple reason that  to none  of the  witnesses examined in the case was such a case put up. Even that apart, such contention was never canvassed  before any  of the courts below. Therefore, such a  contention based  on pure imagination or supposition of the  learned senior counsel not backed up by any evidence on  record  cannot  be  countenanced.  We  must,  therefore, proceed on  the  basis  that  defendant  no.1  after  having entered into  suit agreement  in favour  of the plaintiff in September 1973  and having got the time for execution of the sale deed  thereunder extended  upto 3-th  June 1974  was in such a great need of money that he had tp part with the suit property  in  two  instalments  by  selling  it  off  having suffered a  loss of  Rs. 10,000/-  in the bargain. When such was   the dire  necessity and  need of  defendant no.1 it is obvious that  he would  see to  it that no whisper about the suit  agreement   would  eve  be  made  to  the  prospective purchaser-parties to  Ex. D-2w  and D-1.  It become  at once probable to  visualise  that  if  defendant  no.1  had  ever whispered  about   the  suit   agreement   the   prospective purchasers would  have backed out being scared of the future litigation which  they would  have been required to undergo. Therefore on the broad test of probabilities in the light of the  aforesaid   events  duly   reflected  by  the  relevant documents  on   record  it  becomes  clear  that  the  first purchased from defendant no.1, namely, Jagir Singh defendant no.3 as  per Ex.  D-1 and  also defendant no.2 who purchased the other  half of  the suit property from defendant no.1 as per  Ex.  D-2  entered  into  these  sale  transaction  with defendant no.1  without knowing that the suit property which they were  purchasing was  subject to  any subsisting  prior agreement to sell in favour of the plaintiff. The conclusion to which  the learned Single Judge of the High Court reached as aforesaid  remain well  sustained on  the  touchstone  of probabilities on  the record  of the  case and  calls for no interference in the present proceedings.      But leaving  aside this  documentary evidence which has the aforesaid  tell-tale effect  let us new turn to the oral evidence with a view to finding out whether the appreciation there of  by the  learned Single Judge of the High Court and as confirmed  by the  Division Bench  of the  High Court  in Letters Patent  Appeal suffers  from any  gross error  which requires to  be rectified  in the  present  proceedings.  In order to prove the execution of the suit agreement plaintiff witness no.1  Nahur Chand,  Advocate  was  examined  by  the plaintiff. As  there is  not dispute regarding the execution of the  suit agreement  the evidence  of the said witness is not of  much relevance  so far  as the  present  dispute  is concerned. The  second witness examined by the plaintiff was Amrit Lal  son of  Sadhu Ram,  P.W.2. He  was  an  attesting witness to the suit agreement. Evidence of this witness also falls in  line with  the evidence  of P.W.1 and concerns the execution of  the suit  agreement. Therefore,  it is equally irrelevant for  deciding  the  present  controversy.  Bharat Mittal, P.W.3  is a witness for proving the extension of the period for execution of the sale deed as per Ex. P-2. In his cross-examination it has been brought about that there was a dispute between defendant no.1 and his brother regarding the property in  dispute and  as such  the date for execution of the sale  deed was  extended. The  evidence of  this witness

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shows that  defendant no.1  was not in a position to execute the sale  deed in  favour of  the plaintiff  pursuant to the suit agreement  within the  time limit.  i.e., December 1973 because of  the dispute  with his brother as his brother was having 1/2  undivided share in the entire house of 14 marlas cut of which defendant no.1 was having ownership of 7 marlas which was covered by the suit agreement Ex. P-1. Evidence of this witness, therefore, justifies the subsequent conduct of defendant no.1  in trying  to dispose  off the suit property and get  ready money  as soon  as possible so that  he could dispose off  his 1/2  undivided interest in the property and walk away  with the  cash  consideration  of  at  least  Rs. 50,000/- even after suffering a loss of Rs. 10,000/- may not waiting to  comply with  the suit  agreement till June 1974. Subsisting dispute  between defendant  no.1 and  his brother might have prompted defendant no.1 to hurriedly sell off his undivided interest in the suit property without waiting till 30th June  1974. P.W.4  Shri Jagan  Nath,  Advocate  was  an attesting witness  to the  extension document  Ex.  P-2.  In cross-examination the  witness stated  t hat  Kishan  Chand, guardian of minor defendant no.2 was not present at the time of the  execution of  agreement Ex.P-2.  He had no talk with Kishan Chand  regarding the  execution of agreement Ex. P-2. This supports  the case  of defendant no.2’s guarding Kishan Chand that  he never  knew about  the suit  agreement or its extension Ex.P-2. Plaintiff’s next witness is Surinder Kumar P.W.5 who was scribe of suit agreement Ex.P-1. In his cross- examination he  stated that  he did  not remember  if Kishan Chand, guardian  of minor  defendant no.2 was present at the time of  execution of agreement Ex. P-1. He could not say if h e had any talk regarding the execution of agreement Ex. P- 1 with  Kishan Chand. The evidence of P.W.5 runs parallel to t he  evidence of  P.W.4 and clearly indicates that guardian of defendant  no.2 was  not  in  know  of  either  the  suit agreement Ex.  P-1  or  the  extension  agreement  Ex.  P-2. Evidence of  P.W.6 Prem  Kishan does  not throw any light on this moot question. Plaintiff himself was examined as P.W.7. In  his   examination-in-chief  he   nowhere  stated   about defendant no.2  through his  guardian having  any  knowledge about  the  suit  agreement.  Shri  Sachar,  learned  senior counsel for  the plaintiff in this connection submitted that as initial  burden to prove this issue was on defendant no.2 plaintiff  could   lead  only   rebuttal  evidence  in  this connection after  defendant no.2’s  evidence was led on this aspect. We  will refer  to the  rebuttal evidence  later on. Suffice it  to say  that when  the  plaintiff  came  to  the witness box  as P.W.7  in the  first instance nowhere in his examination-in-chief he  even  whispered  about  the  latter transactions by  defendant no.1 in favour of defendant nos.2 and 3  to have  been entered  into by them with knowledge of plaintiff’s agreement  though he  had joined defendant nos.2 and 4  in the  suit on  that basis. In this connection it is interesting to  refer to  paragraph 3  of the  plaint  which reads as under :      "8.  Plaintiff   has  learnt   that      defendant No. 1 has transferred the      house  to  Shri  Lalit  s/o  Kishan      Chand of  Moga Mandi  1/2 share and      one Jagir  Singh  1/2  share.  Then      Jagir Singh  transferred 1/2  share      purchased by  him in favour of Shri      Lalit Mohan  s/o  Kishan  Chand  of      Moga Mandi  defendant  No.2.  These      transactions  have   been  effected      without consideration  with  notice

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    of the  agreement of sale in favour      of   plaintiff.    Moreover   these      transactions are  fraudulent.  Shri      Lalit Mohan  is minor, Kishan Chand      father of  Lalit Mohan  was in  the      run for  the purchase  of the house      in dispute  but he  failed and  now      defendants and  Kishan  Chand  have      conspired to harm the plaintiff."      Despite this  clear case put up by the plaintiff in his plaint when  he entered  the witness box as P.W.7 he did not think it  fit even  to  whisper  about  the  transaction  of defendant nos.2  and 3  being entered into with knowledge of suit agreement to sell in favour of the plaintiff. In cross- examination plaintiff stated that the house was lying vacant at the  time of  the execution  of the  agreement  and  that defendant no.1.  This statement  of plaintiff  in his cross- examination is  patently false  for the  simple reason  that defendant  no.1   had  already  entered  into  a  registered usufructuary mortgage  deed two  months prior  to  the  suit agreement and  consequently the  house would never have been vacant at the time of the execution of the agreement to sell as  it   would  have   been  in  possession  of  either  the usufructuary mortgagee   or any tenant on his behalf. But in any case  it would  never be lying vacant at the time of the execution of the suit agreement. It must, therefore, be held that plaintiff  tried to  make a  totally false  case in his cross-examination on  this aspect and did not appear to have any regard  for truth.  It is  in that light that we have to appreciate what  he stated  in the  last four  lines of  his cross-examination when  he deposed that he did not even talk to anybody regarding the transaction in dispute. In December 1973 when  he had  a talk with Kishan Chand only two persons were present  at that time. The said statement of his to say the least  is totally  laconic once  having said that he did not remember  if he had any talk with anyubody regarding the transaction in dispute, it is difficult to appreciate how in the next  breath he could say that he had a talk with Kishan Chand. It  is also pertinent to note that he had not courage to  mention  that  the  said  talk  pertained  to  the  suit agreement. But  even that  apart in  December, 1973 when the extension agreement  Ex.  P-2  was  entered  into  defendant no.2’s father  was not  present as clearly admitted by P.W.4 Jagan Nath  in his cross-examination to which we have made a reference earlier.  Thus the  plaintiff’s aforesaid  version regarding the  talk with  Kishan Chand  as revealed from the last lines  of  his    cross-examination  stands  completely falsified by  his own  witness Jagan  Nath P.W.4 and also by his own   laconic  statement aforesaid.  It is  also obvious that his version of the plaintiff does not stand the test of probability for  the simple  reason that  if  that  were  so defendant no.2  through his  guardian would not have entered into two  suit transactions  piecemeal as  reflected by  the documents  to   which  we  have  made  a  reference  earlier especially when it was in the interest of defendant no.1 not to divulge  about the  suit agreement  to these  prospective purchasers as  that would have sabotaged his efforts to sell off his  property and  to encash  his interest  in the  suit property even  by suffering a loss of Rs, 10,000/-, as noted earlier. Defendant no.1 was examined as D.W.1. In his cross- examination he  stated that  a partition  suit  was  pending between him,  his  brother  and  his  father  and  that  was compromised on 2nd or 3rd January 1974. It appears that only thereafter that  he sold  off a part of the suit property to Jagir Singh  and thereafter  another part  to defendant no.2

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D.22.1 Vidya Prakash son of Dev Raj was an attesting witness to sale  deed Ex.  D-2 by  which  defendant  no.1  sold  his remaining 1/2  interest in  the suit  property to  defendant no.2 for  Rs. 30,000/-.  Witness stated  that at the time of the document  Kishan Chand  was in  the  possession  of  the house. Witness  denied t he suggestion that he was tendering false evidence  on account  of his  relationship with Kishan Chand.  Witness  Jagtar  Singh  D.2.W.2.  was  an  attesting witness to  Ex.D-1. As these transactions are not in dispute we need  not dilate  one evidence of these witnesses. Kishan Chand was   examined  as D.2.W.5.  He  is  the  guardian  of defendant no.2.  On the  question about his knowledge of the suit agreement he stated in his examination-in-chief that he was not  aware of  any transaction  between he plaintiff and defendant no.1.  Jagan Nath,  plaintiff or  any person never talked to  him about  agreement of  sale in  favour  of  the plaintiff. This statement of his in his examination-in-chief is not  at all challenged in the cross-examination on behalf of the  plaintiff. He had stated in his examination-in-chief that he  had taken  the house  in dispute  before sale  as a tenant. Earlier  he  took  the  house  from  defendant  no.1 Jagdish Rai  and later  he stated  paying rent  to mortgagee Rajinder Singh.  It has  to be  kept in  view that  Rajinder Singh was  the mortgagee  in possession  under  usufructuary mortgage Ex.  D-3 as  noted earlier.  Therefore, his version that  earlier   he  was  a  tenant  of  defendant  no.1  and thereafter  started   paying  rent   to  the   mortgagee  in possession Rajinder  Singh stands  well corroborated  by the registered Mortgage  Deed Ex. D-3. In this cross-examination it was  brought out that no rent note was executed by him in favour  of  Jagdish  Rai,  Jagir  Singh  defendant  no.3  or Rajinder Singh,  the mortgage  in  possession.  But  he  re- affirmed   that he  used to  pay Rs.  500/- as rent, but the payment of  rent was  not  entered  in  his  account  books. Learned senior  counsel Shri  Sachar vehemently contended in the light  of this  evidence that  this  witness  cannot  be believed about  his alleged  tenancy of the suit property as he had  nothing to  show that  he h ad paid rent of Rs. 60/- per month  to any  o f  the aforesaid  persons. There was no documentary evidence in this connection. It h as to b e kept in view  that his  house was  said to  be  occupied  by  the witness Kishan  Chand as  a residential premises. He was not carrying on  any business in the said premises. No such case is put  up by  even the plaintiff. Therefore, merely because he had  not entered  the payment  of Rs. 50/- in his account books it  would not be clinching circumstance for disproving defendant no.2’s  father’s tenancy.  On the  contrary in his cross-examination he reiterated that he used to pay Rs. 50/- to Rajinder  Singh as the house was under mortgage with him. As noted  earlier, this  part  of  his  statement  is  fully corroborated  by   the  clinching  documentary  evidence  of usufructuary mortgage  Ex. D-2  in favour  of Rajinder Singh which had seen the light of the day months prior to the suit agreement in  favour of  the plaintiff.  Our  attention  was invited by  Shri Sachar,  learned  senior  counsel  for  the plaintiff, to  the further  evidence in cross-examination of witness Kishan  Chand to  the effect that it is correct that he was  anxious to purchase the house prior tot he agreement but he  did not know  when the agreement was executed. It is difficult to  appreciate  how  the  said  statement  contra- indicates his  theory of being a tenant of the suit house or that it visits him with the knowledge of the suit agreement. When he  h ad  clearly stated that he did not know when that agreement tool  place, his  statement that he was anxious to purchase the house prior to the agreement only shows that he

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was anxious  to purchase even prior to the date on which the suit agreement  came to  be executed.  That has reference to the time  of execution  of such agreement and has nothing to do  with   the  knowledge  about  the  suit  agreement  with defendant no.2’s  guardian, as tried to be suggested by Shri Sachar for  the plaintiff.  In the  light of  this evidence, therefore, learned  Single Judge  was right in his view that defendant no.2’s  father was  a sitting  tenant of  the suit houses and  because he  was anxious to purchase the house he purchased the same in two instalments, as seen earlier. Shri Sachar, learned  senior counsel  for the  plaintiff in  this connection submitted that if defendant no.2 was held to be a sitting tenant  of the house it would be obvious, as held by the Trial  Court, that  he would come to know about the suit agreement as  the plaintiff  had stated  that he had visited the suit  house at  the time  of the  execution of  the suit agreement. It is difficult to appreciate this contention for t he  simple reason  that when  the plaintiff  stated in his deposition as  P.W.7 that he had visited the house which was lying vacant  at the time of the execution of the agreement, his said  version is  found to  be a false one, as discussed earlier. It  is well  established on record that as the suit house was not vacant by the time suit agreement was executed as it  was already  under usufructuary  mortgage of Rajinder Singh, plaintiff’s version that when he visited the house it was  vacant   has  to   be  held  to  be  a  concocted  one. Consequently it  must be  held that witness Kishan Chand was right when  he contended that he was a sitting tenant of the house who  was paying  rent earlier  to defendant  no.1  and thereafter to  the usufructuary  mortgage Rajinder Singh and that the  statement of  the plaintiff  that he  visited  the house at  the time  of suit  agreement was  not  believable. Consequently there  was no  occasion  for  defendant  no.2’s father to  ever come  in contact with the plaintiff prior to his sale  transaction. On  the contrary  his version that he had  no   talk  with   the  plaintiff   regarding  the  said transaction not  did he  talk about  the same  prior to  his purchase as  deposed  to  in  his  examination-in-chief  had remained  unchallenged   in   his   cross-examination   and, therefore, this  version of  his was rightly accepted by the learned Appellate  Judge.  When  we  turn  to  the  rebuttal evidence of  plaintiff P.W.7  we find  that he  has tried to make out  a new  case which  was not  deposed to by him even earlier. In  his rebuttal evidence he stated that the day he went to  see the house in dispute it was Jagdish Rai who had the keys  with him and had shown the house after opening the door. This  version of  his is  completely falsified  by the fact that  the  house  was  in  possession  of  usufructuary mortgagee or  his tenant defendant no.2 and the keys thereof could never  have   been with defendant no.1. It, therefore, becomes clear  that the witness had no regard for truth. His further evidence in rebuttal that he talked three times with Kishan  Chand  about  having  entered  into  agreement  with defendant  no.1  regarding  purchase  of  house  is  clearly falsified by  the fact  that earlier when he entered the box he never  whispered about  the same.  Not only  that but  in cross-examination at  the  stage  of  rebuttal  evidence  he stated that  he did  not remember about his having talk with his in  the plaint nor in his earlier deposition he had ever stated to  that effect. It is difficult to appreciate how he missed to  state this  vital aspect  of the  matter  to  his advocate earlier  when he got his plaint drafted and also at the stage  of his  earlier evidence  on oath. It, therefore, becomes clear that at the stage of rebuttal he tried to make out a  new case which was neither pleaded by him nor deposed

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to earlier  and it  was clearly  an afterthought and a false version. In  the  light  of  the  aforesaid  oral  evidence, therefore, the  conclusion reached  by  the  learned  Single Judge of  the High  Court that  defendant no.2  through  his guardian was  a bona fide purchaser for value without notice of  the   suit  agreement,   stands  well  established.  The documentary as well as oral evidence leave no room for doubt that the aforesaid findings are well sustained on the record of the  case and  call for  no interference  in the  present appeal.      Learned senior  counsel Shri  Sachar for the plaintiff, however, was right when he contended that the learned Single Judge of  the High  Court was in error when he took the view that because  Kishan Chand  was a  sitting tenant  he had  a better right  to purchase the property. Such a right of pre- emption obviously  was not  even pleaded  by defendant no.2, nor was  it supported  by learned  senior counsel Shri Verma for the contesting defendant, defendant no.4. Learned senior counsel Shri  Sachar was  also right  when he contended that the learned  Single Judge was in error when he took the view that because  the time  for execution  of the  sale deed had expired on  30th December  1973 there  was nothing  wrong in defendant no.1  selling off  the property  in January,  1974 onwards.  Shri   Verma,  learned   senior  counsel  for  the respondents fairly  stated that  the said  reasoning of  the High Court  cannot be  sustained in  the light  of  Ex.  P-2 extending the  time upto 30th June 1974. But the said errors demonstrated by  learned senior  counsel Shri Sachar for the plaintiff from  the judgment  of the learned Single Judge of the High  Court cannot  shake the  main  foundation  of  the finding reached  by the  learned. Appellate  Judge,  namely, that defendant  no.2’s father  Kishan Chand  was a bona fide purchaser  of   the  suit   house  without  notice  of  suit agreement.      Learned senior  counsel for  the appellant also invited out attention  to the  written statement  of defendant no.1, especially para thereof, wherein it is stated that plaintiff had committed  breach of contract, market h ad come down and due to  the fact  that there  was an  agreement between  the plaintiff third  persons were  not willing to pay the market value. As a matter of fact defendant no.1 suffered a loss of Rs. 10,000/-  on account  of breach of contract on behalf of the plaintiff.  Learned senior  counsel for the appellant on the basis  of these  averments  of  defendant  no.1  in  his written  statement,   submitted  that  when  defendant  no.1 himself had  come with  a case  that third  parties were not willing to  pay market  value because  of the  agreement  of defendant no.1 with the plaintiff it would be obvious that a third party  like defendant  no.2 must  have knowledge about the  agreement.   It  is   difficult  to   appreciate   this contention. Whatever defendant no.1 might have stated in the written statement,  at the  stage of his evidence before the court when  defendant no.1 examined himself as D.W.1 no such case was  put to  him on behalf of the plaintiff. Not did he state to  that effect in his evidence. Not only that similar case was  not even  put to  defendant no.2’s guardian Kishan Chand when  he was  examined as D.2.W.5. Therefore, the bald assertion of  defendant no.1 in the written statement merely remained as  such. It was next contended that when defendant no.1 sold  a part  of the  suit property for Rs. 20,000/- to Jagir Singh  as per Ex. D-1 on 23rd January 1974 it was most unnatural for  Jagir Singh  to sell  the very  same property within two  months on  27th March  1974 as  per Ex.  D-4  to defendant no.2  by getting a profit only of Rs. 1,000/- and, therefore, all  these documents  appear to  be a  part of  a

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common conspiracy to frustrate the plaintiff’s agreement. We fail to  appreciate  how  this  contention  can  at  all  be advanced by  learned senior  counsel for  the  appellant  to foist knowledge of plaintiff’s agreement with defendant no.1 on defendant  no.2. Whether  Jagir Singh  was  justified  in selling within  two months  the property purchased by him by getting profit only of Rs. 1,000/- or not, is a circumstance which has  no bearing on this moot question. On the contrary it suggests  that at  the relevant  time when defendant no.2 was a  sitting tenant  Jagir Singh might have been persuaded to sell  off the property purchased by him by getting profit of only  Rs. 1,000/-.  That also indicates that the price of property might  not have got higher escalation in those days and the  real estate market appeared to have remained almost steady. To  say the  least it  is an  equivocal circumstance which cannot  conclusively establish that defendant no.2 had knowledge of plaintiff’s agreement when he entered into this transaction with  Jagir Singh.  It is  of  course  true,  as rightly pointed  out  by  learned  senior  counsel  for  the appellant Shri  Sachar, that the time limit for execution of the  sale   document  as   per  plaintiff’s  agreement  with defendant no.1 which was to expire on 30th December 1973 was extended at  the request  of the  vendor defendant no.1 upto June 1974.  But that  would not  necessarily show  that when defendant no.1 entered into sale deed in favour of defendant no.2 as per document Ex. D-2 dated 02nd April 1974 defendant no.2 must have got knowledge about the plaintiff’s agreement by that  time. Nor would it show that defendant no.1 when he sold the  half of its interest in the suit property to Jagir Singh as  per Ex.  D-1 on  23rd January  1974 he  would have conveyed to  Jagir Singh that there was already an agreement entered into  by defendant  no.1 with  the plaintiff. On the contrary, as  seen earlier,  it is  probable that  he  would never convey this fact either to Jagir Singh or to defendant no.2 as  then they  would get  scared and  would not like to enter into  sale transactions and pay consideration money to defendant  no.1   pursuant  to  those  two  sale  documents. Consequently even  on the  touchstone of broad probabilities it is  difficult to  appreciate how  it could  be said  that defendant no.2 must have got knowledge of the suit agreement when he  purchased part  of the suit property from defendant no.1 or  that his vendor Jagir Singh had knowledge about the suit agreement when defendant no.1 sold his half interest in the suit property to said Jagir Singh.      Before parting  with the   discussion on this point, we may refer  to a  decision of  this court  in the case of Dr. Govindas and  another v. Smt. Shantibai and others [IAR 1972 SC 1520].  In paragraph  14 of  the Report Sikri, CJ., while appreciating the  evidence in  the said  case has  made  the following observations :      "It  will    be  noticed  that  the      evidence is  contradictory  and  we      have to  decide  whose  version  is      more   acceptable.    The   learned      counsel    for    the    appellants      contended that  the onus  of  proof      was very  light on  the  appellants      and  they   had  discharged  it  by      entering  t   he  witness  box  and      stating that they had no knowledge.      We are  unable to  agree  with  him      that in  the circumstances  of this      case the  onus  was  light  on  the      appellants. The  circumstances that      tell heavily against the version of

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    the appellants  are  these.  First,      all the  parties are  residents  or      have shops in the same vicinity and      in  places  like  this  it  is  not      probable that the appellants of the      agreement (Souda  Chitthhi) of  the      plaintiff. Secondly, the haste with      which the  sale deed  in favour  of      the  appellants  was  executed  was      unusual. It  is more  usual for  an      agreement to  be executed  in  such      cases rather than arrive at an oral      agreement on  one day an d have the      sale deed executed the next day and      registered the  following day.  For      some reason  the appellants were in      a hurry to get the deed registered.      What was the reason? In view of all      the circumstances  we are  inclined      to accept  the evidence  of Ham Raj      Chouhan, and corroborated by Hayat,      that  Goverdhandas   knew  of   the      execution of the agreement with the      plaintiff on March 1, 1960."      It  is   difficult  to  appreciate  how  the  aforesaid observations of  this Court  can be  of  any  avail  to  the learned senior  counsel for  the plaintiff in peculiar facts of this  case to  which were  have made a detailed reference earlier. In  the aforesaid  case because  the  parties  were residents and having shops in the same vicinity it was found not probable that the appellant could not come to know about the execution  of the  agreement. It  was also observed that the  appellant  was  in  great  hurry  to  sell  without  an agreement to  sell. In the light of the said evidence before this Court  the conclusion  was reached that evidence of Hem Raj Chouhan  and corroborated  by Hayat  that the  appellant knew of  the execution  of the agreement had to be accepted. This Court  also placed  reliance on the further evidence in that case  as noted  in paragraph  15 of the Report that the appellants were  seen measuring  that shops and the property in dispute  and their  denial that  they did not measure the property in dispute was futile. It become at once clear that the aforesaid decision was rendered by this Court on its own peculiar facts  and cannot  be of any universal application. As we have noted earlier the facts of this case are entirely different and  the telltale circumstances emerging on record of this case clinchingly point out against the plaintiff and in favour  of  defendant  no.2  so  far  as  this  point  is concerned.  Point   No.1  is  accordingly  answered  in  the negative against  the plaintiff  appellant and  in favour of the respondents, especially respondent no.4.      Point No.2      In view  of our  finding  on  Point  No.1  against  the plaintiff this point does not survive for consideration.      Point No. 3      Before parting  with this  appeal it  may be  mentioned that Shri  Verma, learned  senior counsel for defendant no.4 in order  to buy  peace and to put an end to this litigation fairly stated  on behalf  of defendant no.4 that even though plaintiff has  been awarded  damages of Rs. 10,000/- against defendant no.1  by the learned Single Judge and which decree has been  confirmed by the Division Bench of the High Court, defendant no.4   would  not mind  in paying an amount of Rs. 1,00,000/- to  the plaintiff to avoid heart-burning, if any, for the  plaintiff. We  appreciate this  fair stand taken by

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learned senior  counsel for  defendant no.4  and accordingly while disposing  of this appeal and confirming the judgement and order  passed  by  the  learned  Single  Judge  and  the Division Bench  of the  High Court, grant additional benefit to  plaintiff-appellant  by  way  of  fair  concession  from defendant no.4  to the  effect that defendant no.4 shall pay an   amount of  Rs. 1,00,000/- to the plaintiff towards full and final  satisfaction of  his claim  for  damages  in  the present case  in lieu  of decree  for specific  performance. This will   be  in addition to the decree of Rs. 10,000/- of damages with  interest already  awarded  to  the  plaintiff. Appeal stands dismissed subject to the modification that the plaintiff’s suit  will also stand decreed to the extent of R s. 1,00,000/-  against defendant  no.4. Appeal  disposed  of accordingly. In  the facts  and circumstances  of  the  case there will be no order as to costs.