- (1.) AT the time of arguments on 8.4.2013 no one had appeared on behalf of respondents. Accordingly, only the arguments of Sri D.C. Mukherjee, learned counsel for the appellants were heard and judgment was reserved.
(2.) THIS is plaintiffs' Second appeal arising out of original suit no.3 of 1978, Ram Sewak Singh and others Vs. Pramod Kumar and others. The suit was filed for specific performance of an agreement for sale and for cancellation of subsequent sale deed dated 30.12.1997. The suit was decreed on 20.7.1978 by Civil Judge Pratapgarh. Against the said decree subsequent purchaser filed Civil appeal no.140 of 1978 Ram Abhilakh Singh and others Vs.Ram Sewak Singh and others, District Judge Pratapgarh through judgment and decree dated 8.5.1979 allowed the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit of the plaintiffs for specific performance of agreement for sale dated 21.11.1977 and for cancellation of the subsequent sale deed hence this Second appeal. According to the plaint allegations, Pramod Kumar, defendant no.1 was Bhoomidhar of agricultural land in dispute, total area 3 bigha 17 biswa 11 biswancies, he agreed to sell the said land to the plaintiffs for Rs.12,000/- after receiving Rs.5000/- as earnest money and executed registered agreement for sale on 21.11.1977 and that defendant no.1 afterwards illegally sold the property in dispute to defendant no.2 to 7 on 30.12.1977 who had full knowledge of the agreement. Defendants denied execution of the agreement dated 21.11.1977 and further pleaded that prior to the sale deed dated 30.12.1977 an unregistered agreement for sale had been executed in favour of defendant no.2 to 7 by defendant no.1 on 10.10.1976. Trial court found the registered agreement for sale dated 21.11.1977 to have been executed and held that as the agreement was registered hence defendant nos. 2 to 7 were presumed to have knowledge of the same. It was further found that no unregistered agreement dated 10.10.1976 as alleged by defendants was executed by defendant no.1 in favour of defendant nos. 2 to 7. Lower appellate court reversed all the findings and also held that defendants no. 2 to 7 had no knowledge of the registered agreement dated 21.11.1977. In the sale deed dated 30.12.1977, there is no mention of any earlier unregistered agreement for sale dated 10.10.1976.
(3.) THIS Second appeal was admitted on 9.8.1979 on the following substantial questions of law: 1. Whether having held that subsequent transfer had constructive notice of the agreement dated 21.11.1977 in favour of the plaintiffs, was the learned District Judge legally correct in holding that the defendants no. 2 to 7 were transferres in good faith? 2. Whether the District Judge was legally correct in discarding the observation made by the trial court in respect of demeanour of defendant no.1 in the witness box merely on the ground that no note regarding demeanour had been recorded by the trial court at the time the deposition was recorded? In my opinion the following two substantial questions of law are also necessary to be decided in this appeal for its complete adjudication. Learned counsel for the appellant has been heard on these questions also which are as follows: 3. Whether finding of the lower appellate court that defendants no.1 had executed an unregistered agreement for sale in favour of defendant no.2 to 7 on 10.10.1976 is illegal and perverse. 4. Whether the findings of the lower appellate court that defendant no.1 did not execute registered agreement for sale in favour of plaintiffs on 21.11.1977 are erroneous in law and perverse? First Question:- As far as the first substantial question of law is concerned it has to be decided in favour of the appellant since 1.1.1977 agreement for sale of immovable property in U.P. is compulsorily registrable through amendment made in Section 54 of T.P. Act by U.P. Act no. 57 of 1976. By virtue of explanation 1 of Section 3 of T.P. Act, where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument any person acquiring such property shall be deemed to have notice of such instrument. Question No.3:- As far as question no.3, is concerned it has also to be decided in favour of the appellants as in the sale deed dated 30.12.1977 there is absolutely no mention of alleged earlier unregistered agreement for sale dated 10.10.1976. In this regard learned counsel for the appellant has cited an authority of the Supreme Court reported in Sargunam V. Chidambaran. 2005(1) SCC 162 holding that non-mentioning of the agreement in the sale deed makes the existence of the agreement doubtful. The fantastic explanation of this omission given by the defendants that when they came to the registration office for preparation of the sale deed dated 30.12.1977 they forgot to bring the unregistered agreement for sale with them is concerned it was utterly baseless. Firstly, the execution of the sale deed could be postponed. Secondly, some one could be sent to bring the agreement for sale and thirdly at least it should have been mentioned in the sale deed that there was an earlier agreement for sale. As defendants No.2 to 7 were aware of registered agreement in favour of the plaintiff hence it was impossible for them not to mention in the sale deed about the earlier agreement in their favour, if it had been in existence. In the unregistered agreement an amount of Rs.1000/- was shown to have been paid as earnest money out of total sale consideration of Rs.12,000/-. Under the sale deed no amount was shown to have been paid on the date of sale. The only thing which was mentioned was that the entire sale consideration had earlier been paid. In the agreement no subsequent payment was shown. This disproved execution of the unregistered agreement . Such types of unregistered agreements were being freely manufactured to defeat genuine claims hence in U.P. such agreements were made compulsorily registerable w.e.f. 1.1.1977. Question No.4:- Findings of the lower appellate court that agreement for sale dated 30.12.1977 was not executed by defendant no.1 in favour of the plaintiff is perverse and patently erroneous in law. It was a registered document hence there was a presumption of its correctness. It was for defendants to dislodge the presumption which was not done. Point no.4 framed by the lower appellate court pertained to the validity of the agreement dated 21.12.1977. One of the reasons given by the lower appellate court is that attesting witness or scribe was not examined. This is not necessary. The other reason given is that Mahesh Ptatap Singh, PW 3 did not sign the agreement as attesting witness. Two other persons had already signed the agreement as attesting witnesses. Pramod Kumar defendant no.1 categorically admitted his signatures on the agreement dated 21.11.1977, however, he stated that he had been administered intoxicant i.e. Ganja and wine. There was no allegation that it was given against his wishes. D.W. 1 did not state as to whether he was habitually drinking wine and smoking Ganja or not. If a person is habitual to drinking wine and taking ganja he does not lose his senses by consuming them.;