R.S.A. No. 549 of 1996 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No. 549 of 1996 (O&M) Date of Decision:- 14.12.2009 Santokh Singh .... Appellant. Versus Kuldip Singh & Ors ....Respondent CORAM:- HON'BLE MRS. JUSTICE SABINA. Present:- Mr. B.R.Mahajan, Advocat, for the appellant. Mr. Gurcharan Singh, Advocate, for the respondent. Sabina (J) Plaintiff- Kuldip Singh filed a suit for specific performance. Vide judgment and decree dated 8.6.1993, the suit of the plaintiff was decreed by Sub Judge Ist Class, Amritsar. Aggrieved by the same, defendants-Surjit Singh & Ors filed an appeal and the same was dismissed by the Addl. District Judge, Amritsar, vide judgment and decree dated 25.11.1995. Hence the present appeal by the defendant No.2. The facts of the case in brief, as noticed by the lower appellate Court in para No. 2 to 4 of its judgment read as under:- "2. During the pendncy of the suit the defendants No. 1 to 3 have sold part of the suit land to the defendant No. 5. That all the defendants knew about the pendency of the present suit and that the court had granted stay order. That they were R.S.A. No. 549 of 1996 (O&M) informed not to effect any alienation but they refused. That the sale deed dated 6.5.1987 executed by the defendants No. 1 to 3 is hit by the priniciples of lispendis and does not effect the rights of the plaintiff. That the defendant Nos. 1 to 3 are the owners of the suit land measuring 19 Kanals 2 marlas being 1/6th share of the total land mentioned inthe head note of the plaint. That the defendants No. 1 to 3 had appointed defendant No.4 as their general attorney vide registered power of attorney dated 12.6.1985 and the defendants No. 1 to 3 had authorised defendant No.4 to act on their behalf regarding the suit land including its alienation. That the defendant No.4 Didar Singh on the basis of the said general power of attorney dated 12.6.1985 entered into an agreement to sell the suit lan on behalf of the defendants No.1 to 3 in favour of the plaintiff and executed an agreement to sell dated 25.6.1985 for Rs.49,500/- and out of the sale consideration received Rs.41,500/- as earnest money. The sale deed was to be executed on or before 15.11.1985. That the plaintiff called upon the defendants to execute the sale deed before 15.11.1985 as he was ready and willing to perform his part of the agreement but the defendants have postponed the execution of the sale deed on one pretext or the other. That he was having sufficient money and also offered the same to the defendants for the purchase of stamp paper and at the same time was ready to pay the balance price. That the plaintiff informed the defendants that he will be ready to perform his part of the agreemrnt on 15.11.1985 and R.S.A. No. 549 of 1996 (O&M) remained present in the office of the Sub Registrar and waited for them but they did not turn up and he got his presence marked before the Sub Registrar. He served registered notice upon the defendants dated 15.11.1985 and thereafter called upon them to execute the sale deed and to perform their part of the agreement to sell and finally a registered notice was served upon the defendants on 16.11.1985. That the plaintiff had been ready and willing and is still ready and willing to perform his part of the agreement and hence the present suit. 3. On notice, the defendants No. 1 to 3 appeared through counsel and filed written statement controverting all the main allegations of the plaintiff as contained in the plaint. Inter-alia, they pleaded that the suit is not maintainable in the present form and is bad for non joinder of necessary parties. On merits, it was pleaded that Surjit Singh and Kundan Singh defendants have transferred part of the suit land in favour of the defendant No.5. It was denied that the defendant No.5 was in the knowledge of the litigation between the plaintiff and the defendants No. 1 to 3. It was pleaded that the defendants No.1 to 3 had appointed Didar Singh required power of attorney on their behalf for the purchase of Tractor. It was denied that any power of attorney for transferring the land was eer given to Didar Singh. It was pleaded that the said power of attorney was cancelled by the defendants No.1 to 3 on 28.6.1985 by registered deed of cancellation of power of attorney and a notice was issued to R.S.A. No. 549 of 1996 (O&M) Didar Singh for the same. It was denied that they received Rs.41,500/- at that time. Other averments were also denied. 4. Kushal Singh defendant No.5 filed separate written statement taking the same pleas as taken by the defendants No. 1 to 3. On the pleadings of the parties, the following issues were framed by the trial Court:- " 1. Whether defendants No. 1 to 3 through their attorney defendant No.4 agreed to sell the disputed land in favour of the plaintiff vide agreement dated 25.6.1985 and obtained a sum of Rs.41,500/- as earnest money thereunder, if so the terms and conditions of the agreement? OPP 2. Whether the plaintiff has been ready and willing to perform his part of the impugned agreement?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Whether the defendants transferred any part of the disputed land in favour of the defendant No.5? If so since when and its effect? OPD. 6. Whether the defendant No.5 is bonafide purchaser of the suit land for consideration without notice? If so its effect?OPD. 7. Relief." Learned counsel for the appellant has submitted that the Courts below had erred in decreeing the suit of the plaintiff. In fact the agreement R.S.A. No. 549 of 1996 (O&M) to sell in question was suspicious document as it had been scribed after the cancellation of the power of attorney in favour of the defendant No.4. A perusal of the agreement to sell reveals that the stamp papers had been purchased much prior to the execution of power of attorney in favour of defendant No.4. Moreover the plaintiff had failed to establish the authenticity of the stamp papers, on which agreement to sell was scribed qua its purchase. Learned counsel for the respondent-plaintiff on the other hand has submitted that the agreement to sell had been duly executed in favour of the plaintiff by Didar Singh being attorney of defendants No. 1 to 3. After hearing learned counsel for the parties, I am of the opinion that the instant appeal deserves to be dismissed. Plaintiff had filed a suit for specific performance of agreement to sell dated 25.6.1985. In order to prove the due execution of agreement to sell, plaintiff examined the scribe Krishan Gopal PW-1 and PW-3 one of the attesting witness of the agreement to sell. The agreement to sell in question is Ex-P-1. Defendants No. 1 to 3 had executed a General Power of Attorney Ex. P-2 in favour of defendant No.4 Didar Singh on 12.6.1985 authorising him to sell, mortage, lease out, etc., the suit property. The said power of attorney was cancelled vide Ex. D-2 dated 28.6.1985. The agreement to sell in question is dated 25.6.1985 and was thus executed within the subsistence of the general power of attorney in favour of defendant No.4 by him. Defendants No. 1 to 3 examined stamp venders DW-8 Chanan Singh, DW-9 Laj Path, DW-10 Hardial Singh to establish their plea that in fact the stamp papers in question on which agreement to sell had been scribed had not R.S.A. No. 549 of 1996 (O&M) been sold by them. DW-8 and DW-9 have admitted in their cross- examination that there were four stamp venders in Tehsil compound Baba Bakala thus the defendants had failed to examine the fourth vender who according to DW-8 and DW-9 was working as stamp vender at the relevant period. DW-8 had failed to prove that he was working as stamp vender at the relevant period. DW-10 had also not brought the license authorising him to work as a stamp vender on the date of his examination. In these circumstances the argument raised by learned counsel for the appellant that the stamp papers had infact not been purchased from any of the stamp vender falls on the ground. The fact that the stamp papers were purchased on 29.5.1985 whereas the general power of attorney was executed in favour of defendant No.4 on 25.6.1985 later on does not render the agreement to sell a suspicious document. The document in question has been executed by Didar Singh during the subsistance of the general power of attorney executed in his favour. Parties are closely related to each other. Defendants No. 3 and 4 are real brothers whereas defendants No. 1 and 2 are sons of defendant No.3. Plaintiff is nephew of defendant No. 3. Defendant No. 4 is unmarried and issueless. In these circumstances, it cannot be said that defendant No.4 was trying to usurp the property of defendants No. 1 to 3. Defendants No. 1 to 3 had failed to establish their plea that the attorney had been executed in favour of defendant No.4 qua purchase of tractor only. DW-11 Santosh Singh had deposed that after the power of attorney was scribed it was read over to them and thereafter they had thumb marked the same admitting its contents to be correct. R.S.A. No. 549 of 1996 (O&M) Both the courts below after appreciating the evidence lead by the parties on record have given a finding of fact that the agreement to sell in question had been duly executed by defendent No. 4 on the basis of subsisting power of attorney in his favour by defendants No. 1 to 3. The said finding of fact calls for no interference by this Court in appeal. No substantial question of law arise in this appeal. Accordingly the same is d ismissed. December 14, 2009 (Sabina) tripti Judge