L.N. Mittal, J.@mdashDefendants having failed in both the Courts below have filed the instant second appeal.
2. Respondent-plaintiff-Mahabir filed suit against the appellants for possession of suit land measuring 6 Bighas 15 Biswas by specific performance of the agreement to sell dated 28.08.2006. Plaintiff''s case is that defendants No. 1 to 4 representing themselves to be owners of 8 Bighas 8 Biswas land out of 75 Bighas 14 Biswas joint land agreed to sell the same to the plaintiff at the rate of Rs. 68000/- per Biswa and received Rs. 2,00,000/- as earnest money and executed agreement dated 28.08.2006. However, later on, it transpired that share of defendant Nos. 1 to 4 was only to the extent of 6 Bighas 15 Biswas and the remaining share of 1 Bigha 13 Biswas was of their mother. On 01.03.2007, defendant No. 2 further received Rs. 10000/- from the plaintiffs. Sale deed was to be executed on 30.04.2007. On the said date, the plaintiff went to the office of Sub-Registrar to get the sale deed executed in terms of the agreement, but the defendants did not turn up. On the other hand, defendant Nos. 1 to 3 sold the land of their share (5 Bighas 1 Biswa) to defendants No. 5 and 6 vide sale deed dated 04.05.2007. The said sale deed was also challenged in the suit. Plaintiff always remained ready and willing to perform his part of the contract whereas defendants committed breach thereof.
3. Defendant Nos. 1 to 4 in their written statement admitted the execution of agreement dated 28.08.2006 in favour of plaintiff and also admitted that sale deed was to be executed on 30.04.2007. It was, however, pleaded that plaintiff did not pay the balance sale consideration. The defendants went to the office of Sub-Registrar on 30.04.2007 and got their presence recorded. The plaintiff himself was not ready and willing to perform his part of the contract and, therefore, earnest money paid by the plaintiff stood forfeited. Defendant Nos. 1 to 3 were in need of money and, therefore, they sold 5 Bighas 1 Biswa land out of the suit land to defendant Nos. 5 and 6 vide sale deed dated 04.05.2007 for Rs. 4,25,000/-. Defendant Nos. 5 and 6 in their written statement claimed themselves to be bona fide purchasers of 5 Bighas 1 biswa land from defendant Nos. 1 to 3 vide sale deed dated 04.05.2007 for Rs. 4,25,000/-, without knowledge of the alleged agreement dated 28.08.2006.
4. Learned Additional Civil Judge (Senior Division), Loharu vide judgment and decree dated 07.09.2009 decreed the plaintiff''s suit. First appeal preferred by defendants stands dismissed by learned District Judge, Bhiwani vide judgment and decree dated 12.08.2010. Feeling aggrieved, defendants have preferred the instant second appeal.
5. I have heard learned Counsel for the appellants and perused the case file.
6. Learned Counsel for the appellants contended that plaintiff did not turn up on 30.04.2007 to get the sale deed executed in terms of the agreement whereas defendant Nos. 1 to 4 remained present in the office of Sub-Registrar for executing the sale deed in terms of the agreement and thus plaintiff himself committed breach of the agreement as he had no money. The contention cannot be accepted because plaintiff has proved his presence in the office of Sub-Registrar by leading in evidence the affidavit, which he got affirmed to depict his presence. On the other hand, defendants No. 1 to 4 have not produced any such affidavit to depict that they were present in the office of Sub-Registrar on 30.04.2007. Learned Counsel for the appellants contended that appellants had moved application for additional evidence in the lower appellate Court for producing the said affidavit, but the said application has been dismissed. However, it is not explained as to why the said affidavit was not produced in evidence in the trial Court at appropriate stage. Moreover, even if for the sake of argument, the said affidavit is taken into consideration, it would not help the appellants because plaintiff did remain present in the office of Sub-Registrar on 30.04.2007 to get the sale deed executed in terms of the agreement.
7. In addition to the aforesaid, the plaintiff filed the suit on 12.05.2007 i.e. without any delay. The date stipulated in the agreement for execution of sale deed was 30.04.2007 and the suit was filed on 12.05.2007. This by itself is sufficient to depict that plaintiff has always been ready and willing to perform his part of the contract. In addition to it, plaintiff remained present in the office of Sub-Registrar on 30.04.2007 depicting his readiness and willingness to perform his part of the contract.
8. On the other hand, defendant Nos. 1 to 3 in great hurry executed sale deed dated 04.05.2007 of their 5 Bighas 1 Biswa land out of the suit land in favour of defendant Nos. 5 and 6. This circumstance itself speaks of dishonesty of the appellants. Here it has to be added that agreement with the plaintiff was to sell the land at the rate of Rs. 68,000/- per Bighas only whereas defendant Nos. 1 to 3 sold their land to defendant Nos. 5 and 6 at the rate of almost Rs. 85000/- per Bigha just four days after the date on which the sale deed was to be executed in favour of the plaintiff. In fact this greed and dishonesty appears to have prompted defendant Nos. 1 to 3 with defendant No. 4 to commit breach of the agreement which had been executed by them in favour of plaintiff-respondent. The contention of the appellants that defendant Nos. 1 to 3 were in need of the money and, therefore, they executed sale deed on 04.05.2007 in favour of defendant Nos. 5 and 6, cannot be accepted. The agreement in favour of the plaintiff is dated 28.08.2006 and date for execution of sale deed stipulated in the agreement was 30.04.2007 i.e. 8 months after the execution of the agreement. This by itself would depict that time was not the essence of the contract. Even otherwise, in the case of agreement to sell Immovable property, the presumption is that time is not the essence of the contract, unless it is so made expressly or by implication. In the instant case, the very fact that date for execution of sale deed was stipulated after 8 months of the agreement would depict that time was not the essence of the contract. Moreover, the plaintiff remained present on 30.04.2007 to get the sale deed executed in terms of the agreement and, therefore, there was no occasion for defendant Nos. 1 to 3 to sell their land to defendant Nos. 5 and 6 in breach of the impugned agreement.
9. In addition to it, even if defendant Nos. 1 to 3 were in need of money, they could send a notice to the plaintiff to get the sale deed executed and only on his failure to do so, the defendants could exercise their right to sell the land to anybody else. In the instant case, the tearing hurry with which defendant Nos. 1 to 3 sold their share in suit land to defendant Nos. 5 and 6, although the plaintiff was always ready and willing to perform his part of the contract, would depict that defendant Nos. 1 to 4 intentionally committed breach of the agreement, apparently out of greed and dishonesty.
10. There is concurrent finding recorded by both the Courts below on appreciation of evidence. The said finding is not shown to be perverse or illegal so as to warrant interference in second appeal. Defendant Nos. 5 and 6 cannot be said to be bona fide purchasers of the suit land as both the parties belong to the same village and the sale deed was got executed by defendant Nos. 5 and 6 in a tearing hurry. There is also concurrent finding by both the Courts below that defendant Nos. 5 and 6 are not bona fide purchasers of the suit land. The said finding is also justified and supported by cogent reasons. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine.
