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2014 DIGILAW 727 (PNJ)

Hari Singh v. Ganga Devi

2014-04-22

RAKESH KUMAR GARG

body2014
JUDGMENT Mr. Rakesh Kumar Garg, J. (Oral) - This is plaintiff’s second appeal challenging the judgment and decree of the lower Appellate Court dated 20.09.2012 whereby judgment and decree of the trial Court has been modified to the extent of declining the relief of specific performance of agreement dated 18.01.2005 to the extent of 4/5th share in the suit land. 2. As per the averments made in the suit, defendant-respondents were owners and in possession of the plot in dispute. Defendant No.1 (now respondent No.7) entered into an agreement to sell on 18.1.2005 with regard to plot in question on behalf of other defendants and obtained a sum of Rs.67,000/- in the presence of witnesses executed the agreement to sell in question. It was further averred that as per the terms and conditions of the aforesaid agreement, possession of the suit property was also delivered to the vendee. Last date for execution and registration of sale deed was fixed as 31.12.2005. Out of the above vendors, Sandeep and Naveen were minors and defendant No.1 was responsible for seeking permission of the Court to sell the share on their behalf. As per the further averments made in the suit, defendant No.1 was also responsible for bringing the remaining vendors present at the time execution and registration of the sale deed. However, defendants did not turn up on the stipulated date for executing the sale deed. Thus, the instant suit was filed. 3. Upon notice, defendant No.1 appeared and filed written statement alleging that he had neither entered into the alleged agreement to sell with the plaintiff for himself and on behalf of other defendants nor obtained a sum of Rs.67,000/- as earnest money as alleged. It was further denied that possession of the suit property was ever delivered to the plaintiff. It was specifically averred by defendant No.1 that he was neither having any right to enter into alleged agreement on behalf of other defendants nor he has done so. 4. On the basis of the pleadings of the parties, following issues were framed: 1.Whether the plaintiff is entitled for a decree of specific performance in respect of property in question or part thereof, as per agreement dated 18.1.2005? OPP 2.Whether the plaintiff is entitled for injunction, as prayed for? OPP 3.Whether the suit is not maintainable? OPD 4.Whether the plaintiff has no cause of action? OPD 5. Relief. 5. OPP 2.Whether the plaintiff is entitled for injunction, as prayed for? OPP 3.Whether the suit is not maintainable? OPD 4.Whether the plaintiff has no cause of action? OPD 5. Relief. 5. While decreeing the suit, trial Court held that defendant No.1 was authorized by the other defendants to act and conduct the proceedings on their behalf and therefore, the agreement to sell in question binds the other defendants by their implied consent and conduct and they cannot take the plea that the agreement is defective and does not effect their right and title. 6. Feeling aggrieved from the judgment and decree of the trial Court, defendants filed an appeal before the First Appellate Court which was partly accepted vide impugned judgment and decree dated 20.09.2012, the judgment and decree of the trial Court was set aside and decreed the suit of the plaintiff-appellant for possession by way of specific performance of agreement to sell dated 18.1.2005 partly i.e. to the extent of 1/5th share in the suit land of defendant No.1, with the further direction to defendant No.1 to refund the balance sale consideration to the plaintiff-appellant along with interest. While passing the impugned judgment and decree, lower Appellate Court further held that defendants No.2 to 7 (now respondents No.1 to 6) were not bound by the alleged agreement executed on their behalf by defendant No.1 (now respondent No.7) and thus, they were not responsible for his act and conduct. 7. Still not satisfied, plaintiff has filed the instant appeal against the aforesaid judgment and decree of the lower Appellate Court submitting that following substantial questions of law arise in this appeal:- i) Whether defendant No.1 was authorized to act and conduct the proceedings on behalf of other defendants in view of the statement made by DW3-Smt. Shanti? ii)Whether the appellant was proved to be in possession over the plot in pursuance to the agreement? iii)Whether in the given facts and circumstances of the case, the judgment and decree passed by the learned Lower Appellate Court is sustainable in the eyes of law? 8. ii)Whether the appellant was proved to be in possession over the plot in pursuance to the agreement? iii)Whether in the given facts and circumstances of the case, the judgment and decree passed by the learned Lower Appellate Court is sustainable in the eyes of law? 8. In support of his case, learned counsel for the appellant has vehemently argued that it has come in the testimony of DW-3 Smt. Shanti that Rohtash-defendant No.1 need not ask everything from them and whatever Rohtash will do they will agree and abide by it and the aforesaid admission on the part of Smt. Shanti clearly shows that other defendants had authorized him to enter into an agreement to sell in question and thus, it binds the other defendants by their implied consent. 9. I have heard learned counsel for the appellant and perused the impugned judgments and decree of the Courts below. 10. Admittedly, defendant No.1 (now respondent No.7) had no authority to execute agreement on behalf of defendants No.2 to 7 (now respondents No.1 to 6). However, counsel for the appellant has vehemently argued that it has come in evidence that defendants No.2 to 7 used to abide by the acts of defendant No.1, meaning thereby, defendant No.1 had the authority to execute the agreement. 11. Be that as it may, simply because defendants No.2 to 7 used to abide by the acts of defendant No.1 will not clothe defendant No.1 with the authority to make the agreement on their behalf. 12. In view thereof, no exception can be taken to the judgment and decree of the lower Appellate Court vide which agreement to sell in question qua the shares of defendants No.2 to 7 has been declined. 13. Thus, no substantial question of law arises in this appeal. 14. Dismissed. ------------------