RSA-988-2011 & RSA-4886-2011 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No. 988 of 2011 (O&M)

Rajender Singh .....Appellant

versus

Nanga@ Nanak (deceased) thr. his LRs. and Ors. .....Respondents

RSA No. 4886 of 2011 (O&M)

Rajender Singh .....Appellant

versus

Nanak Singh and Anr. .....Respondents

CORAM: HON'BLE MR. JUSTICE RAJBIR SEHRAWAT

Present: Mr. Amit Jain, Advocate

Mr. P.R. Yadav, Advocate

***
RAJBIR SEHRAWAT, JUDGE (ORAL)

This judgment shall dispose of two regular second appeals i.e.

RSA No.988 of 2011 and RSA No.4886 of 2011. Both the appeals emerged

from the same judgment, passed in two different suits. Hence, both the

appeals are being decided by a common order.

For convenience, the parties would be referred herein, as the

plaintiff and defendant, as they were described in the suit filed by Nanak

Singh.

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The brief facts of this case are that, Nanak Singh, who is respondent

No.1 (being represented by LRs) in the present appeal, filed a suit for

declaration of his title and for injunction, claiming that the defendant be

restrained from interfering in possession of the plaintiff. It was pleaded that

the suit property, which is land measuring 04 marlas; was owned by

Manphool Singh, defendant No.1 in the suit, who was the real brother of

Nanak Singh. Manphool Singh and Nanak Singh were otherwise co-sharers

in the land. However, Manphool Singh entered into an agreement dated

08.07.1981 with Nanak Singh. As per the agreement, the said Manphool

Singh agreed to sell the land to Nanak Singh. Consideration for the said

transaction was fixed to be Rs.2000/-. The entire consideration was paid by

the plaintiff Nanak Singh. It was further recorded in the agreement that the

possession of the suit land has been given to the plaintiff. However, no date

for execution of the sale deed was fixed by the parties to the agreement. It

was further, pleaded that the plaintiff had become owner of the property; by

virtue of Section 53-A of the Transfer of Property Act, 1882. However,

taking advantage of continuing wrong entries in the revenue record, the

defendant Manphool Singh intended to alienate the suit property, in favour

of somebody else. It was further claimed, that plaintiff made numerous

requests to the defendant not to alienate the suit property. However, the

defendant was adamant. Therefore, the suit was filed.

Notice in the suit was issued. However, the service upon the

Manphool Singh, was yet to be effected, because he had shifted to

Rajasthan. On 20.11.2007. The counsel for the plaintiff got a recorded

statement that defendant No.1-Manphool Singh had died. Still further, it

was stated by the counsel that Manphool Singh had already sold the

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property to the present appellant i.e. Rajender Singh. Accordingly, the

plaintiff amended the plaint to implead the subsequent purchaser, i.e. the

appellant in the present appeal, as defendant No.2 in the suit. The same was

allowed. After being impleaded as defendant, the present

appellant/defendant No.2 in the original suit, filed written statement

contesting the claim of the plaintiff. It was claimed that the plaintiff had no

cause of action and that the contesting defendant was the bona fide

purchaser; for consideration and without notice. Ownership of the plaintiff

over the suit property was denied by him.

Replication was filed, and the averments in the plaint were

reasserted/re-affirmed by the plaintiff. The possession of the plaintiff over

the suit property was asserted by the plaintiff in replication as well. The

averments raised by the defendant were denied. The sale deed dated

23.07.2004 registered on 03.08.2004, in favour of newly added defendant

was also questioned, as being fraudulent and, as not conferring any title

upon the defendant.

After considering the pleadings of the parties, the Trial Court

framed the issues as follows:

1. Whether the plaintiff is owner in possession of the suit

property on the basis of agreement dated 8.7.1981. If so

what effect? OPP.

2. Whether the plaintiff entitled to protection under Section

53-A of Transfer of Property Act? OPP.

3. Whether the plaintiff is entitled to relief of permanent

injunction as prayed for? OPP.

4. Whether the plaintiff has no cause of action to file the

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present suit? OPD.

5. Whether the plaintiff (?) is not properly valued for

purpose of court fee and jurisdiction? OPD.

6. Whether the defendant Rajender Singh is bonafide

purchase for value and consideration without notice. If

so what effect? OPD.

7. Whether the plaintiff is not maintainable in the present

case for?

8. Relief.

However, in the meantime, the defendant in the suit filed by

Nanak Singh i.e. Rajender Singh had also filed his own suit for partition,

claiming that the above said Manphool Singh has executed a sale deed in

his favour on 23.07.2004, which was got registered on 03.08.2004. It was

further submitted by him that mutation No.1108 in this regard, was also

entered in the revenue record. Hence, he claimed possession over the suit

property by way of partition. In this suit, Nanak Singh filed written

statement pleading that Rajender Singh was not the owner in possession of

the land. It was further claimed that on the date, when the sale deed was

executed in his favour, even his vendor Manphool Singh was not competent

to transfer the title to Rajender Singh. The sale deed was pleaded to be

wrong, null and void. The pleadings regarding the agreement in favour of

Nanak Singh were reiterated by him in written statement; in the second suit

also. Defendants No.3 and 4 in the second suit also supported the claim of

Nanak Singh.

On the basis of these pleadings, the Trial Court framed that

issues in this suit as follows:

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1. Whether the plaintiff and defendants are co-sharers in the

suit land ?OPP.

2. If issue No.1 is proved whether the plaintiffs are entitled

for partition of suit property? OPP.

3. Whether the sale deed executed on 23.7.04 and registered

on 3.8.04 was hit by the provisions of lispendens and the

present suit is not maintainable.

4. Whether the plaintiffs has no locus standi to file the

present suit? OPD.

5. Whether the plaintiff is estopped from filing the present

suit by his own act and conduct? OPD.

6. Whether the present suit is bad for deficient in the court

fee? OPD.

7. Relief.

After framing of the issues, both the suits were consolidated for

the purpose of evidence; treating the suit filed by Nanak Singh, as the

primary suit. Accordingly, the common evidence was led in both the suits.

The parties led their evidence.

After hearing the parties and appreciating the evidence, the

Trial Court held the agreement in favour of Nanak Singh to be validly

executed and held the same to be proved by the plaintiff, Nanak Singh. This

was held to be proved on the basis of testimony of PW-4 Rawat Singh and

PW-5 Phool Singh, the testimony of the plaintiff Nanak Singh, and the

testimony of Subhash Chand Gupta, the deed writer of the agreement.

On the other hand, the sale deed dated 23.07.2004 in favour of

defendant-Rajender Singh, who was the plaintiff in the second suit, was also

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held to be proved on the basis of testimony of PW-2, Satya Narain, the deed

writer, PW-3 Banwari Lal, the attesting witness and PW-4 Rajender Singh

himself.

Faced with this situation, the Trial Court was confronted with

the proposition of Section 53-A of the Act. While, dealing with the

contentions of the respective parties, the Trial Court held that, the case of

the defendant-Rajender Singh in the suit of Nanak Singh stand proved. It

was held that he has succeeded in proving that the defendant Rajender

Singh had no notice of the agreement in favour of the plaintiff at the time

when he purchased the suit land. The Trial Court held the defendant-

Rajender Singh to be bona fide purchaser on the ground that there was no

reflection of the agreement in favour of Nanak Singh in the revenue record.

It was further recorded that Rajender Singh was not a witness to the

agreement, claimed by the Nanak Singh. He is not relative of Nanak Singh

and Manphool Singh. Therefore, it was held that it can hardly be said that,

Rajender Singh; had any notice of the agreement of 1981. Hence, it was

held that the defendant Rajender Singh; is entitled to the benefit of Proviso

to Section 53-A of the Transfer of Property Act. Still further, the Trial

Court held that the plaintiff; Nanak Singh; had failed to show, that he was

ready and willing to perform his part of contract because he had not filed a

suit for specific performance against Manphool Singh. However, the Trial

Court also recorded that even if it is presumed that plaintiff Nanak Singh

was ready and willing to get the sale deed executed, still, the agreement has

not been registered; despite being accompanied with the possession.

Therefore, this agreement does not stand in the way of the defendant-

Rajender Singh, in his claim of the benefit of Proviso to Section 53-A of the

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Act. Resultanly, vide a common judgment the suit filed by the plaintiff

Nanak Singh was dismissed and the cross suit filed by the defendant-

Rajender Singh was decreed; accordingly granting him, a preliminary decree

of partition; for possession of his share in the suit property. Aggrieved

against the judgment and both the decrees , Nank Singh had filed the

appeals before the lower Appellate Court. However, Rajender Singh, the

defendant in the suit of Nanak Singh; had not preferred any appeal or cross-

objections, before the lower Appellate Court.

The lower Appellate Court, however, reversed the judgment

and decrees passed by the Trial Court and allowed the appeals filed by

Nanak Singh. Resultantly, the preliminary decree of partition passed in

favour of Rajender Singh was set aside. The decree of dismissal of suit of

Nanak Singh was reversed and the suit was decreed; qua granting him the

permanent injunction. While, reversing the judgment and decree passed by

the Trial Court, the lower Appellate Court recorded that the agreement in

favour of Nanak Singh has already been held to be proved by the Trial

Court and it has also been proved by the witnesses that Manphool Singh had

given possession to the plaintiff Nanak Singh, and thereafter he has been

residing continuously in the disputed plot. Therefore, the question of

protection of Section 53-A of the Act is required to be considered. While

considering this aspect, the lower Appellate Court, first of all, held that the

agreement in question, claimed by the Nanak Singh did not require any

registration because it was entered into between the parties, before the

amendment of Registration Act w.e.f. 24.09.2001. The lower Appellate

Court further held that the defendant-Rajender Singh himself, has admitted

the possession of the appellant, Nanak Singh over the suit property, by

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admitting that Nanak Singh had made a boring in the disputed property and

that other co-sharer had also given possession of their shares to appellant

Nank Singh, who have raised the boundary wall of the plot in question.

Therefore, it was held by the lower Appellate Court that Rajender Singh

shall be deemed to have the knowledge of the appellant's interest in the suit

property. Hence, Rajender Singh was required to inquire from the

appellant, as to the nature of his possession. Since, he has failed to make

such inquiry from the appellant himself, therefore, the defendant-Rajender

Singh cannot be held to be bona fide purchaser. Hence, it was held by the

lower Appellate Court that the defendant-Rajender Singh is not entitled to

the benefit of Proviso to Section 53-A of the Act. Accordingly vide a

common judgment, the lower Appellate Court allowed both the appeals,

filed by Nanak Singh. As a result, the suit of Nanak Singh was decreed qua

permanent injunction and the suit filed by the Rajender Singh for partition

was ordered to be dismissed; as mentioned above. Against the judgment

and the decrees passed by the lower Appellate Court, Rajender Singh,

defendant No.2 in the suit filed by Nanak Singh, has filed the present both

the appeals.

While arguing the case, learned counsel for the appellant has

submitted that the lower Appellate Court has not recorded a finding that the

plaintiff Nanak Singh had fulfilled the ingredients of Section 53-A of the

Act. Therefore, it is his submission that the benefit of Section 53-A of the

Act, cannot be extended to plaintiff Nanak Singh, even if the defendant is

held to be not bona fide purchaser, although, he has submitted that, the

defendant has proved on record that he was a bona fide purchaser. He has

proved revenue record, which show no entry regarding the agreement in

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question. Still further, it is his submission that the possession of plaintiff

Nanak singh is also not exclusive, because the suit land is recorded as a

joint holding of the plaintiff Nanak Singh and Manphool Singh along with

other persons before the purchase by Rajender Singh and with Rajender

Singh after the execution of the sale deed in favour of Rajender Singh, as

per the mutation entered into revenue record. Learned counsel for the

appellant has further submitted that the lower Appellate Court has faltered

in law, in granting a decree for injunction in favour of the plaintiff Nanak

Singh because the plea of Section 53-A of the Act, can be raised only, as a

defence and the suit for injunction is also not maintainable in a claim based

on strength of Section 53-A of the Act. It was further claimed by the

appellant that despite having questioned the sale deed in favour of the

defendant, the plaintiff has not formally challenged the sale deed in his

favour by amending the suit. Therefore, the sale deed in favour of the

appellant/defendant has remained intact. In the end, the counsel for the

appellant again stresses the argument that the ingredients of Section 53-A of

the Act have not been substantiated by the plaintiff Nanak Singh and hence,

he cannot claim the benefit of Section 53-A of the Act. To support his

arguments, learned counsel for the appellant relies upon the judgment of

Hon'ble Supreme Court rendered in 2011(4) RCR (Civil) 669 titled as Suraj

Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Another to

contend that mere agreement to sell does not convey a title and therefore,

suit for declaration of title on the basis of agreement referred to in Section

53-A of the Act, is not maintainable. The counsel further relies upon the

judgment of the Hon'ble Supreme Court rendered in 2008 (1) RCR (Civil)

77 titled as A.Lewis and Anr. Vs. M.T. Ramamurthy and Ors. to contend

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that if the person claiming the benefit of Section 53-A of the Act remain

silent for a long time, and he does not take steps to get the sale deed

executed, then he cannot be granted any benefit under this Section; because

he has been sleeping over his rights. Learned counsel has also relied upon

the judgment of this Court rendered in 2014(3) PLR, 56 titled as Jarnail

Singh Vs. Daljit Singh and Ors. to contend that if the ingredients of Section

53-A of the Act, are not satisfied then, even the possession of the person

claiming agreement is not to be protected by the Court. In the end, the

counsel has relied upon the judgment of the Hon'ble Supreme Court

rendered in 2016 (3) RCR (Civil) 592 titled as Guman Singh and Ors. Vs.

Manga Singh (d) by LRs. and Ors. to support his argument, that the plea of

Section 53-A of the Act, can be taken, only as a defence and not as a

positive basis for filing a suit, as plaintiff. It can be used only as shield and

not as a sword.

On the other hand, learned counsel for the respondent/plaintiff

has submitted that the plaintiff has proved on record the agreement in

question. It is his further submission that even the Court below has held the

agreement to be proved on record of the case. No appeal had been filed by

the present appellant against that finding. Still further, it is submitted by the

counsel for the respondent that he has proved all the ingredients, as required

under Section 53-A of the Act. The counsel submits that, as per the terms of

agreement, the entire amount of the consideration stood paid. Possession

had already been taken by the plaintiff. Therefore, according to the learned

counsel for the respondent/plaintiff, the part of the agreement required to be

performed on the part of the plaintiff already stood performed. Nothing

else, was required to be done by him for the maturity of the agreement into a

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full-fledged sale. So far as the execution of the sale deed is concerned, it is

submitted by the counsel that since the vendor Manphool Singh had shifted

to Rajasthan, and was not readily available, therefore, he had no opportunity

to get the sale deed executed. The counsel for the respondent/plaintiff

further submits that Section 53-A of the Act can very well be invoked by a

person for protecting his possession. For that purpose, counsel has relied

upon the judgment reported in AIR 1994 Bombay 254 titled as Dharmaji

alias Baban Bajirao Shinde, vs. Jagannath Shankar Jadhav ince

deceased by his heirs Bhanudas Jagannath Jadhav etc.. Still further, it is

submitted by the learned counsel that the defendant has abjectly failed to

prove that he had no notice regarding the existence of agreement in favour

of the plaintiff Nanak Singh. Therefore, he is not entitled to seek the

protection of Proviso to Section 53-A of the Act. Counsel further submits

that merely because the agreement in his favour is not reflected in the

revenue record and the defendant claims to have verified from the revenue

record; that does not exclude the notice to the defendant/purchaser, since he

was residing in the house adjacent to the house of the plaintiff- Nanak

Singh. Learned counsel for the respondent relies upon the judgement of

this Court rendered in 2005 (3) RCR (Civil) 677 titled as Bal Singh and

Ors. Vs. Ravinder Singh and Ors. Regarding the validity of the sale deed in

favour of the defendant, the counsel submits that since the vendor of

defendant-Rajender Singh could not have transferred the title, therefore, any

sale deed claimed by the defendant is null and void, as claimed in the

replication filed by the plaintiff.

Having heard, learned counsel for the parties and perusing the

record with their able assistance, this Court is of the considered opinion that

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the counsel for the appellant has failed to substantiate his argument with

reference to the record. So far as the agreement, in favour of the plaintiff

Nanak Singh is concerned, the same has already been held to be proved by

the Trial Court. That finding has become final also. Therefore, there is no

dispute regarding the validity of the agreement in favour of Nanak Singh in

the present appeal. However, the submission of the counsel for the

appellant that the ingredients of the Section 53-A of the Act has not been

fulfilled in the case, is also not sustainable. It has come on record and has

been proved by the plaintiff that the possession of the suit land had been

delivered to the plaintiff; at the time of agreement in question. This fact is

recorded in the agreement also. Hence, the deposition of the witnesses

examined by the plaintiff, regarding possession gets related to the recital in

the agreement in favour of the plaintiff. This shows that the possession, in

fact, had been delivered to the plaintiff at the time of execution of the

agreement itself. Still further, the defendant-Rajender Singh has also

admitted in cross-examination that he had the knowledge, that other co-

sharers had given possession of their respective shares to the plaintiff Nanak

Singh. He has even admitted in the cross-examination; the site plan of the

property, as was pleaded and proved by the plaintiff. The site plain also

shows the boundaries to the suit property. Although, defendant has asserted

that boundary was raised by plaintiff after the purchase of the suit land by

the defendant, however, he has not led any cogent evidence on this aspects.

Otherwise also since the plaintiff was co-sharer in the suit property with his

seller Manphool Singh, so after the purchase he shall be deemed to be in

possession of share of Manphool Singh as well. Hence, the ingredient of

Section 53-A of the Transfer of Property Act, regarding execution of the

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agreement and taking of the possession stand proved by the plaintiff. So

far as the remaining ingredients regarding doing something in furtherance of

the agreement and readiness and willingness on the part of the plaintiff to

perform his part of the agreement are concerned, the same also stand duly

proved by him. It has come on record that after the possession was taken

over by him, he has altered the status of the land by raising construction and

installing the boring and other equipment over the suit land. This, he has

done only in furtherance of the authority granted to him under the

agreement in question. So far as the other ingredients, namely the readiness

and willingness of the plaintiff to get the sale deed executed in his favour is

concerned, the Section of 53-A provides two eventualities, i.e. the vendee

should either have performed his part of agreement, or in alternative, he

should be willing to perform his part of agreement. As has come on record

in the present case, the part of the contract, which was required to be

performed by the plaintiff qua this agreement, already stood performed by

him, since he had already paid the entire amount of consideration and he

had taken possession of the suit land, as a part of the performance of the

agreement. Only thing, which was required to be done in that situation was;

to be done by the vendor Manphool Singh only, by executing the sale deed.

However, the same could not be done by him since Manphool Singh was

not available, having shifted to Rajasthan. For this missing element, by any

means, it cannot be said that the plaintiff has not performed his part of

agreement, as enjoined upon him under the agreement in question.

The judgments cited by the learned counsel for the appellant

are not helpful to the case of the appellant. The same are distinguishable on

the facts of the present case. So far as the, judgment of Suraj Lamp and

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Industries Pvt. Ltd. (supra) is concerned, the same is an authority on the

point that the agreement referred to in Section 53-A of the Act cannot be

used for claiming a title. However, in the present case, though the plaintiff

had sought a declaration of title also, however, the same has not been

granted by the Courts below to him. The plaintiff has been granted only an

injunction in his favour qua his possession. Therefore, this judgment is not

applicable in the present case. So far as the, judgement rendered in A.Lewis

and Anr.(Supra) is concerned, the same is also distinguishable in the

present case. As mentioned above, the plaintiff had already performed his

part of the contract. Therefore, there is no silence or slumbering on his part.

The only thing required to be done was the execution of the sale deed by

vendor. For that also, admittedly, no date was specified. Hence, it cannot

be said that the plaintiff was not justified in waiting for the vendor to

execute the sale deed, as and when, he returns from Rajasthan. Otherwise

also getting the sale deed executed immediately or within any specified time

period is not a requirement under Section 53-A of the Act. So, the failure of

the purchaser to get the sale deed executed within some reasonable time,

though may be undesirable, yet it can not operate as a statutory bar against

the statutory right of the purchaser guaranteed by Section 53-A of the Act.

Needless to say that the desirability of an act and the legal requirement of

such act are two different things. The mere desirability can not be raised to

the level of legal necessity, particularly, when it is not prescribed by the

relevant statutory provision. The reliance by the learned counsel for the

appellant upon the judgment in case of Jarnail Singh (supra) is also not

relevant for the purpose of present case. As stated above, the ingredients of

Section 53-A of the Act has been fully established by the plaintiff in the

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case. He has not been granted any declaration of his title. However, so far

as, the injunction part is concerned, he has claimed in the suit and he has

satisfied the ingredients of the Section 53-A of the Act, therefore, this

judgment does not stand in his way, as such, to deprive him the statutory

protection.

The last judgment sought to be relied upon by the counsel for

the appellant is the judgment rendered by the Hon'ble Supreme Court in

Guman Singh and Ors. (Supra) to contend that the plea of Section 53-Aof

the Act can be taken only as a defence and it cannot be made a basis for

filing a suit, by coming as plaintiff. However, this judgment is also not

applicable in the present case. A perusal of this judgment shows that the

Hon'ble Supreme Court made this observations in that case regarding suit

for title/ownership. Therefore, it was held that since, ownership was not

proved, therefore, for the purpose of ownership, the agreement claimed by

the person in that case qua Section 53-A of the Act, could not have been

used for claiming title. So far as the suit qua protection of possession is

concerned, the Hon'ble Supreme Court has not laid down the law, as

claimed by the counsel for the appellant. The Hon'ble Supreme Court has

only observed that in that particular case, since the transaction claimed by

the person for availing the benefit of Section 53-A of the Act was

compulsory required to be registered; and the same was not registered,

therefore, the same could not be taken into evidence for any purpose,

whatsoever, for his benefit. Therefore, the suit for injunction was also held

to be not maintainable on his part. However, in the present case, as notice

above, the lower Appellate Court has rightly held that the agreement in

question did not require any registration. Therefore, the plaintiff could not

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be non-suited, even for the purpose of injunction, claimed by him. Hence,

the Court below has rightly granted the injunction in favour of the plaintiff.

Otherwise also, Section 53-A of the Transfer of Property Act

creates a benefit in favour of a person, who has a prior agreement in his

favour- along with the possession of land mentioned in the agreement. This

Section creates a bar against, the original owner or a person claiming title

under him, for claiming any right title or interest qua the land mentioned in

the agreement, during the subsistence of such agreement. Therefore, if his

possession is threatened then it is only the suit for injunction, which can be

filed by a person, claiming benefit of Section 53-A of the Act. Needless to

say that, if such a person is sued against then he will be entitled to take the

same, as defence also. Hence, so far as the possession is concerned, once a

person claiming benefit of Section 53-A of the Act; shows and proves the

ingredients of Section 53-A of the Act along with the requirement of

registration of the same, if any, then he can, very well, use the agreement, as

a basis for filing a suit, as plaintiff also. His remedy is not limited to take

the defence, in case a suit is filed against him.

So far as the plea of bona fide purchaser, raised by the appellant

is concerned, the same also deserves to be rejected. He has claimed that he

is a bona fide purchaser. A specific issue was framed regarding his status, as

a bona fide purchase. The onus of the proof of the same was upon the

defendant-Rajender Singh. To claim the benefit of Proviso to Section 53-A

of the Act, the defendant was required to prove that he had no notice of the

transaction in favour of the plaintiff. However, beside making a claim that

he inspected the revenue record, the defendant has not laid any factual

foundation or led any evidence on this point. So far as the entries in the

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revenue record are concerned, the same are irrelevant in the present case.

Although, the land continues to be recorded in the revenue record, however,

it is admitted between the parties that this land has become part of the

residential area. In the revenue record also, it is recorded, as 'gair mumkin

gait' (some open land adjacent to the residential area, for being used for

teethering cattles and for storage of fodder etc.) This, by no means, can be

treated as an agricultural land. The presumption of the land being

agricultural land, in this case, is also excluded by the very fact that, the

partition, which was sought by Rajender Singh, has been sought through the

Civil Court and not through the Revenue Authorities. In view of this, the

judgment rendered by this Court in 2005 (3) RCR (Civil) 677 titled as Bal

Singh and Ors. Vs. Ravinder Singh and Ors. is fully applicable.

The lower Appellate Court is right in holding that once the

defendant-Rajender Singh admitted that other co-shares had also given

possession to the plaintiff then it was bounden duty upon him to enquire

from the plaintiff also; before the proceeding further to purchase the land in

question, since, the plaintiff, admittedly, is a co-sharer in the suit land even

with his seller Manphool Singh. However, there is nothing on record, either

pleaded, deposed or otherwise proved on record; to show that any inquiry

was ever made from the plaintiff by the defendant-Rajender Singh before

purchasing the suit land from Manphool Singh. Otherwise also, the facts

proved on record show that the defendant was residing in the adjacent

house. The site plan, as produced by the plaintiff; has also been admitted by

the defendant. Still further, it has been categorically admitted by the

defendant that he is not aware, as to whether, the plaintiff had taken

possession of the suit, at the time of agreement, which he claims in his

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favour or not. This is a kind of evasiveness on the part of the defendant

regarding status of possession. This also shows that he had the knowledge

of the fact that the plaintiff had taken possession of the suit land at the time

of agreement mentioned in the plaint. Hence, it was incumbent upon the

defendant-Rajender Singh to inquire from the plaintiff before purchasing the

said land. Otherwise also, since the plaintiff was already a co-sharer with

Manphool Singh, so he shall be deemed to be in possession of every inch of

land with other co-sharer. Hence, since no reasonable inquiries has been

made by the defendant-Rajender Singh before purchasing the suit land,

therefore, he cannot be held to be a bona fide purchaser. Another aspect,

which need to be noted is that the plaintiff Nanak Singh has categorically

deposed that the defendant had the knowledge of existence of agreement in

favour of Nanak Singh. Despite that even Nank Singh has not been cross-

examined on this point specifically. This also shows that the defendant-

Rajender Singh had the knowledge of the existence of the agreement in

favour of Nanak Singh.

No other argument was raised.

Hence finding no perversity, the judgment and decree passed by

the lower Appellate Court are upheld.

In view of the above, finding no merits, both the appeals are

dismissed.

5th December , 2017 [RAJBIR SEHRAWAT]

Whether speaking/reasoned : Yes/No

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