Naresh Kumar v. Kashmiri Chand

This is plaintiff's second appeal challenging the judgment and decree dated 14.9.2010 passed by the lower appellate Court whereby appeal filed by the defendant- respondent challenging the judgment and decree dated 18.3.2009 passed in favour of the plaintiff- appellant was set aside and his suit for possession by way of specific performance of the agreement to sell in question was ordered to be dismissed. The pleaded case of the appellant is that one Gulshan Sethi son of Kharaiti Lal and Raman Sethi wife of Gulshan Sethi residents of House No.3300 Sector 35-D Chandigarh, who were the owners of the suit land, were residing out of country and they had appointed the defendant- respondent Kashmiri Chand as their general attorney vide registered general power of attorney dated 8.1.1993. It was further alleged that defendant- respondent on 18.7.2005 acting as general power of attorney of aforesaid Gulshan Sethi and Raman Sethi agreed to sell the suit land to the plaintiff R.S.A. No.4269 of 2010 (O&M) -2- for a sum of Rs.7 lacs and after receiving a sum of Rs.50,000/- as earnest money, respondent executed the agreement to sell in question in his favour. The appellant further paid a sum of Rs.1,50,000/- to him on 20.7.2005. He also wrote a receipt in his own hand after receiving the said amount. As per the terms of the agreement, respondent promised to execute the sale deed in favour of the appellant or his nominee on or before 25.9.2005. The appellant was ready and willing to get the sale deed executed after paying the balance sale consideration which was always ready with him. Later on, the defendant- respondent started threatening to alienate the suit land for a higher sale consideration and refused to execute the sale deed in favour of the appellant. Hence, the present suit. It may be relevant to mention at this stage that the owners of the suit land, Gulshan Sethi and Raman Sethi have not been made a party in the suit and the suit has been filed only against Kashmiri Chand and he is not even described as general attorney of the aforesaid persons, i.e. owners of the suit land. Upon notice, respondent appeared and raised various preliminary objections including that the suit was not maintainable. On merits, it was alleged that the respondent never agreed to sell the suit land acting as a general attorney of Gulshan Sethi and Raman Sethi to the plaintiff. Receipt of earnest money and receipt of further sum of Rs.1,50,000/- was also denied. All other allegations were denied and dismissal of the suit was prayed. The Civil Judge (Junior Division), Kharar vide his judgment and decree dated 18.3.2009 decreed the suit and held that the plaintiff was entitled to possession by way of specific performance of the agreement to R.S.A. No.4269 of 2010 (O&M) -3- sell in question on payment of balance sale consideration. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, defendant- respondent filed an appeal, which was accepted by the lower appellate court vide impugned judgment and decree dated 14.9.2010. While accepting the appeal, the lower appellate court found that the agreement in question was executed by the defendant- respondent as owner of the suit property and not as an attorney of original owners - Gulshan Sethi and his wife Raman Sethi and there was no reference in the agreement that the respondent was executing the same on behalf of the owners. Further lower appellate court found that the suspicious circumstances surrounding the agreement to sell in question were not removed by the appellant. It was also found by the lower appellate Court that the original owners as pleaded were not made a party in the suit and thus suit filed against a general power of attorney without impleading original owners of the suit property was not maintainable as if a decree is passed in favour of the plaintiff even then he will not be able to execute the same against the original owners as they were not party to the suit. Not satisfied from the aforesaid judgment and decree of the lower appellate court, the appellant has filed the instant appeal on

18.11.2010 submitting that the following substantial questions of law arises in this appeal:- i) Whether the judgment and decree of the Additional District Judge reversing the judgment and decree of the trial court and dismissing suit of the plaintiff- appellant for possession by specific performance of the agreement to sell and for permanent injunction suffer from R.S.A. No.4269 of 2010 (O&M) -4- perversity, being contrary to evidence on record and cannot be sustained? ii) Whether in the facts and circumstances of the case, findings of the Additional District Judge about execution of agreement to sell (Ex.P1) and receipt (Ex.P2) having not been proved and surrounded by suspicious circumstances, can be sustained? iii) Whether findings of the Additional District Judge that the suit is bad for non-joinder of necessary parties can be sustained in the facts and circumstances of the case, particularly when there is no such plea or issue in this respect? On November 18, 2010, it was argued on behalf of the appellant that a suit against the attorney, i.e., in the absence of the owner of the suit property was maintainable. However, to enable the learned counsel for the appellant to support his aforesaid contention, by citing law, the case was adjourned for today. Learned counsel for the appellant was unable to support his argument as raised on 18.11.2010 before this Court and in fact has not pressed the aforesaid argument. However, counsel for the appellant has vehemently argued before this Court that in view of the findings of the lower appellate court to the effect that the agreement to sell in question was executed by the defendant- respondent himself and there is admission by him that he had purchased the property in dispute, thus, he was having a marketable title and, therefore, the appellant was entitled to the specific performance of the agreement in question and thus, judgment and decree of R.S.A. No.4269 of 2010 (O&M) -5- the lower appellate court is liable to be set aside and he is entitled to the decree as prayed. I have heard the learned counsel for the appellant and perused the judgments and decrees of the Courts below. The argument raised by learned counsel for the appellant is beyond his pleadings. It is the pleaded case of the appellant that suit property belongs to Gulshan Sethi and his wife Raman Sethi and the defendant had executed the agreement in question as general power of attorney of the aforesaid original owners whereas now on the basis of the alleged admission of the defendant- respondent in his cross-examination and the finding of the lower appellate court, the argument is being raised that the appellant is entitled to the decree for specific performance on the basis of evidence on record according to which respondent himself is the owner of the suit property. It is settled law that no amount of evidence can be seen beyond pleadings of the case and, therefore, the argument raised by the appellant on the basis of the alleged evidence on record to the effect that defendant- respondent is the owner of the suit property is not available to him. Thus, I find no merit in this appeal. No other argument was raised. No substantial question of law arises. Dismissed. November 25, 2010 ( RAKESH KUMAR GARG ) JUDGE