* IN. THE HIGH COURT OF DELHI AT NEW DELHI + RSA No.174-76/2005 Sh.Girdharj Lal (since deceased) through LRs. .... Appellants Through: Mr.Madan Gera, Advocate. Versus Mrs. Shanti Devi (since deceased) through LRs. 1...Respondents , . Through: •.CORAM: HON'BLE MR. JUSTICE J.P. SINGH %. ORDER 19.7.2005 C. NO9335105 Allowed, subject to all just exceptions. RSA l'oi74-76/05 & CMNo9334/2005 1, The original parties have expired. The second generation is contesting this rnatter,The litigation commencedin the year 1971, 2. This RSA under section 100 CPC is directed against the judgment and dectee dated 4.4.2005 passed by the first appellate court dismissing the RSA No.17476/2005 paqe 1. of 9 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified first appeal filed by the defendant (now .E.Rs) against the judgment and decree dated 3,1,1978 passed by the Civil Judge, Delhi decreeing the suit of the plaintiff for speciflc performance of the agreement to sell and the trial court also gave directions for obtaining the ttqnisite permission from the Land & Development Office, for sale of the property. The suit was filed by Smt.Shanti Dcvi wife of Sh.Hakam Rai against Sh.Girdhari Lal as defendant no.1 and herown husband Sh,Hakam Ral as defendant no.2, for specific perform ance of the agreement to sell dated 23.10.1967 and mandatory injunction for ditections to obtain necessary permission from L&D Office for sale of the property. The said suit stood automatically abated. The matter went upto the High Court of l)elhi The ahatment was ultimately set aside and partieswere ditected to file amended memos so as to bring the LRs of the. parties on the record, 1 have heard the Id. counsel for the appellant on the admission of the appeal and. CM, No.9334/05 for stay of the operations of the first appellate court's judgment & decree. I have gone thrpugh both the judgments and copies of the documents placed on record. RSA No.174-7612005 paqe2of9 S. The following "questions of law" have been proposed on behalf of the appellant in this Regular Second Appeal: Whether a suit for specific performance can be decreed when the facts necessary to constitute the cause of action as per Agreement entered into between the parties have neither been pleaded nor proved on the record, more particularly when the plaintiff was relying wholly upon the "Agreement", Whether Crtificate of Registration granted by the Registering Authority is only a proof • of "Admission of Document" or proof of "Rxecution of Document" as such, When execution of a document is challenged, whether Certificate of Registration alone will be sufficient proof of "due execution of document" and whether Registration alone shall dispense with necessity of proof. Whether a specific endorsement or independent certificate is required to be given on a document that the document was read over and explained to the Vendor in his veinaculr language, more particularly if the • ' document is drafted by a Deed Writer and / illiteracy of Vendor is established on tcord, Whether Court can return a finding that plea of fraud cannot be looked into as the pleadings do not disclose the manner in which fraud was committed, more RSA No.174-7612005 page 3 of 9 o ) particularly when the circumstances have been disclosed in pleading (written statement) pointing out :clea.rly the fraudulent manner in which Agreement was got executed by defendant no.2 from Appellant by taking advantage of his not understanding Rnglish language and by keeping him in dark about the nature and contents of.the documents. Whether court can look into the pleas made in the, earlIer Written Statements when Amended Written Statement was on record, more particularly, when Appellate Court itself has observed that earlier judgment delivered by Court was a waste piece of paper and cannot be looked into. When the earlier judgment in the same case could not be looked into, can earlier written statement be relied upon to the disadvantage of the Appellant. 6, The brief fts relating to the merits of the case are that Sh,Girdhari ri (Defendant no.1) entered into an agreement o sell his property for a sum of Rs12,000/- to Smt.Shanti Devi (Plaintiff) w/o Sh,Hakarn Ral, The 1. said agreement to sell was duly registered with the sub-registrar New Delhi on 27.10.1967 and a sum of Rs,8060/- was paid. Deft. No.1 delivered vacant possession of a portion of a property to the plaintiff. The balance amount was to be paid at the time of execution of the sale deed before the RSA No.17476/2005 page 4 of 9 sub-Registrar. As was and is the practice to hind down the vendor an irrevocable general power of attorney was executed by defendant no.1 (vendor) in favour of hu.sband of plaintiff (Defendant no.) authorizing him to complete the sale and that is why the plaintiff impleaded her husband as defendant no.2. The irrevocable general power of attorney wac also registered with the office of Sub Registrar, New Delhi. When her husband applied to the Land and Development office for permission to sell, which • was quite in order because it was a lease hold property, the vendor (defendant no.1) raised objections in the office of the L&D officer. The earlier suit was merely for mandatory injunction, so it was dismissed. The plaintiff preferred a appeal and was allowed to amend the plaInt and this is how the suit for specific performance of agreement to sell and mandatory injunction came into being+ The defendant No. 1 inter-aBa contended that the documents were got executed by fraud and misrepresentation and i n fact he was given a loan of Rs.55001- and possession of the part of property •• was delivered as security and later he said that it was given I on teat and rent was toadjuq toward.s loan and in fact there was no agreement to sell or irrevocable power ofattorney. On the pleadings of the parties the fo1loing F(SA No.17476/2005 pane 5 of 9 It fl issues were framed by the trial court :- Whether defendant no, 1 entered into an agieement of sale with the plaintiff on 23.10.1:967 and received Rs.8060/- as part consideration? OPP. Whether defendant no.1 executed a irrevocable • power of attorney in favour of defendant no.2 • for completing the formalities of sale, if so, to what effect? • (3) Whether plaIntiff obtained the agreement of sale in her favour and the power of attorney in favourof defendant no.2 by misrepresentation and fraud as alleged in the Written Statement? OPD-i. Whether the suit has been properly valued for the purposes of court fee and jurisdiction. OPP. Whether the plaintiff is entitled to the injunction prayed for? • (6) Whether plaintiff is willing to perform her part • of the contract, if so, to what effect? (7) Relief. RSA No.17476/2005 page 6 of 9 7. All the issues were based on evidence and especially the evidence of the scribe PW-2 who deposed in the court that the documents were executed at the instance of defendant no, 1 meaning thereby that the agreement to sell and the irrevocable general power of attorney were conscious decisions of, the deft, No.1. The trial court held that no particulars of fraud or misrepresentation were detailed therefore the suit was dereed, • 8, The fIrst appellate court it-appreciated the entire evidence and did not believe in the story of the defendant.no,l that plaintiff and her husband had taken advantage of his illiteracy and after giving him .a loan of Rs5500/- got the agreement to sell and irrevocable power of attorney executed and that he also delivered a portion of imnrioveahle property as security for the alleged loan or gave it on rent. The defendant No, 1 's contention was that he had paid Rs, 1600/- against receipt and was reaIy to pay balance Rs.39001-, of the loan amount but the plaintiff and her husband were not accepting that money and meanwhile be had revoked the power of attorney, though it was irrevocable, RSA No.17476/2005 • paqe 7 of 9 I 0 9, Ld, counsel for the appellant , in this court has contended that registration of the agreement to sell and the irrevocable general power of attorney does not mean the execution of those documents Secondly when the earlier judgment before amendment was treated as a "waste pape" then earlier pleadings could not be relied upon, in my view when the pleadings were on the file the same could be taken note of for arilving at a just conclusion, The first appellate court has also referred to the contradictions o.1 regardIng the alleged refund of Rs', 1600/- on the part of the defendant N in instalments and the plea that he was to charge rent for part of the portion handed over by him to the plaintiff and the said rent was to be adjusted by the plaintiff against the said 0 , loan, if that was so why he paid hack Rs.16001- in instalments and why he was ready to pay the balance of Rs,3900/- He did not even disclose the rate of rent which was to be adjusted against the loan. 10. Considering all the facts and circumstances and the reasons given by . 0 • • both the courts on the questions of facts and law, I do not find any question of law much less a substantial question of law to be decided in this Regular RSA No.174-76/2005 ' , , paqe 8 of 9 / Second Appeal. The appeal is/iherefore dismissed. The CM. NO.9334/05 .1 for stay of the opemtion of impunged judgernent & decree does not survive and stands dismissed. • July 19, 2005 jSingh, j. srb L • H RSA No.174.76/2005 pane 9 of 9 11