DHARMABIRI RANA versus PRAMOD KUMAR SHARMA (D) THR. LRS. & ANR.
[2017] 10 S.C.R. 122, Supreme Court of India, 2017
Outcome: Dismissed (Dismissed)
Segment: Ratio
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B 
c 
[2017] 10 S.C.R. 122 
DHARMABIRI RANA 
v. 
PRAMOD KUMAR SHARMA (D) THR. LRS. & ANR. 
(Civil Appeal No. 9906 of2010) 
OCTOBER 05, 2017 
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.] 
Specific performance: Suit for specific performance of 
agreement to sell property - Denial c~f title by defendant - Held: 
The Court can order specific performance of (/fl agreement only 
when it is proved that a person allegedly executing an agreement to 
sell has right of transferring the property - When defendants deny 
their entitlement and right, title and interest in the suit property, the 
said question is necessary to be answered before decreeing tlze 
suit - In the instant case, the trial court after noticing tlze said 
D pleading on behalf of the defendants did not enter into this question 
or returned any finding as to ownership of the suit property - It 
was not proved that any power of attorner was executed so as to 
enable defendant no.2 to enter into agreement to sell and further 
the execution of agreement was also not proved - Although, copy 
E of alleged power of attorney was filed by appellant before this Court 
but both the Courts having not considered the same, it was not 
necessary for this Court to consider the same in this appeal - Suit 
was rightly dismissed by first appellate court - No inteiference called 
for. 
F 
CIVIL APPELLATE JURISDICTION : Civil Appeal No.9906 
of2010. 
From the final Judgment and Order dated 19 .07 .2005 passed by 
the High Court of Delhi at New
Delhi in R.S.A. No.171 of 2005. 
Rakesh Khanna, Sr. Adv., Dr. L. S. Chaudhary, Ajay Chaudhary, 
G Ms. Rakhi Tomar, Anurag Tomar, Parambir Singh, Viresh Chaudhary, 
Ms. Man ju Jetley, Ad vs. for the Appellant. 
H 
P. N. Gupta, Ms. Bharti Gupta·, Manish Aggarwal, Ms. Runal 
Rastogi, Advs. for the Respondents. 
Respondent (in-person). 
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DHARMABIRI RANA v. PRAMOD KUMAR SHARMA (D) 
123 
THR. LRS. & ANR. 
The Order of the Court was delivered by 
A 
ASH OK BHUSHAN, J. This Civil Appeal by the plaintiff has 
been filed against the judgment of High Court of Delhi dated 19.7.2005 
dismissing the Regular Second Appeal of the appellant. Brief facts of 
the case necessary to be noted for decidin'g this Civil Appeal are:-
(a) 
The 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. Plaintiff's case in 
the plaint was that defendant No. 2 representing himself to be 
power of attorney holder of defendant No. 1, his brother, entered 
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into •in agreement to sell dated 04.01.1987 for a plot of land 
measuring 150 sq. yds. for a consideration of Rs.60,000/-. 
Rs.5,000/- was paid by the plaintiff towards earnest money to 
defendant No.2. Plaintiff claims that possession was also handed 
over. Or. 07.01.1987, the terms of the agreement to sell were 
moJ;fied by enhancing the consideration from Rs.60,000/- to 
Rs.65,000/-. Plaintiff claimed to approach the defendant No.2 
D 
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. 
E 
(b) 
Written Statement was filed both by defendant Nos. I 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. I 
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 
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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 agreementdated 07.01.1987 were 
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SUPREME COURT REPORTS 
[2017] 10 S.C.R. 
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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 issues :-
"1. Whether the plaintiff has locus standi to file the Present 
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Suit? 
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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. Relief' 
( c) The trial court vi de 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. 
2. Shri Rakesh Khanna, learned senior counsel has appeared for 
the appellant and Shri P.N. Gupta, Advocate has appeared for the 
respondent. 
3. Learned senior counsel
appearing for the appellant contends 
that plaintiff had proved by leading oral evidence that agreement was 
executed by defendant No. 2 as power of attorney holder of defendant 
No. I and payment of earnest money had also been made. The trial 
G court has rightly granted the decree of specific performance of the 
contract. He contended that execution of agreement having been proved, 
the First Appellate Court has erred in law in holding that agreement was 
not executed, relying on some inconsistencies in the oral evidence, which 
is unsustainable. He submits that defen\iant No. I in his written statement 
has not pleaded that he never executed any power of attorney in favour 
H
DHARMABIRI RANA v. PRAMOD KUMAR SHARMA (D) 
125 
THR. LRS. & ANR. [ASHOK BHUSHAN, J.] 
of defendant No.2. Further, the handing over of the possession to the 
A 
plaintiff on 04.01.1987 clearly proves the factum of agreement. He further 
submits that Court below have erred in not looking to the copy of the 
power of attorney dated 04.11.1986 executed by defendant No. I in favour 
of defendant No.2, which was on the record of trial court, which has 
also been filed in this appeal as Annexure-P-12. 
B 
4. Learned counsel for the respondent refuting the submission of 
counsel for the appellant contends that the First Appellate Court has 
rightly held that agreement dated 04.01.1987 is not enforceable. Learned 
counsel for the respondent submits that on consideration of entire facts, 
First Appellate Court has rightly held that execution of agreement was c 
not proved by the plaintiff. He further submits that in fact, neither 
defendant No. I nor defendant No.2 were owner of the property and 
owner of the property was father of defendants Shri Prabhu Dayal 
Sharma. Defendants, being not owner of the property, there is no question 
of entering into any agreement for sale of the property. The defendant 
No.2 has denied being power of attorney holder of defendant No. I, D 
hence there was no question of entering into any agreement of sell by 
the defendant No.2 on 04.01.1987. It is further submitted that the alleged 
power of attorney is an unregistered document, which was not
relied by 
plaintiff before the Courts below; he cannot be allowed to place any 
reliance on the said unregistered power of attorney before this Court. 
5. We have considered the submissions of the learned counsel for 
the parties and perused the records. 
6. As noticed above, the trial court has framed only four issues. 
The defendant No.2 has clearly pleaded that he is not the power of 
attorney holder of defendant No. I 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. However, the 
Appellate Court has adverted to the non-framing of the specific issue 
and having taken the view that the Issue No.3 was a wide issue, which 
covers the entire case 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 
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SUPREME COURT REPORTS 
[20171 IO S.C.R. 
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. I in the written statement has pleaded that he has no 
right, title or interest of any nature in the Ml it p1 'iperty but no finding was 
returned that defendant No. I is the owner of tile property. The entire 
discussion by the trial court is in Para I 0 of the judgment, which is as 
follows:-
''ISSUE N0.3, 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. I has stated that he has no 
right title interest of any nature whatsoever in respect of suit 
property and he has been tmnecessarily dragged. It is stated 
that the defendant No. I 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 .~greement 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.PWl/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.DI mark 'C' Ex.DZ 
and mark 'C' in Ex.D3. He further stated that he cannot be said 
if the 001.,ument DI, D2 and D23 are forged and genuine 
documents. DWI 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 
Rs.70,000/- 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 af 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 DWI & DW2 and DW3, it is clear that the document DI, D2 
and D3 were manipulated at a later stage. The testimony of 
DWI, DW2 and DW3 does not inspire any confidence. 
Therefore, I hold that he plaintiff is entitled for a decree of specific
DHARMABIRI RANA v. PRAMOD KUMAR SHARMA (D) 
127 
THR. LRS. & ANR: [ASHOK BHUSHAN, J.] 
performance of agreement to sell. Issue No.3 is decided in favour 
A 
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 
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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. l 
had ever authorized defendant No.2 to enter into agreement C 
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:-
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"The result of the aforesaid discussion is that in the absence of 
any evidence coming on record that appellant No. l was owner 
of the suit property or appellant No.2 was having any power of 
attorney on behalf of appellant No. I execute the agreements in 
favou~ 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.PWl/1 and PWl/3. The agreements 
are thus illegal, unenforceable· and to decree for specific
perform_ance 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 
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(2017) 10 S.C.R. 
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 
ofthe 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 tinding that defendant No. I 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 
C 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. 
D 
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12. In view of the above findings recorded by the First Appellate 
Court, the suit was rightly dismissed. The High Court has also rightly 
dismissed the Regular Second Appeal holding that it does not contain 
any substantial question of law. We do not find any
substance in the 
submissions of the learned counsel for the appellant. With the result, the 
Civil Appeal is dismissed. 
Devika Gujral 
Appeal dismissed.