Case: Dharmabiri Rana Vs. Pramod Kumar Sharma (D) Thr. Lrs. &amp; Another

of the plaintiff seeking execution of agreement to sell, we now proceed to consider the findings recorded by the First Appellate Court.7. It is relevant to notice that before the trial court in spite of there being denial of title to the property by the defendants, no finding was returned by the trial court that defendants are the owner of the property, competent to enter into agreement to sell. The trial court also noticed that defendant No.1 in the written statement has pleaded that he has no right, title or interest of any nature in the suit property but no finding was returned that defendant No.1 is the owner of the property. The entire discussion by the trial court is in Para 10 of the judgment, which is as follows:-"ISSUE NO.3, the onus is on the plaintiff to show that she is entitled for a decree of performance of a agreement to sell. In the written statement defendant No.1 has stated that he has no right title interest of any nature whatsoever in respect of suit property and he has been unnecessarily dragged. It is stated that the defendant No.1 is neither the owner of the suit property nor ever entered into agreement called respect to the same with any person what to talked, of the alleged agreement with the plaintiff. The defendant No.2 has also deliberately denied the averments of the plaintiff. DW2 Krishan Kumar has even denied his signature on EX.PW1/4. In the written statement they have not disclosed that Rakesh Kumar is the owner of the property and earlier Prabhu Dayal Sharma was the owner of the suit property, DW3 Naveen Gautam has also stated in his testimony about the document having been executed in his presence. He has admitted his signature at Mark `C in Ex.D1 mark `C Ex.D2 and mark `C in Ex.D3. He further stated that he cannot be said if the document D1, D2 and D23 are forged and genuine documents. DW1 is Rakesh Kumar has stated that he is owner of the suit property and earlier Sh. Prabhu Dayal was owner of the suit property and he had purchased the same for a sum of L70,000/- on 12.12.1986. He has stated in his cross examination that he does not remember the same from Sh.Prabhu Dayal at the time of execution of Power of Attorney as to whether there is any litigation on the plot in question. He has further stated that he did not receive any receipt of Rs. 70000/- as consideration of the suit property nor it was ever executed. From the testimony of DW1 & DW2 and DW3, it is clear that the document D1, D2 and D3 were manipulated at a later stage. The testimony of DW1, DW2 and DW3 does not inspire any confidence. Therefore, I hold that he plaintiff is entitled for a decree of specific performance of agreement to sell. Issue No.3 is decided in favour of plaintiff and against the defendant."8. The First Appellate Court has after considering the entire evidence have returned following findings:-(i) It is not established that agreements had actually been executed by defendant No.2.(ii) There is no evidence on record to prove the title of the defendant No.1 in respect of the suit land.(iii) There is no evidence to establish that the defendant No.1 had ever authorized defendant No.2 to enter into agreement to sell.9. In paragraph 12 of the judgment, after considering the entire oral evidence, the First Appellate Court held that it is not established that the agreement had actually been executed by appellant No.2 (defendant No.2). Further following findings have been recorded in paragraph 15:-"The result of the aforesaid discussion is that in the absence of any evidence coming on record that appellant No.1 was owner of the suit property or appellant No.2 was having any power of attorney on behalf of appellant No.1 execute the agreements in favour of the respondent, no documents for transfer of title in respect of suit land can be directed to be executed by the appellants by way of a decree for specific performance of agreement of sell vide Ex.PW1/1 and PW1/3. The agreements are thus illegal, unenforceable and to decree for specific performance can therefore be passed in favour of the respondent."10. That after returning the aforesaid findings, the appeal was allowed and suit was dismissed. The High Court vide its judgment dated 19.07.2005 has confirmed the findings recorded by the First Appellate Court. The High Court held that alleged agreement claimed by the plaintiff was not enforceable. The High Court held that there is no substantial question of law, hence the Second Appeal was dismissed.11. The Court can order specific performance of an agreement only when it is proved that a person allegedly executing an agreement to sell has right of transferring the property. When defendants have denied their entitlement and right, title and interest in the suit property, the said question was necessary to be answered before decreeing the suit. The trial court after noticing the said pleading on behalf of the defendants did not enter into this question or returned any finding that defendants are owner of the suit property. Further, essential findings pertaining to right of the defendant to transfer the property being not there, the passing of a decree of specific performance was clearly erroneous. The Appellate Court has rightly set aside the decree of specific performance of contract after recording the finding that defendant No.1 is not the owner of the property. It is not proved that any power of attorney was executed so as to enable defendant No.2 to enter into agreement to sell and further the execution of agreement has also not been proved. Although, copy of alleged power of attorney dated 04.11.1986 which is admittedly an unregistered document has been filed by appellant before this Court as Annexure-P12, but both the Courts having not considered the same, it is not necessary for this Court to consider the same in this Civil Appeal.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The defendant No.2 has clearly pleaded that he is not the power of attorney holder of defendant No.1 and further both the defendants having pleaded that they are not owner of the property, the trial court ought to have framed a specific issue so as to focus its judgment on relevant issues, which have come before it for consideration.That after returning the aforesaid findings, the appeal was allowed and suit was dismissed. The High Court vide its judgment dated 19.07.2005 has confirmed the findings recorded by the First Appellate Court. The High Court held that alleged agreement claimed by the plaintiff was not enforceable. The High Court held that there is no substantial question of law, hence the Second Appeal was dismissed.11. The Court can order specific performance of an agreement only when it is proved that a person allegedly executing an agreement to sell has right of transferring the property. When defendants have denied their entitlement and right, title and interest in the suit property, the said question was necessary to be answered before decreeing the suit. The trial court after noticing the said pleading on behalf of the defendants did not enter into this question or returned any finding that defendants are owner of the suit property. Further, essential findings pertaining to right of the defendant to transfer the property being not there, the passing of a decree of specific performance was clearly erroneous. The Appellate Court has rightly set aside the decree of specific performance of contract after recording the finding that defendant No.1 is not the owner of the property. It is not proved that any power of attorney was executed so as to enable defendant No.2 to enter into agreement to sell and further the execution of agreement has also not been proved. Although, copy of alleged power of attorney dated 04.11.1986 which is admittedly an unregistered document has been filed by appellant before this Court asbut both the Courts having not considered the same, it is not necessary for this Court to consider the same in this Civil Appeal.