Hemant Gupta, J. - (1.) DEFENDANTS No. 2 and 3 are in second appeal aggrieved against the judgment and decree passed by the learned First Appellate Court on 20.11.2004 arising out of a suit for specific performance of agreement dated 19.10.1993.
(2.) VIDE the aforesaid agreement, defendant No. 1 agreed to sell House No,56/6 situated at Bhargo Camp, Jalandhar, for a sum of Rs. 45,000/ - Rs. 10,000/ - was paid as earnest money and the sale deed was to be executed on or before 20.10.2004 on receipt of the balance sale consideration. It is the case of the plaintiff that after the agreement, defendant No. 1 was involved in a murder case and there was no communication between the plaintiff and defendant No. 1 regarding the execution of agreement. He, however, remained present in the office of the Sub Registrar along with balance sale consideration and extra amount required for the purpose of registration of sale deed on the date fixed and also sent a notice on 21.10.1994 calling upon defendant No. 1 to perform his part of agreement but the same was received back unserved with remarks "addressee has left the place without address". Subsequently, it was found that defendants No. 2 and 3 proclaiming themselves as purchaser of suit property from defendant No. 1 and, thus, the plaintiff alleged that sale in favour of defendants No. 2 and 3 having been effected, after entering into agreement to sell in favour of the plaintiff, is not valid and that the plaintiff is entitled to a decree for specific performance. 2.1 Defendant No. 1 did not contest the suit. However, defendants No. 2 and 3 filed written statement. It was pointed out that defendant No. 3 has purchased the suit property vide registered sale deed dated 21.04.1995 from defendant No. 1 and is a bona fide purchaser for valuable consideration and without notice. 2.2 The defendants did not contest the suit thereafter. Issue No. 3 was to the effect whether defendant No. 3 is a bona fide purchaser for consideration. The learned trial Court decided the said issue against the defendant. The learned trial Court also returned a finding that agreement to sell stands proved from the testimony of PW2 Bachan Singh and PW3 Gurcharan Singh, the marginal witness of the agreement to sell. After considering the statement of the plaintiff, who appeared as PW1, the learned trial Court found that the plaintiff was ready and willing to perform his part of the contract which is evident from the application dated 20.10.1994, Exhibit P -6, filed before the Sub Registrar. On the basis of said application, it was found that the plaintiff remained present in the office of Sub -Registrar. The plaintiff also proved notice dated 21.10.1994 calling upon defendant No. 1 to execute the sale deed. The said notice is Exhibit P -3, postal receipt and acknowledgement are Exhibits P -4 and P -5 respectively. However, the learned trial Court granted a decree for recovery of payment of earnest money against defendant No. 1 after returning a finding that the agreement stands proved.
(3.) IN appeal by the plaintiff, learned First Appellate Court relied upon judgments of this Court reported as Ram Dass v. and Lt. Colonel Jaswant v. to return a finding that the plaintiff is entitled to the relief of specific performance of agreement to sell. It is the said decree which is challenged by defendants No. 2 and 3 before this Court.;