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2017 DIGILAW 1277 (HP)

Umesh Sharma v. Ranjana Sood

2017-11-21

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. Since, common questions of facts and law are involved in both the aforesaid suit, hence, they are being disposed of by a common judgment. Brief facts in C.S. No. 58 of 2006. 2. Briefly stated the facts of the case are that defendant No.1 Smt. Ranjana is owner to the extent of her share in the land comprised in khata khatauni No.36 min/164, khasra No.2488/15/2 min (old) and khasra No.3 (new), measuring 2472-38 sq. meters situated in Mauza Vikasnagar, District Shimla, H.P. She is averred to be in exclusive possession to the extent of her share in the aforesaid khasra number. The aforesaid land was agreed to be sold by her and the plaintiff agreed to purchase 46 biswa of land out of land in her exclusive ownership and possession for a consideration of Rs.70,00,000/-. The agreement was given effect to by executing a written agreement on 23rd September, 2006. At the time of execution of agreement to sell, the plaintiff paid Rs.5,00,000/- as an advance by way of cheque issued in favour of defendant Ranjana and drawn on UCO Bank, Dhalli, Shimla, dated 23.9.2006. The aforesaid cheque qua duly encashed by her and she acknowledged the receipt thereto in the agreement itself. It is averred that as per the agreement to sell, balance amount of Rs.65,00,000/- was to be paid by the plaintiff at the time of execution and registration of sale deed by defendant Ranjana, sale deed whereof was to be executed on or before 23.12.2006. It was also agreed that the possession of the land will be delivered to the plaintiff at the time of registration of the sale deed. It was also agreed that the possession of the land will be delivered to the plaintiff at the time of registration of the sale deed. It is further averred that the plaintiff has been and is willing to perform his part of the contract of 23.09.2006 but he has got information in the second week of October, 2006 that the defendant Ranjana through her General Power of attorney is negotiating with other parties for the sale of the land which is the subject matter of the agreement in question and therefore, he arranged the money required to be paid at the time of registration as well as the money required for the purchase of the stamp papers and thereafter sent telegram to the defendant as well as to her attorney requesting the defendant to come to Shimla in the first week of November, 2006 for the executing and registration of sale deed of the land in question. It is averred that the plaintiff received no response thereto. On suspicion, the plaintiff sent notice by registered post as well as by UPC on dated 27.10.2016 through his counsel to the defendant and her attorney, requesting defendant Ranjana and her attorney to come to the office of Sub Registrar (Rural), Shimla on 6.11.2006 to execute the sale deed and get it registered on that date. The plaintiff had also got the challan approved from the treasury for an amount of Rs.5,60,000/- for the purchase of stamp papers required for the execution and registration of sale deed. Despite the plaintiff visiting the office of the Registrar (Rural), Shimla with the banker cheque having the balance sale consideration and also with Rs. 5,60,000/- for the purchase of stamp papers and kept on waiting for the plaintiff and her attorney but both of them did not turn up. It is further averred that on 7.11.2006 the counsel of the plaintiff received a reply to the notice dated 27.10.2006, wherein, the execution of the agreement to sell dated 23.9.2006 has been denied and a false story stood concocted therein to avoid the performance of the agreement to sell. During the pendency of the instant suit, one Sh. Ajay Sood has filed a civil suit against defendant No.1 and Sh. Lalit kumar alleged power of attorney of defendant, for specific performance of agreement to sell of 21.09.2006. During the pendency of the instant suit, one Sh. Ajay Sood has filed a civil suit against defendant No.1 and Sh. Lalit kumar alleged power of attorney of defendant, for specific performance of agreement to sell of 21.09.2006. It is averred that the agreement to sell dated 21.09.2006 is sham, false and fictitious document, which has never been executed till 23.09.2006, when the agreement to sell, the subject matter of the instant suit was entered into inter se the plaintiff and defendant No.1 Ranjana Sood. The agreement of 21.09.2006 is alleged to be manipulated and manufactured by the defendant in connivance with Ajay Sood and Lalit Kumar in order to defeat the rights of the plaintiff. It is averred that defendant Ranjana Sood without any just excuse is trying to evade the sale of land, for which she agreed vide agreement to sell of 23.9.2006 and has not performed her part of contract even after the receipt of the telegram as well as notice issued in this behalf by the plaintiff. 3. The defendants contested the averments constituted in the plaint by instituting separate written statements thereto. Defendant No.1 in her written statement has taken preliminary objections inter alia, cause of action, suit being false, fabricated and manipulated, plaintiff being not legally and properly verified, locus standi, and estoppel. On merits averments qua ownership and possession with respect to the suit land held by defendant No.1 is admitted. The execution of the agreement of sell of 23.09.2006 is denied. However, it is submitted that the plaintiff though approached the defendant showing his willingness to purchase the land owned by the replying defendant. It is averred that the defendant generally does not live at Shimla and mainly resides at Lakhanpur, District Kathua (J&K) and had appointed her brother, namely, Shri Lalit Kumar Sood, as her attorney to deal with the land owned by her in any manner as her General Power of Attorney may deem fit. It is averred that when the plaintiff approached her, he was asked to contact Mr. Lalit Kumar Sood at Shimla, who is her General Power of attorney and having every right to deal with the suit property. It is averred that when the plaintiff approached her, he was asked to contact Mr. Lalit Kumar Sood at Shimla, who is her General Power of attorney and having every right to deal with the suit property. It is also averred that since no fruitful talk with respect to the sale of the aforesaid land could take place between the plaintiff and defendant No.1 at Lakhanpur, therefore, the question of paying Rs.5 lacs as advance to the defendant could not arise. The replying defendant specifically denies that any cheque amount of Rs.5 lacs was ever handed over by the plaintiff to her being part of sale consideration. It is averred that the plaintiff with ulterior motive and malafide intention has manipulated, forged and fabricated the draft agreement having blank spaces on which the signature were got appended from the defendant and her husband under bonafide impression that in case the negotiation pertaining to sale of land matures, plaintiff would not have to again rush to Lakhanpur for obtaining signatures of defendant on the formal agreement of sale. It is averred that there is no privity of contract between the parties as no legal and valid agreement was ever executed. It is admitted that the replying defendant refuting the claim of the plaintiff sent a reply on 3.11.2006 to his notice. It is denied that the defendant has concocted any false story to avoid the performance of the alleged contract. It has been further averred that no legal, valid or enforceable contract ever came into being between the parties to the suit, therefore, there was no question of the plaintiff showing his alleged willingness to perform his part of the contract. The whole claim of the plaintiff is false and baseless. 4. Defendant No.2, Ajay Sood, has also filed written statement to the plaint, wherein, he has taken preliminary objections that the alleged agreement of sale stated to have been entered into between the plaintiff and defendant No.1 is false, fictitious, fabricated and has been set up with a view to defeat the rights of the replying defendant under the agreement of sale of 21.09.2006 executed by defendant No.3 as duly authorized attorney of defendant No.1 for consideration of Rs.90 lacs out of which Rs.5.00 lacs were paid to defendant No.1 through her attorney defendant No.3. It is averred that the alleged agreement of sale between the plaintiff and defendant No.1 is for the alleged consideration of Rs.70 lacs without payment of any earnest money is fictitious, manipulated and does not confer any right on the plaintiff. The plaintiff has not come with clean hands and is not entitled to decree for specific performance. It is submitted that the power of attorney executed by defendant No.1 in favour of defendant No.3 is still subsisting. The plaintiff has obtained ex-parte stay order against the defendants No.1 and 3 and thus the sale deed could not be executed in favour of replying defendant on the basis of the agreement of sale of 21.09.2006. The replying defendant has already filed a civil suit No. 76 of 2007, titled as Ajay Kumar versus Ranjana before this Court for specific performance of agreement of sale in his favour. It is further averred that the plaintiff is estopped from filing the suit on account of his acts and conduct as also misrepresentation. The replying defendant has been ready and willing to perform his part of contract entered into between defendant No.1 through her attorney defendant No.3 and pay the balance consideration, but, on the basis of false and fictitious documents created by the plaintiff of 23.09.2006, he has obtained ex-parte stay order and as such, defendant No.1 and 3 are unable to execute the registered sale deed in favour of the replying defendant. It is submitted that no sale consideration has been received by defendant No.1 nor defendant No.1 could have executed agreement of sale of the suit property for consideration of Rs.70 lacs only when the admitted valued of the property is Rs.90 lacs on the date of the agreement of which Rs.5 lacs have already been received by defendant No.3 on behalf of defendant No.1 with the knowledge and consent of defendant No.1. As such also, the suit being collusive between the plaintiff and defendant No.1 and defendant No.2 having earlier entered into agreement of sale with defendant No.1 through her duly registered attorney, the plaintiff's suit is not maintainable. On merits, the ownership of defendant No.1 qua the suit land to the extent of her share is admitted. However, execution of agreement for sale of dated 23.09.2006 inter se the plaintiff and defendant No.1 is denied. All the other allegations levelled against defendant No.2 are denied. On merits, the ownership of defendant No.1 qua the suit land to the extent of her share is admitted. However, execution of agreement for sale of dated 23.09.2006 inter se the plaintiff and defendant No.1 is denied. All the other allegations levelled against defendant No.2 are denied. It is submitted that since defendant No.1 has executed general power of attorney in favour of defendant No.3 with respect to the suit land, as such, she was not legally entitled to execute any agreement for sale of the suit land with any person or the plaintiff. It is submitted that the alleged agreement of sale of 23.09.2006 is the result of fraud. 5. Defendant No.3 (now deceased and deleted from the array of defendants), is the GPA of defendant No.1, he has also filed written statement to the plaint. He has admitted the ownership of defendant No.1 qua the suit land. It is submitted that the replying defendant was the duly authorized attorney of defendant No.1 and on the basis of such power of attorney he had executed an agreement of sale on behalf of defendant No.1 and with her knowledge and consent when he entered into an agreement of sale of 21.09.2006 for sale of the suit property to defendant No.2 for a consideration of rs.90.00 las out of which Rs.5.00 lacs has been received. Defendant No.1 could not have entered into an agreement of sale with the plaintiff for the said property for consideration of Rs.70 lacs nor she has received any consideration out of the same. It is averred that the alleged agreement of sale of 23.09.2006 is false, fictitious and fabricated one. It is further submitted that power of attorney executed by defendant NO.1 in favour of replying defendant is still subsisting and defendant NO.1 knew about the agreement of sale having been entered into on behalf of defendant NO.1 with defendant No.2 as also the receipt of consideration. Therefore, there is no question of agreement of sale with plaintiff for a consideration of Rs.70 lacs on 23.09.2006 particularly when she has not received any consideration. It is submitted that the story of preparation of the challan forms and visit of the plaintiff to the office of Sub Registrar are of no consequence and are just a step in the aid to justify the false claim of the plaintiff. 6. It is submitted that the story of preparation of the challan forms and visit of the plaintiff to the office of Sub Registrar are of no consequence and are just a step in the aid to justify the false claim of the plaintiff. 6. The plaintiff herein filed replications to the written statements of the defendants, wherein, he denied the contents of the written statements and reaffirmed and re-asserted the averments, made in the plaint. 7. On the contentious pleadings of the parties, this Court on 14.07.2010, struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is estopped by is own acts, deeds and conduct to file and maintain the present suit, if so, its effect? OPD. 2. Whether the suit is not maintainable in its present form? OPD. 3. Whether the plaintiff has suppressed true and material facts and not approached the Court with clean hands, if so, its effect? 4. Whether the plaintiff has nay legal and enforceable cause of action to file and maintain the present suit, if so, its effect? OPD. 5. Whether defendant No.1 ever executed the alleged agreement of sale dated 23.09.2006?OPP. 6. If issue No.4, is decided in affirmative, then whether the plaintiff is entitled for a decree of specific performance, as allege? OPP. 7. Whether the alleged agreement of sale dated 23.09.2006 is a false and fabricated document and is a result of fraud and misrepresentation, if so, its effect? OPD-1 8. Whether defendant No.1 has ever received any consideration amount, as alleged by the plaintiff? OPP. 9. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction, as alleged? OPP. 10. Relief. 8. For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as under:- Issue No.1....... Yes. Issue No.2........ No. Issue No.3........ Yes. Issue No.4........ No. Issue No.5....... No. Issue No.6........ No. Issue No.7...... No. Issue No.8....... No. Issue No.9........ No. 10. Relief.......... Suit of plaintiff Umesh Sharma is dismissed as per the operative portion of the judgment. Brief facts of C.S. No.76 of 2007. 9. Briefly stated the facts of the case are that defendant No.1 has 138/225 share in land comprised in Khata No.36/35 min, Khatauni No.164, 165, 166 and 167, Khasra Nos. 3,5, 6 and 20 (old khasra number 2488/155/2), measuring 2988.40 sq. meters, which works out to 1838 sq. Brief facts of C.S. No.76 of 2007. 9. Briefly stated the facts of the case are that defendant No.1 has 138/225 share in land comprised in Khata No.36/35 min, Khatauni No.164, 165, 166 and 167, Khasra Nos. 3,5, 6 and 20 (old khasra number 2488/155/2), measuring 2988.40 sq. meters, which works out to 1838 sq. meters according to Misal Haquiyat Bandobast for the year 2002-2003 of mauza Vikasnagar, Tehsil and District Shimla, H.P. She had appointed defendant No.2 her general attorney to enter into agreement of sale of the aforesaid land and for the sale deed to be executed and registered on her behalf vide registered power of attorney dated 01.07.1980. The said power of attorney executed by defendant No.1 in favour of defendant NO.2 is still subsisting. On the basis of registered power of attorney executed by defendant No.1 in favour of defendant No.2, the latter for and on behalf of defendant No.1 entered into an agreement of sale with the plaintiff qua her share to the extent of 138/225 sq. meters out of 2988.40 sq. meters i.e. 1838 sq. meters for consideration of Rs.90.00 lacs. Out of the said consideration of Rs.90 lacs, a sum of Rs.5.00 lacs was paid in cash by the plaintiff to defendant No.1 through her general attorney, defendant No.2 and the receipt in advance of sale consideration was admitted by defendant No.2 for and on behalf of defendant No.1 The balance sale consideration of Rs.85 lacs was to be paid at the time of execution and registration of the sale deed before the Sub Registrar, Shimla. The sale deed was to be executed and registered in favour of the plaintiff or his nominee on or before 31st December, 2006, as the terms of the agreement of sale. The stamp and registration charges for the execution and registration of the sale deed were to be borne by the plaintiff. It has been averred that the plaintiff has always been ready and willing to have the sale deed executed and registered in his favour on the basis of agreement of sale of 21.09.2006 and pay the balance consideration. The stamp and registration charges for the execution and registration of the sale deed were to be borne by the plaintiff. It has been averred that the plaintiff has always been ready and willing to have the sale deed executed and registered in his favour on the basis of agreement of sale of 21.09.2006 and pay the balance consideration. However the plaintiff came to know, of, defendant No.1 knowingly and unwittingly, entering into an agreement of sale with defendant No.3, Shri Umesh Sharma for consideration of Rs.70 lacs, on 23.09.2006, after the agreement of sale had been entered by defendant No.1 through her general attorney, defendant No.2, agreement whereof she had no right to execute. It is submitted that the agreement of sale stated to have been executed by defendant No.1 in favour of defendant No.3 on 23.09.2006 is a false , fictitious and manipulated document with a view to get out of the agreement of sale executed with the plaintiff by the attorney of defendant No.1, as neither any sale consideration has been received by defendant No.1 from defendant No.3 nor could she execute the said agreement of sale when defendant No.2 as attorney of defendant No.1 has already executed and registered agreement of sale with the plaintiff and received ale consideration of Rs.5 lacs. When the suit property has been agreed to be sold by defendant No.2 for and on behalf of defendant No.1 for sale consideration of Rs.90 lacs, it is unimaginable that defendant No.1 would have sold the property for consideration of Rs.70 lacs. As such, the plaintiff, is entitled to have the sale deed executed and registered on the basis of the agreement entered into with him. It is averred that plaintiff served a notice of 27.12.2006 on defendants No.1 and 2 to have the sale deed executed and registered but the plaintiff came to know that Civil Suit No.58 of 2006 has been filed by defendant No.3 against defendant No.1 before this Court in which defendant No.3 has obtained stay order against defendant No.1 not to transfer, encumber or change the nature of the property either personally or through her authorized agents or attorney. Since, the agreement of sale of 21.09.2006 executed by defendant No.1 through her general attorney defendant No.2 is prior in point of time for consideration of Rs.90 lacs instead of 70 lacs being claimed by defendant No.3, on the basis of alleged agreement of 23.09.2006, the plaintiff is entitled to specific performance of the agreement of sale entered into with him by defendant No.2 as attorney of defendant No.1 and the agreement of sale alleged to have been executed by defendant No.1 in favour of defendant No.3 is neither genuine nor binding on the plaintiff and does not affect the right of the plaintiff to have the sale deed executed and registered in his favour. It is averred that defendant No.1 is contesting the suit filed by defendant No.3 on the ground that the alleged agreement of sale dated 23.09.2006 set up by defendant No.3 is forged and fictitious and not binding on her. It is further averred that the plaintiff has always been ready ad willing to have the sale deed executed and registered in his favour on the basis of agreement of sale dated 21.09.2006 and to pay balance consideration of Rs.85 lacs. He is still ready and willing to have the sale deed executed and registered and to pay the balance consideration of Rs.85 lacs and also stamp and registration charges and get the possession of the property but defendant No.1 and 2 have been failed to do so despite registered notice dated 27.12.2006 and the plaintiff has now strong apprehension that defendant No.1 may execute and register the sale deed in favour of defendant No.3, hence, the plaintiff has been left with no other alternative but to file the instant suit for specific performance of agreement of sale dated 21.09.2006 and have the sale deed executed and registered in his favour. 10. Upon notices of the Civil Suit being ordered to be served upon defendant No.1, yet despite hers standing served, she neither through her authorised representative nor through her duly constituted counsel, nor personally hence recorded her appearance before this Court, whereupon, this Court was constrained, to, on 30.03.2009 hence pronounce an order, of, hers being proceeded against ex-parte. The aforesaid order was never concerted to be set aside. Consequently, the averments constituted in the plaint remain unrebutted by defendant No.1, comprised in the latter not instituting written statements thereto. The aforesaid order was never concerted to be set aside. Consequently, the averments constituted in the plaint remain unrebutted by defendant No.1, comprised in the latter not instituting written statements thereto. However, she has later on joined the proceedings yet no written statement to the plaint stands instituted by her. 11. Though defendant No.2 was earlier represented by his counsel, however, he has not filed any written statement to the plaint. 12. Proforma defendant No.3 also filed written statement to the plaint, wherein, he has taken preliminary objection that the suit is collusive, frivolous and is a counter blast tot he suit filed by the replying defendant against defendant No.1. The said suit is the result of collusion between the plaintiff and defendants No.1 and 2 in order to defeat the rights of replying defendant accrued to him under an agreement to sell of 23.9.2006, which the subject matter of Civil Suit No. 58 of 2006. On merits, it is denied that defendant No.2 is still the General Power of attorney of defendant No.1 for sale and purchase of the land in dispute. Defendant No.1 had already agreed to sell the land in dispute to the replying defendant vide agreement to sell dated 23.09.2006 on which date there was no agreement between the plaintiff or either with defendants No.1 and 2. The agreement dated 21.09.2006 referred to by the plaintiff in his favour is false, fabricated and has only been manipulated by defendants No.1 and 2 in collusion with the plaintiff. It is submitted that agreement for sale of 23.09.2006 entered into between defendant No.1 and the replying defendant is valid and genuine. In furtherance of this agreement the replying defendant has paid Rs.5 lacs as earnest money to defendant No.1 by way of cheque. Defendant No.1 had every gith to deal with her property as per her sweet will and had assured the replying defendant to revoke the power of attorney executed by her in favour of defendant No.2. It is denied that the agreement for sale of 23.9.2006, entered into between defendant No.1 and the plaintiff is false and fabricated one. 13. The plaintiff herein filed replications to the written statements of the defendants, wherein, he denied the contents of the written statements and reaffirmed and re-asserted the averments, made in the plaint. 14. It is denied that the agreement for sale of 23.9.2006, entered into between defendant No.1 and the plaintiff is false and fabricated one. 13. The plaintiff herein filed replications to the written statements of the defendants, wherein, he denied the contents of the written statements and reaffirmed and re-asserted the averments, made in the plaint. 14. On the contentious pleadings of the parties, this Court on 27.07.2011, struck the following issues inter-se the parties at contest:- 1. Whether defendant No.1 through her power of attorney defendant No.2 entered into an agreement of sale dated 21.09.2006 with the plaintiff for the sale of the suit property for a consideration of Rs.90 lacs out of which amount Rs.5 lacs was paid as earnest money? OPP 2. Whether the agreement of sale dated 23.9.2006 is false, fabricated and created and not at all binding on the plaintiff? OPP 3. Whether the plaintiff is entitled to a decree of Specific Performance of the agreement of sale dated 21.09.2006?OPP. 4. Whether in the alternative, the plaintiff is entitled to refund of Rs.5 lacs and damages of Rs.15 lacs along with interest in the event of Specific Performance being refused? OPP 5. Whether the suit has been filed is collusive between the plaintiff and defendants No.1 and 2, as alleged? OPD 6. Whether defendant No.3 had entered into an agreement of sale with defendant NO.1 on 23.9.2006 for sale of the suit property for consideration of Rs.70 lacs, as alleged? OPD 7. Whether the agreement of sale dated 21.09.2006 is collusive and created with defendants No.1 and 2 with a view to defeat the rights of defendant No.3?OPD. 8. Relief. 15. For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as under:- Issue No.1....... Yes. Issue No.2........ No. Issue No.3........ Yes. Issue No.4........ redundant. Issue No.5......... No. Issue No.6..........No. Issue No.7..........No. 8. Relief.......... Suit of the plaintiff bearing No.76 of 2007 is decreed as per the operative portion of the judgment. Issues No.5, 6, 7, 8 and 9 in C.S. No. 58 of 2006 and Issues No. 1 to 3 in C.S. No. 76 of 2007. 16. All the aforesaid issues are taken together for discussion and decision as they are interlinked with each other besides when common evidence upon the aforesaid issues stands adduced by the contesting parties. 17. Issues No.5, 6, 7, 8 and 9 in C.S. No. 58 of 2006 and Issues No. 1 to 3 in C.S. No. 76 of 2007. 16. All the aforesaid issues are taken together for discussion and decision as they are interlinked with each other besides when common evidence upon the aforesaid issues stands adduced by the contesting parties. 17. Umesh Shama, plaintiff in C.S. No. 58 of 2006, while appearing in the witness box, has in his examination-in-chief deposed in tandem with the pleadings constituted in the plaint. He, during his examination-in-chief has tendered into evidence agreement for sale of 23.09.2006 borne in Ex.PW1/A, agreement whereof bearing his signatures thereon as also the signatures of defendant No.1. He has deposed that Mr. Jitender sood, husband of defendant No.1 and Mr. Deshbandhu Sood were witnesses to agreement brone in Ex.PW1/A. He has deposed that the aforesaid agreement is partly hand written and partly typed. He has testified that handwritings marked A and B in agreement Ex.PW1/A stood scribed by Mr. Jitender Sood and writings marked as “C” stood scribed by Deshbhandu Sood. He further testified that after its execution, its contents were read over and explained to the parties and thereafter the parties in presence of the witnesses thereto appended their signatures thereon. He has further testified that cheque amounting to Rs. five lacs was handed over to defendant No.1 at the time of execution of agreement Ex.PW1/A and she had accepted the same towards part sale consideration. Original agreement Ex.PW1/A was retained by him and copy thereto was supplied to defendant No.1, who had in token thereof put her signatures on the agreement itself. He has further testified that the remaining sale consideration of Rs.65 lacs was agreed to be paid at the time of execution of sale deed, sale deed whereof was agreed to be executed on or before 23.12.2006. During the course of his cross-examination by the learned counsel for defendant No.1 he has testified that the stamp papers for execution of agreement Ex.PW1/A were purchased by Shri Deshbandhu Sood. He further testified that the typed-written portion of agreement was got typed by Mr. Deshbandhu Sood. During the course of his cross-examination by the learned counsel for defendant No.1 he has testified that the stamp papers for execution of agreement Ex.PW1/A were purchased by Shri Deshbandhu Sood. He further testified that the typed-written portion of agreement was got typed by Mr. Deshbandhu Sood. He feigned his ignorance qua the presence of defendant No.1 and of Jitnder Sood at the time of scribing of contents of agreement borne in Ex.PW1/A. He further testified that the negotiations with regard to sale/purchase of the aforesaid suit property were held on 23.2.2006 at Lakhanpur (jammu). He has further testified that he had come to know later on that Shri Lalit Sood was holding General Power of Attorney on behalf of defendant No.1 Smt. Ranjana Sood. He in his cross-examination deposed that he was not in the know thereof, yet suo moto he stated that defendant No.1 Smt. Ranjana Sood had assured him that before execution of sale deed, she, would revoke the General Power of Attorney executed by her in favour of Shri Lalit Sood. He has further testified that he had come to know about the General Power of attorney before he sent the telegram and legal notice to defendant No.1 and her attorney. During the course of his cross-examination conducted by the learned counsel appearing on behalf of defendant No.1 he has admitted the suggestion put to him that he had no negotiations with defendant No.1 Smt. Ranjana Sood at Shimla and that no agreement for sale was executed at Shimla. He has testified that the typed matter borne in Ex.PW1/A had already been got typed before going from Shimla to Lakhanpur (Jammu). He has further testified that before proceeding to Lakhanpur (Jammu), he had no talks with defendant No.1 or her husband. He has further testified that he was not aware about the execution of agreement of sale of 21.09.2006 by Shri Lalit Sood, General Power of attorney of defendant No.1 with Ajay Sood in respect of the suit land. 18. PW-2 Deshbandu Sood, a witness to agreement for sale borne in Ex.PW1/A, has testified that negotiations with regard to sale of suit land were held between him and defendant No.1 about 7-8 months prior to the execution of agreement of sale in favour of the plaintiff. 18. PW-2 Deshbandu Sood, a witness to agreement for sale borne in Ex.PW1/A, has testified that negotiations with regard to sale of suit land were held between him and defendant No.1 about 7-8 months prior to the execution of agreement of sale in favour of the plaintiff. When negotiations regarding sale of the suit land were held with the plaintiff, defendant No.1 Smt. Ranjana Sood had asked them to come to Lakhanpur (Jammu). Accordingly, they had left for Lakhanpur (Jammu) from Shimla on 22.09.2006 and reached thereat on 23.9.2006 in the morning. He has further testified that suit land was agreed to be sold by defendant No.1 in favour of the plaintiff, for a sum of Rs.70 lacs, out of which a sum of Rs.5 lacs was paid as advance sale consideration, through, cheque drawn on UCO Bank, Dhalli, Shimla and the remaining amount of sale consideration was agreed to be paid within three months, during period whereof the sale deed was to be executed. He has further testified that agreement of sale Ex.PW1/A was executed by defendant No.1 in favour of the plaintiff and the same bears their signatures. Ex.PW1/A was also signed by him and Shri Jitender Sood husband of defendant No.1, as marginal witnesses thereto. He has further testified that at the time of execution of agreement Ex.PW1/A, defendant No.1 Smt. Ranjana Sood had assured that she would revoke the General Power of attorney executed by her in favour of her brother Shri Lalit Sood. In his cross-examination, he has deposed that when the stamp paper for execution of agreement Ex.PW1/A was purchased by him, Smt. Ranjana Sood was present in Shimla. He has admitted the suggestion put to him by the learned counsel appearing for defendant No.1 that stamp paper for execution of agreement to sell is to be purchased either by the proposed vendor or by the proposed vendee. He has testified that he had no written authority from or on behalf of Smt. Ranjna Sood to purchase the stamp papers. He has also admitted the suggestion put to him by the learned counsel appearing for defendant No.1 that as and when stamp papers are to be purchased, the purpose thereof is required to be mentioned to the stamp vendor and the same is recorded in the stamp papers. He has testified that the agreement for sell was got typed on 01.04.2006. He has testified that the agreement for sell was got typed on 01.04.2006. He has further admitted in his cross-examination conducted by the learned counsel for defendant No.2, of, copy of jamabandi being obtained by him on 30.03.2006, whereat, he visited Shri Ashok Chaudhary for getting the draft agreement prepared, hence his holding knowledge of particulars of the land to be sold. However, the same were not disclosed to him as only a draft was got prepared from him. He feigned ignorance qua Ranjana Sood never cancelling the power of attorney executed by her in favour of Lalit Sood. 19. PW-3 Mrs Purnima Sharma, Assistant Manger, UCO Bank, Dhalli, Shimla has testified that plaintiff Shri Umesh Sharma is having a CC account with their bank. A cheque book having 50 cheques bearing Nos. 606301 to 606350 was issued to him on 21.08.2006. She has further testified that on 6.11.2006 a pay order in a sum of Rs.65 lacs was issued from their bank, from, the account of the plaintiff in favour of Smt. Ranjana Sood, copy whereof is borne in Ex.PW3/A, however, it was not encashed, rather was on 7.11.2007 got cancelled by the plaintiff. In her cross-examination she has stated the record showing whether cheques bearing Nos. 606319 and 606320 being encashed or not, has not been summoned by the plaintiff. 20. DW-1 Smt. Ranjana Sood in her examination-in-chief has testified that she never met the plaintiff in Shimla and that he had come to see her at Lakhanpur in the year 2006. He was accompanied by Mr. Desh Bandhu Sood. She further testified that she never met Mr. Desh Bandhu at Shimla and that she had never requested him to dispose off her property situated at Shimla. She has further deposed that he never authorised Mr. Desh Bandhu Sood to purchase stamps in her name. She has further testified that the plaintiff and Deshbandhu visited her at Lakhanpur, though she had never called them there. Plaintiff has shown his willingness to purchase her property situated in Shimla. She apprised them that she had already given power of attorney of her property to her brother Sh. Lalit Kumar Sood. She has further testified that they got the papers prepared from Shimla and requested her to sign on those papers. They told her that it is difficult for them to come from Shimla. She apprised them that she had already given power of attorney of her property to her brother Sh. Lalit Kumar Sood. She has further testified that they got the papers prepared from Shimla and requested her to sign on those papers. They told her that it is difficult for them to come from Shimla. Nothing was finalized on the day when they visited her house. The document produced before her was partially typed and partially hand written. Ex.PW1/A is the same document which was brought by them from Shimla to Lakhanpur. She has identified her signatures on Ex.PW1/A. She has further testified that her husband has at the instance of the plaintiff, written some portion of Ex.PW1/A. She apprised the plaintiff and Mr. Desh Bandhu Sood that this document be taken back to Shimla and thereafter the final codal formalities would be completed by her brother Shri Lalit Kumar Sood. She further testified that no conversation has taken place with her brother that the plaintiff Mr. Desh Bandhu Sood had contacted him after 23d September, 2006. Her brother had talks with her on 24th September, 2006 and told that he had already entered into an agreement with someone qua the suit land about two days' back. She has further testified that the plaintiff handed over a cheque amounting to Rs. Five lacs on 23rd September, 2006 and that she was told by the plaintiff that the cheque be encashed only if the deal is finalized. She never encashed the cheque. She has testified that she had brought the original cheque dated 23rd September, 2006 drawn on UCO bank, Dhalli, cheque whereof is borne in Ex.DW1/A. She has further deposed that she was never called by the plaintiff and Mr. Desh Bandhu Sood to execute Ex.PW1/A on or before 23rd September, 2006. She was apprised by the plaintiff and by Mr. Desh Bandhu Sood that it is merely a formality and the final papers would be prepared later on. She in her cross-examination has deposed that she had the intention to dispose of the land situated in Shimla and had a conversation to this effect with her son-in-law, who further contacted Mr. Desh Bandhu Sood. She further testified that her brother has received advance amount, but the same was not paid to her. She was told by him that the entire amount of sale consideration will be paid to her. Desh Bandhu Sood. She further testified that her brother has received advance amount, but the same was not paid to her. She was told by him that the entire amount of sale consideration will be paid to her. She has deposed that her brother has received a sum of Rs.5 lacs in advance. She came to know on the next day that a deal has already been struck by her brother with Mr. Ajay Kumar Sood. In her further cross-examination conducted by the learned counsel appearing for defendant No.2, she, has admitted of hers, during his life time, never cancelling the power of attorney executed in favour of her brother Shri Lalit Kumar Sood. She has admitted that her brother has apprised about the agreement to sell on 24th September, 2006 and she was also apprised about the advance received by him. She has further deposed that the consideration, of the agreement to sell which was entered into by her brother Shri Lalit Kumar Sood with Ajay Kumar Sood, was, Rs.90 lacs. 21. DW-2 Jatinder Kumar Sood in his examination-in-chief has deposed a version in tandem with version deposed by DW-1 in his examination-in-chief. In his cross-examination conducted by the learned counsel appearing for the plaintiff, she has admitted the execution of Ex.PW1/A on 23rd September, 2006. He has testified that the plaintiff already knew about the agreement to sell executed by his brother-in-law, Lalit Kumar Sood with Mr. Ajay Kumar Sood. 22. Smt. Rita Sood (PW-1 in C.S. No.76 of 2007) has testified, of, her husband Smt. Lalit Kumar Sood, expiring on 23.07.2009. Defendant, Ranjana Sood is her sister-in-law. She has executed a general power of attorney in favour of her husband and it was subsisting during his life time. She has further testified that she could not, after his death, trace out the original general power of attorney. She has testified that her husband, in his capacity as attorney of defendant Ranjana Devi entered into an agreement to sell with respect to the suit land with Ajay Sood, sale consideration whereof, was, Rs. ninety lakhs. A sum of Rs. five lacs was paid by way of an advance. Agreement Ex.P-A/1 was executed in her presence on 21st September, 2006. She is a witness to Ex.P-A/1. She has further testified that the parties had gone through the contents of the agreement before signing the same. ninety lakhs. A sum of Rs. five lacs was paid by way of an advance. Agreement Ex.P-A/1 was executed in her presence on 21st September, 2006. She is a witness to Ex.P-A/1. She has further testified that the parties had gone through the contents of the agreement before signing the same. In her cross-examination conducted by the learned counsel for defendant No.1, she has testified, of, defendant Ranjana Sood, never, during the life time of her husband, cancelling the general power of attorney. In her further cross-examination conducted by the learned counsel appearing for defendant No.3, she testified, of, agreement Ex.P-A/1 being executed at her residence. She also admitted, of, the plaintiff's wife also being one of the witnesses, of Ex.P-A/1, executed on 21st September, 2006. She testified of the advance being paid in cash in currencies holding denominations of Rs.1000/- and Rs. 500/-. 23. PW-2 Shri Ajay Sood (Plaintiff in C.S. No. 76 of 2007), in his examination-in-chief has testified in tandem with the averments cast in the plaint. He has testified that at the time of execution of Ex.P-A/1 he has seen the general power of attorney executed in favour of Shri Lalit Kumar Sood by his sister Ranjana Sood. Agreement for sale was executed on 21st September, 2006. The total consideration was Rs.90 lacs and a sum of rupees five lakh was paid in advance. The agreement to sell was witnessed by his wife and defendant Lalit Kumar's wife Smt. Rita Sood. He has further testified that the sale deed was to be registered by 31st December, 2006. In his cross-examination conducted by the learned counsel appearing for defendant No.1 he has testified that the agreement was signed between the parties at the residence of Mr. Lalit Kumar Sood. A sum of Rs. five lakh was paid by way of cash. He met the defendant No.1 after the agreement. The suit property was agreed to be sold at the market rate prevalent at that time. He requested Mr. Lalit Kumar Sood to get agreement Ex.P-1/1 registered in November, 2006. He assured him that the document shall be registered by December 31, 2006. He was always ready and willing to do the same. In his cross-examination conducted by the learned counsel appearing for defendant No.3 he has testified that all the negotiations were going on, for more than 1 ½ years, with deceased defendant Lalit Kumar Sood. He assured him that the document shall be registered by December 31, 2006. He was always ready and willing to do the same. In his cross-examination conducted by the learned counsel appearing for defendant No.3 he has testified that all the negotiations were going on, for more than 1 ½ years, with deceased defendant Lalit Kumar Sood. He has denied the suggestion that he had filed a collusive suit with defendant Ranjana Sood and Late Mr. Lalit Kumar Sood. 24. PW-4 Smt. Leel Sandal, Junior Assistant in the Office Sub Registrar (Rural), Shimla proved the copy of general power of attorney of Smt. Ranjana Devi executed in favour of Lalit Kumar Sood, copy of GPA whereof bears registration no.113 of 1.7.1980 and is Ex.PW4/1. 25. A careful perusal of the pleadings and of the evidence led by the parties, makes it crystal clear, that the General Power of attorney executed by Smt. Ranjana Devi vis-a-vis one Lalit Kumar, being, never during his life time hence revoked by her. A perusal thereof, unveils, of, thereunder she authorising her attorney Shri Lalit Kumar Sood, to, on her behalf sell, encumber, transfer the suit land, thereupon, he was fully authorised to enter into an agreement for sale of the suit property with Ajay Kumar Sood. It is a trite rule, of, an authorised agent or an attorney holder, acting, as a servant of the principal and of the mere constitution of an attorney, per se not vis-a-vis an agent creating any enforceable indefeasible right vis-avis immovable property. All acts done or purported to be done by an agent or by an attorney are deemed to be the acts and deeds done by the principal himself unless the apposite authorization/power of attorney, is revoked with prior notice to the attorney holder/agent. Consequently, with Smt. Ranjana Devi, admitting, of hers during the life time of one Lalit Kumar, never, cancelling or revoking the general power of attorney executed by her vis-a-vis the aforesaid, one Lalit Kumar Sood. Consequently, with Smt. Ranjana Devi, admitting, of hers during the life time of one Lalit Kumar, never, cancelling or revoking the general power of attorney executed by her vis-a-vis the aforesaid, one Lalit Kumar Sood. Moreover, with the agreement for sale, comprised in Ex.PW1/A, holding recitals of the vendor therein preserving rights for cancelling or revoking the apposite power of attorney, “before” ensuring/completing registration of the sale deed, whereas, hers in her testification borne in her examination-in-chief articulating of hers, not, cancelling the apposite GPA executed by her vis-a-vis her brother, thereupon, with the true owner constituting under Ex.PW4/1, her brother as an attorney, for his vis-a-vis the suit property performing all acts inclusive of his selling, encumbering or transferring the suit land, thereupon, she was, unless, she cancelled Ex.PW4/1, hence, disabled to execute any agreement to sell with respect to the suit property, whereas, with hers apparently, not, cancelling the apposite GPA executed by her vis-a-vis her brother Lalit Kumar Sood, rendered any agreement to sell executed by her to be fully defective besides unenforceable. Consequently, rather her GPA Lalit Kumar Sood was legally authorised to enter into an agreement to sell with Ajay Kumar Sood vis-a-vis the sale of the suit land, whereas, reiteratedly defendant Ranjana Sood, was, disabled to execute any agreement to sell with respect to the suit land vis-a-vis Umesh Sharma, especially with lawful subsistences thereat of EX.PW4/1. 26. Moreover, agreement to sell executed with respect to the suit land inter se the relevant general power of attorney, one, Lalit Kumar Sood and Ajay Kumar Sood, stands executed, prior in time, i.e., on, 21st September, 2006 vis-a-vis the agreement to sell executed by Ranjana Devi with Umesh Sharma, agreement whereof stands executed on 23rd September, 2006. Furthermore the agreement to sell borne on Ex.PW1/A was, not, given effect, given the cheque handedover by one Umesh Sharma to Ranjana Devi, being, never encashed, as evident from Ex. DW1/A, exhibit whereof stood placed on record by one Ranjana Devi. On the other hand, Umesh Sharma failed to adduce any cogent evidence on record, wherefrom, evincings occur, of, the cheque issued by him in favour of Smt. Ranjana Devi, being, encashed by her. DW1/A, exhibit whereof stood placed on record by one Ranjana Devi. On the other hand, Umesh Sharma failed to adduce any cogent evidence on record, wherefrom, evincings occur, of, the cheque issued by him in favour of Smt. Ranjana Devi, being, encashed by her. Consequently, the agreement to sell embodied in Ex.PA/1, agreement whereof stands executed inter se the relevant general power of attorney, one Lalit Kuamr Sood vis-a-vis Ajay Kumar Sood, is, amenable for a decree for specific performance being rendered in respects thereof besides in consonance therewith visa- vis defendant No.1 Ranjana Devi. 27. In aftermath, the agreement to sell, comprised in Ex.PW1/A, executed by Smt. Ranjana Devi, vis-a-vis Umesh Sharma, who, rather given hers constituting under Ex.PW4/1 her brother one Lalit Kumar Sood, as her GPA, was, hence disabled to execute any agreement with respect to the suit property with vendees thereof, especially when reiteratedly, the aforesaid unrescinded GPA borne in Ex.PW4/1, rendered her incapacitated to execute any agreements in respect of the suit land, hence attracts corollaries, of, the agreement to sale borne in Ex.PW1/A, standing, unauthorisedly executed by her, conspicuously with hers being incompetent, to, in respect of suit property, hence, execute any enforceable contractual agreements. Moreover, with DW-1 testifying of hers apprising both Mr. Umesh Sharma and Mr. Deshbandhu Sood, to, on theirs returning to Shimla, meet her brother, testification whereof when remains unsheltered, thereupon, with both aforesaid, not, evidently meeting the GPA of DW- 1, whereupon, both aforesaid, would stand apprised of prior thereto execution of Ex.P-A/1, hence both attract upon themselves the vice of negligence, more so, with DW-1 also categorically unrebuttedly testifying of hers, not, authorizing Mr. Deshbandhu Sood, to, make purchases of stamp papers, thereupon, on effects thereof being construed with Ex. PW1/A holding recitals in respect of the apposite GPA being ensured to be cancelled at an appropriate stage by DW-1, hence beget an inference of both Mr. Umesh Sharma and Deshbandhu Sood making a post haste legal misadventure, in filing a suit for specific performance. 28. Mr. PW1/A holding recitals in respect of the apposite GPA being ensured to be cancelled at an appropriate stage by DW-1, hence beget an inference of both Mr. Umesh Sharma and Deshbandhu Sood making a post haste legal misadventure, in filing a suit for specific performance. 28. Mr. Sunil Chauhan, learned counsel appearing for Umesh Sharma submits that when the registered deed of conveyance, is, to be nowat executed vis-a-vis Umesh Sharma and the true title holder, given the GPA of one Ranjana Devi, who executed agreement to sell Ex.P-A/1, since expiring, hence, the agreement to sell executed by the lawful owner of the suit land, borne in Ex.PW1/A, is amenable for a decree of specific performance being pronounced vis-a-vis Umesh Sharma also this Court is enjoined to direct the lawful owner of the suit property, to execute a registered deed of conveyance, with, the beneficiary thereof. However, the aforesaid submission, is not acceptable, as the apposite suit for specific performance is with respect to the subsequently executed agreement of sell, of, 23.09.2006, agreement whereof stood entered into inter se one Ranjana vis-avis Umesh Sharma, whereas, prior thereto agreement to sell stood executed on 21.09.2006 inter se the lawful GPA of Ranjana Devi vis-a-vis Ajay Kumar Sood, hence, with the subsequently executed agreement to sell, with all reasons aforestated wanting in legal sanctity also it being not amenable for a decree for specific performance in respect thereto being pronounced. Predominantly with this Court holding that the agreement to sell, borne in Ex.PW1/A, being executed by a lawful owner, without hers, thereat holding any competence to enter into any lawful contract, whereas, her GPA holding the lawful contractual authorization/general power of attorney to, in respect of the suit property, execute an agreement to sell, agreement whereof, comprised in Ex.P-A/1, stood executed, on anvil of his unrescinded conferred empowerment, with one Ajay Kumar Sood, preeminently also with EX.PW1/A being executed at a time when she had not cancelled the apt lawful GPA borne in Ex.PW4/1, hence, thereupon she rendered herself legally incapacitated to execute it with one Umesh Sharma. Corollaries whereof is that an invalid agreement to sell borne in Ex.PW1/A, cannot, be put to specific performance. Corollaries whereof is that an invalid agreement to sell borne in Ex.PW1/A, cannot, be put to specific performance. Since the competing rights of the vendors in Civil Suit No.76 of 2007 and of the vendors in Civil Suit No. 58 of 2006, are, to be adjudged, on, the legal axiom of validly executed agreement to sells, whereas, with agreement to sell borne in Ex.PW1/A being invalidly executed, given the lawful owner, not, thereat holding any capacity to execute it, thereupon, accepting the submission of the learned counsel appearing for Umesh Sharma, that nowat with the GPA of Ranjana Devi, being, no, longer alive also when the true owner can hence execute the agreement to sell, would, belittle the superior rights of plaintiff Ajay Kumar Sood vis-a-vis the plaintiff Umesh Sharma, to obtain a decree of specific performance, decrees whereof are always founded upon validly executed agreements for sale, axiom whereof is solitarily satiated by Ex.P-A/1.. 29. Consequently, Issues No.5 to 9 in C.S. No.58 of 2006 and Issues No.1 and 3 in C.S. No. 76 of 2007. are decided in favour of Ajay Kumar Sood and against Umesh Sharma. However, issue No.2 in C.S. No. 76 of 2007 is decided in favour of Umesh Sharma and against Ajay Kumar Sood. Issue No.1 to 4 in C.S. No.58 of 2006. 30. It is admitted fact of the parties that the contents of agreement to sell comprised in Ex.PW1/A stand already scribed by the plaintiff. A perusal of clause 7 of thereof discloses that the plaintiff was well aware of the GPA executed by Smt. Ranjana Devi in favour of his brother. Consequently, he cannot contend that he was not aware of the apposite GPA at the time of execution of the agreement to sell comprised in Ex.PW1/A. In aftermath, issues No.1 and 3 are decided in favour of defendants and against the plaintiff Umesh Sharma, whereas, issue No.2 and 4 are decided in favour of plaintiff Umesh Sharma and against the defendants. Issue No.4 in C.S. No. 76 of 2007. 31. In view of my findings on issues above, this issue has become redundant. Issues No.5 to 7 in C.S. No. 76 of 2007. 32. In view of my findings on the aforesaid issues, these issues are decided in favour of plaintiff Ajay Kumar Sood and against the defendants. Relief. 33. Issue No.4 in C.S. No. 76 of 2007. 31. In view of my findings on issues above, this issue has become redundant. Issues No.5 to 7 in C.S. No. 76 of 2007. 32. In view of my findings on the aforesaid issues, these issues are decided in favour of plaintiff Ajay Kumar Sood and against the defendants. Relief. 33. In sequel to findings on issues aforesaid, the suit of plaintiff Umesh Sharma bearing Civil Suit No. 58 of 2006 is dismissed, whereas, the suit of plaintiff Ajay Kumar Sood bearing Civil Suit No. 76 of 2007 is decreed and defendant Ranjana Devi is directed to in accordance with law, within three months from today, execute a registered sale deed in respect of the suit land in favour of plaintiff Ajay Kumar Sood. Decree sheet be prepared accordingly. No costs. All pending applications also stand disposed of.