R.S.A. No. 4282 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4282 of 2008 Date of Decision: 13.10.2009 Jagjit Singh Syal son of Late Sh. Jai Singh Syal, permanent resident of Gali No. 2, Nawi Abadi Gate Bhagtanwala, Amritsar. ... Appellant Versus 1. Amrik Singh son of Mula Singh; 2. Surjit Kaur wife of Amrik Singh; 3. Beant Bir Singh son of Amrik Singh; 4. Narinderpal Singh son of Amrik Singh; all residents of village Tung Bala, Tehsil and District Amritsar. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Amit Jain, Advocate, for the appellant. Mr. B. R. Mahajan, Advocate, for respondents No. 2 to 4. Respondent No. 1, exparte. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 04.12.03, rendered by the Court of Additional Civil Judge R.S.A. No. 4282 of 2008 2 (Senior Division), Amritsar, vide which, it decreed the suit of the plaintiff for recovery, and the judgement and decree dated 18.07.08, rendered by the Court of Additional District Judge, Amritsar, vide which, it partly accepted the appeal. 2. The facts, in brief, are that, the property, in dispute, is the Joint Hindu Family property. The defendants, are the joint owners of the land, in dispute, measuring 21 kanals 19 marlas, on a part whereof, a poultry farm, had been constructed. It was stated that, since the year 1987, the plaintiff, has been in continuous possession of the land, in dispute, as a tenant, at a monthly rent of Rs. 1500/-, wherein, he has been running his poultry farm, under the name and style of M/s J.J. Broiler Farm. It was further stated that the tenancy of the defendant, in respect of the land, in dispute, was oral, accompanied by the delivery of possession. It was further stated that, during the subsistence of tenancy of the plaintiff, the defendants, through their attorney, i.e. defendant No. 1, executed a registered lease deed dated 06.05.91, in his favour. It was further stated that all the terms and conditions of the said lease deed, were duly incorporated, in a writing, according to which, the lease, was at the rate of Rs. 3,000/- per month. It was further stated that the defendants, executed an agreement to sell dated 06.05.91, through their attorney, for the sale of the land, in dispute, in the sum of Rs. 4,33,219/-, out of which, they received a sum of Rs. 2,63,000/-, and the balance amount of Rs. 1,70,219/-, was agreed to be paid, at the time of execution of the sale deed. It was further stated that, it was agreed, R.S.A. No. 4282 of 2008 3 that the sale deed, in respect of the land, in dispute, would be executed, after getting the part thereof, redeemed from the United Commercial Bank. It was further stated that the plaintiff, had always remained ready and willing to perform his own part of the contract, and get the sale deed executed, in his favour, as per the agreement, but it were the defendants, who breached the terms thereof. It was further stated that a legal notice dated 16.01.94, was also served upon the defendants, through registered AD Post, which was duly received, by the them, but despite that, they failed to perform their own part of the contract. The defendants, were many a time, asked to perform their own part of the contract, but to no avail. Ultimately, a suit for specific performance, and, in the alternative, for the recovery of earnest money alongwith interest, was filed. 3. Defendant No. 1, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was stated that the plaintiff, did not comply with the terms and conditions of the agreement, in question, and, thus, was never ready and willing to perform his own part of the contract. It was further stated that the land, in dispute, already stood redeemed, on 28.08.90. It was denied that the land, in dispute, was a joint Hindu Family property. It was admitted that, there existed a poultry farm, on the land, in dispute, which was given, to the plaintiff, at a monthly rent of Rs. 1500/-. It was further stated that defendants No. 2 to 4, never gave any power of attorney, in favour of defendant No. 1, to execute the agreement to sell, R.S.A. No. 4282 of 2008 4 on their behalf, in favour of the plaintiff. It was denied that defendant No. 1, executed an agreement to sell, on behalf of defendants No. 2 to 4, in favour of the plaintiff. It was admitted that the agreement to sell, was executed, by defendant No. 1, on his behalf. It was further stated that the plaintiff, failed to perform his own part of the contract, as he was not having any ready money, for the payment of stamp and registration charges, as also the sale consideration, referred to above. It was further stated that the land, being already redeemed, on 28.08.90, i.e. prior to the execution of the agreement, it was never stipulated, therein, that the land, in dispute, would be got redeemed, from the United Commercial Bank. It was further stated that the plaintiff never approached defendant No. 1, for the execution of the sale deed. The remaining averments, were denied, being wrong. 4. Defendants No. 2 to 4, filed a separate written statement, wherein, it was pleaded that the suit, was not maintainable. It was stated that defendants No. 2 to 4, never authorized, defendant No. 1, to execute the agreement to sell, in favour of the plaintiff, on their behalf, nor did they execute any power of attorney, in favour of defendant No. 1 to execute the agreement to sell, on their behalf. It was further stated that the agreement executed by defendant No. 1, qua the land, in dispute, in favour of the plaintiff, was illegal, void, and inoperative, in the eyes of law. It was further stated that there was no privity of contract, between the plaintiff and defendants No. 2 to 4. It was further stated that the plaintiff had no cause of action, to file the suit. It was R.S.A. No. 4282 of 2008 5 further stated that the plaintiff, was not entitled to specific performance of the alleged agreement to sell. It was further stated that the defendants are the co-sharers, in the property, in dispute, and the same is still joint. It was further stated that defendant No. 1, was not competent to execute any agreement to sell, on behalf of defendants No. 2 to 4. It was further stated that the land, in dispute, was the self- acquired property of all the defendants, as the same, was purchased, by them, after spending money individually. It was further stated that the land, in dispute, whereon, the poultry farm, was, in existence, was given, on rent, to the plaintiff, at the rate of Rs. 1500/- per month, for running his business. It was further denied that the lease deed dated 06.05.91, at the rate of Rs. 3000/- per month, was executed, by the defendants, in favour of the plaintiff. It was further stated that defendants No. 2 to 4, never received any earnest money, nor did they ever intend to sell their property. It was further stated that, in case, there was any agreement, on behalf of defendant No. 1, in favour of the plaintiff, in respect of the land, in dispute, the same, was not binding upon defendants No. 2 to 4, as they were not a party to the same. 5. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff has been and is willing and ready to perform his part of the agreement? OPP (ii) Whether the plaintiff is entitled to the specific performance of agreement dated 06.05.91? OPP R.S.A. No. 4282 of 2008 6 (iii) Whether the plaintiff is entitled to the injunction claimed? OPD (iv) Whether the suit is properly valued? OPP (v) Whether there was privity of contract between the plaintiff and defendants No. 2 to 4, if not, to what effect? OPP (vi) Relief. 6. The following additional issue, was framed, by the trial Court, vide order dated 30.01.03:- 5-A)Whether the suit is malafide and the said agreement is the result of fraud played with the defendants? OPD 7. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court, decreed the suit of the plaintiff for recovery. 8. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was accepted, by the Court of Additional District Judge, Amritsar, vide judgement and decree dated 18.07.08, and defendant No. 1, was directed to execute the sale deed, in favour of the plaintiff, to the extent of his share, in the property, in dispute. 9. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The following substantial question of law arises, in this appeal, for the determination of this Court:- R.S.A. No. 4282 of 2008 7 Whether the first Appellate Court, recorded a perverse finding, on account of misreading and misappreciation of evidence, that Amrik Singh, defendant No. 1/respondent, was not duly authorized, by respondents No. 2, 3, and 4, to enter into an agreement to sell, on 06.05.91, in respect of the land, in dispute, in favour of the plaintiff/appellant? 12. The Counsel for the appellant, submitted that respondent No. 1, was duly authorized, by respondents No. 2 to 4, to execute the agreement to sell, aforesaid, on their behalf, in favour of the plaintiff/appellant. He further submitted that, even earlier, a lease-deed, was executed, by respondent No. 1, on his behalf, and on behalf of the remaining respondents, in favour of the appellant. He further submitted that a legal notice, copy whereof, is P11/A, was also issued, by the appellant, to the respondents. He further submitted that, in reply, exhibit P11, to that notice, in para No. 2, it was, in clear-cut terms stated that, since the appellant, did not get the sale deed executed, as per the terms and conditions, incorporated, in the agreement to sell dated 06.05.91, the earnest money, if any, paid, in advance, stood forfeited. He further submitted that, under these circumstances, it could not be said, that respondent No. 1, was not competent to enter into agreement to sell, on behalf of the other respondents, as their attorney. He further submitted that the first Appellate Court, was, thus, wrong in decreeing the suit only, in respect of part of the property, in dispute, to the extent of the share of respondent No. 1. He further submitted that the judgement and decree of the first Appellate Court, R.S.A. No. 4282 of 2008 8 being illegal, were liable to be set aside. 13. On the other hand, the Counsel for the respondents, submitted that respondent No. 1, was never authorized, by respondents No. 2 to 4, to execute the agreement to sell, on their behalf, in respect of the land, in dispute, in favour of the appellant. He further submitted that, no power of attorney, whatsoever, allegedly, having been executed by respondents No. 2 to 4, in favour of respondent No. 1, was placed, on record. He further submitted that, since respondent No. 1, was not duly authorized, orally or in writing, by respondents No. 2 to 4, to execute the agreement to sell, in respect of the land, in dispute, in favour of the appellant, on their behalf, the first Appellate Court, was right, in granting decree for specific performance only, in respect of the share of respondent No. 1, in the property in dispute. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, are liable to be upheld. 14. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law that this Court, cannot interfere with the findings of fact, recorded by the first Appellate Court, until and unless, it comes to the conclusion, that the same are the result of misreading and misappreciation of evidence. Admittedly, no power of attorney, was executed, by respondents No. 2 to 4, in favour of respondent No. 1, to execute the agreement to sell, in R.S.A. No. 4282 of 2008 9 respect of the land, in dispute, on their behalf, in favour of the appellant. Even, there is nothing, on the record, that they orally authorized respondent No. 1, to execute the agreement to sell, in respect of the land, in dispute, in respect of their share, in favour of the appellant. Under these circumstances, respondent No. 1, was not competent to execute the agreement to sell, in respect of the land, in dispute, belonging to respondents No. 2 to 4. The mere fact that, respondents No. 2 to 4, are the near relations of respondent No. 1, did not mean that, he was competent to deal with their share, in the property, in dispute, by way of executing the agreement to sell. Mr. B.K. Gupta, Advocate, was examined, as PW2, who sent reply exhibit P11, to the notice P11/A, on behalf of the respondents. In his cross-examination, it was stated by him, that Surjit Kaur, Beant Bir Singh, and Narinderpal Singh, respondents No. 2 to 4, had never come to his office, nor did they give any power of attorney, on their behalf, to respondent No. 1, and the reply, to the notice, was sent, at the instance of Amrik Singh. No help, therefore, can be drawn, by the Counsel for the appellant, from reply P11, given by the Counsel for respondent No. 1. 15. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgment and decree of the first Appellate Court, are, thus, liable to be R.S.A. No. 4282 of 2008 10 upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. The substantial question of law, depicted above, is, thus, answered against the appellant. 17. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 13.10.2009 (SHAM SUNDER) Amodh JUDGE