M.M.KUMAR, J. - (1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the "Code") challenging concurrent findings of facts recorded by both the Courts below holding that suit of the plaintiff-appellant for specific performance of agreement to sell dated 15.2.1990 could not be decreed in his favour because the defendant-respondent No. 3 and 4 are the bona fide purchasers of the land which was subject matter of a subsequent agreement to sell. However, the suit of the plaintiff- appellant has been decreed by granting him the alternative relief of recovery of Rs. 40,000/- with future interest at the rate of Rs. 6/- per annum from the date of payment of earnest money i.e., 15.2.1990 till its full and final realisation. The cost was also imposed on the vendors/defendant-respondents No. 1 and 2.
(2.) FACTS , in brief, which are necessary to decide the controversy raised, are that the plaintiff-appellant filed a suit for possession by way of specific performance of agreement dated 15.2.1990 executed by one Jamni Devi, defendant-respondent No. 2, being the attorney of Parkash Kaur defendant- respondent No. 1. It was asserted that Parkash Kaur was owner in possession to the extent of 1/6th share of the suit land and Jamni Devi, mother of Parkash Kaur, was also owner in possession to the extent of 1/6th share and another daughter of Jamni Devi, Kailash Rani was also owner in possession of 1/6th share. Jamni Devi, in her capacity as attorney of both the daughters, agreed to sell 1/6th share of three of them in the suit land on 15.2.1990 for a total consideration of Rs. 1,20,000/-. It is alleged that she received the entire sale consideration. According to the terms of the agreement, the plaintiff-appellant who is the vendee, was entitled to get the sale deed executed and registered in his favour any time he liked. The plaintiff- appellant further averred that another Power of Attorney of defendant- respondent No. 1, Jai Singh son of Rachna Ram, sold 4 bighas 19 biswas of land out of the suit land to his sons, namely, Narinder Singh and Baljinder Singh vide sale deed dated 22.3.1990 for a total consideration of Rs. 27,000/-. Jamni Devi and Kailash Rani executed the sale deed in respect of their share of the land in favour of the plaintiff-appellant on 1.9.1992 but defendant- respondent No. 1 i.e., Parkash Kaur did not come forward to perform her part of the contract, which resulted into filing of the suit. In the written statement filed by defendant-respondent No. 1, Parkash Kaur, it was pleaded that her mother Jamni Devi was not her Power of Attorney and, therefore, she could not have entered into any agreement to sell with the plaintiff-appellant. It was further alleged that Jamni Devi, mother of Parkash Kaur defendant-respondent No. 1, obtained her thumb-impression by mis-representation of facts which led to strained relationship between them. She was asked to thumb-marked some documents on the representation that her thumb-impressions were required for the purpose of getting mutation of inheritance of Chanan Ram sanctioned in her favour. Chanan Ram was husband of Jamni Devi and father of Parkash Kaur and Kailash Devi. It is further pertinent to mention that Chanan Ram and Paras Ram were real brothers and the plaintiff-appellant Jawala Singh is son of Paras Ram. Defendant-respondent No. 1 further asserted that when she came to know about the filing of the instant suit, she reiterated the contents of the power of Attorney as well as the agreement to sell. According to her, the value of the suit land is more than Rs. 10,00,000/-, therefore, there was no question of selling the same for a consideration of Rs. 1,20,000/-. She has also disputed the sale deed dated 22.3.1990 in respect of the land measuring 4 bighas 19 biswas to respondent- defendants No. 3 and 4. She has alleged that a fraud has been committed upon by defendant-respondents No. 3 and 4 in collusion with the plaintiff-appellant because not a penny has been paid to her so far.
(3.) DEFENDANT -respondents No. 3 and 4 took the stand that defendant-respondent No. 2 had no right to alienate the share of defendant-respondent No. 1. Only Jai Singh, who was the Attorney of defendant-respondent No. 1, could have alienated the share of defendant-respondent No. 1, and, accordingly, he has executed the sale deed for a total sale consideration of Rs. 27,000/-. They have further asserted that they are the bona fide purchasers. Both the Courts below found that defendant-respondents No. 3 and 4 are the bona fide purchasers. Affirming the finding on the aforementioned issue, the learned Additional District Judge, Patiala observed as under : "The argument to sell Ex. P-3 executed by Jamni Devi has been duly proved on record. DW-5 Baljinder Singh deposed that a sale deed was executed in his favour and in favour of Narinder Singh on 22.3.1990 by Parkash Kaur. They had paid the sale confederation at the time of purchase of the property in dispute. They had asked Parkash Kaur if she had executed any power of attorney in favour of any other person but she had replied in negative. They were in possession of the suit land. A perusal of the jamabandi for the year 1987-88 shows that Kailash Devi, Parkash Kaur and Jamni Devi were owners in possession of the suit land to the extent of 1/6th share. In the Jamabandi for the year 1997-98, Ex. P-7 Narinder Singh and Baljinder Kumar, respondents No. 3 and 4 were recorded as owners of 1/6th share in the suit land. Defendants No. 3 and 4 had purchased the share of Parkash Kaur who was recorded as owner to the extent of 1/6th share in the revenue record. There is no evidence on record to suggest that defendants No. 3 and 4 were aware of the agreement of sale executed by Jamni Devi in favour of the plaintiff. The sale deed in favour of defendants No. 3 and 4 was executed in the year 1990 and they are in possession of the property in dispute since then. The learned trial Court in these circumstances rightly held that it would not be equitable to compel the defendants to execute sale deed alongwith Parkash Kaur for property which they had purchased for valuable consideration. Defendants No. 3 and 4 had made a bona fide enquiry regarding the property. Accordingly, the impugned judgment and decree do not call for any interference. Defendants No. 3 and 4 were bona fide purchasers of property in dispute. In these circumstances the suit of the plaintiff for specific performance of agreement of sale was liable to fail. The learned trial Court rightly passed a decree for recovery of Rs. 40,000/- in favour of the plaintiff and against defendants No. 1 and 2." ;