RSA No. 1111 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1111 of 2009 (O&M) Date of decision: November 1, 2010 Dr. Mrs. Rakbir Kaur ...Appellant Versus Nasib Kaur and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Baldev Kapoor, Advocate, for the appellant. Mr. AK Goel, Advocate, for respondent No.1. Mr. Akshay Bhan, Advocate with Mr. Santosh Sharma, Advocate, for respondent No.4. GURDEV SINGH, J. (Oral) CM No. 13807 C of 2009 Heard. This application has been filed by the appellant to the effect that Sunita Gill-respondent No.2 has already died and her legal representatives, namely, Ravinder Singh Gill and Namita Gill-respondents No. 3 and 4 respectively, who are already on record in their individual capacity, be brought on record as legal representatives of said respondent. Allowed subject to all just exceptions. Main Case The plaintiff/appellant, Rakbir Kaur, having lost before the trial court and the first appellate court in her suit for possession of the land in dispute measuring 35 kanal 7 marla situated in village Karoran, Tehsil Kharar, fully detailed in the heading of the plaint, by way of specific RSA No. 1111 of 2009 2 performance of the agreement dated 30.4.1990, has come up with the present second appeal, challenging the judgments and decrees passed against her by the courts below. The plaintiff pleaded in her plaint that defendants/respondents agreed to sell the land in dispute in her favour at the rate of ` 3.5 lakhs per acre vide agreement to sell dated 30.4.1990 and received ` 4.25 lakhs as earnest money. The sale deed was to be executed on 25.6.1990. She had been contacting the defendants for executing the sale in her favour but they had been getting time on one excuse or the other. On 22.4.1998, Satwant Singh Gill-defendant No.2, having joint interest with the other defendants received ` 95,000/- and the date for the execution of the sale deed was extended upto 30.4.1994. She had been asking the defendants to execute the sale deed but they had been putting off the matter on the pretext that they wanted to get an income tax clearance certificate also. She further pleaded that when she obtained copies of the jamabandies for the year 1988- 1989 and 1990-1991 on 2.4.1996, she came to know that the defendants have already sold much of the land which they had agreed to sell in her favour. She is entitled to get the sale deed executed and registered in her favour in respect of the remaining land which still stands in the name of the defendants. Throughout she had always been ready and willing to complete the sale transaction but it is on account of failure of the defendants that the same could not be done. The defendants filed a joint written statement contesting the claim of the plaintiff. They admitted the agreement so executed in favour of the plaintiff regarding the suit land but they denied the other contentions made in the plaint. They pleaded that there was no question of receiving RSA No. 1111 of 2009 3 sum of ` 95,000/- after the expiry of the date fixed for execution of the sale deed, in terms of the agreement to sell and no such amount was received by them. There was no question of extending the time for execution of the sale deed. The plaintiff never contacted them with the request to execute the sale deed in her favour and, in fact, she was never ready and willing to perform her part of the contract. She has no right to file the present suit and is not entitled to any specific performance of the agreement. In the replication to the written statement, the plaintiff denied the contentions raised therein and reiterated all the averments made in the plaint. On the pleading of the parties, the following issues were framed by the trial court:- 1. Whether the defendants entered into agreement of sale of 30.4.90 in favour of the plaintiff after receiving the earnest money of Rs. 4,25,000/- ? OPP 2. Whether the plaintiff is ready and willing and is still ready and willing to perform the part of contract ? OPP 3. Whether plaintiff is entitled to specific performance of agreement of sale deed dated 30.4.90 ? OPP 4. Whether plaintiff is entitled to injunction prayed for ? OPP 5. Relief. To succeed in the suit, the plaintiff examined herself as PW-3 Jasbir Singh (PW-1) and Dr. Kulwant Gill (PW-2). On the other hand, the defendant No.3 Sunitla Gill entered the witness box as DW-1. After going through the evidence so produced on the record RSA No. 1111 of 2009 4 and hearing learned counsel for both the sides, the trial court decided issues No. 1 to 4 in favour of the plaintiff qua Satwant Singh Gill-defendant No.2 and resultantly, decreed the suit against that defendant, while dismissing the suit against the other defendants, vide judgment and decree dated 20.9.2004. The plaintiff filed the appeal against that judgment and decree. The judgment and decree of the trial court was upheld except with a modification that it was Sunita Gill-defendant No.3, who was directed to execute the sale deed in favour of the plaintiff on the ground that the estate of defendant No. 2 was inherited by her. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the plaintiff that Sunita Gill defendant No.3 had executed general Power of Attorney in favour of Satwant Singh Gill and by virtue of that power of attorney in favour of Satwant Singh Gill, she had given the authority to receive the sale consideration on her behalf and to extend the time for execution of the sale deed. No doubt, this power of attorney was not proved before the trial court but an application was filed before the first appellate court for proving the same by way of additional evidence and that application was wrongly dismissed by the first appellate court. The plaintiff had no knowledge of that power of attorney at the time the suit was decreed by the trial court and, as such, she should have been allowed to produce and prove the same by way of additional evidence. Once that power of attorney is taken into consideration, it is to be concluded that the time for the execution of the sale deed was extended on behalf of Sunita Gill defendant No.3 also and the suit is to be decreed against her also. On the other hand, it has been submitted by learned counsel for RSA No. 1111 of 2009 5 the legal representatives of Sunita Gill-defendant No.3 that no such plea was taken by the plaintiff in the original plaint nor any request was made at any stage for the amendment of the pleadings so as to take up the plea, which is now being raised by the plaintiff in the second appeal. In the absence of such a plea, the first appellate court was very much justified in dismissing the application for additional evidence. He also submitted that the said endorsement on the back of the agreement extending the period for execution of the sale deed was made after the power of attorney came into existence and no such authority was given to the attorney. In the absence of such authority, it cannot be said that Satwant Singh Gill had the authority to extend the time on behalf of Sunita Gill. The process for the sale of the land was initiated by Sunita Gill- defendant herself. No doubt, by virtue of the said power of attorney she had authorized Satwant Singh Gill to alienate her property also but neither any authority was given by her to said attorney holder to receive the balance amount on her behalf nor any authority was given by her to extend the date for the execution of the sale deed. The transaction of this sale had already been entered into by the principal herself. The position would have been different if the sale transaction had been entered by the attorney on behalf of the principal herself. Even implied authority cannot be inferred from the terms of the said power of attorney. The concurrent findings have been recorded by the lower courts and it cannot said that any substantial question of law arises in the present appeal. The same is dismissed accordingly. November 1 , 2010 (GURDEV SINGH ) prem JUDGE RSA No. 1111 of 2009 6