- (1.) This appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the "Code") challenges judgment and decree dated 20-9-2002 passed by the learned Additional District Judge Amritsar affirming the findings of fact recorded by the Civil Judge (Senior Division), Amritsar in his judgment and decree dated 28-8-1997. The vendees of the suit land namely defendant-appellants Harbans Singh and others have felt aggrieved by the judgment and decree. Both the Courts below have held that the plaintiff-respondent-1 Mohinder Singh is entitled to a decree for possession by specific performance of agreement to sell dated 12-5-1985 that was entered into by defendant-respondents 2 and 3 through their General Power of Attorney defendant-respondent-4 in respect of the suit land. According to the aforementioned contract, defendant-respondents 2 and 3 through their General Power of Attorney had agreed to sell the suit land measuring 44 kanals 1 marla at the rate of Rs. 18,000.00 per acre and Rs. 22,000.00 was received by them as earnest money. A direction has also been issued to defendant-respondents 2 to 4 to execute the sale deed as per the terms of the agreement to sell dated 12-5-1985 and on their failure to do so, it has to be executed by the Court through its official as per terms of the agreement to sell. Both the Courts below have concurrently found that the execution of the agreement to sell dated 12-5-1985 Ex. P1 has been proved on record as the signatures of Piara Singh on the agreement to sell as well as his sample-signatures taken in the Court on 11-6-1987 have been proved to be of one and the same person. The plea of forgery has been rejected. It has further been found that the plaintiff- respondent-1 has always been ready and willing to perform his part of the contract. It has also been concurrently found that the plaintiff-respondent-1 along with his brother Paramjit Singh and Narender Pal Singh visited the village of defendant-respondents 2 and 3 as well as of defendant-respondent-4 to get the sale deed executed. But they did not execute the sale deed. The plaintiff-respondent-1 also filed an application before the Sub-Registrar on the last date fixed for execution of the sale deed, but defendant-respondents 2 to 4 did not turn up. It has also been held that filing of suit by the plaintiff-respondent-1 against defendant-respondents 2 to 4 for permanent injunction restraining them from alienating the suit property in favour of the defendant-appellants would itself be ample proof of the fact that the plaintiff-respondent-1 has always been willing and ready to perform his part of the contract.
(2.) On the question as to whether the defendant-appellants are the bona fide purchasers of the suit property, it has been concurrently found by both the Courts below that they were fully aware of the agreement to sell between the plaintiff-respondent-1 and defendant-respondents 2 to 4 and no benefit of Section 19(b) of the Specific Relief Act, 1963 could be extended to the defendant-appellants. In this regard, the views of the Lower Appellate Court read as under :- "In the sale deeds, a reference has been made to the agreement dated 10-12-1985 and the receipt dated 31-1-1986 but both the documents have been withheld by the defendants. In fact, no such documents ever existed but the same have been referred to authenticate the sale deeds. If these documents existed, then there was no reason to withhold those documents. Even otherwise, the agreement dated 12-5-1985 in favour of the plaintiff is prior to that agreement. In view of the above discussed evidence, it is clear that after the execution of the agreement, when the plaintiff came to know that defendant Nos. 1 to 3 started negotiation to sell the property in favour of defendant Nos. 4 to 8 he moved an application before the Sub-Registrar about the stay order granted by the Court of Shri Dhian Singh, Additional Senior Sub-Judge, Amritsar, to alienate the suit property and it seems that the defendant Nos. 4 to 8 in connivance with the concerned Clerk did not put those papers before the Sub Registrar and get the sale deeds executed from the Sub-Registrar. Even otherwise, no enquiry was made by the defendant Nos. 4 to 8 from the office of Sub-Registrar where intimation was given by the plaintiff before the sale deeds in favour of defendant Nos. 4 to 8 from the residents of the village. It is a small village and the residents of the village had the knowledge about the agreement in question in favour of the plaintiff, whereas no witness has been examined by the defendants to contradict this plea. No enquiry was made from the person who was in possession of part of the suit property. In these circumstances, I am of the opinion, that the learned trial Court has rightly reached to the conclusion that defendant Nos. 4 to 8 had knowledge about the agreement in question in favour of the plaintiff, but despite that, they got the sale deeds executed from defendant No. 3, attorney of defendant Nos. 1 and 2 in their favour. In these circumstances, they cannot be said to be bona fide purchasers for consideration in good faith and without notice of prior agreement in favour of the plaintiff and, accordingly, the findings given on this issue by the learned trial Court are here by affirmed." (Emphasis added)
(3.) Mr. Anil Chawla, learned counsel for the defendant-appellants has argued that the plaintiff-respondent-1 could not have filed the suit from which the instant appeal has arisen i.e. Civil Suit No. 263 dated 28-4-1987 because the plaintiff-respondent-1 had already filed another civil suit on 30-1-1986 for permanent injunction restraining defendant-respondents 2 to 4 from alienating the suit property to the defendant-appellants. According to the learned counsel, the bar envisaged by Order 2, Rule 2 of "the Code" would be attracted to the filing of subsequent suit seeking specific performance of the agreement. In support of his submission, the learned counsel has placed reliance on a Division Bench judgment of Delhi High Court in the case Kamal Kishore Saboo v. Kamal Hassan Khan 2001 (3) Civil Court Cases 132 . The learned counsel has also argued that the relief claimed in the suit filed earlier for permanent injunction should be deemed to have included the relief of specific performance of the agreement which is the relief claimed in the civil suit from which the instant appeal has arisen. Another argument raised by the learned counsel is that the plaintiff-respondent himself is not sure of whether he wishes to get actual possession of the suit property or only a formal possession.;