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

Brief facts of the case necessary to be noted for deciding this Civil AppealThe parties shall be referred to as described in the plaint. The plaintiff filed Suit No. 541 of 1990 praying for specific performance of a contract dated 04.01.1987. Plaintiffs case in the plaint was that defendant No. 2 representing himself to be power of attorney holder of defendant No. 1, his brother, entered into an agreement to sell dated 04.01.1987 for a plot of land measuring 150 sq. yds. for a consideration of Rs.was paid by the plaintiff towards earnest money to defendant No.2. Plaintiff claims that possession was also handed over. On 07.01.1987, the terms of the agreement to sell were modified by enhancing the consideration from Rs. 60,000/Plaintiff claimed to approach the defendant No.2 on 25.01.1987 for execution of Sale Deed, which was declined by defendant No.2 on the pretext of his brother having gone abroad and so defendant No.2 refused to accept the balance consideration. The defendant No.2 and his father when sought to dispossess the plaintiff of the suit property, a suit was filed for Permanent Injunction against defendant No.2 and his father. On the above pleading, suit was filed for specific performance of the contract.(b) Written Statement was filed both by defendant Nos. 1 and 2. Defendant No.1, in his written statement, pleaded that he is neither the owner of the suit property nor entered into an agreement with the plaintiff. The agreements dated 04.01.1987 and 07.01.1987 were denied. It was pleaded that defendant NO.1 having no right, title or interest of any nature in the suit property, there is no question of him acting in any manner to transfer the suit property to the plaintiff. Defendant No.2 in his written statement denied execution of agreement dated 04.01.1987. It was further denied that defendant No. 1 is the owner of the property. It was further denied that defendant No.2 is the attorney of defendant No.1. Alleged original agreement dated 04.01.1987 as well as modified agreement dated 07.01.1987 were also denied. It was pleaded that defendant No.2 is neither the owner of the suit property nor attorney. Oral evidence was also led by the plaintiff and defendants. The trial court framed the following four issuesWhether the plaintiff has locus standi to file the Present Suit?2. Whether the suit has not been properly valued for the purpose of court fee and Jurisdiction?3. Whether the plaintiff is entitled to decree as claimed?4.The trial court vide its judgment dated 30.11.1999 decreed the suit for specific performance of contract in favour of the plaintiff. A Regular First Appeal was filed by both the defendants, i.e. defendant Nos. 1 and 2. The appeal was allowed by Additional District Judge on 16.09.2000 dismissing the suit. The judgment dated 16.9.2000 was subsequently recalled and the appeal was heard afresh. The Additional District Judge vide its judgment dated 02.04.2005 again allowed the appeal, dismissing the suit. Aggrieved by the judgment of the Additional District Judge dated 02.04.2005, the Regular Second Appeal was filed before the High Court by the plaintiff/appellant, which has been dismissed on 19.07.2005. Aggrieved against judgment of the High Court, this appeal has been filed.

Reasoning:
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.