9911796707
TMI Blog2002 (4) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... rawar Singh and Devinder Singh son of Zorawar Singh, as defendants No.2 3. The plaintiff, Sarwan Singh and defendant No.1 Kankar Singh are now dead, their legal representatives are on record but for convenience their names are referred instead of that of their heirs. The case of the plaintiff Sarwan Singh is that he entered into an agreement to sale dated 3.3.1971 with Kankar Singh in respect of land measuring 110 Kanal, 13 marlas for consideration of ₹ 1,98,312/-. It is also his case that he paid a sum of ₹ 61,100/- to Kankar Singh. The defendant No.1 Kankar Singh sold the land to defendant No.2 Zorawar Singh on 17.3.1971 despite the fact that on coming to know about it Sarwan Singh went before the Sub-Registrar with an application informing that land in dispute had already been agreed to be sold to him by Kankar Singh. The defendant No.1 was sought to be stopped from executing the sale deed in favour of defendants No.2 and 3. It is further averred in the plaint that the defendants had knowledge about the agreement yet they got the sale deed attested in their favour by the Sub-Registrar. He claimed preferential right in terms of agreement. The plaintiff made a pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Special Leave Petition was filed by Sarwan Singh in the Supreme Court, the Supreme Court without expressing any opinion on the rival contentions of the parties remanded the matter for fresh disposal by the Division Bench. The Division Bench hearing the case after remand allowed the letters patent appeal setting aside the order passed by the learned Single Judge in the First Appeal restoring the decree passed by the Trial Court decreeing the suit for specific performance in favour of Sarwan Singh. The mater is thus again before this Court impugning in the Judgment and Order dated 28.7.2000 passed by the Division Bench in the letters patent appeal after remand. The Division Bench of the High Court has reproduced in its judgment the issues, which were framed by the Trial Court. A reference to issue No. 5 has particularly been made which reads as under:- Whether defendants No. 2 and 3 are transferees in good faith for consideration and protected under Section 41 of the T.P. Act? It is observed that onus to prove issue No.5 ought to have been upon defendants No. 2 and 3. Thereafter the Division Bench mentions about the arguments raised on behalf of the plaintiff in the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remitted to the High Court for fresh disposal in accordance with law. As mentioned above, the Hon'ble Supreme Court did not express any opinion on the contentions raised by the parties and directed that the matter is to be disposed of on its merits. The High Court then also observes as under:- It is once again to mention that learned counsel for the parties have concentrated only on issue No.5 and further that the findings recorded by the Trial Judge on other issues are no more a subject matter of debate From the above observation it is clear that all that was required to be considered was as to whether the defendants No. 2 and 3 are the bona-fide transferees for consideration without notice of the agreement to sell between the plaintiff and defendant No.1? The High Court has also observed that it all relates to the question of fact. For appreciating the finding on the point for which the matter was remanded it would be necessary to see and consider the evidence which the parties have adduced in support of their respective cases and placed on the record. There can not be any dispute on the point that burden of proving the fact that one is a bona-fide purchaser for v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there would be some entry or record of such application having been moved and returned to the person concerned. We do not find that learned Single Judge had committed any fault in appreciating the above circumstance in the manner indicated above. True, it cannot be sole ground to draw any definite inference that the application had not been made at all, it may however strongly corroborate plea of one of the parties denying moving of such an application. The learned single Judge also seems to have taken into consideration the fact that, Bhagat Ram, the Sub-Registrar was examined as PW-5 by the plaintiff, but his statement was recorded very late sometime in November 1972. Therefore, a doubt seems to have been expressed about the truthfulness of the statement and the document, for this reason as well. The Division Bench thought that plea taken by the plaintiff in para 2 of the plaint was not vague as observed by Single Judge and observed that the Single Judge had misrepresented and mis-read the pleadings and the evidence lead by the parties, but. we have already observed that it was open to the learned Single Judge to have appreciated the evidence and circumstances the way it did. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng not relied upon on the alleged application of the plaintiff upon which Sub-Registrar is said to have made an endorsement. Firstly, the application in original after having been received and after making an endorsement on it, it is said to have been returned to the applicant. Again there is no record or entry of the same in the records of the office of the Sub-Registrar. The sub-Registrar was examined much later while the document is supposed to have remained in the custody of plaintiff throughout until filed in Court. No presumption of correctness of official act can be attached to such a document and the Sub-Registrar has not stated that the document was before him, upon which he may have identified his signatures stating that it was the same document. It was only a chance, that the plaintiff happened to be there in the Tehsil office when he come to know about that the sale deed was going to be registered. The deed writer or the scribe, who is said to have prepared the application, has not been examined. There is an earlier agreement to sell between the defendant No.1 Kankar Singh and vendee-defendants, which unfortunately does not find favour of even being taken notice of by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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