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2000 DIGILAW 1147 (PNJ)

Nathu Ram v. Narinderjit Singh

2000-09-21

V.K.JHANJI

body2000
JUDGMENT V.K. Jhanji, J. - This second appeal is by defendants No. 13 and 14 directed against the judgment and decree of the Courts below whereby suit of the plaintiff for specific performance of agreement dated 18.4.1988 has been decreed. 2. Plaintiff, Narinderjit Singh, filed suit for specific performance of agreement dated 18.4.1988. In the plaint, it was stated that the suit land was owned by defendants 1 to 12. Defendant No. 1 on behalf of himself and as attorney of defendants 2 to 11 vide agreement dated 18.4.1988 agreed to sell the suit land at the rate of Rs. 16,000/- per acre and received Rs. 20,000/- as earnest money. It was further stated that defendant No. 1 represented that he will procure power of attorney on behalf of defendant No. 12 also. Sale deed was to be executed on 28.10.1988 but with mutual consent, the date of performance of agreement was extended to 15.3.1989. Plaintiff contended that he had been ready and willing to perform his part of the agreement and was prepared to get the sale deed executed from defendants 1 to 12 on payment of balance price but they committed breach of agreement and defendants 9 to 11 sold their share in the suit land in favour of defendants 13 and 14 who were well aware of the agreement in favour of the plaintiff. Plaintiff contended that the sale made by defendants 9 to 11 in favour of defendants 13 and 14 is not binding on him and he is entitled to specific performance of agreement. Upon notice of the suit defendants 2 to 11 on one hand and defendants 13 and 14 on the other hand, filed separate written statement. Defendants 2 to 11 contended that they never authorised defendant No. 1 to enter into agreement with the plaintiff regarding the sale of their share and if power of attorney is proved, the same is result of fraud and misrepresentation. They also submitted that they have sold their share to defendants 13 and 14 for valuable consideration. On the same terms, written statement was filed by defendants 13 and 14. Defendants 1 and 12 did not appear and accordingly, they were proceeded against ex parte. Plaintiff filed replication wherein he reiterated the averments made in the plaint. On the pleadings of the parties, various issues were framed by the trial Court. On the same terms, written statement was filed by defendants 13 and 14. Defendants 1 and 12 did not appear and accordingly, they were proceeded against ex parte. Plaintiff filed replication wherein he reiterated the averments made in the plaint. On the pleadings of the parties, various issues were framed by the trial Court. Parties were given due opportunity to lead evidence in support of their case. 3. Learned trial Court on appreciation of evidence adduced by the parties to the suit held that defendant No. 1 on behalf of himself and on behalf of defendants 2 to 11 executed agreements, Ex.P-1 and P-2 and received Rs. 20,000/- as earnest money. The issue regarding plaintiffs readiness and willingness to perform his part of the agreement was decided in favour of plaintiff and against the defendants. Issue regarding execution of power of attorney in favour of defendant No. 1 by defendants 2 to 11 was also decided in favour of plaintiff. In regard to plea of defendants 13 and 14 that they are bona fide purchases for consideration, the same was decided against them. Trial Court, however, held that the agreement is not binding upon defendant No. 12 because he neither had consented through any document to sell his share nor executed power of attorney in favour of defendant No. 1. Trial Court, thus, decreed the suit in the following terms :- "In view of my findings on issues No. 1 to 3 and 5 to 7, it proved that defendants No. 1 to 11 had agreed to sell the suit property to the plaintiff and the said agreement is binding on the defendants No. 1 to 11 as well as defendants No. 13 and 14 the subsequent vendees. However, the agreement is not binding on defendant No. 12 because he never consented through any document to sell his share. His share is separable which is 9 Kanals in view of copy of the sale deed Ex.D5. So, plaintiff is entitled to specific performance of the agreement with respect to land measuring 28K-11M out of the suit land. Consequently, I pass a decree in favour of plaintiff for specific performance of the agreement dated 18.4.1988 and 15.3.1989 against defendants No. 1 to 11 and defendants No. 13 and 14 with costs. So, plaintiff is entitled to specific performance of the agreement with respect to land measuring 28K-11M out of the suit land. Consequently, I pass a decree in favour of plaintiff for specific performance of the agreement dated 18.4.1988 and 15.3.1989 against defendants No. 1 to 11 and defendants No. 13 and 14 with costs. Defendant No. 1 to 11 and 13 and 14 shall execute sale-deed in favour of plaintiff within one month of the date of this decree on receipt of balance amount in accordance with the agreement. On their failure to do so, plaintiff shall be entitled to get the sale deed executed in his favour through the agency of Court by execution of the decree on payment of balance price within two months thereafter. Decree sheet be prepared. File be consigned to the record room." 4. Defendants 2 to 11 and also defendants 13 and 14 being aggrieved of the judgment and decree passed by the trial Court preferred two separate appeals. The learned Additional District Judge on reappreciation of evidence on record, vide the impugned judgment and decree affirmed the finding of the trial Court and thereby dismissed both the appeals. Hence, the second appeal only by defendants 13 and 14. 5. Mr. M.L. Sarin, Sr. Advocate, appearing on behalf of defendants 13 and 14, contended that defendant No. 1 was not authorised to sell the land to defendants 2 to 11 on the basis of power of attorney dated 16.4.1988 because under the same, defendant No. 1 was authorised only to deal with the land situated in village Mehatpur. He contended that the land sold is situated in village Khurampur and therefore, agreement to sell dated 18.4.1988 which related to land situated in village Mehatpur could not be ordered to be specifically enforced in respect of property of defendants 2 to 11 situated in village Khurampur. Counsel cited Judgments in O.A.P.R.M.A.R. Adaikappa Chettiar v. Thomas Cook and Son (Bankers) Ltd., AIR 1933 Privy Council 78 and D.H.M. Framji and others v. The Eastern Union Bank Ltd., Chittagong, AIR 1951 Punjab 871 for the proposition that power of attorney has to be strictly construed and cannot be construed so as to enlarge the restricted powers mentioned therein. Counsel cited Judgments in O.A.P.R.M.A.R. Adaikappa Chettiar v. Thomas Cook and Son (Bankers) Ltd., AIR 1933 Privy Council 78 and D.H.M. Framji and others v. The Eastern Union Bank Ltd., Chittagong, AIR 1951 Punjab 871 for the proposition that power of attorney has to be strictly construed and cannot be construed so as to enlarge the restricted powers mentioned therein. Against this, counsel appearing on behalf of plaintiff contended that villages Khurampur and Mehatpur have a common Abadi area which is known as Mehatpur and village Khurampur is commonly described as Mashmulla Mehatpur. He contended that village Khurampur is included in abadi Mehatpur and for that matter, in the sale-deed vide which defendants 13 and 14 have purchased the property from defendants 1 to 11, the land has been described to be situated in village Khurampur Mashmula Mehatpur meaning thereby that the power of attorney given by defendants 2 to 11 to defendant No. 1 relates to suit land and to no other land. 6. After hearing the learned counsel, I am of the view that there is no merit in the appeal. In the pleadings, it was never the case of defendants 2 to 11 or defendants 13 to 14 that the power of attorney which was given to defendant No. 1 did not relate to land situated in village Khurampur. Their case was that the power of attorney if proved to have been executed, was a result of fraud and misrepresentation. Defendants 2 to 11 did not step into the witness-box to deny execution of power of attorney. Defendants have also not been able to prove that defendant No. 1 committed fraud or made misrepresentation in getting the power of attorney executed in his favour. On the other hand, plaintiff has been able to prove that villages Mehatpur, Khurampur and Rasoolpur are though recorded separately in the revenue record, yet all the three have a common Abadi area which is known as Mehatpur. In all the sale-deeds relating to the suit property vide which defendants 13 and 14 purchased the property from the other defendants, the property is mentioned to be situated in village Khurampur Mashmulla Mehatpur. The Courts below have held that in the area, village Mehatpur is commonly described as village Khurampur and therefore, the intention of defendants 2 to 11 was to execute power of attorney regarding the land in dispute. The Courts below have held that in the area, village Mehatpur is commonly described as village Khurampur and therefore, the intention of defendants 2 to 11 was to execute power of attorney regarding the land in dispute. It has also been proved that the defendants did not own land in revenue estate of Mehatpur. The finding of the learned Additional District Judge in this regard reads as under ;- "No doubt, village Mehatpur is a separate revenue estate and Khurampur is a separate revenue estate having distinct Hadbast numbers, but both these villages have common abadi area which is known as Mehatpur. Moreover, village Khurampur is described to the Mashmulla Mehatpur. In the sale deeds Ex.D1 which relates to suit property, the land in dispute is described to be situated in village Khurampur Mashmulla Mehatpur. Mashmulla means included meaning thereby that Khurampur village is included in Mehatpur. Therefore, though Khurampur is a distinct revenue estate, it is deemed to be included in Mehatpur and properties situated in both the revenue estates, in local parlance is known to be situated in Mehatpur. Therefore, the intention of the defendants was to execute the power of attorney regarding the land in dispute. There is no evidence that defendants own land in revenue estate of Mehatpur. No evidence has been led by the defendants that the defendants own land in revenue estate of Mehatpur. Thus when all the facts and circumstances of the case are considered, the only conclusion that can be drawn in that the defendants intended to sell the property in dispute. The defendants 2 to 11, therefore, authorised defendant No. 1 to sell the land in dispute, vide power of attorney Ex. P-4. The findings of the trial Court on issue No. 6 are, therefore, correct and are affirmed." 7. Mr. Sarin, learned counsel for defendants 13 and 14, has not been able to point from the record as to how the above-quoted finding of the first appellate Court is erroneous. 8. Faced with this situation, Mr. Sarin contended that the appellant being the subsequent vendee had also the locus standi to prove that the plaintiff was not ready and willing to perform his part of the contract. It is contended that the finding of the trial Court that this plea is available only to the vendor and not to the subsequent vendee, is totally erroneous. Sarin contended that the appellant being the subsequent vendee had also the locus standi to prove that the plaintiff was not ready and willing to perform his part of the contract. It is contended that the finding of the trial Court that this plea is available only to the vendor and not to the subsequent vendee, is totally erroneous. There cannot be any dispute that subsequent transferee has got a right to defend the transfer in his favour on a ground on which the transferor can defend the suit against him. In this regard, reference may be made to a judgment of the Supreme Court in Jugraj Singh and another v. Labh Singh and others, 1995- 3(111) PLR 706 (SC). However, in the present case, plaintiff has led compelling evidence to prove that he had always been ready and willing to perform his part of the agreement. As per agreement to sell dated 18.4.1988, sale-deed was to be executed and registered on or before 28.10.1988, but with the mutual consent of the parties the time was extended to 15.3.1989. In this regard, agreement dated 23.10.1988 was reduced into writing. On 15.3.1989, plaintiff was present in the office of the Sub-Registrar, Nakodar, along with the balance sale price and expenses for the execution and registration of sale deed, but defendants 1 to 11 did not turn up to perform their part of the agreement. Plaintiff got an affidavit attested from the Executive Magistrate regarding his presence for showing his readiness and willingness to perform his part of the agreement. It deserves to be mentioned that on failure on the part of defendants to execute the sale-deed, plaintiff lost no time in filing the suit, which was so filed on 29.7.1989, i.e. within four months of the date fixed for execution of sale- deed. It also deserves to be mentioned here that defendants 9 to 11 sold their share vide sale-deed 30.6.1989, i.e. a few days before the filing of the suit while the remaining three sale-deeds dated 31.7.1989, 7.8.1989 and 8.8.1989 are during the pendency of the suit. It also deserves to be mentioned here that defendants 9 to 11 sold their share vide sale-deed 30.6.1989, i.e. a few days before the filing of the suit while the remaining three sale-deeds dated 31.7.1989, 7.8.1989 and 8.8.1989 are during the pendency of the suit. The haste on the part of defendants 3 to 14 to get the sale-deed executed, clearly shows that the intention of defendants 1 to 11 was not to perform their part of the agreement whereas on the other hand, the plaintiff was always ready and willing to abide by the terms of the agreement. 9. No other point has been urged. 10. Resultantly, the appeal fails. It is accordingly dismissed. Appeal dismissed.