Suresh and Others vs Pradeep and Others

S.N. Satyanarayana, J.—Defendants in O.S. No. 7/1997 on the file of the Civil Judge (Sr. Dn.) and CJM, Gadag have come up in this second appeal impugning the divergent judgment rendered by the lower appellate Court, namely, Fast Track Court, Gadag in R.A. No. 54/2006, wherein, the judgment and decree passed in O.S. No. 7/1997 in dismissing the suit of the plaintiff for the relief of specific performance is set aside and consequently, suit of the plaintiff is allowed in the judgment and decree passed in R.A. No. 54/2006.

Brief facts leading to this second appeal are as under:

"Appellant Nos. 1 to 4 herein are defendant Nos. 1 to 4 in the trial Court and respondent No. 1 is the plaintiff and respondent No. 2 is defendant No. 5 in the original suit bearing O.S. No. 7/1997, which was filed by the plaintiff for the relief of specific performance of agreement of sale dated 04.03.1996. The case of the plaintiff is that, on 04.03.1996, he entered into an agreement for purchase of suit schedule plots bearing Nos. 9 and 19 formed in NA land bearing Sy. No. 242K situated within the limit of Gadag-Betgeri City Municipality. According to the plaintiff, the NA land bearing Sy. No. 242K belongs to defendant Nos. 1 to 4, who in turn executed a registered general Power of Attorney in favour of defendant No. 5 on 30.08.1991, wherein, they had authorized defendant No. 5 to sell the plots formed in NA land bearing Sy. No. 242K of Gadag-Betgeri Municipality. In the agreement of sale, the consideration for which defendant No. 5 agreed to sell the suit schedule plots in favour of plaintiff on behalf of defendant Nos. 1 to 4 is in a sum of Rs. 55,000/- and the agreement would indicate that, a sum of Rs. 50,000/- was received by defendant No. 5 and he had agreed to execute the sale deed of suit property in favour of plaintiff within two months. It is seen that, thereafter, defendant No. 5 did not come forward to execute the sale deed as agreed in the agreement of sale dated 04.03.1996. Hence, legal notice dated 06.12.1996 was issued to defendant No. 5 with a copy to defendant Nos. 1 to 4. In spite of service of notice to defendant Nos. 1 to 5, they did not come forward to execute the sale deed. Hence, a suit for specific performance was filed in O.S. No. 7/1997 on the file of the Civil Judge (Sr. Dn.) and CJM, Gadag." 3. In the said suit, though defendant No. 5 was duly served, he remained ex-parte. Defendant Nos. 1 to 4 who entered appearance filed their written statement denying execution of Power of Attorney in favour of defendant No. 5 for sale of suit schedule plots on their behalf. In the said suit, the defence which was also taken is that, at no point of time, defendant No. 5 was appointed as general Power of Attorney holder of defendant Nos. 1 to 4 and that the entire agreement was denied as forged and concocted document.

With that as defence on behalf of defendant Nos. 1 to 4, the Court below framed the following issues.

"i) Whether the plaintiff proves that the defendant No. 5 is the Power of Attorney holder of the defendant No. 1 to 4?

ii) Whether the plaintiff further proves that the defendant No. 5 by virtue of the alleged Power of Attorney said to have been executed by defendant No. 1 to 4 agreeing to sell the suit property for Rs. 55,000/- and receiving Rs. 50,000/- as earnest money has executed an agreement of sale on 04.03.1996 in his behalf?

iii) Whether the plaintiff proves that he was and is ever ready and willing to perform part of his contract?

iv) Whether the plaintiff is entitled to specific performance of alleged agreement of sale?

OR

Whether the plaintiff is entitled to refund of earnest money with interest as prayed for?

v) What order/decree?"

Thereafter, the matter went into trial. In the trial, plaintiff adduced evidence as P.W. 1, in support of his case he produced in all 18 documents, which are marked as Exs. P1 to P18. In addition, he also examined another witness by name Shankarappa Kanoj as P.W. 2, who is one of the attesting witness to agreement of sale dated 04.03.1996, which is at Ex. P2. On behalf of defendants, defendant No. 4 led evidence as D.W. 1. The trial Court on appreciation of pleadings, oral and documentary evidence available on record proceeded to answer all the issues against the plaintiff and in favour of defendant Nos. 1 to 4 and consequently, suit of the plaintiff for the relief of specific performance was dismissed.

Being aggrieved by the same, plaintiff in the original suit preferred an appeal in R.A. No. 54/2006 on the file of the Fast Track Court, Gadag, wherein, the lower appellate Court on going through the grounds of appeal and the judgment rendered by the trial Court proceeded to frame the following points for consideration.

"i) Whether the plaintiff proves that, defendant No. 5 is GPA holder of defendant No. 1 to 5?

ii) Whether plaintiff proves that, defendant No. 5 has executed an agreement of sale in favour of plaintiff in respect of suit plots as GPA holder of defendant Nos. 1 to 4?

iii) Whether plaintiff is entitled to relief of specific performance of contract as prayed for?

iv) Whether judgment and decree of the lower court calls for any interference?

v) What order?"

And thereafter, heard the learned counsel for the appellant and as well as respondents and proceeded to answer points 1 to 4 for consideration in the affirmative, set aside the judgment and decree passed by the trial Court in dismissing the suit of the plaintiff and consequently, allowed the suit of the plaintiff for the relief of specific performance.

Being aggrieved by the divergent finding rendered by the lower appellate Court, defendant Nos. 1 to 4 in the original suit have come up in this second appeal alleging serious error is committed by the lower appellate Court in allowing the appeal on the ground that; in the absence of general Power of Attorney executed in favour of defendant No. 5 being proved and the said person having remained ex-parte, the lower appellate Court without properly appreciating the pleadings and oral evidence available on record has committed a grave error in setting aside the judgment and decree passed by the trial Court in dismissing the suit of the plaintiff. It was also contended that the lower appellate Court while reassessing the judgment with reference to the pleadings and evidence has flouted the well settled legal principles with reference to appreciation of the evidence and documents available on record, which has resulted in serious error being committed and therefore, urged that the judgment and decree is required to be set aside.

Heard the learned counsel for the appellants for admission, perused the judgments of both the Courts below with reference to pleadings in the plaint and as well as in the appeal memo of lower appellate Court. On going through the same, this Court feel that the judgment and decree rendered by the lower appellate Court appears to be just and proper for the following reasons. Admittedly, the agreement of sale is entered into between plaintiff and defendant No. 5 on 04.03.1996 for purchase of plot Nos. 9 and 19 formed in NA land bearing Sy. No. 242K situated in Gadag-Betgeri Municipality. The fact that Sy. No. 242K is converted from agriculture to non-agriculture use is not in dispute. It is also not in dispute that, a private residential layout is formed by defendant Nos. 1 to 4 on the said property and in the said property several sites are sold by defendant Nos. 1 to 4 in favour of various purchasers. It is also fairly admitted by the counsel appearing for the appellants that, some of the plots in the said NA land are sold by them through general Power of Attorney holder. However, it is their specific contention that, no Power of Attorney was executed by them in favour of defendant No. 5 for sale of plot Nos. 9 and 19 in the said layout. This submission of the defendants cannot be accepted for the reason that, in the Court below, plaintiff has secured the certified copy of registered Power of Attorney executed by defendant Nos. 1 to 4 in favour of defendant No. 5 with reference to NA land bearing Sy. No. 242K situated within the limit of Gadag-Betgeri Municipality. The said general Power of Attorney which is produced by the plaintiff is at Ex. P15. The signatures of defendant Nos. 1 to 4 as seen in Ex. P15 are comparable to their signatures in the vakalath which is filed by defendant Nos. 1 to 4 in the trial Court as well as in the lower appellate Court and this Court would indicate that, all the three signatures are one and the same and there appears to be no change in the signatures.

Now coming to the defence taken by the appellants herein in the trial Court. Though they have stated that they have not executed general Power of Attorney in favour of defendant No. 5, they are not able to explain how Ex. P15, a registered document has come into existence. Assuming for a moment, the said document is a concocted or forged document, nothing prevented defendant Nos. 1 to 4 in filing a police complaint against defendant No. 5 for creating general Power of Attorney in their names. In the instant case, no such steps are taken by defendant Nos. 1 to 4 against defendant No. 5 with reference to registration of Ex. P15-Power of Attorney. As stated supra, the signatures of defendant Nos. 1 to 4 on the said general Power of Attorney is comparable to the signatures of the very same person in the vakalath in the trial Court as defendant Nos. 1 to 4 and in lower appellate Court as appellant Nos. 1 to 4 and also in this Court. It is also seen that there are several correspondence between the parties with reference to suit properties, wherein, the name of defendant No. 5 is shown in the revenue records along with defendant Nos. 1 to 4 as the person representing them as Power of Attorney holder with reference to NA land in Sy. No. 242K. In the Court below, a sale deed was also produced by the plaintiff to demonstrate that, in addition to the agreement of sale executed by defendant No. 5 in favour of plaintiff, he also executed several sale deeds with reference to the plots formed in NA land bearing Sy. No. 242K. One such sale deed is produced and marked as Ex. P1, which is not denied by the defendants. It is further seen that, there are several documents where there is reference to defendant No. 5 as representing defendant Nos. 1 to 4 as Power of Attorney holder with reference to the transaction in respect of NA land bearing Sy. No. 242K. When several such documents are available, the defendants except making a bald statement in the written statement that the execution of Power of Attorney is denied and tendering oral evidence through defendant No. 4, no other evidence is produced to substantiate that no such transaction was there between defendant Nos. 1 to 4 and defendant No. 5 in authorizing him as their General Power of Attorney holder. However, there was a vain attempt on their part to substantiate that in agreement of sale defendant No. 5 is stated to have agreed to sell the suit plots to meet his personal need. Therefore, as Power of Attorney holder, he could not have sold the property for his personal use.

At this juncture, this Court will have to appreciate the evidence available on record in the background of the transaction. Admittedly, the entire transaction pertains to the sale of plots formed in converted land i.e., NA land bearing Sy. No. 242K, which comprises of more than 110 plots. In the said transaction, general Power of Attorney is given to defendant No. 5 with reference to several plots which were formed in the said survey number, which defendant No. 5 is authorized to sell on behalf of defendant Nos. 1 to 4. Though in the written statement, defendant Nos. 1 to 4 have denied the execution of Power of Attorney, the document at Ex. P1-sale deed executed by defendant No. 5 in favour of some other person in respect of plot No. 5 in the very same layout would clearly indicate that, defendant Nos. 1 to 4 indeed took the service of defendant No. 5 for sale of plots in the said layout. In fact, the value as put forth in Ex. P1 with reference to plot No. 5 being Rs. 15,000/- and the value i.e., shown in Ex. P2 for sale of two plots of similar dimensions is Rs. 55,000/-. In that view of the matter, it is clearly seen that the evidence available on record would give credence to the plea raised by the plaintiff in the suit filed for specific performance that defendant No. 5 has entered into an agreement with him for sale of suit plots as Power of Attorney holder of defendant Nos. 1 to 4 appears to be just and proper, more particularly, in the light of the registered Power of Attorney executed by defendant Nos. 1 to 4 in favour of defendant No. 5 for selling not only these two plots but various other plots and the execution of Ex. P1 another sale deed by the very same person would further strengthen the plea of the plaintiff for the relief of specific performance.

In the light of the aforesaid discussions, it is clearly seen that the lower appellate Court has gone through the entire records and referred to each and every documents, which were produced and relied upon by the plaintiff to establish the agreement of sale of the suit property executed by defendant No. 5 as Power of Attorney holder of defendant Nos. 1 to 4 in favour of plaintiff, which is proved beyond all reasonable doubt. As such, the lower appellate Court has rightly set aside the judgment and decree passed by the trial Court in dismissing the suit of the plaintiff for the relief of specific performance and consequently, allowed the suit of the plaintiff, while reversing the judgment and decree passed by the trial Court. In that view of the matter, this Court find that, absolutely no grounds are made out to interfere with the well reasoned judgment rendered by the lower appellate Court in reversing the judgment and decree passed by the trial Court. It is further seen that, though several substantial questions of law are framed in the appeal memo, none of them would arise for consideration in this second appeal in the face of the facts as discussed above.

In that view of the matter, this Court would dismiss this second appeal filed by defendant Nos. 1 to 4 in O.S. No. 7/1997 at the stage of admission itself. While dismissing this appeal, it is clearly seen that the defence which is raised by defendant Nos. 1 to 4 in the trial Court who are appellants herein is false and frivolous defence, which they have taken deliberately and consciously to cause illegal loss to the plaintiff who has entered into an agreement for purchase of suit schedule plots from defendant Nos. 1 to 4 through their Power of Attorney holder defendant No. 5. In that view of the matter, to curb the unscrupulous methods adopted by defendant Nos. 1 to 4, this Court feel, heavy cost is required to be imposed on them. Accordingly, this appeal is dismissed with cost of Rs. 50,000/-, which the plaintiff in the original suit who is respondent No. 1 herein is entitled to receive from defendant Nos. 1 to 5 in the trial Court.