Amrik Singh vs Jawahar Singh and others

L.N. Mittal, J.

C.M. No. 14642-C of 2010 :

For reasons mentioned in the application, which is accompanied by affidavit, delay of 60 days in re-filing the appeal is condoned.

C.M. No. 14643-C of 2010 and Main Appeal :

Plaintiff Amrik Singh, who was non-suited by the trial court, but whose suit has been partly decreed by the lower appellate court, has filed the instant second appeal.

Case of the plaintiff-appellant is that defendants No. 1 to 11 are owners of 84 kanals 03 marlas land in suit, being 1/6th share of land measuring 507 kanals 19 marlas. Defendants No. 1 to 5 agreed to sell the suit land to the plaintiff @ Rs1,27,000/-per acre and also agreed to associate defendants No. 6 to 11 in the sale. Defendants No. 1 to 5 received Rs. 1,50,000/-as earnest money from the plaintiff and executed agreement dated 09.06.1994. Sale deed was to be executed on or before 09.12.2004 in favour of plaintiff and defendants No. 12 and 13. On 03.12.1994, time for executing the sale deed was extended up to 09.03.1995 by making endorsement on the back of the agreement by defendants No. 1 to 5. Defendant No. 2 sold 10 kanals 10 marlas land to plaintiff''s brother Sukhdev Singh with the consent of plaintiff and defendant No. 12 and 13, vide sale deed dated 17.04.1995. However, defendants No. 1 to 11 failed to perform their part of the contract regarding the remaining suit land, although the plaintiff has always been ready and willing to perform his part of the contract. Accordingly, plaintiff sought specific performance of the impugned agreement to sell against defendants No. 1 to 11 regarding the remaining suit land measuring 73 kanals 13 marlas and in the alternative, sought recovery of Rs. 3,00,000/- being double the earnest money.

Defendants No. 3 and 4 admitted the execution of the impugned agreement and receipt of Rs. 1,50,000/-as earnest money. Other averments of the plaintiff were broadly controverted. It was alleged that defendants were ready and willing to perform their part of the contract and also remained present in the office of Sub Registrar to do the needful, but the plaintiff and defendants No. 12 and 13 did not come present. The plaintiff stated on 09.03.1995, on being approached by defendants, that he did not have money to pay balance sale consideration. Defendants No. 6, 9 and 10 controverted the plaintiff''s averments and pleaded that they never entered into the impugned agreement to sell dated 09.06.1994 in favour of plaintiff and others nor authorized defendants No. 1 to 5 to sell the land of their share. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Tarn Taran, vide judgment and decree dated 29.08.2007, dismissed the plaintiff''s suit holding that his readiness and willingness to perform his part of the contract was not proved. However, first appeal preferred by the plaintiff has been partly allowed by learned Additional District Judge, Fast Track Court (Ad hoc), Tarn Taran, vide judgment and decree dated 08.09.2009, and thereby the suit has been decreed partly against defendants No. 1 to 5 qua their share in the suit land excluding 10 kanals 10 marlas land, for which sale deed has already been executed. The suit has been dismissed against defendants No. 6 to 11 as they were not party to the agreement. Feeling aggrieved, the plaintiff has filed the instant second appeal praying that the suit be also decreed against defendants No. 6 to 11.

Along with this second appeal, the plaintiff has moved C. M. No. 14643-C of 2010 for additional evidence to place on record General Power of Attorney dated 05.09.1994 (Annexure A-1) allegedly executed by defendants No. 6 to 11 in favour of defendant No. 5.

I have heard learned counsel for the appellant and perused the case file.

Counsel for the appellant contended that vide Power of Attorney (Annexure A-1), defendants No. 6 to 11 had authorized defendant No. 5 to sell their share in the suit land also on their behalf, and therefore, the suit deserves to be decreed, also regarding share of defendants No. 6 to 11 in the suit land.

I have carefully considered the contention, but the same cannot be accepted. The aforesaid Power of Attorney (Annexure A-1) was allegedly executed on 05.09.1994 i.e. subsequent to the impugned agreement dated 09.06.1994. Consequently, at the time of execution of impugned agreement, defendants No. 1 to 5 or any of them had no authority on behalf of defendants No. 6 to 11 to enter into the impugned agreement on their behalf. Even in alleged Power of Attorney (Annexure A-1), the impugned agreement was not ratified. There is also no mention in the impugned agreement regarding any authority with defendants No. 1 to 5 to enter into the impugned agreement on behalf of defendants No. 6 to 11 nor there is any such pleading. Thus, the contention raised by counsel for the appellant is completely untenable and bereft of any merit. Proposed additional evidence to produce the alleged Power of Attorney (Annexure A1) also cannot be permitted because the said Power of Attorney being subsequent to the impugned agreement is irrelevant and has no bearing on the merits of the lis.

For the reasons aforesaid, I find no merit in the instant second appeal. Defendants No. 1 to 5 had no authority to execute the impugned agreement on behalf of defendants No. 6 to 11 as well. Defendants No. 6 to 11 are not party to the impugned agreement, and therefore, plaintiff''s suit has been rightly dismissed against defendants No. 6 to 11.

No question of law, much less substantial question of law, arises for adjudication in this second appeal. Even taking the plaintiff''s version at face value, his suit cannot be decreed against defendants No. 6 to

The appeal is accordingly dismissed in limine.