THE HONOURABLE SRI JUSTICE G. CHANDRAIAH A.S. No.2440 of 2004 Date: 18-12-2009 Between: Smt.Khairunnisa Begum and another … Appellants And Syed Mujeebuddin and another … Respondents THE HONOURABLE SRI JUSTICE G. CHANDRAIAH A.S. No.2440 of 2004 JUDGMENT: This appeal has been filed against the judgment and decree dated 29.12.2003 passed in O.S. No.700 of 1997 by the learned II Additional Senior Civil Judge, R.R.District. The appellants and the respondents herein are the defendants and the plaintiffs in O.S. No.700 of 1997, respectively. For the sake of convenience, the parties hereinafter referred to as they were arrayed in O.S. No.700 of 1997. O.S. No.700 of 1997 was filed by the plaintiffs against the defendants for specific performance of agreement dated 20.12.1989 and to direct the defendants to execute a registered sale deed in favour of the plaintiffs based on a sale agreement dated 20.12.1989 in respect of schedule property to an extent of Acs.26.14 guntas in Survey No.1067 and 1068 of Medchal Village. The said suit was decreed in favour of the plaintiffs vide judgment and decree dated 29.2.2003. Aggrieved by the same, the defendants preferred present appeal. The case of the plaintiffs, in brief, is that the defendants are the owners of land to an extent of Acs.11.34 guntas in Survey No.1067 and Acs.14.20 guntas in Survey No.1068, total extent of Acs.24.14 guntas. The defendants executed General Power of Attorney on 14.10.1988 with registered document No.3415 of 1988 in favour of one Sri Syed Mohd Abdul Khadir, S/o. Syed Anwar-ul-Rahim to sell and deal with the schedule property. In pursuance of the said GPA, original power of attorney offered to sell the schedule property to the plaintiffs for a total consideration of Rs.2,63,500/- and the plaintiffs accepted the same. Accordingly, the plaintiffs and GPA holder entered into an agreement of sale dated 20.12.1989 and on the same day the plaintiffs paid an amount of Rs.50,000/- towards earnest money. Further the plaintiffs also paid an amount of Rs.40,000/- on 19.08.1991 and Rs.1,10,000/- on 02.12.1994 and obtained receipts from the Power of Attorney holder. The plaintiffs altogether paid an amount of Rs.2,00,000/- and due only Rs.63,500/- towards balance of total consideration. Though there is no time limit in the sale agreement for execution of the sale deed, the plaintiffs demanded the defendants several times to execute the sale deed and the defendants agreed to execute the sale deed in favour of the plaintiffs on 16.08.1997 on the ground that the power of attorney was busy with other works. On 16.08.1997 the plaintiffs approached the defendants and their power of attorney to fix the date for execution of the sale deed but the defendants demanded Rs.2,00,000/- towards additional amount and refused to execute the sale deed stating that the cost of the land is shoot up. Later on, the plaintiffs came to know that the defendants already entered into an agreement of sale with third parties in respect of the suit schedule property and apprehending further execution of sale deed in favour of third parties, suit was filed. On behalf of the defendants written statement was filed stating that the scheduled property is the self acquired property of Syed Azmathulla Quadri, who is husband of the first defendant and father of 2nd defendant and one Fathima. It is not disputed that the first defendant executed General Power of Attorney in favour of Syed Abdul Khadir but with an intention to protect and develop the properties and thereafter the General Power of Attorney executed in favour of the said Syed Abdul Khadir was cancelled by executing a registered cancellation deed No.80 of 1997 on 23.04.1997. In respect of the said cancellation, paper publication was also given besides issuing notice to the said power of attorney holder to furnish the details of acts, which were done by him and any amounts received by him in respect of the schedule property. The GPA holder also issued a reply notice by way of publication without mentioning anything about the suit transaction or any transaction and payments received. It is also submitted that the plaintiffs were working under the GPA holder and after cancellation of the power of attorney dated 14.10.1988, the power of attorney holder and the plaintiffs brought into existence the sale agreement dated 20.12.1989 to grab the suit property and the sale agreement was not in the knowledge of the defendants and they have not received any sale consideration. On the other hand, the second plaintiff is the attester of the sale deeds executed in favour of the third party in respect of schedule property that itself is sufficient to say that the sale agreement was fabricated and brought into existence. It is the particular submission of the second defendant that he is not a party to the sale agreement, therefore, he filed a petition under Order VII Rule 11 to reject the plaint in I.A. No.206 of 1998 and it was observed that this defendant is not a party and the plaintiff has no cause of action against this defendant. Further, it is the common case of these defendants that the GPA holder was not impleaded as party. Therefore, the suit is bad for non-joinder of necessary parties. Based on the said adversary pleadings, the learned trial Court framed the following issues for trial: “1. Whether the agreement of sale, dt.20-12-89 is true and valid? 2. Whether any sale consideration is paid to the defendants as contended? 3. Whether GPA, dt.14-10-89 is true and valid? 4. Whether the D2 is not a necessary party to the suit? 5. Whether the plaintiffs are entitled to specific performance of agreement? 6. To what relief?” During the course of trial, on behalf of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-9 were got marked. On behalf of the defendants, D.W.1 was examined and Exs.B-1 to B-24 were got marked. On considering the evidence, oral and documentary, on record the learned trial Court, eventually, held that the plaintiffs are entitled to specific performance of agreement as prayed for and accordingly the suit was decreed in favour of the plaintiffs. The learned counsel for the appellants/defendants submitted that the GPA executed under Ex.B-1 was cancelled under Ex.B-2, therefore, the plaintiffs are not entitled to any relief as sought for. He also submits that the defendants also put up the claim of partition, which was not properly considered by the learned trial Court. Therefore, the learned trial Court has went in perversity in considering the matter. Therefore, the impugned judgment and decree is liable to be set aside. On the other hand, the learned counsel for the respondents/plaintiffs, inter alia, submitted that admittedly once the GPA was executed by the defendants on 14.10.1988 in favour of Sri Syed Mohd Abdul Khadir and he in pursuance of the said GPA, entered into an agreement of sale dated 20.12.1989 with the plaintiffs. As per the agreement of sale, as against the total consideration of Rs.2,63,500/-, an amount of Rs.2,00,000/- was paid and as on the date of filing of the suit, only an amount of Rs.63,500/- was to be paid. He further submitted that during the pendency of the suit by virtue of the order dated 27.10.1997 passed in I.A. No.1774 of 1997 the plaintiffs deposited remaining sale consideration of Rs.60,000/- on 01.11.1997. Thereby, the total consideration has been paid. It is also submitted that during the period from 14.10.1988 to 20.12.1989 the GPA dated 14.10.1988 was in force and any transaction entered into by the GPA holder is valid and binding on the defendants and any subsequent transactions thereby, pursuant to Ex.B-2, if any alienation is made in favour of any third party, such transaction is principle of lis pendens and no third party is entitled to claim any right over the property. He also submitted that the relief under Specific Relief Act is the discretionary and what all the Court has to consider is reasonability of conduct of parties and the sequence of events in this case and intention on the part of the defendants, which are reasonably considered by the learned trial Court and found that the contention of the defendants is unsustainable. Therefore, eventually, he submitted that the impugned judgment and decree does not suffer from any legal infirmity and the appeal is liable to be dismissed. The point for consideration is that whether the impugned judgment and decree suffers from any legal infirmity? It is not in dispute that the defendants have made GPA in favour of one Sri Syed Mohd Abdul Khadir on 14.10.1988 under Ex.B-1. Based on the said GPA, the power of attorney holder entered into an agreement of sale with the plaintiffs on 20.12.1989 under Ex.A-1. The main disputed question from the side of the defendants was that though they have made GPA in favour of Sri Syed Mohd Abdul Khadir on 14.10.1988, the same was cancelled on 23.04.1997 under Ex.B-2. So, it is obvious from the above that the GPA dated 14.10.1988 was very much in existence as on the date of agreement of sale dated 20.12.1989. Whatever the agreements that have been entered into by the GPA holder between the period from 14.10.1988 to till alleged cancellation was made, the defendants have to bind by the agreements entered into by the GPA holder. The main contention of the plaintiffs was that they have paid total sale consideration and in support of their claim they have adduced sufficient material evidence i.e. Exs.A-2 to A-4 and the same are considered and discussed in detail by the learned trial Court. As could be seen from the impugned judgment, the learned trial Court had substantially considered the evidence on record and all other contentions raised on either side and during the course of examination of witnesses nothing was found against the plaintiffs and the Court below had thoroughly considered the issues, based on the record, and the learned counsel for the appellants/defendants could not bring to the notice of the Court any element of perversity from the impugned judgment. On the other hand, it is pertinent to note that before filing the suit substantial amount was paid by the plaintiffs and thereafter by virtue of the order passed by the Court below in I.A. No.1774 of 1997 remaining balance amount was also paid. Thereby, total consideration was paid. Therefore, under those circumstances, the impugned judgment is in accordance with law and does not suffer from any legal infirmity. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, I am of the view that the judgment and decree dated 29.12.2003, passed in O.S. No.700 of 1997 is in accordance with law and no interference of this Court is required and the same is liable to be confirmed. Accordingly, the judgment and decree dated 29.12.2003 passed in O.S. No.700 of 1997 by the learned Additional Senior Civil Judge, R.R. District is confirmed and the instant appeal is dismissed. There shall be no order as to costs. _________________________ JUSTICE G. CHANDRAIAH Date: 18.12.2009 LSK