COMNR.OF I.TAX vs. SREE ALANKAR

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Suit No. 81 of 2009 Reserved on:

21.06.2019 Date of Decision: 31.07.2019 Sh. Krishan Dass …..Plaintiff Vs. Sh. Surender Prakash (Deceased) through his legal representatives Smt. Pushpa Devi and others …..Defendants. Coram: The Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes For the plaintiff: Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the defendants: Mr. K.D. Sood, Sr. Advocate with Mr. Shubham

Sood,

Advocate

for defendants No. 1(a) to 1(c) and 2. Mr. Bhupender Gupta, Sr. Advocate with Ms. Poonam Gehlot, Advocate for defendant No. 3. Ajay Mohan Goel, Judge

: Plaintiff has filed this suit praying for a decree for specific performance of agreement for sale dated 27.01.2007 with respect to the suit property, with a further prayer that direction be issued to defendants No. 1 and 2 to make themselves available for receipt of balance amount of sale consideration and also for execution and registration of the sale deed with respect to the suit property.

        

 2. The case of the plaintiff is that defendant No. 1, who was the general power of attorney of defendant No. 2, started negotiations for sale of land comprised in Khata Khatauni No. 103/282 min, Khasra No. 459, measuring 1085 sq. meters, situated at Mauza Basal Pargana Sumana, Tehsil and District Solan, HP (hereinafter referred to as the ‘suit property’), with him, both on his behalf and on behalf of defendant No. 2. Defendant No. 1 told the plaintiff that he was trying to purchase agricultural land to start production of flowers for sale and he told the plaintiff that the suit land measuring 1085 square meters comprised in Khasra No. 459 was suitable for construction purposes and the same also had commercial use. Negotiations continued between the plaintiff and defendant No. 1 for about three months. Plaintiff agreed to purchase land comprised in Khasra No. 459 against a sale consideration of
30,38,000/- at the rate of
2800 per sq. meter and defendant No. 1, on his behalf and on behalf of defendant No. 2, agreed to sell area comprised in Khasra No. 459 for a sum of
30,38,000/- in favour of the plaintiff. An agreement for sale of the suit property was entered into between the plaintiff and defendants No. 1 and 2, which was reduced into writing on 27.01.2007. On the said date, plaintiff paid an amount of
5,00,000/- to defendants No. 1 and 2 through defendant No. 1. Receipt of the said amount was acknowledged by defendant No. 1 in writing on 27.01.2007 itself. The agreement was reduced into writing in the presence of Shri Vijay Jaga, son of Shri B.N. Jaga. In terms of the agreement, balance amount of
25,38,000/- was

 to be paid by the plaintiff to defendants No. 1 and 2 at the time of execution and registration of the sale deed before the Sub Registrar, Solan. As per the plaintiff, physical possession of the suit land was agreed to be handed over to him at the time of registration of the sale deed. Further, as per the plaintiff, relations between him and defendants No. 1 and 2 were quite cordial since long and similarly, plaintiff was also having good relations with defendant No. 3 as defendant No. 3 and her husband were his neighbours. According to the plaintiff, defendant No. 3 and her husband were aware of the agreement for sale having been entered into between him and defendants No. 1 and 2 on 27.01.2007. As per the plaintiff, though he was throughout ready and willing to perform his part of the contract, however, whenever he asked defendant No. 1 to receive the balance amount of sale consideration and execute the sale deed in his favour, defendant No. 1 delayed the same on the pretext that sale deed will be executed and registered in near future. Plaintiff requested defendant No. 1 to make himself available for execution and registration of the sale deed in the month of April, 2007 and also to receive the balance amount of sale consideration, but defendant No. 1 told plaintiff that he was in no hurry. As per plaintiff, defendants No. 1 and 2 failed to perform their part of the contract. They failed to obtain income tax clearance certificates. They also failed to make available copies of title deeds, revenue record and other documents required for the purpose of execution of the sale deed and on account of said acts of omission of

 the defendants, sale deed could not be executed. Meanwhile, defendant No. 1 on his behalf as also on behalf of defendant No. 2, kept on assuring the plaintiff that they will not back out from the agreement to sell the suit land and suit land shall only be sold to him on the agreed sale consideration on
30,38,000/-. Further as per plaintiff, defendants No. 1 and 2 connived with defendant No. 3 to cause wrongful loss and to cheat the plaintiff. Defendants in connivance with each other executed sale deed No. 5 on 11.03.2008 vide which suit land was sold by defendants No. 1 and 2 in favour of defendant No. 3 on 11.03.2008 for a sale consideration of
31,00,000/- (wrongly mentioned as
31,000/- in para 6 of the plaint). It is further the case of the plaintiff that he was throughout ready and willing to perform his part of the contract and thus, defendants No. 1 and 2 had no right to sell the suit land in favour of defendant No. 3. As per plaintiff, as defendant No. 3 was having full knowledge of the agreement having entered into between the plaintiff and defendants No. 1 and 2 qua the suit land, therefore, defendant No. 3 could not have connived with defendants No. 1 and 2 so as to defeat the right, title and interest of the plaintiff over the suit land. According to the plaintiff, sale deed executed by defendants No. 1 and 2 in favour of defendant No. 3 on 11.03.2008 was illegal, void and inoperative against the rights, title and interest of the plaintiff over the suit land. According to him, as on the date when the sale deed was executed, agreement to sell entered into between him and defendants No. 1 and 2 was still subsisting and

 was in the knowledge of defendant No. 3. According to the plaintiff, he served upon the defendants through a legal notice dated 06.05.2008 and in the reply which was sent to the said notice, defendants No. 1 and 2 took a false stand that plaintiff was not having sufficient money and for this reason, since time was the essence of the contract, the agreement was rescinded. As per the plaintiff, neither the agreement for sale was rescinded nor the earnest money of
5,00,000/-, which was paid by the plaintiff to defendants No. 1 and 2, stood returned. According to him, he was entitled for a decree for specific performance of contract dated 27.01.2007. According to him, he was not bound by sale deed entered into by defendants No. 1 and 2 with defendant No. 3. It was further the case of the plaintiff that as the suit land had commercial value and as now plaintiff would not be able to get this type of land even for
40,00,000/-, therefore, if plaintiff was not found entitled for relief of specific performance of agreement to sell, then he may be held entitled for
40,00,000/- by way of damages. According to the plaintiff, cause of action accrued in his favour and against the defendants on 27.01.2007, when agreement to sell was entered into between him and defendants No. 1 and 2. It is in this factual matrix that the suit has been filed by the plaintiff praying for the reliefs already mentioned herein above. 3. The suit has been resisted by the defendants. Defendants No. 1 and 2 filed a joint written statement whereas defendant No. 3 filed a separate written statement. Defendants No. 1 and 2 in their

 written statement took preliminary objection that plaintiff was estopped from filing the suit on account of his own acts, deeds and conduct. As per said defendants, in terms of agreement dated 27.01.2007 so executed between the plaintiff and defendant No. 1 for himself and on behalf of defendant No. 2 as his attorney, the sale deed was to be executed on or before 15.04.2007. Time was the essence of the contract. However, since the plaintiff did not have the money to execute and register the sale deed, he opted to back out from the agreement and asked defendant No. 1 that since he was not in a position to arrange the sale consideration, the defendants could sell the property and he rescinded the contract. Thereafter defendants No. 1 and 2 sold the suit property to defendant No. 3 vide registered sale deed dated 11.03.2008 for a sale consideration of
31,00,000/- and delivered the possession of the suit land to defendant No. 3. Said sale deed was executed with the knowledge and consent on the plaintiff. Out of the amount of sale consideration of
31,00,000/- so received by defendants No. 1 and 2, an amount of
21,00,000/-, which was received in lieu of the sale consideration as part payment thereof from the plaintiff by defendants No. 1 and 2, stood returned to the plaintiff against proper receipt executed at the back of the copy of the agreement. As per said defendants, the suit was filed with the dishonest intention to harass the defendants. On merits, said defendants admitted the execution of the agreement of sale between the plaintiff and themselves for a total sale consideration of


30,38,000/-. It was mentioned in the written statement that the sale deed was to be executed and registered on or before 15.04.2007 and after the payment of
5,00,000/- as earnest money, the balance amount was to be paid on or before 15.04.2007, i.e. the date by which sale deed was to be executed and registered. Plaintiff failed to garner the balance amount of sale consideration by 15.4.2007 but he kept on paying money from time to time and in all, till the end of the year 2007, he had paid to the defendants No. 1 and 2 an amount of
21,00,00/-, when he informed defendant No. 1 that he was not in a position to pay balance sale consideration and defendants may sell the property to any other person. Defendants No. 1 and 2 accordingly sold the suit property to defendant No. 3 vide registered sale deed dated 11.03.2008 and for a total sale consideration of
31,00,000/- and out of the amount of sale consideration received from defendant No. 3, defendants No. 1 and 2 returned a sum of
21,00,000/- to the plaintiff on 11.03.2008 as agreement was rescinded and cancelled by the plaintiff on account of his inability to have the sale deed executed because of lack of funds. Defendants No. 1 and 2 denied that defendant No. 3 and her husband were having the knowledge of the agreement executed between the plaintiff and defendants No. 1 and 2. It was denied by the said defendants that sale deed entered into by them with defendant No. 3 was illegal, void and inoperative on the rights of the plaintiff. It was denied by the said defendants that plaintiff was willing to perform his part of the contract and sale deed entered

 into by said defendants with defendant No. 3 was with a view to defeat the rights of the plaintiff. The issuance of notice by the plaintiff to the said defendants was admitted by them and they stated in the written statement that reply to the same was duly filed by them. As per them, it was the plaintiff who was not ready and willing to perform his part of the agreement which led to the rescinding of the agreement. It was denied by the said defendants that plaintiff was entitled for recovery of
40,00,000/- as damages. 4. By way of replication, the stand so taken by defendants No. 1 and 2 in their written statement was denied by the plaintiff and he reiterated and reaffirmed the averments made in the plaint. 5. Defendant No. 3, by way of a separate written statement, also denied the claim of the plaintiff. Said defendant took a preliminary objection with regard to the maintainability of the suit on account of acts, deeds and conduct of the plaintiff. As per defendant No. 3, plaintiff had no legal and enforceable cause of action against the said defendant, who was a bonafide purchaser of the suit land for a consideration. On merit, defendant No. 3 while denying the averments made in the plaint, stated that she had no knowledge about the agreement entered into between the plaintiff and defendants No. 1 and 2. She had purchased the land for a valuable consideration of
31,00,000/- by paying the stamp duty on the assessed market value of the suit land which was
45,07,400/-. It was mentioned in the written statement that defendant No. 3 made bonafide inquiry about

the marketable title of defendants No. 1 and 2 to sell the property and when the inquiry did not reveal any defect in the title of defendants No. 1 and 2, she had purchased the suit land from defendants No. 1 and 2, who had put her into possession with effect from the date of sale deed. It was further mentioned in the written statement that plaintiff never disclosed the factum of alleged agreement to said defendant at any point of time. According to her, plaintiff had no legal and enforceable cause of action against her and she was the absolute owner in possession of the suit land. As per defendant No. 3, plaintiff had made reckless and false assertions against her. It was further mentioned in the written statement that plaintiff was having the knowledge of the sale deed entered into between her and defendants No. 1 and 2 on 11.03.2008, yet there was no explanation to the effect that as to why suit for specific performance was filed after the lapse of 1½ years. As per the said defendant, the conduct of the plaintiff indicated that the suit has been filed merely to exert pressure on her to part with the suit land without any legal and justifiable cause. Remaining averments made in the plaint were also denied by defendant No. 3. 6. On the basis of the pleadings of the parties, following issues were framed by this Court on 04.06.2010:- “1. Whether the plaintiff is entitled for the decree of specific performance of agreement dated 27.1.2007? OPP 2. Whether time was the essence of the contract? OPD- 1&2.

3. Whether the plaintiff is entitled for damages and if so to what amount? OPP 4. Whether defendant No. 3 had full knowledge of the agreement for sale dated 27.1.2007? OPP. 5. Whether defendant No. 3 is a bonafide purchaser for consideration? OPD-3. 6. Whether the plaintiff is estopped from filing the present suit due to his act, conduct and deeds having received back the full earnest money from defendant Nos. 1 and 2? OPD-1&2. 7. Relief. 7. For reasons to be recorded hereinafter, my findings on the issues so framed are as under: “Issue No. 1: No. Issue No. 2: Not pressed. Issue No. 3: No. Issue No. 4: No. Issue No. 5: Yes. Issue No. 6: Yes. Issue No. 7(Relief):Suit of the plaintiff is dismissed as per operative part of the judgment. REASONS FOR FINDINGS ISSUES NO. 1, 3 and 4:- 8. In order to prove his case, plaintiff entered the witness box as PW2. He stated in the Court that he knew the defendants who were real brothers. Defendant No. 1 Surinder Prakash was the power of attorney of defendant No. 2 Rajinder Singh. They offered to sell their

land comprised in Khasra No. 459, measuring 1085 sq. meters, to him at the rate of
2800/- per sq. meter. An agreement Ext. PW2/A was executed in this regard on 27.01.2007. Shri Vijay Kumar Jagga was witness to it. He further deposed that the agreement was signed by him, defendant Surinder Prakash as also Vijay Kumar Jagga. He stated that he made payment of
5.00 Lac to defendant Surinder Prakash in cash on the same day. Balance amount was to be paid within three months from the date of execution of the agreement. Plaintiff further stated that he was ready and willing to make the payment of balance amount. On many occasions, he visited defendant Surinder Prakash for execution of the sale deed, but Surinder Prakash delayed the execution of the same on one pretext or the other and told him that he (defendant No. 1) required some income tax clearance. However, plaintiff was assured by defendant No. 1 that he would execute sale deed. Plaintiff further deposed that later on he came to know that suit land stood sold by defendants No. 1 and 2 to defendant No. 3 Sunita Marjara. He served notice Ext. PW2/B upon the defendants through Advocate. He received reply thereof Ext. PW2/C through their Advocate Shri Padam Dev. He also stated that defendant No. 3 Sunita Marjara was residing near his house. Defendant No. 3 and her husband were aware of the agreement to sell having been entered into between him and defendants No. 1 and 2. He further stated that he was ready and willing to make the payment of balance amount of the suit land and he had not committed any breach of terms

 and conditions of the agreement. He stated that he intended to construct a building for housing a school on the suit land and due to escalation of prices of the land, he would not be able to purchase same type of land on a consideration amount as was agreed vide Ext. PW2/A. In his cross examination on behalf of defendants No. 1 and 2, he denied that he had made payment of
21.00 Lac in installments towards the total sale consideration to defendant No. 1. He also denied the suggestion that he was not having the balance amount of consideration and insisted upon defendant No. 1 to return the amount of
21.00 Lac. He admitted his signatures on Cheque Ext. D-1. He admitted it to be correct that Ext. D-1, which was a cheque for an amount of
8.00 Lac, was issued by him to defendant No. 1 and that he had instructed defendant Surinder Prakash not to encash the same as he was not having sufficient amount in the account. He admitted his signatures on carbon copy of agreement for sale. He stated that the same was bearing his signatures on the reverse side of last page at point ‘2’. He also stated that carbon copy was true as per original Ext. PW2/A and was also bearing his signatures. He further stated that on Ext. D-2, his signatures were at point ‘B’. He further stated that he could read and write Hindi and when he signed Ext. D-2 on the reverse side of last page portion ‘C’ to ‘C’ was already written but there was reference of the amount of
2.00 Lac and not of
21.00 Lac. He denied that on 11.03.2008, on receipt of
21.00 Lac from Surinder Prakash, the agreement to sell with respect of suit land was got cancelled by

 him. He denied that it was after cancellation of the agreement to sell that the suit land was sold by defendants No. 1 and 2 to defendant No. 3. He also denied that out of the consideration amount received on account of sale of suit land to defendant No. 3, an amount of
21.00 Lac was paid to him by defendant No. 1 Surinder Prakash. In his cross examination on behalf of defendant No. 3, he admitted it to be correct that he had signed the endorsement on Ext. D-2 at point ‘A’ on the reverse side of the last page on 11.3.2008. He further stated that at the time of execution of the agreement to sell between him and defendant No. 1, neither defendant No. 3 nor her husband were present. He stated that he did not supply copy of the agreement to either of them. He stated that he did not serve any legal notice upon defendant No. 1 after the expiry of three months as from the date of the execution of the agreement to sell. He further stated that he did not serve any legal notice on defendants No. 1 and 2 to get the sale deed executed as he was ready and willing to make the balance amount. He further stated that he came to know in the month of March 2008 that defendants No. 1 and 2 had sold the suit land to defendant No. 3. He further stated that thereafter he neither met defendant No. 3 or for that matter, defendants No. 1 and 2. He stated that he did not ask defendants No. 1 and 2 as to why they had sold suit land to defendant No. 3 without informing him. He stated that husband of defendant No. 3 was still having business dealings with him with respect to purchase of karyana articles from his shop. He stated that he did not speak to

 Arkash Marjara as to why his wife had purchased the land qua which he had entered into agreement to sell with defendants No. 1 and 2. He denied the suggestion that on the same day on which he signed Ext. D- 2 on the reverse side of last page, i.e. 11.3.2008, (the sale deed was executed by defendants No. 1 and 2 in favour of defendant No. 3). He stated that he had not gone through the written statement filed by defendant No. 3 but his counsel had informed him that defendant No. 3 had filed the written statement and that he might have filed replication to the same. He further stated that he came to know after 2-3 months of filing of the suit that defendant No. 3 had further sold the suit land to her mother-in-law and he had obtained the copy of the sale deed which was registered on 23.05.2009. He denied that on receipt of consideration by defendant No. 1 from defendant No. 3, an amount of
21.00 Lac was returned to him by defendant No. 1 against receipt and upon this, he terminated agreement to sell Ext. PW2/A. 9. Besides himself, plaintiff examined Shri Vijay Jagga as PW3, who stated in the Court that agreement Ext. PW2/A was executed on 27.01.2007 in his presence and that parties appended their signatures upon the same after understanding the contents of the agreement and that plaintiff had paid a sum of
5.00 Lac to defendant No. 1, whereas the sale consideration of the land was
1.5 Lac per biswa. He further stated in the Court that document was to be registered within three months from the execution of the agreement Ext. PW2/A. In his cross examination, this witness stated that he was

 not aware that if any copy of Ext. PW2/A was also prepared. He identified his signatures on Ext. D-2 and also identified signatures of plaintiff on Ext. D-2 encircled in red ink as “B” and “C”. He further stated that he was not aware whether there was any other payment except of
5.00 Lac made by the plaintiff to defendant No. 1 qua the suit land. 10. Shri Jagdish Sharma, Registration Clerk was also examined by the plaintiff as PW1, produced on record power of attorney executed by defendant No. 2 in favour of defendant No. 1 dated 02.11.1972 as Ext. PW1/A. 11. On the other hand, defendant No. 1 Surinder Prakash Thakur entered the witnesses box as DW-1. He stated in the Court that he knew the plaintiff. Agreement for sale was executed between the plaintiff and him on 27.1.2007, i.e. Ext. PW2/A as also Ext. D-2, for a consideration of
30,38,000/-, out of which, an amount of
5.00 Lac was paid to him by the plaintiff on 27.01.2007. He further stated that registry was to be executed by 27th April, 2007, which plaintiff failed to. He stated that plaintiff paid an amount of
8.00 Lac to him on 4th April, 2007, followed with another sum of
7.00 Lac on 5th May, 2007 and an amount of
1.00 Lac on 8th June, 2007. He deposed that plaintiff told him that he was not in a position to pay the remaining amount. He stated that plaintiff also gave him a cheque amounting to
8.00 Lac and told him not to encash the same as sufficient funds were not available in the account of the plaintiff. He stated that plaintiff told him

 that he was free to transfer the suit land to some other person. He stated that thereafter suit land was transferred to defendant No. 3 for a sum of
31.00 Lac. He stated that he had returned the amount so received from the plaintiff on 11.3.2008 against proper receipt Ext. D- 3, which was on the reverse side of Ext. D-2. In his cross examination, this witness stated that plaintiff was running a grocery shop. Endorsement of the plaintiff was Ext. D-3, which was on the reverse side of Ext. D-2, which was scribed by him in the presence of the plaintiff and witnesses Shri Rajesh Thakur and Shri Manohar Lal. He stated that said witnesses were known to the parties and that it was agreed by the plaintiff that since plaintiff had received the entire amount, therefore, agreement Ext. PW2/A stands rescinded. He further stated that possession of the suit land was handed over at the time of execution of the sale deed in favour of defendant No. 3 to her by him and plaintiff had not raised any objection at the time of execution of the sale deed in favour of defendant No. 3, mutation with regard to which was also attested subsequently. In his cross-examination on behalf of the plaintiff, this witness deposed that no written agreement was prepared between him and defendant No. 3 on 8th March, 2007 nor any amount was paid on 8th March, 2007. He stated that an amount of
31.00 Lac was paid to him by way of cheque on 11th March, 2008, at 11:00 a.m. by defendant No. 3 and sale deed was registered at about 11:30 a.m. He denied the suggestion that sum of
21.00 Lac was not paid to the plaintiff. He stated that he had retired as Assistant

 Settlement Officer in the year 2000 and that sale deed was scribed by the petition writer. He further stated that he was in possession of his cheque book on 11th March, 2008 and after withdrawing the amount, he had visited the shop of plaintiff and requested him to come to the Court but plaintiff told him that he would visit his house. He denied that plaintiff was throughout ready and willing for registration of the sale deed. He further stated that Rajesh Thakur’s daughter was married to his son and Manohar Lal was his his brother-in-law. He denied that receipt Ext. D-3 was prepared in connivance with his relatives. He denied that plaintiff had not put his signatures on Ext. D- 3 in token of the receipt of
21.00 Lac. He stated that receipt was executed by the plaintiff in his house when plaintiff was accompanied by his wife and son. He stated that plaintiff signed the receipt after going through the contents of the same and plaintiff himself had requested him to scribe the same. 12. Arkash Kumar, General Power of Attorney holder of defendant No. 3, entered the witness box as DW-2 and he stated that he knew defendant No. 1 and his wife had purchased a plot measuring 1085 sq. meters from defendant No. 1 at Basal for a sale consideration of
31.00 Lac. He further stated that cost of stamp papers and registration fee etc. for execution and registration of the sale deed was borne by his wife. He stated that prevailing market value of the land was about
45,07,400/-. He further stated that his wife was employed in Jogindra Central Co-operative Bank at Solan and he was serving in

 State Bank of Patiala, Kandaghat. He stated that before purchasing the plot in issue, they had made inquiries from defendant No. 1, who was the customer of State Bank of Patiala, Chambaghat. He stated that they had obtained a copy of Jamabandi of the plot and had also inquired from the Patwari concerned that the plot was free from all encumbrances and that no litigation was pending with regard to the same. He further stated that they had also gone to the spot and inspected the plot. He also stated that possession of the land was obtained on the date of execution of the sale deed. He stated that he knew the plaintiff, whose shop was situated at the point from where the road leads to Sunny Side from the main road. He stated that his house was situated at a walking distance of ten minutes from the shop of the plaintiff though he and his wife were not having formal acquaintance with plaintiff. He stated that plaintiff had never disclosed to them that he had entered into an agreement of sale of land qua the suit land with defendants No. 1 and 2. He further stated that they came to know about the agreement of sale executed by defendants No. 1 and 2 in favour of plaintiff only after they received summons from the Court in the present suit filed by the plaintiff. He also deposed that defendant No. 3 was no more owner of the plot as the same had been sold by defendant No. 3 to his mother as he and his wife could not raise loan from the bank against the plot. He stated that sale deed was executed in favour of his mother on 23.05.2009 and presently, his mother was in possession of the plot at the spot. In his cross-

examination by the plaintiff, this witness denied that he and his wife were residing together with his mother. He self stated that they were living separately for the last four years. He denied the suggestion that his mother had no independent source of income. He stated that his mother was a retired Government Teacher and was receiving pension and apart from pension, she was also having rental income. He denied the suggestion that they knew about the agreement to sell entered into between the plaintiff and defendants No. 1 and 2. He denied that defendant No. 3 had entered the sale deed with his mother to defeat the rights of the plaintiff. He further stated that deal between defendant No. 3 and defendants No. 1 and 2 was settled about one month prior to execution and registration of the sale deed. He denied the suggestion that the disputed plot was lying vacant on the spot. 13. Now, I will refer to the documents which have been placed on record by the parties. Ext. PW1/A is the General Power of Attorney, which has been executed by defendant No. 2 in favour of defendant No. 1 and which document in fact is not in dispute. Ext. PW2/A is the copy of agreement to sell dated 27.01.2007 entered into between the plaintiff and defendants No. 1 and 2. Copy of legal notice issued by the plaintiff to defendants No. 1 and 2 is on record as Ext. PW2/B and its reply is on record as Ext. PW2/C. A perusal of the document Ext. PW2/A demonstrates that there was an agreement entered into between the plaintiff and defendants No. 1 and 2 through defendant No. 1 that defendants No. 1 and 2 would sell the suit land to the plaintiff for a

 sale consideration of
30,38,000/-. This document also demonstrates that at the time of execution of the same, an amount of
5.00 Lac stood received by the sellers from the purchaser and the balance amount of
25,38,000/- will be paid to the sellers by the purchaser at the time of execution of the sale deed which was to be executed on or before 15.04.2007. Defendants No. 1 and 2 have also produced on record carbon copy of agreement to sell entered into between the plaintiff and defendants No. 1 and 2 dated 27.01.2007, which is duly signed in original by the parties as also the witness. A perusal of document Ext. D-2 demonstrates that on the back of the same, there is an endorsement made which states that the plaintiff on 11.03.2008 had received an amount of
21.00 Lac from Surender Prakash, son of Shri Gita Ram, hence, said agreement, stood rescinded. Incidentally, this endorsement has been duly signed by the plaintiff, who has identified his signatures encircled as ‘C’ upon the said endorsement. This endorsement has been made in front of witnesses Rajesh Thakur as also Manohar Lal. There is also on record an undated self cheque Ext. D-1 for a sum of
8.00 Lac issued by the plaintiff which has been placed on record by defendants No. 1 and 2. A perusal of the cross- examination of the plaintiff demonstrates that he had admitted the issuance of the said cheque and also the fact that he had instructed defendant Surender Prakash not to encash the same as he has no amount in his account. He also admitted that Ext. D-2 was the carbon copy of original agreement Ext. PW2/A and was true according to Ext.


PW2/A and the same was bearing his signatures at point ‘B’. He further stated in his cross-examination that when he signed Ext. D-2 on the reverse side, portion ‘C to C’ was already written but there was reference of
2.00 Lac and not of
21.00 Lac. If this version of the plaintiff is to be accepted, then he not only candidly admits the endorsement which exists on the back side of document Ext. D-2 as Ext. D-3, but he also does not appear to dispute any portion of the contents of the endorsement, except the figure of amount mentioned therein. According to him, the amount mentioned in the said endorsement was
2.00 Lac and not
21.00 Lac. 14. Be that as it may, one thing which is evident from the facts discussed herein-above is that by way of admitting the endorsement, it stands admitted by the plaintiff that agreement to sell entered into between the plaintiff and defendants No. 1 and 2 Ext. PW2/A was expressly put to an end by the plaintiff and defendants No. 1 and 2 and the contention of the plaintiff to the contrary is totally incorrect. 15. Now, coming to the contention of the plaintiff that the amount mentioned in the said endorsement was
2.00 Lac and not
21.00 Lac, in my considered view, the same cannot be accepted. This is for the reason that the plaintiff has not approached the Court with clean hands. In the plaint, there is no mention of the said endorsement or the fact that the agreement to sell was put to an end by the plaintiff and defendants No. 1 and 2 on 11.03.2008. The facts, as they are mentioned in the plaint, are that agreement to sell was entered into

 between the plaintiff and defendants No. 1 and 2 to sell the suit land to the plaintiff on 27.01.2007 and despite the fact that he was ready and willing to perform his part of the agreement, defendants No. 1 and 2 entered into sale deed with defendant No. 3 with regard to the suit land on 11.03.2008, which sale deed was executed to defeat the rights of the plaintiff. In fact, in the plaint, the plaintiff has also concealed the fact that he had in fact paid an amount of
21.00 Lac towards the sale consideration because all that is mentioned in the plaint is that he had only paid an amount of
5.00 Lac as part consideration. 16. One more fact which needs to be highlighted at this stage is that the genuineness of Ext. D-2 has also been admitted by Shri Vijay Jagga (PW3), who was a witness to execution of document Ext. PW2/A, who, in his cross-examination has identified his signatures as also the signatures of Krishan Dass on Ext. D-2 encircled in red ink as ‘B’ and ‘C’. Therefore, from the evidence which has been discussed herein-above, it is evident that the plaintiff is not entitled for a decree of specific performance of contract/agreement dated 27.01.2007 because said agreement stood annulled by the plaintiff and defendants No. 1 and 2 on 11.03.2008 by way of endorsement, which exists at the back of document Ext. D-2, as per which, plaintiff had admitted receiving an amount of
21.00 Lac from defendant No. 1 and had agreed that in lieu of the same, the agreement to sell dated 27.01.2007, pertaining to the suit land was rendered ineffective. As the plaintiff has not been held entitled for decree of specific performance of

 agreement dated 27.01.2007, Issue No. 3 is also decided against him and it is held that he is not entitled to any damages. Plaintiff has also miserably failed to prove that defendant No. 3 had knowledge of the agreement for sale entered into between the plaintiff and defendants No. 1 and 2 dated 27.01.2017. Except his bald statement, no cogent evidence has been adduced on record by the plaintiff to substantiate this fact. It further stands proved on record that agreement to sell dated 27.01.2007 stood rescinded between the plaintiff and defendants No. 1 and 2, which led to execution of the sale deed of the suit land by defendants No. 1 and 2 in favour of defendant No. 3. Accordingly, Issue No. 4 alongwith Issues No. 1 and 3, are answered against the plaintiff. Issue No. 2:- 17. Neither evidence has been led in support of this Issue by the parties nor any arguments have been advanced in this regard, hence, this Issue is answered as not pressed. Issue No. 5:- 18. As it was the own case of the plaintiff that suit land stood sold by defendants No. 1 and 2 in favour of defendant No. 3 on 11.03.2008 and further, as this Court has come to the conclusion that plaintiff has failed to prove on record that defendant No. 3 had the knowledge of agreement to sell dated 27.01.2007 having been entered into between the plaintiff and defendants No. 1 and 2 or that the agreement to sell entered into between the plaintiff and defendants No.

 1 and 2 was subsisting, when sale deed was entered into between the plaintiff and defendant No. 3, in this view of the matter, this Court holds that defendant No. 3 was a bonafide purchaser for consideration as is borne out from the record. Accordingly, this Issue is decided in affirmative in favour of defendant No. 3. Issue No. 6:- 19. It is evident from the record that on 11.03.2008, plaintiff had received an amount of
21.00 Lac from defendant No. 1 and in lieu of the receipt of the same, he had signed an endorsement at the back of document Ext. D-2 to the effect that he had received the said amount from defendant No. 1 and in lieu of the same, the agreement to sell qua the suit land had been rendered ineffective. Thereafter, the plaintiff without disclosing of these facts preferred this suit, which was filed on 7th September, 2009, i.e. almost one and half year after the agreement was rescinded between the plaintiff and defendants No. 1 and 2. As I have already mentioned that plaintiff has not approached the Court with clean hands, as he has concealed material facts from the Court. All these facts clearly demonstrate that plaintiff is estopped from filing the present suit as he filed the suit by concealing material facts. Hence, this Issue is answered in affirmative in favour of the defendants No. 1 and 2 and against the plaintiff.

 R E L I E F 20. In view of my discussion held herein-above on the Issues supra, especially on Issue No. 1, the suit of the plaintiff fails and is accordingly dismissed with costs. Decree sheet be prepared accordingly. Pending miscellaneous application(s), if any, also stand dismissed.

(Ajay Mohan Goel)

Judge July 31, 2019 (narendeer)