IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA-447-2019 (O&M)

Reserved on: 19.03.2025

Pronounced on: 24.03.2025

USHA RANI . . . .APPELLANT

Vs.

SHAKUNTLA AND OTHERS . . . . RESPONDENT S

CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA

Argued by:- Dr. Anmol Ra an Sidhu, Sr. Advocate, with

Mr. Shiv Kumar Sharma, Advocate, for the appellant

(on 07.03.2025).

Mr. Shiv Kumar Sharma, Advocate, for the appellant

(on 19.03.2025).

Mr. Sumeet Mahajan, Sr. Advocate, with

Mr. Saksham Mahajan and Ms. Shru6 Singla, Advocates,

for respondent Nos.1 to 4 (on 07.03.2025 & 19.03.2025)

Present: None on 24.03.2025.

DEEPAK GUPTA, J.

Suit for possession by way of specific performance, regarding

property in dispute, based on agreement to sell dated 03.01.2004 filed by

plain6ffs Shakuntla and others (respondents No.1 to 4 herein) was dismissed

by the trial Court of ld. Addi6onal Civil Judge (Sr. Divn.), Bhiwani vide

judgment dated 02.01.2015. However, the appeal filed by the said plain6ffs

was accepted by ld. Addi6onal District Judge, Bhiwani, who reversed the

findings of the trial Court and decreed the suit vide judgment dated

08.10.2018. Against this reversal, one of the defendants, a subsequent

vendee, has approached this Court by way of the present Regular Second

Appeal.

2. Trial Court record was called. Same has been perused. In order

to avoid confusion, par6es shall be referred as per their status before the

trial Court.

3. Suit was filed by four plain6ffs - Smt. Shakuntla and others

(respondents No.1 to 4 herein) against three defendants namely, Mange

Ram, Jagdish and Om Parkash (respondents No.5 to 7 herein). Defendants

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No.4 to 19 (appellant and respondents No.8 to 22 herein) were impleaded

later on as subsequent vendees.

4.1. Concededly, defendants No.1 to 3, being owners of the suit land

measuring 39 kanal 10 marla had agreed to sell the same to the plain6ffs vide

an agreement to sell dated 03.01.2004 @ ₹10.60 lakh per acre. Amount of

₹7 lakh was received as earnest money by defendants No.1 and 2 for

themselves and on behalf of defendant No.3. As per the agreement,

possession of the land was delivered to plain6ffs. Defendants No.1 and 2

being brothers of defendant No.3 had undertaken the liability to get the sale

deed executed and registered on behalf of defendant No.3 also. Target date

for execu6on and registra6on of the sale deed was agreed to be 02.07.2005

and plain6ffs being vendees were en6tled to get the sale deed executed in

their favour and in favour of their nominees on payment of balance sale

considera6on. Later on, defendant No.2 was appointed as General Power of

A orney by defendant No.3 vide registered GPA dated 29.07.2004, who

acknowledged the receipt of 1/3

rd

of the earnest money on behalf of

defendant No.3 and also confirmed the terms and condi6ons of the

agreement on behalf of defendant No.3 by making an endorsement to that

effect on 30.07.2004 on the back side of the first page of the agreement.

4.2 As per plain6ffs, prior to the target date, they requested the

defendants No.1 to 3 to get the sale deed executed and registered on

04.07.2005, as it would be holidays on 02.07.2005 & 03.07.2005. It was

further pleaded that on 04.07.2005, plain6ffs accompanied by their rela6ve/

a es6ng witness to the agreement namely, Sube Singh went to the office of

Sub-Registrar, Bhiwani for geHng the sale deed executed along with balance

sale considera6on and other expenses but defendants No.1 to 3 did not turn

up. Plain6ffs got their presence marked through affidavits of a endance

dated 04.07.2005 a ested by Sub Registrar, Bhiwani. Plain6ffs pleaded

further that they have always been ready and willing and s6ll ready and

willing to perform their part of contract and asked the defendants many

6mes but they deferred the ma er on one or the other pretext. Later, on

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29.12.2006, plain6ffs sent a legal no6ce to defendants No.1 to 3, but they

failed to perform their part of contract, constraining the plain6ffs to file the

present suit seeking decree for specific performance of the agreement to sell

dated 03.01.2004 or in the alterna6ve for refunding double the earnest

money along with interest.

4.3 Later on, plaint was amended by the plain6ffs by challenging the

four sale deeds all dated 30.06.2005, whereby defendants No.1 to 3 had sold

the suit property to defendants No.4 to 10. They further challenged the

subsequent sale deeds as executed by defendants No.4 to 10 in favour of

defendants No.11 to 19. All these sale deeds are alleged to be null, illegal and

void and not binding on the rights of the plain6ff.

5.1 In their joint wri en statement, defendants No.1 and 2 admi ed

the execu6on of the agreement to sell and the receipt of the earnest money

by them and also on behalf of defendant No.3. They pleaded that later on,

they had also acquired the share of their brother-defendant No.3. However,

according to them, actually rela6ve of plain6ffs, namely Sube Singh was the

real person, with whom they had dealt with, as Sube Singh wanted to

purchase the suit property in the name of plain6ffs. They further pleaded

that on the asking of Sube Singh, they had alienated the suit property in

favour of defendants No.4 to 10 and considera6on was paid by Sube Singh.

As per them, at the 6me of execu6on of the sale deeds in favour of

defendants No.4 to 10, Sube Singh, Kailash and Rajbir were present.

5.2 When they received no6ce of the present suit, they contacted

Sube Singh and asked reason for filing the suit and then Sube Singh told them

that he was having dispute with Rambir, the middle man regarding the

transac6on between them and because of that dispute, he had got filed the

present suit so as to se le his account with him. As per these defendants

No.1 & 2, they pleaded their case to Sube Singh, but he did not pay any heed.

It is also their stand that they did not know the plain6ffs and rather, they

were dealing only with Sube Singh. They also pleaded that they had firstly

delivered possession of the suit land to Sube Singh and thereaJer, Sube

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Singh himself had delivered the possession to the subsequent purchasers.

Defendants No.1 and 2 pleaded ignorance regarding the exis6ng posi6on

about possession. With these submissions, they prayed for dismissal of the

suit.

5.3 Defendant No.3 in his separate wri en statement denied any

concern with the agreement to sell. However, according to him, he intended

to sell 12 kanal of land in favour of his brothers i.e. defendants No.1 and 2

but by misrepresenta6on, they had succeeded in geHng the sale deed dated

05.05.2006 from him regarding 13 kanal of land, which was under challenge

in the separate suit. He too prayed for dismissal of the suit.

5.4 Defendants No.4 and 5 (including the appellant herein) in their

wri en statement, pleaded to be bona fide purchasers of the suit property

for considera6on and without any no6ce. According to them, their vendors

were in possession of suit land at the spot. They also raised ques6on about

the validity of the agreement of sell, submiHng that only defendants No.1 &

2 had signed the same and not defendant N: 3. They reiterated the stand of

defendants N: 1 & 2 that plain6ffs were men of Sube Singh. As per these

defendants, they had entered into bargain in ques6on through Rajbir, who

was the nominee of the plain6ffs. They further pleaded collusion between

plain6ffs, defendants No.1 & 2 and Rajbir. They also stated that immediately

aJer purchasing their part of the suit property through sale deed dated

03.06.2005, muta6on was entered in their name and as such, plain6ffs were

in knowledge of the sale deeds in their favour. They pleaded the suit to be

barred by 6me and prayed for dismissal of the same.

5.5 Rest of the defendants took almost the same stand as taken by

defendants No.4 and 5 by contending them to be bona fide purchasers of the

part of the suit property for value and without no6ce. They also pleaded

their possession on the part of the suit land as per their share.

6.1 Necessary issues were framed. Evidence produced by the par6es

was taken on record. Trial Court found that agreement to sell and receipt of

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earnest money by defendants No.1 and 2 from plain6ffs was duly proved. It

was further held that there was no misrepresenta6on to defendant No.3 and

that endorsement was made on his behalf by his a orney defendant No.2 on

the agreement as Ex.A1/1. It was observed further that as per the evidence

produced on file, only Sube Singh had gone on 04.07.2005 in the office of Sub

Registrar and that none of the plain6ffs had gone there, which was contrary

to the pleadings. It was further found that Sube Singh was GPA holder only

on behalf of plain6ffs i.e. shakuntla and Smt. Vinod but not for the purpose

of geHng the sale deed executed. As such, the trial Court concluded that

plain6ffs had failed to prove their readiness and wiliness to perform their

part of contract. It was also found that contrary to the s6pula6on in the

agreement, possession of the plain6ffs on the suit land was not proved. Trial

Court further found that subsequent purchasers were the bona fide

purchasers for value and without no6ce. Consequent to all these findings on

material issues, suit was dismissed vide judgment dated 02.01.2015.

7.1 In the appeal filed by the plain6ffs, learned First Appellate Court

endorsed the findings of the trial Court to the effect that agreement to sell

and the receipt of earnest money by defendants No.1 and 2 for themselves

and on behalf of defendant No. 3 in favour of plain6ffs was duly proved and

later on, defendant No.3 had also acknowledged the execu6on of the

agreement to selling in favour of the plain6ffs.

7.2 First Appellate Court also observed that though only Sube Singh

had gone to the office of Sub Registrar, Bhiwani on 04.07.2005 for geHng the

sale deed executed and that none of the plain6ffs had gone there but it was

no6ced that said Sube Singh was the close rela6ve of the plain6ffs being

brother of three of the plain6ffs and mama of the other plain6ff and as such,

he was competent to appear on their behalf to get the sale deed executed,

as there was no legal requirement for the vendees to be present as their

signatures were not required on the sale deed. Besides, plain6ffs had the

valid reason not to go on 04.07.2005 as due to some family affair, they had

to go urgently somewhere. On apprecia6on of the evidence on record, the

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First Appellate Court came to the conclusion that plain6ffs were ready and

willing to perform their part of contract. As such, the finding to the contrary

given by the trial Court was reversed in this regard.

7.3 First Appellate Court further held that defendants No.4 to 10

and the subsequent vendees i.e. defendants No.11 to 19 were not the bona

fide purchases for value and without no6ce and that sale deeds in their

favour could not be protected. Ld. First Appellate Court also referred to

Sec6ons 23 and 47 of the Registra6on Act and Sec6on 48 of the Transfer of

Property Act to come to this conclusion and as such, finding of the trial Court

on this issue was reversed.

7.4 First Appellate Court also held that it was not required for the

plain6ffs to specifically claim the relief of possession, as the said relief of

possession was implicit in a suit for specific performance.

7.5 Consequent to all these findings, the First Appellate Court

reversed the judgment of the trial Court and decreed the suit of the plain6ffs

for specific performance in terms of the agreement to sell dated 03.01.2004,

vide judgment dated 08.10.2018.

8. The above judgment of ld. Addi6onal District Judge, reversing

judgment of the trial Court, has been assailed by only one of the defendants

namely Usha Rani, who was defendant No.4 before the trial Court. She is one

of the subsequent purchasers, having purchased part of the suit land from

defendants No.1 and 2 vide sale deed dated 30.06.2005. The vendors i.e.

defendants No.1 to 3; as well as all other subsequent purchasers have been

impleaded as the proforma respondents in this appeal.

9.1 It is contended by ld. Sr. Advocate, Dr. Anmol Ra an Sidhu on

behalf of the appellant that the judgment & decree as passed by the first

appellate Court is illegal and void based upon conjectures and surmises and

that same has been passed in u er ignorance of the provisions of law

reflec6ng non-applica6on of judicial mind. It is urged that Sec6on 47 of the

Registra6on Act and Sec6on 48 of the Transfer of Property Act were not at all

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applicable to the case of an agreement to sell and have been wrongly applied

by first Appellate Court to come to the conclusion that subsequent vendees

were not the bona fide purchases.

9.2 Though ld. Senior Advocate has not challenged the findings of

the Courts below to the effect that execu6on of the agreement to sell and

receipt of earnest money were duly proved on behalf of the plain6ffs, but ld.

senior counsel seriously disputed the finding of the First Appellate Court

regarding readiness and willingness of the plain6ffs to perform their part of

contract. It is urged that evidence was absolutely lacking to prove the

readiness and willingness of the plain6ffs to perform their part of contract.

There was even no evidence that plain6ffs had financial capacity or funds

ready with them to pay the balance sale considera6on on 04.07.2005, when

they had sent Sube Singh to get the sale deed executed.

9.3 It is argued that Sube Singh alleges to be GPA of two of the

plain6ffs namely Smt. shakuntla and Smt. Vinod but did not produce any

such GPA on record, authorising him to represen6ng them to appear before

Sub-Registrar or to purchase land on their behalf. Even otherwise, GPA

holder cannot appear in place of purchasers to prove the readiness and

willingness. To support his conten6on, ld. Sr. counsel has relied upon Rajesh

Kumar vs. Anand Kumar, Law Finder Doc ID # 258158.

9.4 To the specific query put by this Court, as to whether the

subsequent vendee has the right to challenge the readiness and willingness

of the buyers/plain6ffs to perform their part of contract, ld. Senior Advocate

has relied upon Kadupugotla Varalakshmi vs. Vudagiri Venkata Rao & Ors.,

2021 (2) RCR (Civil) 246, wherein it has been held by Hon’ble Supreme Court

that it is open to any defendant including subsequent buyer to challenge

readiness and willingness of the plain6ff in a suit for specific performance of

the agreement to sell. It is contended by ld. Senior Advocate that plain6ffs in

this case u erly failed to prove their readiness and willingness to perform

their part of contract and as such, the First Appellate Court was absolutely

incorrect in reversing the finding of the trial Court in this regard.

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9.5 With all the above submissions, prayer is made for seHng aside

the judgment and decree of the First Appellate Court and to restore that of

the trial Court, dismissing the suit for specific performance, by allowing this

appeal.

10.1 Refu6ng the aforesaid conten6ons, Mr. Sumeet Mahajan, Ld.

Senior Advocate for the contes6ng respondents-plain6ffs contended that

issue of readiness & willingness has not been raised in the grounds of appeal

and so, appellants cannot be allowed to raise this issue.

10.2 It is contended further that by virtue of documents – GPAs

Ex.DA & Ex.DB Smt. Shakuntla and Smt. Vinod had authorised their brother

Sube Singh to manage their proper6es in any manner and that general

powers include to power to appear before Sub-Registrar to get the sale deed

executed and registered in their favour.

10.3 It is argued further that the First Appellate Court has re-

appreciated the en6re evidence on file and has rightly concluded that

plain6ffs had been successful in proving their readiness & willingness to

perform their part of contract and that the subsequent vendees were not the

bona fide purchasers and as such, suit for specific performance has been

rightly decreed.

10.4 With these submissions, prayer is made for dismissal of the

appeal.

11. This Court has considered submissions of both the sides at depth

and has appraised the en6re evidence on record including the trial Court

record.

12. Execu6on of agreement to sell dated 03.01.2004 (Ex.P1) by de-

fendants No.1 and 2 for themselves and on behalf of defendant No.3 in

favour of plain6ffs, is not in dispute. It is also undisputed that later on, defen-

dant No.3 also acknowledged the execu6on of the said agreement vide en-

dorsement Ex.D1 through his a orney made on the back of page No.1 of the

agreement to sell Ex.P1.

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13. Trial Court non-suited the plain6ffs on the ground that they had

failed to prove readiness and willingness to perform their part of contract;

whereas, First Appellate Court reversed this finding by holding that readiness

and willingness on their part to perform their part of contract was proved. It

is the se led posi6on of law that it is for the plain6ffs-buyers not only to

plead that they have been always ready and willing to perform their part of

contract and are s6ll ready and willing to do so, they are further required to

prove the same.

14. The conten6on of Ld. Senior Advocate for the respondents that

appellants cannot be permi ed to raise the issue of readiness & willingness

on part of plain6ffs-respondents to perform their part of contract, as it is not

pleaded in the grounds of appeal, has absolutely no merits. As has been

noted above, the issue of readiness & willingness was hotly contested before

the courts below and they differed in their findings on the issue, in as much

as trial Court held that plain6ffs had failed to prove readiness and willingness

to perform their part of contract; whereas, first Appellate Court reversed this

finding by holding that readiness and willingness on their part to perform

their part of contract was proved. It is the pleadings before the trial court,

which are to be looked into, as to whether a par6cular issue has been raised

or not; and not the pleas taken in grounds of appeal before the High Court.

Said grounds don’t form part of pleadings. The readiness & willingness of

plain6ffs to perform their part of contract, having been duly pleaded by them

and ques6oned by defendants and the two courts below having differed in

their findings on this conten6ous issue, it is held by this court that objec6on

of Ld. Senior Advocate for the respondents to the effect that appellants can-

not raise this issue, simply because the plea in this regard is not taken in the

grounds of appeal, is unsustainable and as such, conten6on is rejected.

15. Proceeding further, as has been held by Hon’ble Supreme Court

in C.S. Venkatesh Vs. A.S.C. Murthy (D) by LRs. & Ors., (2020) 3 SCC 280, to

adjudge as to whether plain6ff is ready and willing to perform his part of con-

tract, the Court must take into considera6on the conduct of the plain6ff prior

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and subsequent to the filing of the suit along with other a ending circum-

stances in a par6cular case. The ques6on that whether the plain6ff was

ready and was always ready to perform his part of contract, may be inferred

from the facts and circumstances of the par6cular case. It has also been ob-

served in that case that though it is not necessary for the plain6ff to produce

ready money, but it is mandatory on his part to prove that he has the means

to generate the considera6on amount. To the same effect is the view taken

by Hon’ble Supreme Court in Sughar Singh Vs. Hari Singh (dead) through LRs

and others, (2021) 17 SCC 705.

16. In present case, though vendors – defendants N: 1 to 3 have not

approached this Court challenging the finding of the Appellate Court, regard-

ing the readiness and willingness of the plain6ffs to perform their part of

contract but it cannot be ignored that the vendors - defendants No.1 to 3

having already sold the en6re suit property to the subsequent vendees i.e.

defendants No.4 to 10 vide sale deeds dated 30.06.2005, so obviously ven-

dors had lost interest in the li6ga6on. It is the subsequent vendees, who are

affected by the fate of this case.

17. Further, the ques6on as to whether the subsequent buyer has

right to challenge the readiness and willingness of the plain6ff, in a suit for

specific performance of agreement to sell, was considered by Hon’ble

Supreme Court in the case of Kadupugotla Varalakshmi (supra) and it was

held as under: -

“7. Thus, the submissions advanced on behalf of the appellant i.e.

subsequent purchaser were not taken into account on the premise that it

would not be open to a subsequent purchaser to challenge the readiness

and willingness on part of the plain6ff. The High Court had relied upon the

decision of this Court rendered in

Jugraj Singh and Another vs. Labh Singh

and Others [(1995) 2 SCC 31] to come to such conclusion.

8. It must be stated here that the principles laid down in Jugraj Singh and

Another (supra) were not accepted by a larger Bench of this Court. The

relevant discussion in paragraph 6 in the case of Ram Awadh (Dead) by Lrs.

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and Others vs. Achhaibar Dubey and Another [(2000) 2 SCC428] was as

under:

“6. The obliga6on imposed by Sec6on 16 is upon the court not to

grant specific performance to a plain6ff who has not met the

requirements of clauses (a), (b) and (c) thereof. A court may not,

therefore, grant to a plain6ff who has failed to aver and to prove that

he has performed or has always been ready and willing to perform

his part of the agreement the specific performance whereof he seeks.

There is, therefore, no ques6on of the plea being available to one

defendant and not to another. It is open to any defendant to contend

and establish that the mandatory requirement of Sec6on 16(c) has

not been complied with and it is for the court to determine whether

it has or has not been complied with and, depending upon its

conclusion, decree or decline to decree the suit. We are of the view

that the decision in Jugraj Singh case [(1995) 2 SCC 31] is erroneous.”

9. Learned counsel appearing for the plain6ff - respondent no.1 sought to

support on facts the conclusion arrived by the High Court on the issue of

readiness and willingness.

10. However, the fact remains that the en6re perspec6ve with which the

ma er was considered by the High Court was clearly erroneous and as the

observa6ons made by the High Court in paragraph 76 disclose, the High

Court went on the foo6ng that it was not open to the appellant i.e.

subsequent purchaser to raise any submissions on the issue of readiness

and willingness. Thus, the judgment under challenge clearly fell in serious

error.”

18. In the light of the aforesaid legal posi6on, this Court has no hesi-

ta6on to conclude that appellant-defendant No.4 being one of the subse-

quent vendees, has the right to assail the finding of the First Appellate Court

regarding the readiness and willingness of the plain6ffs to perform their part

of contract.

19. Coming to the most material issue, as to whether the plain6ffs

were able to prove their readiness and willingness to perform their part of

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contract, it is very important to no6ce that though on 02.07.2005, the target

date fixed in the agreement for execu6on and registra6on of the sale deed,

was holiday and 03.07.2005 was holiday, plain6ffs were required to appear

on next working day i.e., 4.7.2005. However, none of the plain6ffs a ended

the office of Sub Registrar, Bhiwani on 04.07.2005 so as to get the sale deed

executed and registered in their favour. Rather, it is only Sube Singh (PW2),

who was sent by plain6ffs on 04.07.2015 for geHng the sale deed executed

and registered on their behalf.

20. Trial Court has rightly no6ced the material contradic6on in this

regard, inasmuch as, in the pleadings, plain6ffs specifically contended that all

of them accompanied by Sube Singh had gone to the office of Sub Registrar,

Bhiwani on 04.07.2005 along with the balance sale considera6on and ex-

penses necessary for geHng the sale deed executed and registered in their

favour. However, in the legal no6ce dated 29.12.2006 (Ex.PW4/A), it is

specifically men6oned that it is only Sube Singh, who had gone to the office

of Sub Registrar, Bhiwani on 04.07.2005 being the close rela6ve of the plain-

6ffs and also being a orney of two of the plain6ffs namely shakuntla and

Vinod. Affidavit dated 04.07.2005 (Ex.P4) also shows that it has been exe-

cuted by Sube Singh alone and it is men6oned therein that on behalf of the

plain6ffs, he had come on that day for geHng the sale deed executed and

registered in favour of the plain6ffs. Sube Singh examined as PW2, candidly

admi ed that he had gone to the office of Sub Registrar, Bhiwani on behalf

of the plain6ffs on 04.07.2005. Thus, the contradic6on made in the pleadings

in this regard remains unexplained. Fact remains that none of the plain6ffs

had gone to the office of Sub Registrar, Bhiwani on 04.07.2005 for geHng the

sale deed executed and registered in their favour.

21. It is admi ed posi6on that PW2 Sube Singh is the real brother of

plain6ffs Smt. shakuntla, Smt. Vinod and Balwan and maternal uncle of the

fourth plain6ff namely Ajay. As per the explana6on given by plain6ff No.3-

Balwan, who appeared in the witness box as PW3, on the relevant date of

4.7.2005, none of the plain6ffs including he (Balwan) could go to the office of

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Sub Registrar, Bhiwani due to some urgent work, as they had to go out of sta-

6on and that is why they had sent Sube Singh on their behalf. PW3 could not

explain the nature of urgent work, due to which none of the plain6ffs could

appear on 04.07.2005 before Sub-Registrar.

It has been rightly observed by

the ld. trial Court that it is highly improbable that PW3 would forget the na-

ture of urgent work and none of the plain6ffs would appear on such an im-

portant date i.e. 04.07.2005, on which they had to get the sale deed exe-

cuted sale deed in their favour pursuant to the agreement to sell.

22. S6ll further, it is claimed that Sube Singh (PW2) who was sent by

the plain6ffs for geHng the sale deed executed was also the a orney of two

of the plain6ffs, namely, shakuntla and Smt. Vinod. Perusal of GPA dt.

26.04.2004 (Ex.DA) would reveal that that by way of this document, Smt

shakuntla (sister) & Smt. Sewapa6 (wife) of Sube had authorised him to man-

age the proper6es already owned and possessed by them at various places,

in any manner whatsoever including power to sell, mortgage, lease, ex-

change etc or to appear before any authority for this purpose. Similar GPA

dated 18.05.1988 (Ex.DB) was executed by Smt. Vinod in favour of Sube.

These documents did not authorise Sube Singh to represent them to appear

before Sub-Registrar or to purchase land on their behalf. No such power of

a orney has been placed on record in order to show that Sube Singh had

been authorized to get the sale deed executed or registered in favour of said

shakuntla & Vinod. Admi edly, he was not even a orney of the other plain-

6ffs Balwan and Ajay.

23. Moving ahead, assuming for the sake of arguments that as sig-

natures of the purchaser was not required on the sale deed and that plain-

6ffs had sent their close rela6ve Sube Singh for geHng the sale deed exe-

cuted, the ques6on is as to whether readiness and willingness on the part of

the purchasers can be proved by said Sube Singh, without examining the

plain6ffs except one of them namely Balwan, who appeared in witness box

as PW3, par6cularly when PW3 could not explain the reason for non-appear-

ance of none of the plain6ffs on 04.07.2005 in the office of Sub Registrar,

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Bhiwani for geHng the sale deed executed and registered in their favour. Ab-

sence of any of plain6ffs in the office of Sub-registrar on the target date, is a

big ques6on mark on their readiness and willingness to perform their part of

contract.

24. In Rajesh Kumar case (supra), Hon’ble Supreme Court consid-

ered as to whether it is necessary for the buyer to step into the witness box

and depose the fact regarding readiness and willingness to perform his part

of contract, or whether the a orney can appear on his behalf. Hon’ble

Supreme Court aJer referring to Janki Vashdeo Bhojwani v. IndusInd Bank

Ltd. (2005) 2 SCC 217; Man Kaur v. Hartar Singh Sangha 2010 (10) SCC 512

and A.C. Narayanan v. State of Maharashtra (2014) 11 SCC 790 held as un-

der: -

“12. Having no6ced the three judgments of this Court in Janki Vashdeo Bho-

jwani (supra), Man Kaur (supra) & A.C. Narayanan (supra), we are of the

view that in view of Sec6on 12 of the Specific Relief Act, 1963, in a suit for

specific performance, wherein the plain6ff is required to aver and prove

that he has performed or has always been ready and willing to perform the

essen6al terms of the contract, a Power of A orney Holder is not en6tled to

depose in place and instead of the plain6ff (principal). In other words, if the

Power of A orney Holder has rendered some `acts' in pursuance of power

of a orney, he may depose for the principal in respect of such acts, but he

cannot depose for the principal for the act done by the principal and not by

him. Similarly, he cannot depose for the principal in respect of the ma er of

which only the principal can have personal knowledge and in respect of

which the principal is en6tled to be cross-examined. If a plain6ff, in a suit for

specific performance is required to prove that he was always ready and will-

ing to perform his part of the contract, it is necessary for him to step into

the witness box and depose the said fact and subject himself to cross-exami-

na6on on that issue. A plain6ff cannot examine in his place his a orney

holder, who did not have personal knowledge either of the transac6on or of

his readiness and willingness. The term `readiness and willingness' refers to

the state of mind and conduct of the purchaser, as also his capacity and pre-

paredness, one without the other being not sufficient. Therefore, a third

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party having no personal knowledge about the transac6on cannot give evi-

dence about the readiness and willingness.”

25. It is, thus, clear from the legal posi6on as above that power of

a orney cannot appear on behalf of the plain6ffs-purchasers for proving the

readiness and willingness to perform their part of contract. As such, state-

ment of Sube Singh to prove readiness and willingness does not advance the

case of plain6ffs; whereas PW3 Balwan & none of other plain6ffs has ap-

peared before Sub-registrar to get the sale deed executed in their favour on

4.7.2005, i.e., the next working day aJer the target date.

26. Apart from above, certain important factors have been ignored

by both the Courts below. Total area of the suit land was 39 kanal 10 marla,

which was agreed to be sold by vendors i.e. defendants No.1 to 3 @ ₹10.6

lakh per acre. Total considera6on works out to be ₹52,33,750/-. Only an

amount of ₹7 lakh had been paid as earnest money on 03.01.2004 i.e. bal-

ance amount payable on the date of execu6on and registra6on of the sale

deed was ₹45,33,750/-. Target date for execu6on and registra6on of the sale

deed has been fixed to be 02.07.2005 i.e. more than 1½ year from the date

of execu6on of the agreement. As per the s6pula6on in the agreement, pos-

session of the suit land was handed over to the vendees/plain6ffs. It is highly

unusual and improbable that by geHng only an amount of ₹7 lakh with huge

amount of ₹45,33,750/- s6ll payable, the defendants will hand over the pos-

session of suit land to the plain6ffs and will agree execute the sale deed aJer

1½ year. Not only this, from the statement of PW2-Sube Singh and PW3-Bal-

wan, it has been rightly found by the Courts below that though it is s6pulated

in the agreement that possession was handed over to the plain6ffs, but in

fact the actual possession was not handed over to them and presently, it is

subsequent vendees, who are in possession of the suit property as per the

respec6ve shares purchased by them.

27. S6ll further, there is absolutely no evidence on record to show

that on 04.07.2005, when plain6ffs had sent Sube Singh on their behalf to get

the sale deed executed and registered, Sube Singh was having the balance

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sale considera6on of ₹45,33,750/- besides the other expenses required for

execu6on and registra6on of the sale deed. In the affidavit Ex.P4 dated

04.07.2005, only this much is men6oned by Sube Singh that he was present

in the office of Sub Registrar, Bhiwani since 09.00 AM and was wai6ng for the

defendants - vendors, who had not appeared but there is absolutely no men-

6on in this affidavit that he had come there along with the balance sale con-

sidera6on and necessary expenses required for execu6on and registra6on of

the sale deed.

28. PW2-Sube Singh was also confronted in this regard during his

cross-examina6on and as per him, the plain6ffs had given different shares of

amounts to him to purchase the suit land, but he was unable to tell as to how

much amount was paid by the different plain6ffs. It is absolutely not believ-

able that huge amount of ₹45,33,750/- was brought by the plain6ffs in cash

and s6ll he did not men6on about the said fact in his affidavit Ex.P4. There is

absolutely no evidence that on that day i.e. on 04.07.2005, Sube Singh pur-

chased any stamp paper for geHng the sale deed executed and registered in

favour of the plain6ffs. There is no evidence that he got prepared any bank

draJ or any cheque from the plain6ffs. No evidence whatsoever has been

produced that any of the plain6ffs had necessary amount in their bank ac-

counts to pay the huge amount of balance sale considera6on of more than

₹45 lakhs.

29. The Courts below have also ignored the important aspect as to

why the plain6ffs themselves had not gone to the office of Sub Registrar, Bhi-

wani on 04.07.2005 and as to why the defendants i.e. defendants No.1 to 3 -

vendors had also not gone there. In fact, defendants No.1 to 3 had already

sold the suit property in favour of subsequent vendees-defendants No.4 to

10 by virtue of four sale deeds, all executed on 30.06.2005. Copies of those

sale deeds as Ex.P10, Ex.P12, Ex.P14 and Ex.P16, whereas the muta6ons

sanc6oned on the basis of these sale deeds are Ex.P11, Ex.P13, Ex.P15 and

Ex.P17. All these muta6ons were sanc6oned on 17.09.2005. Since defen-

dants No.1 to 4 had already sold the suit property on 30.06.2005 to subse-

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quent vendees i.e. defendants No.4 to 10, that is the reason that they did not

appear in the office of Sub Registrar, Bhiwani on 04.07.2005. The circum-

stances clearly indicate that plain6ffs were also well aware of this fact and

this is the reason that they also did not go there on that day.

30. In the above circumstances, the stand of the defendants No.1

and 2 to the effect that they had struck the bargain with Sube Singh, who had

conducted the transac6on on behalf of the plain6ffs, appears to be more

plausible. It is so because Sube Singh was not only the a es6ng witness to

the agreement to sell (Ex.P1), it is Sube Singh who was sent by the plain6ffs

to get the sale deed executed and registered. As such, the case pleaded by

the vendor - defendants and their tes6mony in this regard is quite believable

that they had sold the suit property to defendants No.4 to 10 on the asking

of Sube Singh.

31. S6ll further, assuming for the sake of arguments that plain6ffs

were not aware of the fact that defendants No.1 to 3 had already sold the

suit property to defendants No.4 to 10 prior to 04.07.2005, at least on that

day i.e. 04.07.2005, when they had sent Sube Singh for geHng the sale deed

executed and registered and defendants did not turn up, they had come to

know that defendants were reluctant to execute the sale deed executed and

registered in their favour. Muta6ons had been sanc6oned on 17.09.2005 on

favour of subsequent vendees. S6ll, it took more than 1 year and 5 months

for the plain6ffs to send the legal no6ce to the vendors-defendants to exe-

cute the sale deed, inasmuch as legal no6ce Ex.P4/A was sent by the plain-

6ffs on 29.12.2006.

32. It is absolutely not explained that when defendants did not turn

up on 04.07.2005 for execu6ng the sale deed and get it registered, why the

plain6ffs did not immediately or within the reasonable 6me issue the legal

no6ce to the vendors-defendants to execute the sale deed in their favour

and perform their part of contract on receipt of balance sale considera6on.

Muta6ons Ex.P11, Ex.P13, Ex.P15 and Ex.P17 based upon four sale deeds all

dated 30.06.2005 in favour of defendants No.4 to 10 had already been sanc-

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6oned on 17.09.2005 i.e. much prior to sending the legal no6ce dated

29.12.2006 or filing of the suit on 31.01.2007. A registered sale deed and the

entry in the revenue record in the form of muta6on is no6ce to all. S6ll,

plain6ffs did not refer about the said subsequent sale deeds in the plaint ini-

6ally.

33. All the aforesaid circumstances clearly indicate that plain6ffs

were well aware about the subsequent sale deeds having been executed by

defendants No.1 to 3 in favour of defendants No.4 to 10. It is further proved

from the en6re facts and circumstances that plain6ffs u erly failed to prove

their readiness and willingness to perform their part of contract. The finding

to the contrary as given by the First Appellate Court is absolutely not correct.

Ld. First Appellate Court has wrongly held that plain6ffs have proved their

readiness and willingness to perform their part of contract. Said finding is set

aside and the finding of the trial Court in this regard is hereby restored.

34. Proceeding further, it is no6ced that in order to arrive at the

conclusion that defendants No.4 to 10 were not the bona fide purchases, the

First Appellate Court has no6ced that sale deeds in their favour were exe-

cuted on 30.06.2005 i.e. just two days prior to the target date fixed for exe-

cu6on and registra6on of the sale deed as per the agreement to sell (Ex.P1).

It is also no6ced that total sale considera6on as per these sale deeds i.e.

30.06.2005 is lower than the sale considera6on in the agreement to sell

(Ex.P1). It is also no6ced that there was no prior agreement to sell in favour

of defendants No.4 to 10 before execu6on of the sale deeds dated

30.06.2005.

35. In this regard, the First Appellate Court clearly went in error.

There is no requirement of law that before geHng the sale deed executed

and registered, there must be prior agreement to sell. In case defendants

No.4 to 10 have purchased the suit property by way of four sale deeds dated

30.06.2005, execu6on of those sale deeds cannot be doubted simply because

there was no prior agreement to sell in their favour.

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36. S6ll further, there is no cogent evidence that defendants No.4 to

10 were aware about the prior agreement to sell dated 03.01.2004 (Ex.P1) in

favour of the plain6ffs. Appellate Court failed to no6ce the fact that all the

defendants No.4 to 10 are residents of different places comparing to the

plain6ffs or defendants No.1 to 3-vendors. Agreement to sell (Ex.P1) was not

a registered document and so, no inference could be drawn that agreement

to sell was no6ce to the public at large. The entry regarding said agreement

to sell was not there in the revenue record. It has been found from the evi-

dence that possession was not delivered to the vendees-plain6ffs and that

said possession was s6ll with the vendors-defendants No.1 to 3. In these

facts and circumstances, there could be absolutely no way for the subse-

quent vendees i.e. defendants No.4 to 10 to come to know that there was a

prior agreement to sell dated 03.01.2004 in favour of the plain6ffs.

37. Defendant No.5 Krishan, defendant No 6 Sanjay and defendant

No 10 Sandeep have entered the witness box as DW5, DW8 and DW9, re-

spec6vely and all of them have duly proved that they did not have the no6ce

of the prior agreement to sell in favour of the plain6ffs and that they pur-

chased the part of the suit property in their favour by virtue of the sale deeds

on 30.06.2005 with value and without any no6ce.

38. As per Sec6on 19(b) of the Specific Relief Act, specific perfor-

mance of a contract may be enforced against any person claiming under the

vendor by a 6tle arising subsequent to the contract except a transferee for

value, who had paid his money in good faith and without no6ce of the origi-

nal contract. It is not required that the value for which the subsequent

vendee has purchased the suit property must be the higher or equal to the

considera6on for which the vendee under the agreement to sell had agreed

to purchase the suit property.

39. In the aforesaid facts and circumstances, there was no reason

for the ld. First Appellate Court to come to the conclusion that defendants

No.4 to 10 were not the bona fide purchasers. The finding to this effect by

the First Appellate Court is certainly based upon conjectures and surmises

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and it has wrongly reversed by the finding of the trial Court in this regard. As

such, the finding of the First Appellate Court is reversed and that of the trial

Court is hereby restored by holding defendants N: 4 to 10 to be the bonafide

purchasers.

40. As far as Sec6on 23 & 47 of the Registra6on Act, 1908 and Sec-

6on 48 of the Transfer of Property Act are concerned, these have no applica-

6on in a case of an agreement to sell. Ld. First appellate court wrongly ap-

plied these provisions to ignore the plea of subsequent vendees to the effect

that they were bonafide purchasers.

41. Even otherwise, once it has been found by this Court that plain-

6ffs u erly failed to prove their readiness and willingness to perform their

part of contract, it is irrelevant as to whether the subsequent vendees-defen-

dants No.4 to 10 and their vendees-defendants No.11 to 19 are the bona fide

purchasers or not. It was utmost necessary for the plain6ffs not only to prove

the agreement to sell, which of course they proved, but it was further re-

quired for them to prove their readiness and willingness to perform their

part of contract. They u erly failed to prove the same.

42. Consequently, the judgment and decree as passed by the First

Appellate Court are hereby set aside. The judgment and decree of the trial

Court, dismissing the suit of plain6ffs for specific performance, are hereby re-

stored. Present appeal is hereby allowed, and suit of the plain6ffs-respon-

dents No

.1 to 4 is hereby dismissed.

24.03.2025

Pry

(DEEPAK GUPTA)

JUDGE

Whether speaking/reasoned? Yes

Whether reportable? Yes

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