[Cites 11, Cited by 0]
Punjab-Haryana High Court
Dharam Pal vs Baldev Gir on 26 February, 2026
RSA-2847-2001 (O&M) -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2847-2001 (O&M)
Reserved on :-20.02.2026
Date of Pronouncement:-26.02.2026
Uploaded on:-26.02.2026
Dharam Pal
... Appellant
Versus
Baldev Gir @ Daya Ram and Others
... Respondents
****
CORAM: HON'BLE MR. JUSTICE VIRINDER AGGARWAL
Argued by :-
Mr. Vijay Lath, Advocate with
Mr. Ajay S. Dhiman, Advocate
for the appellant.
Mr. Paramveer Singh, Advocate
for the respondents.
****
VIRINDER AGGARWAL, J.
1. The present Regular Second Appeal (hereinafter referred to as
the "RSA") has been instituted by the appellant-plaintiff assailing the
judgment and decree dated 02.06.2001 rendered by the learned Additional
District Judge, Rupnagar. By virtue of the impugned judgment, the
learned First Appellate Court partly allowed the appeal preferred by the
respondent-defendants and consequently declined the principal relief of
specific performance of the agreement to sell as sought by the appellant-
plaintiff, thereby modifying the judgment and decree dated 04.08.1997,
passed by the learned trial Court to that extent.
2. Briefly stated, the case of the plaintiff is that an agreement to
sell dated 11.10.1985 was executed by defendant No.1 in his favour in
respect of the suit land measuring 4 Kanals 16 Marlas for a total sale
consideration of ₹6,000/-. At the time of execution of the agreement, a
sum of ₹5,000/- was paid as earnest money, and the balance amount of
₹1,000/- was agreed to be paid at the time of execution and registration of
the sale deed.
2.1. It was further stipulated between the parties that since
defendant No.1 had succeeded to the suit property upon the demise of his
father, the sale deed would be executed and registered within one month
from the date of sanction of the mutation of inheritance in favour of
defendant No.1. However, defendant No.1 failed to inform the plaintiff
about the sanction of the said mutation. Upon independently learning of
the mutation having been sanctioned, the plaintiff approached defendant
No.1 and called upon him to execute the sale deed in terms of the
agreement. Despite repeated requests, defendant No.1 not only declined to
honour his contractual obligations but also threatened to alienate the suit
property in favour of third parties.
2.2. The plaintiff has consistently averred that he has always been
ready and willing to perform his part of the contract and continues to
remain so. It is alleged that defendant No.1, with mala fide intent,
deliberately evaded execution of the sale deed, thereby compelling the
plaintiff to institute the present suit seeking specific performance of the
agreement to sell.
3. Upon service of summons, defendant No.1 entered appearance
and filed a written statement, wherein he categorically denied the
execution of any agreement to sell in favour of the plaintiff. However,
thereafter, defendant No.1 failed to contest the proceedings and was
accordingly proceeded against ex parte.
3.1. During the pendency of the suit, the plaint was amended upon
the plaintiff discovering that immediately upon the sanction of mutation in
his favour, defendant No.1 had alienated the suit property in favour of
defendants No.2 to 5. Consequently, defendants No.2 to 5 were impleaded
as parties to the suit. It was specifically pleaded that the sale deed executed
in their favour was illegal, null and void, and incapable of conferring any
lawful right, title, or interest, particularly in view of the prior agreement to
sell in favour of the plaintiff. It was further asserted that defendants No.2
to 5 had knowledge of the subsisting agreement and, therefore, could not
claim protection as bona fide purchasers.
3.2. Defendants No.2 to 5 contested the suit by filing a joint
written statement, raising preliminary objections inter alia regarding the
maintainability of the suit.
3.3. On merits, the answering defendants denied that defendant
No.1 had ever agreed to sell the suit land to the plaintiff and alleged that
the purported agreement relied upon by the plaintiff was fabricated and
manipulated. It was pleaded that the suit land had been agreed to be sold to
them vide agreement dated 08.04.1993 and that the plaintiff had
knowledge thereof. Pursuant to the said agreement, a registered sale deed
dated 24.04.1993 was executed in their favour. The answering defendants
thus asserted that they were bona fide purchasers for valuable
consideration without notice of any prior agreement.
4. In replication, the plaintiff specifically denied the preliminary
objections and substantive pleas raised in the written statements and
reaffirmed the averments made in the plaint. Thereafter, the learned trial
Court, for the purpose of delineating the real controversy between the
parties and ensuring an orderly adjudication of the lis, framed the
following issues for determination:-
1. Whether Baldev Gir @ Daya Ram defendant No.1 entered into an
agreement to sell 4 kanals 16 marlas land bearing 1/4 share of total
land measuring 19 kanals 5 marlas, as fully detailed in the head
note of the plaint and executed an agreement to sell dated 10.11.85
in favour of the plaintiff after receiving Rs.5,000/- as earnest
money? OPP
2. Whether the plaintiff was ready and willing and still ready and
willing to perform his part of the contract of the agreement dated
11.10.85? OPP
3. Whether the plaintiff is entitled to the possession of land in suit by
way specific performance of the agreement sell dated 11.10.1985
with consequential relief of injunction or in the alternative suit for
recovery of Rs.10,000/- as alleged? OPP.
4. Whether the suit is not maintainable and competent against
defendants No.2 to 5? OPD 2 to 5
5. Whether defendants No. 2 to 5 are bona fide purchasers of the suit
land for consideration? OPD 2 to 5.
6. Relief.
5. Upon completion of the pleadings, both parties were afforded
full, fair, and adequate opportunity to adduce oral as well as documentary
evidence in substantiation of their respective claims and defences. After the
conclusion of trial and upon hearing learned counsel for the parties at
length, the learned Trial Court, on a comprehensive appraisal of the
evidence on record, decreed the suit in favour of the plaintiff.
6. Aggrieved by the said judgment and decree, the respondents-
defendants preferred an appeal before the learned Additional District
Judge, Rupnagar. The learned First Appellate Court partly allowed the
appeal. While affirming the findings of the learned Trial Court with regard
to the due execution of the agreement to sell in favour of the appellant-
plaintiff and his continuous readiness and willingness to perform his part of
the contract, the learned First Appellate Court nevertheless concluded that
the contesting defendants were bona fide purchasers for valuable
consideration without notice. On that premise, the relief of specific
performance was declined, and the plaintiff was held entitled only to
refund of the earnest money along with interest.
6.1. Assailing the aforesaid findings and conclusions of the learned
First Appellate Court, the appellant-plaintiff has instituted the present
RSA. Upon admission, notice was issued to the respondents, who have
since entered appearance through counsel and have contested the appeal.
The records of the Courts below are available on the Digital Management
System (DMS) and have been perused for the purpose of comprehensive
adjudication.
7. I have heard learned counsel for the parties at considerable
length and have meticulously examined the entire record.
8. As regards the scope of second appeal, it is now a settled
proposition of law that in Punjab and Haryana, second appeals preferred
are to be treated as appeals under Section 41 of the Punjab Courts Act,
1918 and not under Section 100 CPC. Reference in this regard can be made
to the judgment of the Supreme Court in the case of Pankajakshi (Dead)
through LRs and others V/s Chandrika and others, (2016)6 SCC 157,
followed by the judgments in the case of Kirodi (since deceased) through
his LR V/s Ram Parkash and others, (2019) 11 SCC 317 and Satender
and others V/s Saroj and others, 2022(12) Scale 92. Relying upon the law
laid down in the aforesaid judgments, no question of law is required to be
framed.
9. Learned counsel appearing on behalf of the appellant-plaintiff
vehemently contended that the impugned judgment rendered by the
learned Additional District Judge, Rupnagar, suffers from patent illegality
and is vitiated by findings founded upon surmises and conjectures rather
than cogent evidence on record. It was submitted that the conclusion
recorded by the learned First Appellate Court holding the respondent-
defendants to be bona fide purchasers for valuable consideration is wholly
unsupported by admissible evidence and is, therefore, perverse in the eye
of law. Such a finding, being contrary to the material on record, is
amenable to interference in the exercise of jurisdiction under Section 41 of
the Punjab Court Act. On these premises, it was urged that the impugned
judgment and decree deserve to be set aside and the appeal be allowed.
10. Per contra, learned counsel for the contesting respondents
assailed the findings recorded by the Courts below insofar as they relate to
the execution of the agreement to sell in favour of the plaintiff. It was
contended that the alleged agreement was not executed by a legally
competent person and that the plaintiff has failed to establish, either in
pleadings or in evidence, that he remained continuously ready and willing
to perform his part of the contract, as mandatorily required under Section
16(c) of the Specific Relief Act, 1963, read with Order VI Rule 3 CPC and
Form No. 47 appended thereto. It was further submitted that
notwithstanding the absence of any cross-appeal or cross-objections, the
respondents are entitled, by virtue of the provisions of Order XLI Rule 33
CPC, to assail findings which have been recorded against them in the
appeal preferred by the opposite party.
11. Elaborating further, learned counsel contended that there is no
substantive material on record to demonstrate the plaintiff's continuous
readiness and willingness, emphasizing that the concepts of "readiness"
and "willingness" are distinct and must be independently established.
According to him, the plaint lacks the requisite particulars and the
evidence led is equally deficient in this regard. It was, therefore, argued
that the findings of the learned First Appellate Court declaring the
contesting respondents as bona fide purchasers for consideration are well-
reasoned, grounded in the evidence on record, and do not warrant any
interference. Accordingly, dismissal of the present appeal was prayed for.
12. I have considered the rival submissions advanced at the Bar
and have meticulously examined the entire record. Insofar as the
entitlement of the contesting respondents to challenge adverse findings is
concerned, the issue is no longer res integra. The Hon'ble Supreme Court
in Ravinder Kumar Sharma vs. State of Assam, AIR 1999 SC 3571 has
authoritatively expounded the scope and ambit of such a right. The
relevant extract is reproduced here-in-below:-
"Respondent-defendant in an appeal can without filing cross-objection
can attack the adverse finding upon which a decree in part has been
passed against the respondent, for the purpose sustaining the decree to
the extent the lower Court had dismissed the suit against the defendants-
respondents. The filing of cross- objection after 1976 Amendment is
purely optional and not mandatory."
12.1. This Court has also held in Jeevan Lal vs. Tejo and Others,
2021(4) PLR 275, as under:-
"Although, the defendant has not filed any appeal or cross-objections,
however, this Court in exercise of powers under Order 41 Rule 33 CPC
has the duty to look into the facts of the entire case and thereafter arrive
at a right conclusion irrespective of the fact whether the defendant has
filed a cross-appeal or not."
13. In view of the settled and authoritative exposition of law on
the subject, it stands unequivocally established that the contesting
respondent-defendants are well within their legal right to assail and
impeach the adverse findings recorded against them, while advancing
submissions in the appeal preferred by the appellant-plaintiff, even in the
absence of any independent cross-appeal or cross-objections.
14. Developing his submissions further, learned counsel for the
contesting respondents contended that the very substratum of the plaintiff's
case, namely, the alleged agreement to sell, stands vitiated on account of
want of lawful execution. It was argued that the agreement dated
11.10.1985 was not executed between the plaintiff and defendant No. 1,
inasmuch as the plaintiff himself is not a signatory thereto. Rather, the
document purports to bear the signatures of the plaintiff's father.
Consequently, it was submitted that there existed no privity of contract
between the plaintiff and defendant No. 1, and the alleged agreement
cannot be said to have been executed by a legally competent person on
behalf of the plaintiff.
15. It was further pointed out that the Special Power of Attorney
(Ex.P2), relied upon by the plaintiff to validate the act of his father, was
executed only on 11.05.1993, nearly eight years subsequent to the date of
the agreement to sell. Thus, on the date of the alleged execution of the
agreement, the plaintiff's father did not possess any authority, either
express or implied, to enter into a binding contract on behalf of the
plaintiff. The Power of Attorney (Ex.P2), it was emphasized, is a special
and limited authority conferred solely for the purpose of instituting the
present suit and cannot, by any stretch of legal reasoning, operate
retrospectively so as to validate an agreement purportedly executed in
1985.
16. In support of the aforesaid proposition, learned counsel placed
reliance upon the judgment of the Hon'ble Supreme Court in S. Abdul
Khader vs. Abdul Wajid (dead) by LRs and Others, 2008(4) Civ.CC 431,
wherein the legal position with respect to execution of agreements by
persons lacking authority has been authoritatively delineated. The relevant
extract therefrom is reproduced hereunder:-
20. On the merits of the case of the parties, it is clear that when the first
Agreement for Sale was executed by respondent No. 1 in favour of
the petitioner, he did not possess any power to enter into the
agreement with the petitioner. For a brief period such power was
given to him but was again withdrawn. Accordingly, on the two
dates which are relevant for our purpose, namely, 21st February,
1995 and 18th May, 1995, the respondent No. 1 had no legal right
in respect of the suit property. Consequently, the agreement
executed by the respondent No. 1 in favour of the petitioner on 21st
February, 1995, had no legal sanction and the suit for specific
performance on the basis thereof was incompetent.
16.1. Reliance has further been placed upon the judgment rendered
by the Indore Bench of the Hon'ble Madhya Pradesh High Court in
Navneet Das vs. Smt. Kamla Bai, Law Finder Document ID #1596842,
wherein the legal position governing the controversy at hand has been
lucidly enunciated and expounded in the following terms:-
13. Therefore, in view of the aforesaid two conditions, defendant no.2
was given Power of Attorney to sale but when defendant no.1
requires some money. Hence absolute right to sale was not given to
defendant no.2. He was also not given any right to enter into an
agreement to sale. Defendant no.2 has been given authority only to
sign the document on behalf of defendant no.lin case of sale for
want of money. The agreement to sale ought to have been executed
with defendant no.1. The Power of Attorney was given only for
limited purpose. No absolute right was given to sell or execute the
agreement to sale with anyone, therefore, on the basis of Power of
Attorney, defendant no.2 has wrongly executed the agreement to
sale with the plaintiff. Discretion to sell of house was with
defendant No.1 not with defendant no.2 P.O.A. Watch. Therefore,
the learned District Judge has rightly granted the decree of return
of money by defendant no.2 to the plaintiff. If it has been held
above that the Power of Attorney was not given to sale of the
house to defendant no.2, therefore. whether it has been cancelled or
not, is not required to be considered in this appeal.
17. It is, indeed, not in dispute that the agreement to sell, forming
the substratum of the present lis, was executed on behalf of the plaintiff by
his father, the plaintiff himself not having appended his signatures thereto.
The earnest money stipulated under the agreement was likewise tendered
by the father, acting for and on behalf of the plaintiff at the time of its
execution.
17.1. However, the authorities cited and pressed into service by
learned counsel for the contesting respondents are manifestly
distinguishable on facts and are inapplicable to the controversy at hand.
Those precedents pertain to situations where an agreement was purportedly
executed on behalf of a landowner by an unauthorized individual, and the
landowner subsequently repudiated such authority, thereby disputing the
very validity of the contract. In contradistinction, the present case concerns
a purchaser who has neither repudiated nor disowned the authority of his
father. On the contrary, the plaintiff has unequivocally affirmed and
adopted the agreement in question. He has, in express terms, owned the
transaction and further executed a Special Power of Attorney (Ex.P2) in
favour of his father, authorizing him to institute proceedings for specific
performance on the strength of the said agreement.
17.2. The factual matrix thus clearly establishes ratification by the
plaintiff of the acts performed by his father in negotiating and executing
the agreement to sell with defendant No.1 on his behalf. Such ratification,
in law, relates back to the date of the original act and validates the
transaction as if it had been performed with prior authority. Consequently,
it cannot be sustained that no valid and binding agreement to sell came into
existence between the plaintiff and defendant No.1.
17.3. Learned counsel for the contesting respondents has further
assailed the concurrent findings recorded by the Courts below with respect
to the plaintiff's readiness and willingness to perform his part of the
contract. It is contended that the appellant-plaintiff has neither pleaded nor
proved the essential ingredients necessary to demonstrate continuous
readiness and willingness, as mandatorily required under Section 16(c) of
the Specific Relief Act. Emphasis has been laid on the well-settled
distinction between the concepts of "readiness" and "willingness," it being
urged that both elements must be specifically averred and substantiated
through cogent evidence for the grant of the equitable relief of specific
performance.
17.4. In support of the aforesaid submissions, reliance has been
placed upon the judgment of a Co-ordinate Bench of this Court in Usha
Rani vs. Shakuntla and Others, 2025 NCPHHC:40715, as well as upon
the pronouncements of the Hon'ble Supreme Court in Padmakumari and
Others vs. Dasayyan and Others, 2015 INSC 288 and Shenbagam and
Others vs. K.K. Rathinavel, 2022 INSC 75, wherein the contours and
mandatory nature of the requirement of readiness and willingness have
been elaborately delineated.
18. Per contra, learned counsel appearing on behalf of the
appellant-plaintiff has vehemently contended that the subsequent
purchasers are wholly bereft of locus standi to assail the maintainability of
the suit on the premise that the plaintiff was not ready and willing to
perform his part of the contract. It is urged that the plea of absence of
readiness and willingness is intrinsically personal to the contracting parties
and cannot be invoked by transferees pendente lite or subsequent
purchasers, who merely step into the shoes of the vendor. In support of this
proposition, reliance has been placed upon the authoritative
pronouncement of the Hon'ble Supreme Court in Jugraj Singh and
Another vs. Labh Singh and Others, AIR 1995 SC 945.
18.1. It has been further contended that, even otherwise, the
evidentiary record unmistakably establishes that the appellant-plaintiff had
continuously remained ready and willing to perform his contractual
obligations. The duly constituted attorney of the appellant-plaintiff entered
the witness box and categorically deposed that the plaintiff had always
been, and continues to be, ready and willing to discharge his part of the
agreement. Significantly, this assertion was not subjected to any effective
cross-examination. The absence of challenge on this material aspect, it is
submitted, renders the testimony unimpeached and worthy of due credence.
18.2. In rejoinder thereto, learned counsel for the contesting
respondents has argued that a Power of Attorney holder is legally
incompetent to depose in respect of matters which fall within the exclusive
personal knowledge of the principal. It is contended that readiness and
willingness being matters of intention and conduct, the principal himself
ought to have entered the witness box. In aid of this submission, reliance
has been placed upon the judgment of the Hon'ble Supreme Court in
Mahender Kaur vs. Sant Paul Singh, 2019 INSC 1105.
18.3. I have bestowed my thoughtful consideration upon the rival
submissions and have carefully examined the authorities cited at the Bar. In
Mahender Kaur's case (supra), the Hon'ble Apex Court, in paragraph 6
of the judgment, has delineated the scope and limitations governing the
evidentiary competence of a Power of Attorney holder, observing as
under:-
6. In Janki Vashdeo (supra), it was held that a power of attorney holder,
who has acted in pursuance of the said power, may depose on behalf
of the principal in respect of such acts but cannot depose for the
principal for the acts done by the principal and not by the power of
attorney holder. Likewise, the power of attorney holder cannot
depose for the principal in respect of matters of which the principal
alone can have personal knowledge and in respect of which the
principal is entitled to be cross-examined. In our opinion, the failure
of the presumption against him as further observed therein as
follows:-
15. Apart from what has been stated, this Court in the case of
vidhyadhar v. Manikrao observed at SCC pp. 583-84, para 17
that:
17. Where a party to the suit does not appear in the witness box
and states his own case on oath and does not offer himself to
be cross-examined by the other side, a presumption would
arise that the case set up by him is not correct....".
19. Undoubtedly, it is a well-settled principle that a Power of
Attorney holder cannot depose on behalf of the principal in respect of
matters which lie exclusively within the personal knowledge of the
principal. However, the application of this principle is necessarily
contingent upon the factual matrix of each case. In the present matter, the
attorney is none other than the father of the plaintiff, who not only actively
participated in the transaction but had, in fact, executed the Agreement to
Sell (Ex.P1) on behalf of the plaintiff even prior to the formal execution of
the Power of Attorney. In such circumstances, it would be wholly
misconceived to contend that the attorney lacked personal knowledge of
the material facts, particularly with regard to the plaintiff's readiness and
willingness to perform his part of the contract.
19.1. A careful scrutiny of the terms and conditions embodied in the
Agreement (Ex.P1) reveals that the contract was to become executable
upon the sanctioning of the mutation of inheritance in favour of defendant
No. 1, and that the sale deed was to be executed within one month from the
date of such sanction. It is an admitted position on record that immediately
upon the mutation being sanctioned, and without any intimation
whatsoever to the appellant-plaintiff, defendant No. 1, on the very next
day, executed a sale deed in favour of defendants No. 2 to 5. The execution
of the sale deed in favour of the contesting defendants was thus effected
even before the appellant-plaintiff could be apprised that the agreement
had become enforceable.
20. In effect, therefore, the agreement remained capable of
performance for no more than a fleeting interlude of a single day, during
which the appellant-plaintiff was neither notified nor afforded an
opportunity to perform his obligations. The breach, thus, emanates squarely
from the conduct of defendant No. 1. In this factual backdrop, the reliance
placed by the contesting respondents upon precedents governing the
evidentiary limitations of a Power of Attorney holder is clearly
distinguishable and inapposite.
21. The pleadings in the plaint, read conjointly with the unshaken
testimony of the attorney, sufficiently establish that the appellant-plaintiff
had consistently remained ready and willing to perform his contractual
obligations, and that it was defendant No. 1 who, in derogation of the
subsisting agreement, chose to alienate the property clandestinely and in
undue haste. The foundational requirement under Section 16(c) of the
Specific Relief Act thus stands duly satisfied.
22. Learned counsel for the appellant has further assailed the
findings recorded by the learned Additional District Judge holding the
contesting respondents to be bona fide purchasers for valuable
consideration without notice, contending that such findings rest upon
surmises and conjectures and are unsupported by cogent, credible, and
legally admissible evidence on record.
23. Per contra, learned counsel for the contesting respondents has
submitted that the jurisdiction of this Court in a second appeal under
Section 41 of the Punjab Courts Act is circumscribed and does not extend
to re-appreciation of findings of fact, even if such findings are alleged to be
grossly erroneous. In support of this submission, reliance has been placed
upon the judgment of the Hon'ble Supreme Court in M/s Shivalik
Enterprises vs. Smt. Godawari (deceased) Through LRs and Others, 2022
INSC 952, wherein the scope and limitations of interference in second
appeal have been delineated as under:-
15. "It could thus be seen that this Court has held that, even when a
court exercises jurisdiction under Section 41 of the Punjab Act, it
cannot interfere with the findings of fact in second appeal on the
ground that the said findings are erroneous, howsoever gross or
inexcusable the error may seem to be. It has been held that the
findings of fact would also include the findings on the basis of
documentary evidence. The jurisdiction under Section 41 of the
Punjab Act would be available only when there is a substantial error
or defect in the procedure provided by the CPC or by any other law
for the time being in force."
23.1. The statutory mandate embodied in Section 41 of the Punjab
Courts Act, which delineates the contours and limitations of the jurisdiction
exercisable in a RSA, reads thus as under:-
"41. Second appeals (1) An appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High Court on
any of the following grounds, namely:
(a) the decision being contrary to law or to some custom or usage having
the force of law:
(b) the decision having failed to determine some material issue of law or
custom or usage having the force of law:
(c) a substantial error or defect in the procedure provided by the Code of
Civil Procedure 1908 [V of 1908], or by any other law for the time being
in force which may possibly have produced error or defect in the
decision of the case upon the merits;
[Explanation A question relating to the existence or validity of a custom
or usage shall be deemed to be a question of law within the meaning of
his section:]
(2) An appeal may lie under this section from an appellate decree passed
ex parte."
24. Learned counsel for the appellant has emphatically contended
that while findings of fact recorded by the learned First Appellate Court
ordinarily fall beyond the pale of interference in a Regular Second Appeal
under Section 41 of the Punjab Courts Act, such immunity does not extend
to findings which are demonstrably perverse, patently erroneous, or
founded upon no evidence whatsoever. It is submitted that where a
conclusion is not merely incorrect but is unsupported by any legal evidence
and rests solely upon surmises and conjectures, this Court would be well
within its jurisdiction to re-examine and set aside the same. According to
the appellant, the impugned findings squarely fall within this exceptional
category and are, therefore, liable to be reversed.
25. Upon a careful and comprehensive scrutiny of the judgment
rendered by the learned First Appellate Court, it emerges that the
conclusions regarding the contesting defendants being bona fide purchasers
for valuable consideration without notice have been recorded in the
absence of any substantive evidence. The learned First Appellate Court has
observed that the Agreement to Sell (Ex.P1) was unregistered, that
possession had not been delivered pursuant thereto, and that no overt acts
or celebrations were undertaken by the plaintiff to publicize the
transaction. It further noted that defendants No. 2 to 5 were residents of
Nangal Township and, despite inquiries, could not have become aware of
the prior agreement. Significantly, however, the learned First Appellate
Court expressly acknowledged that no evidence had been adduced by the
defendants to establish their status as bona fide purchasers.
Notwithstanding this categorical observation, the Court proceeded, on a
consideration of surrounding circumstances alone, to hold them to be bona
fide purchasers. Similarly, with respect to consideration, although no
witness was examined to prove the execution of the sale deed or the actual
passing of consideration, the mere production of the sale deed (Ex.D1) on
record was treated as sufficient proof thereof.
26. The findings so recorded are manifestly unsustainable in law.
The learned First Appellate Court has itself observed that the defendants
led no evidence to substantiate their plea of bona fide purchase, nor did
they establish, through cogent proof, that the consideration recited in the
sale deed had in fact passed. Yet, by drawing inferences from extraneous
factors, such as the lapse of time in enforcement of the agreement, its non-
registration, absence of delivery of possession, and the lack of public
celebration, the Court concluded that the defendants were bona fide
purchasers. These considerations, in the absence of affirmative evidence of
due inquiry and good faith, cannot substitute for proof.
27. There is no material on record to demonstrate that the
contesting defendants undertook any bona fide inquiry into the title or prior
contractual obligations relating to the suit property. On the contrary, the
evidence indicates that the contesting respondents were carrying on
business in close proximity to the suit land, situated only a few yards away.
The observation that they were residents of Nangal Township appears to
have been recorded without due regard to the evidence establishing their
commercial presence adjacent to the property in question. Furthermore, the
execution of the sale deed on the very next day following the sanction of
mutation in favour of defendant No. 1, coupled with the complete absence
of evidence of any bona fide inquiry, militates against the conclusion that
the defendants acted in good faith.
28. As regards consideration, the mere exhibition of the sale deed
as Ex.D1 does not, ipso facto, establish that the consideration recited
therein was actually paid. It was incumbent upon the defendants to lead
affirmative evidence to prove both execution and passing of consideration.
Admittedly, no such evidence has been brought on record. The conclusions
drawn by the learned First Appellate Court are, therefore, founded not upon
legal evidence but upon conjectural reasoning. In these circumstances,
where the findings are demonstrably based upon no evidence and are the
product of surmise rather than judicial evaluation of proved facts,
consequently, the impugned findings recorded by the learned First
Appellate Court on Issues No. 2, 3 and 5 are accordingly reversed.
29. Consequently, the appeal preferred by the appellant stands
allowed. The judgment and decree passed by the learned First Appellate
Court is set aside, and those of the learned Trial Court is restored. The suit
of the plaintiff is decreed for possession of the suit land measuring 4
Kanals 16 Marlas, fully detailed in the head-note of the plaint, by way of
specific performance of the agreement to sell dated 11.10.1985, along with
consequential relief of permanent injunction restraining the defendants
from alienating the suit land or creating any encumbrance thereon.
30. The plaintiff shall deposit the balance sale consideration in the
Court within a period of two months from the date of this judgment. Upon
such deposit, the defendants shall execute the sale deed in favour of the
plaintiff within a further period of two months of deposit and shall deliver
vacant physical possession of the suit land to the plaintiff. In the event of
failure on the part of the plaintiff to deposit the balance consideration
within the stipulated period, the suit shall stand dismissed automatically.
Conversely, if the defendants fail to comply with the decree, the plaintiff
shall be entitled to have the sale deed executed through the process of the
Court, and the Court shall ensure delivery of possession in accordance with
law.
31. Consequent upon the final adjudication of the principal
controversy, all pending miscellaneous applications, if any, arising out of
or connected with the present proceedings, shall stand disposed of by
necessary implication, no independent orders being warranted thereon in
view of the conclusions herein recorded.
( VIRINDER AGGARWAL)
26.02.2026 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
