RSA No. 3350 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3350 of 2009 (O&M) Date of Decision: 31.5.2011. Harender Pal Singh .......Appellant Vs. Raghubir Singh and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.M.Singh, Advocate for the appellant. Mr. Sudhir Sharma, Advocate for Mr. Deepender Singh, Advocate for the respondent No. 1. Mr. R.S.Hooda, Advocate for respondent No.2. ..... SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 22.10.1997. The case of the plaintiff in brief was that defendants No. 1 and 2 were owners in possession of the suit land and had agreed to sell the same to the plaintiff for ` 1,70,000/- through their attorney defendant No.3 vide agreement to sell in question. At the time of execution of the agreement to sell, ` 1,60,000/- were paid by the plaintiff towards earnest money. The remaining sale consideration was to be paid by the plaintiff to the defendants at the time of execution of the sale deed on RSA No. 3350 of 2009 (O&M) -2- 31.12.1997. Plaintiff had remained present in the office of the Sub Registrar on 31.12.1997 along with the balance sale consideration but the defendants had failed to appear. Defendants No. 1 and 3, in their separate written statements, admitted the contents of the plaint and prayed that the suit filed by the plaintiff be decreed. Defendant No.2, in his written statement, denied the contentions in the plaint. It was averred that defendant No.3 was not the general attorney of the answering defendant. The execution of the agreement to sell in question was denied. Defendant No.2 also preferred a counter claim wherein it was averred that the general power of attorney No. 269 dated 3.9.1997 was a forged and fictitious document. The whole transaction was designed by defendant No.1 in order to grab the entire property. Defendant No.3 was the uncle of defendant No.1 and had manipulated the forged agreement to sell. The signatures of defendant No.2 on the receipt were also forged by the defendant No.3 in collusion with the witnesses. It was prayed that in case the plaintiff succeeds in establishing the general power of attorney dated 3.9.1997 executed by the answering defendant in favour of defendant No.3 and the agreement to sell in question and receipt dated 22.12.1997, then defendant No.2 was entitled to recover ` 60,000/- from defendant No.3. By way of the counter claim defendant No.2 prayed that a decree for recovery of ` 57,000/- be passed in his favour. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendants no. 1 and 2 through RSA No. 3350 of 2009 (O&M) -3- defendant No. 3 entered into an agreement to sell the suit property to the plaintiff vide agreement dated 22.10.1997? OPP 2. Whether a sum of ` 1,60,000/- was paid as earnest money by the plaintiff? OPP 3. Whether the defendnats have failed to performj their part of contract? OPD 4. Whether the plaintiff is still ready and willing to perform his part of the contract? OPD 5. Whether the plaintiff has no locus-standi to file the present suit?OPD 6. Whether the suit is not maintainable? OPD 7. Whether the plaintiff has no cause of action to file the present suit? OPD 8. Whether the plaintiff is estopped by his act and conduct fromfiling the suit? OPD 9. Whether the suit is not properly valued for the purpose of court fee? OPD 10. Relief.” Civil Judge (Junior Division) vide judgment and decree dated 20.10.2007 partly decreed the suit of the plaintiff for possession by way of specific performance of agreement to sell dated 22.10.1997 to the extent of the share of defendant No.1. So far as the defendant No.2 is concerned, the suit was dismissed. Aggrieved by the said judgment and decree, plaintiff preferred an appeal. The Additional District Judge vide judgment and decree dated 27.7.2009 allowed the appeal and decreed the suit of the plaintiff against defendants No.1 and 2. The counter RSA No. 3350 of 2009 (O&M) -4- claim filed by defendant No.2 was ordered to be dismissed. Hence, the present appeal by the defendant No.2. Learned counsel for the appellant has submitted that the suit filed by the plaintiff qua the appellant was liable to be dismissed as the agreement to sell in question was purported to have been executed on 22.10.1997 through his general attorney though the amount of the earnest money was received by the appellant on the same day. In case the appellant was available on 22.10.1997, he could have executed the agreement to sell himself. The appellant had not executed general power of attorney in favour of defendant No.3. Learned counsel for the respondent No.1, on the other hand, has submitted that the plaintiff had been successful in proving his case. Defendants No. 1 and 2 had executed the agreement to sell in favour of the plaintiff through their general power of attorney. The receipt had been executed by the defendants qua receipt of the earnest money from their attorney holder. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. The question that requires consideration in this case is as to whether defendant No.2 had executed a power of attorney in favour of defendant No.3 qua his land. In the present case the plaintiff had filed suit for specific performance of agreement to sell in question dated 22.10.1997. The said agreement to sell in question was executed by the defendants No. 1 and 2 in favour of the plaintiff through their general power of attorney-defendant No.3. On the same RSA No. 3350 of 2009 (O&M) -5- day, defendants No.1 and 2 executed a receipt after they had received the earnest money of ` 1,60,000/- from their attorney. The receipt Ex.P-4 is duly signed by defendants No. 1 and 2 whereas, the agreement to sell in question is duly signed by the attorney-defendant No.3. So far as defendants No. 1 and 3 are concerned, they had admitted the execution of the agreement to sell as well the receipt in question. Defendant No.2-appellant had denied the execution of the general power of attorney in favour of defendant No.3 as well as the agreement to sell and receipt in question. A perusal of Ex.P-1 general power of attorney reveals that the same bears the photographs of defendants No. 1 and 2. It is a registered document. Defendant No.2 in his cross examination deposed that he had got the general power of attorney cancelled. Ex. P-8 is the notice issued to defendant No.3 by defendant No.2. As per Ex.P-8, notice was sent to defendant No.3 qua cancellation of general power of attorney dated 14.8.1992 executed by defendant No.2 in favour of defendant No.3. The general power of attorney was cancelled vide registered deed dated 19.11.1997. Although in the said notice, the date of power of attorney is given as 14.8.1992 but it was never pleaded by the defendant No.2 that he had executed a power of attorney in favour of defendant No.3 in August 1992 and the same was cancelled vide registered deed dated 19.11.1997. In these circumstances, it can be assumed that at the time when the agreement to sell in question was executed by the defendant No.3 as attorney of defendant No.2, he had a valid general power of attorney, executed in his favour by defendant No.2. A perusal of RSA No. 3350 of 2009 (O&M) -6- the receipt reveals that the earnest money had been received by defendants No. 1 and 2 from their attorney on 22.10.1997. Since the defendants No. 1 and 2 had executed a power of attorney in favour of defendant No.3, defendant No.3 executed the agreement to sell qua the land belonging to defendants No. 1 and 2 in favour of the plaintiff and thereafter, the defendants No. 1 and 2 had received the earnest money from defendant No.3 vide receipt Ex.P-4. The fact that the agreement to sell in question and receipt Ex.P-4 have been executed on the same date does not lead to the inference that the agreement to sell in question is not a genuine document. The execution of the agreement to sell in question has been admitted by the defendant No. 3. In these circumstances, the suit filed by the plaintiff was liable to be decreed. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE May 31, 2011 Gurpreet