Suit for permanent injunction based on claim under Section 53-A of Transfer of Property is Maintainable- High Court of Punjab and Haryana.
Suit for permanent injunction based on claim under Section 53-A of Transfer of Property is Maintainable- High Court of Punjab and Haryana. Section 53 (A) states that where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has. The landmark judgement passed by the single bench of HON’BLE JUSTICE RAJBIR SEHRAWAT in RAJENDER SINGH V NANAK SINGH (RSA No. 988 of 2011 (O&amp;M)) dealt with the issue mentioned above. In this case the respondent had filed a suit for declaration of his title and for injunction, claiming that the defendant be restrained from interfering in possession of the plaintiff .Who had become owner of the property; by virtue of Section 53-A of the Transfer of Property Act, 1882 but due to some wrong records of revenue, the person from whom the land was brought he sold it to the present petitioner Rajender Singh. Both the parties filed suit in lower court, the judgement was given in the favor of the present petitioner aggrieved by this the respondent filed another suit in lower appellate court, the judgement was on his favor as he had purchased the land rightfully, aggrieved by this order the petitioner moved to the High court by the way of this petition. The 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, 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 question by referring the supreme court judgement in Suraj Lamp Vs. State of Haryana (2011(4) RCR (Civil) 669). The learned counsel for the state contended 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, merely because the agreement in his favor 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. The Hon’ble court analyzed the facts of the present case and the arguments of both the parties and opined that “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 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 favor of the plaintiff. The defendant-Rajender Singh cannot be held to be a bona fide purchaser. 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.”
 on 14 12 RSA 988 2011 & RSA 4886 20111IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHRSA No. 9811thr. his LRs. and Ors. .....RespondentsRSA No. 48811(ii) andin the present appeal filed a suit fordeclaration of his title and for injunction claiming that the defendant berestrained from interfering in possession of the plaintiff. It was pleaded thatthe suit property which is land measuring 04 marlas was owned byManphool Singh defendant No.1 in the suit who was the real brother ofNanak Singh. Manphool Singh and Nanak Singh were otherwise co sharersin the land. However Manphool Singh entered into an agreement dated08.07.1981 with Nanak Singh. As per the agreement the said ManphoolSingh agreed to sell the land to Nanak Singh. Consideration for the saidtransaction was fixed to be Rs.2000 . The entire consideration was paid bythe plaintiff Nanak Singh. It was further recorded in the agreement that thepossession of the suit land has been given to the plaintiff. However no datefor execution of the sale deed was fixed by the parties to the agreement. Itwas further pleaded that the plaintiff had become owner of the property byvirtue of Section 53 A of the Transfer of Property Act 1882. However taking advantage of continuing wrong entries in the revenue record thedefendant Manphool Singh intended to alienate the suit property in favourof somebody else. It was further claimed that plaintiff made numerousrequests to the defendant not to alienate the suit property. However thedefendant was adamant. Therefore the suit was filed. Notice in the suit was issued. However the service upon theManphool Singh was yet to be effected because he had shifted toRajasthan. On 20.11.2007. The counsel for the plaintiff got a recordedstatement that defendant No.1 Manphool Singh had died. Still further itwas stated by the counsel that Manphool Singh had already sold the on 14 12 RSA 988 2011 & RSA 4886 20113property to the present appellant i.e. Rajender Singh. Accordingly theplaintiff amended the plaint to implead the subsequent purchaser i.e. theappellant in the present appeal as defendant No.2 in the suit. The same wasallowed. After being impleaded as defendant the presentappellant defendant No.2 in the original suit filed written statementcontesting the claim of the plaintiff. It was claimed that the plaintiff had nocause of action and that the contesting defendant was the bona fidepurchaser for consideration and without notice. Ownership of the plaintiffover the suit property was denied by him.Replication was filed and the averments in the plaint werereasserted re affirmed by the plaintiff. The possession of the plaintiff overthe suit property was asserted by the plaintiff in replication as well. Theaverments raised by the defendant were denied. The sale deed dated23.07.2004 registered on 03.08.2004 in favour of newly added defendantwas also questioned as being fraudulent and as not conferring any titleupon the defendant. After considering the pleadings of the parties the Trial Courtframed the issues as follows:1.Whether the plaintiff is owner in possession of the suitproperty on the basis of agreement dated 8.7.1981. If sowhat effect OPP.2.Whether the plaintiff entitled to protection under Section53 A of Transfer of Property Act OPP.3.Whether the plaintiff is entitled to relief of permanentinjunction as prayed for OPP.4.Whether the plaintiff has no cause of action to file the on 14 12 RSA 988 2011 & RSA 4886 20114present suit OPD.5.Whether the plaintiffis not properly valued forpurpose of court fee and jurisdiction OPD.6.Whether the defendant Rajender Singh is bonafidepurchase for value and consideration without notice. Ifso what effect OPD.7.Whether the plaintiff is not maintainable in the presentcase for 8.Relief.However in the meantime the defendant in the suit filed byNanak 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 inhis favour on 23.07.2004 which was got registered on 03.08.2004. It wasfurther submitted by him that mutation No.1108 in this regard was alsoentered in the revenue record. Hence he claimed possession over the suitproperty by way of partition. In this suit Nanak Singh filed writtenstatement pleading that Rajender Singh was not the owner in possession ofthe land. It was further claimed that on the date when the sale deed wasexecuted in his favour even his vendor Manphool Singh was not competentto transfer the title to Rajender Singh. The sale deed was pleaded to bewrong null and void. The pleadings regarding the agreement in favour ofNanak Singh were reiterated by him in written statement in the second suitalso. Defendants No.3 and 4 in the second suit also supported the claim ofNanak Singh.On the basis of these pleadings the Trial Court framed thatissues in this suit as follows: on 14 12 RSA 988 2011 & RSA 4886 201151.Whether the plaintiff and defendants are co sharers in thesuit land OPP.2.If issue No.1 is proved whether the plaintiffs are entitledfor partition of suit property OPP.3.Whether the sale deed executed on 23.7.04 and registeredon 3.8.04 was hit by the provisions of lispendens and thepresent suit is not maintainable.4.Whether the plaintiffs has no locus standi to file thepresent suit OPD.5.Whether the plaintiff is estopped from filing the presentsuit by his own act and conduct OPD.6.Whether the present suit is bad for deficient in the courtfee OPD.7.Relief. After framing of the issues both the suits were consolidated forthe purpose of evidence treating the suit filed by Nanak Singh as theprimary suit. Accordingly the common evidence was led in both the suits. The parties led their evidence.After hearing the parties and appreciating the evidence theTrial Court held the agreement in favour of Nanak Singh to be validlyexecuted and held the same to be proved by the plaintiff Nanak Singh. Thiswas held to be proved on the basis of testimony of PW 4 Rawat Singh andPW 5 Phool Singh the testimony of the plaintiff Nanak Singh and thetestimony of Subhash Chand Gupta the deed writer of the agreement. On the other hand the sale deed dated 23.07.2004 in favour ofdefendant Rajender Singh who was the plaintiff in the second suit was also on 14 12 RSA 988 2011 & RSA 4886 20116held to be proved on the basis of testimony of PW 2 Satya Narain the deedwriter PW 3 Banwari Lal the attesting witness and PW 4 Rajender Singhhimself.Faced with this situation the Trial Court was confronted withthe proposition of Section 53 A of the Act. While dealing with thecontentions of the respective parties the Trial Court held that the case ofthe defendant Rajender Singh in the suit of Nanak Singh stand proved. Itwas held that he has succeeded in proving that the defendant RajenderSingh had no notice of the agreement in favour of the plaintiff at the timewhen he purchased the suit land. The Trial Court held the defendant Rajender Singh to be bona fide purchaser on the ground that there was noreflection of the agreement in favour of Nanak Singh in the revenue record.It was further recorded that Rajender Singh was not a witness to theagreement claimed by the Nanak Singh. He is not relative of Nanak Singhand 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 washeld that the defendant Rajender Singh is entitled to the benefit of Provisoto Section 53 A of the Transfer of Property Act. Still further the TrialCourt held that the plaintiff Nanak Singh had failed to show that he wasready and willing to perform his part of contract because he had not filed asuit for specific performance against Manphool Singh. However the TrialCourt also recorded that even if it is presumed that plaintiff Nanak Singhwas ready and willing to get the sale deed executed still the agreement hasnot 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 on 14 12 RSA 988 2011 & RSA 4886 20117Act. Resultanly vide a common judgment the suit filed by the plaintiffNanak Singh was dismissed and the cross suit filed by the defendant Rajender Singh was decreed accordingly granting him a preliminary decreeof partition for possession of his share in the suit property. Aggrievedagainst the judgment and both the decrees Nank Singh had filed theappeals before the lower Appellate Court. However Rajender Singh thedefendant 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 judgmentand decrees passed by the Trial Court and allowed the appeals filed byNanak Singh. Resultantly the preliminary decree of partition passed infavour of Rajender Singh was set aside. The decree of dismissal of suit ofNanak Singh was reversed and the suit was decreed qua granting him thepermanent injunction. While reversing the judgment and decree passed bythe Trial Court the lower Appellate Court recorded that the agreement infavour of Nanak Singh has already been held to be proved by the TrialCourt and it has also been proved by the witnesses that Manphool Singh hadgiven possession to the plaintiff Nanak Singh and thereafter he has beenresiding continuously in the disputed plot. Therefore the question ofprotection of Section 53 A of the Act is required to be considered. Whileconsidering this aspect the lower Appellate Court first of all held that theagreement in question claimed by the Nanak Singh did not require anyregistration because it was entered into between the parties before theamendment of Registration Act w.e.f. 24.09.2001. The lower AppellateCourt further held that the defendant Rajender Singh himself has admittedthe possession of the appellant Nanak Singh over the suit property by on 14 12 RSA 988 2011 & RSA 4886 20118admitting that Nanak Singh had made a boring in the disputed property andthat other co sharer had also given possession of their shares to appellantNank Singh who have raised the boundary wall of the plot in question.Therefore it was held by the lower Appellate Court that Rajender Singhshall be deemed to have the knowledge of the appellant s interest in the suitproperty. Hence Rajender Singh was required to inquire from theappellant as to the nature of his possession. Since he has failed to makesuch inquiry from the appellant himself therefore the defendant RajenderSingh cannot be held to be bona fide purchaser. Hence it was held by thelower Appellate Court that the defendant Rajender Singh is not entitled tothe benefit of Proviso to Section 53 A of the Act. Accordingly vide acommon judgment the lower Appellate Court allowed both the appeals filed by Nanak Singh. As a result the suit of Nanak Singh was decreed quapermanent injunction and the suit filed by the Rajender Singh for partitionwas ordered to be dismissed as mentioned above. Against the judgmentand the decrees passed by the lower Appellate Court Rajender Singh defendant No.2 in the suit filed by Nanak Singh has filed the present boththe appeals.While arguing the case learned counsel for the appellant hassubmitted that the lower Appellate Court has not recorded a finding that theplaintiff Nanak Singh had fulfilled the ingredients of Section 53 A of theAct. Therefore it is his submission that the benefit of Section 53 A of theAct cannot be extended to plaintiff Nanak Singh even if the defendant isheld to be not bona fide purchaser although he has submitted that thedefendant has proved on record that he was a bona fide purchaser. He hasproved revenue record which show no entry regarding the agreement in on 14 12 RSA 988 2011 & RSA 4886 20119question. Still further it is his submission that the possession of plaintiffNanak singh is also not exclusive because the suit land is recorded as ajoint holding of the plaintiff Nanak Singh and Manphool Singh along withother persons before the purchase by Rajender Singh and with RajenderSingh after the execution of the sale deed in favour of Rajender Singh asper the mutation entered into revenue record. Learned counsel for theappellant has further submitted that the lower Appellate Court has falteredin law in granting a decree for injunction in favour of the plaintiff NanakSingh because the plea of Section 53 A of the Act can be raised only as adefence and the suit for injunction is also not maintainable in a claim basedon strength of Section 53 A of the Act. It was further claimed by theappellant that despite having questioned the sale deed in favour of thedefendant the plaintiff has not formally challenged the sale deed in hisfavour by amending the suit. Therefore the sale deed in favour of theappellant defendant has remained intact. In the end the counsel for theappellant again stresses the argument that the ingredients of Section 53 A ofthe 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 hisarguments learned counsel for the appellant relies upon the judgment ofHon ble Supreme Court rendered in 2011(4) RCR669 titled as SurajLamp and Industries Pvt. Ltd. Vs. State of Haryana and Another tocontend 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 Section53 A of the Act is not maintainable. The counsel further relies upon thejudgment of the Hon ble Supreme Court rendered in 2008RCRPLR 56 titled as JarnailSingh Vs. Daljit Singh and Ors. to contend that if the ingredients of Section53 A of the Act are not satisfied then even the possession of the personclaiming agreement is not to be protected by the Court. In the end thecounsel has relied upon the judgment of the Hon ble Supreme Courtrendered in 2016RCR592 titled as Guman Singh and Ors. Vs.Manga Singhby LRs. and Ors. to support his argument that the plea ofSection 53 A of the Act can be taken only as a defence and not as apositive basis for filing a suit as plaintiff. It can be used only as shield andnot as a sword.On the other hand learned counsel for the respondent plaintiffhas submitted that the plaintiff has proved on record the agreement inquestion. It is his further submission that even the Court below has held theagreement to be proved on record of the case. No appeal had been filed bythe present appellant against that finding. Still further it is submitted by thecounsel for the respondent that he has proved all the ingredients as requiredunder Section 53 A of the Act. The counsel submits that as per the terms ofagreement the entire amount of the consideration stood paid. Possessionhad already been taken by the plaintiff. Therefore according to the learnedcounsel for the respondent plaintiff the part of the agreement required to beperformed on the part of the plaintiff already stood performed. Nothingelse was required to be done by him for the maturity of the agreement into a 1 on 14 12 RSA 988 2011 & RSA 4886 201111full fledged sale. So far as the execution of the sale deed is concerned it issubmitted by the counsel that since the vendor Manphool Singh had shiftedto Rajasthan and was not readily available therefore he had no opportunityto get the sale deed executed. The counsel for the respondent plaintifffurther submits that Section 53 A of the Act can very well be invoked by aperson for protecting his possession. For that purpose counsel has reliedupon the judgment reported in AIR 1994 Bombay 254 titled as Dharmajialias Baban Bajirao Shinde vs. Jagannath Shankar Jadhav incedeceased by his heirs Bhanudas Jagannath Jadhav etc.. Still further it issubmitted by the learned counsel that the defendant has abjectly failed toprove that he had no notice regarding the existence of agreement in favourof the plaintiff Nanak Singh. Therefore he is not entitled to seek theprotection of Proviso to Section 53 A of the Act. Counsel further submitsthat merely because the agreement in his favour is not reflected in therevenue record and the defendant claims to have verified from the revenuerecord that does not exclude the notice to the defendant purchaser since hewas residing in the house adjacent to the house of the plaintiff NanakSingh. Learned counsel for the respondent relies upon the judgement ofthis Court rendered in 2005RCR677 titled as Bal Singh andOrs. Vs. Ravinder Singh and Ors. Regarding the validity of the sale deed infavour of the defendant the counsel submits that since the vendor ofdefendant Rajender Singh could not have transferred the title therefore anysale deed claimed by the defendant is null and void as claimed in thereplication filed by the plaintiff. Having heard learned counsel for the parties and perusing therecord with their able assistance this Court is of the considered opinion that 1 on 14 12 RSA 988 2011 & RSA 4886 201112the counsel for the appellant has failed to substantiate his argument withreference to the record. So far as the agreement in favour of the plaintiffNanak Singh is concerned the same has already been held to be proved bythe Trial Court. That finding has become final also. Therefore there is nodispute regarding the validity of the agreement in favour of Nanak Singh inthe present appeal. However the submission of the counsel for theappellant that the ingredients of the Section 53 A of the Act has not beenfulfilled in the case is also not sustainable. It has come on record and hasbeen proved by the plaintiff that the possession of the suit land had beendelivered to the plaintiff at the time of agreement in question. This fact isrecorded in the agreement also. Hence the deposition of the witnessesexamined by the plaintiff regarding possession gets related to the recital inthe agreement in favour of the plaintiff. This shows that the possession infact had been delivered to the plaintiff at the time of execution of theagreement itself. Still further the defendant Rajender Singh has alsoadmitted in cross examination that he had the knowledge that other co sharers had given possession of their respective shares to the plaintiff NanakSingh. He has even admitted in the cross examination the site plan of theproperty as was pleaded and proved by the plaintiff. The site plain alsoshows the boundaries to the suit property. Although defendant has assertedthat boundary was raised by plaintiff after the purchase of the suit land bythe 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 hisseller Manphool Singh so after the purchase he shall be deemed to be inpossession of share of Manphool Singh as well. Hence the ingredient ofSection 53 A of the Transfer of Property Act regarding execution of the 1 on 14 12 RSA 988 2011 & RSA 4886 201113agreement and taking of the possession stand proved by the plaintiff. Sofar as the remaining ingredients regarding doing something in furtherance ofthe agreement and readiness and willingness on the part of the plaintiff toperform his part of the agreement are concerned the same also stand dulyproved by him. It has come on record that after the possession was takenover by him he has altered the status of the land by raising construction andinstalling the boring and other equipment over the suit land. This he hasdone only in furtherance of the authority granted to him under theagreement in question. So far as the other ingredients namely the readinessand willingness of the plaintiff to get the sale deed executed in his favour isconcerned the Section of 53 A provides two eventualities i.e. the vendeeshould either have performed his part of agreement or in alternative heshould be willing to perform his part of agreement. As has come on recordin the present case the part of the contract which was required to beperformed by the plaintiff qua this agreement already stood performed byhim since he had already paid the entire amount of consideration and hehad taken possession of the suit land as a part of the performance of theagreement. 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 wasnot available having shifted to Rajasthan. For this missing element by anymeans it cannot be said that the plaintiff has not performed his part ofagreement as enjoined upon him under the agreement in question. The judgments cited by the learned counsel for the appellantare not helpful to the case of the appellant. The same are distinguishable onthe facts of the present case. So far as the judgment of Suraj Lamp and 1 on 14 12 RSA 988 2011 & RSA 4886 201114Industries Pvt. Ltd.is concerned the same is an authority on thepoint that the agreement referred to in Section 53 A of the Act cannot beused for claiming a title. However in the present case though the plaintiffhad sought a declaration of title also however the same has not beengranted by the Courts below to him. The plaintiff has been granted only aninjunction in his favour qua his possession. Therefore this judgment is notapplicable in the present case. So far as the judgement rendered in A.Lewisand Anr.(Supra) is concerned the same is also distinguishable in thepresent case. As mentioned above the plaintiff had already performed hispart 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 byvendor. For that also admittedly no date was specified. Hence it cannotbe said that the plaintiff was not justified in waiting for the vendor toexecute the sale deed as and when he returns from Rajasthan. Otherwisealso getting the sale deed executed immediately or within any specified timeperiod is not a requirement under Section 53 A of the Act. So the failure ofthe purchaser to get the sale deed executed within some reasonable time though may be undesirable yet it can not operate as a statutory bar againstthe 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 ofsuch act are two different things. The mere desirability can not be raised tothe level of legal necessity particularly when it is not prescribed by therelevant statutory provision. The reliance by the learned counsel for theappellant upon the judgment in case of Jarnail Singhis also notrelevant for the purpose of present case. As stated above the ingredients ofSection 53 A of the Act has been fully established by the plaintiff in the 1 on 14 12 RSA 988 2011 & RSA 4886 201115case. He has not been granted any declaration of his title. However so faras the injunction part is concerned he has claimed in the suit and he hassatisfied the ingredients of the Section 53 A of the Act therefore thisjudgment does not stand in his way as such to deprive him the statutoryprotection. The last judgment sought to be relied upon by the counsel forthe appellant is the judgment rendered by the Hon ble Supreme Court inGuman Singh and Ors.to contend that the plea of Section 53 Aofthe Act can be taken only as a defence and it cannot be made a basis forfiling a suit by coming as plaintiff. However this judgment is also notapplicable in the present case. A perusal of this judgment shows that theHon ble Supreme Court made this observations in that case regarding suitfor title ownership. Therefore it was held that since ownership was notproved therefore for the purpose of ownership the agreement claimed bythe person in that case qua Section 53 A of the Act could not have beenused for claiming title. So far as the suit qua protection of possession isconcerned the Hon ble Supreme Court has not laid down the law asclaimed by the counsel for the appellant. The Hon ble Supreme Court hasonly observed that in that particular case since the transaction claimed bythe person for availing the benefit of Section 53 A of the Act wascompulsory 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 heldto be not maintainable on his part. However in the present case as noticeabove the lower Appellate Court has rightly held that the agreement inquestion did not require any registration. Therefore the plaintiff could not 1 on 14 12 RSA 988 2011 & RSA 4886 201116be 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 Actcreates a benefit in favour of a person who has a prior agreement in hisfavour along with the possession of land mentioned in the agreement. ThisSection creates a bar against the original owner or a person claiming titleunder him for claiming any right title or interest qua the land mentioned inthe agreement during the subsistence of such agreement. Therefore if hispossession is threatened then it is only the suit for injunction which can befiled by a person claiming benefit of Section 53 A of the Act. Needless tosay that if such a person is sued against then he will be entitled to take thesame as defence also. Hence so far as the possession is concerned once aperson claiming benefit of Section 53 A of the Act shows and proves theingredients of Section 53 A of the Act along with the requirement ofregistration of the same if any then he can very well use the agreement asa basis for filing a suit as plaintiff also. His remedy is not limited to takethe defence in case a suit is filed against him.So far as the plea of bona fide purchaser raised by the appellantis concerned the same also deserves to be rejected. He has claimed that heis a bona fide purchaser. A specific issue was framed regarding his status asa bona fide purchase. The onus of the proof of the same was upon thedefendant Rajender Singh. To claim the benefit of Proviso to Section 53 Aof the Act the defendant was required to prove that he had no notice of thetransaction in favour of the plaintiff. However beside making a claim thathe inspected the revenue record the defendant has not laid any factualfoundation or led any evidence on this point. So far as the entries in the 1 on 14 12 RSA 988 2011 & RSA 4886 201117revenue 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 theresidential area. In the revenue record also it is recorded as gair mumkingait This by no means can betreated as an agricultural land. The presumption of the land beingagricultural land in this case is also excluded by the very fact that thepartition which was sought by Rajender Singh has been sought through theCivil Court and not through the Revenue Authorities. In view of this thejudgment rendered by this Court in 2005RCR677 titled as BalSingh and Ors. Vs. Ravinder Singh and Ors. is fully applicable. The lower Appellate Court is right in holding that once thedefendant Rajender Singh admitted that other co shares had also givenpossession to the plaintiff then it was bounden duty upon him to enquirefrom the plaintiff also before the proceeding further to purchase the land inquestion since the plaintiff admittedly is a co sharer in the suit land evenwith his seller Manphool Singh. However there is nothing on record eitherpleaded deposed or otherwise proved on record to show that any inquirywas ever made from the plaintiff by the defendant Rajender Singh beforepurchasing the suit land from Manphool Singh. Otherwise also the factsproved on record show that the defendant was residing in the adjacenthouse. The site plan as produced by the plaintiff has also been admitted bythe defendant. Still further it has been categorically admitted by thedefendant that he is not aware as to whether the plaintiff had takenpossession of the suit at the time of agreement which he claims in his 1 on 14 12 RSA 988 2011 & RSA 4886 201118favour or not. This is a kind of evasiveness on the part of the defendantregarding status of possession. This also shows that he had the knowledgeof the fact that the plaintiff had taken possession of the suit land at the timeof agreement mentioned in the plaint. Hence it was incumbent upon thedefendant Rajender Singh to inquire from the plaintiff before purchasing thesaid land. Otherwise also since the plaintiff was already a co sharer withManphool Singh so he shall be deemed to be in possession of every inch ofland with other co sharer. Hence since no reasonable inquiries has beenmade 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 categoricallydeposed that the defendant had the knowledge of existence of agreement infavour 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 infavour of Nanak Singh.No other argument was raised.Hence finding no perversity the judgment and decree passed bythe lower Appellate Court are upheld.In view of the above finding no merits both the appeals aredismissed.5th December 2017 [RAJBIR SEHRAWAT]Manju JUDGEWhether speaking reasoned :Yes NoWhether reportable :Yes No 