Dharmabiri Rana vs Pramod Kumar Sharma (D) Th. Lrs. .

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9906 OF 2010

DHARMABIRI RANA …APPELLANT

VERSUS

PRAMOD KUMAR SHARMA (D) THR. LRS. & ANR. …RESPONDENTS

O R D E R

ASHOK BHUSHAN, J.

1. 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 deciding this Civil Appeal are:-

(a) The parties shall be referred to as described in

the plaint. The plaintiff filed Suit No. 541 of

Signature Not Verified 1990 praying for specific performance of a Digitally signed by ASHWANI KUMAR Date: 2017.10.10 16:33:20 IST Reason: contract dated 04.01.1987. Plaintiff’s case in

the plaint was that defendant No. 2 representing 2

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.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. On 07.01.1987, the terms of the

agreement to sell were modified by enhancing the

consideration from Rs.60,000/- to Rs.65,000/-.

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 3

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 issues :-

“1. Whether the plaintiff has locus standi

to file the Present Suit?

4 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 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 5

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.1 and

payment of earnest money had also been made. The

trial 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 defendant No.1 in his

written statement has not pleaded that he never

executed any power of attorney in favour of defendant

No.2. Further, the handing over of the possession to

the plaintiff on 04.01.1987 clearly proves the factum

of agreement. He further submits that Court below 6

have erred in not looking to the copy of the power of

attorney dated 04.11.1986 executed by defendant No.1

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.

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 not

proved by the plaintiff. He further submits that in

fact, neither defendant No.1 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.1, hence

there was no question of entering into any agreement

of sell by the defendant No.2 on 04.01.1987. It is 7

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.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. 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. 8

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 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.1 in the written statement has pleaded that he has

no right, title or interest of any nature in the suit

property but no finding was returned that defendant

No.1 is the owner of the property. The entire

discussion by the trial court is in Para 10 of the

judgment, which is as follows:-

“ISSUE NO.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.1 has stated that he has no right title interest of any nature whatsoever in respect of suit property and he has been unnecessarily dragged. It is stated that the defendant No.1 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 agreement 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.PW1/4. 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 9

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.D1 mark ‘C’ Ex.D2 and mark ‘C’ in Ex.D3. He further stated that he cannot be said if the document D1, D2 and D23 are forged and genuine documents. DW1 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 of 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 DW1 & DW2 and DW3, it is clear that the document D1, D2 and D3 were manipulated at a later stage. The testimony of DW1, DW2 and DW3 does not inspire any confidence. Therefore, I hold that he plaintiff is entitled for a decree of specific performance of agreement to sell. Issue No.3 is decided in favour 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 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.1 had ever authorized defendant No.2 to enter into agreement to sell.

10

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:-

“The result of the aforesaid discussion is that in the absence of any evidence coming on record that appellant No.1 was owner of the suit property or appellant No.2 was having any power of attorney on behalf of appellant No.1 execute the agreements in favour 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.PW1/1 and PW1/3. The agreements are thus illegal, unenforceable and to decree for specific performance 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 11

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 12

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.

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.

..........................J. ( A.K. SIKRI )

..........................J. NEW DELHI, ( ASHOK BHUSHAN ) OCTOBER 05, 2017. 13

ITEM NO.11 COURT NO.5 SECTION XIV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 9906/2010

DHARMABIRI RANA Appellant(s)

VERSUS

PRAMOD KUMAR SHARMA (D) TH. LRS. & ANR. Respondent(s)

Date : 05-10-2017 These matters were called on for hearing today.

CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ASHOK BHUSHAN

For Appellant(s) Mr. Rakesh Khanna, Sr. Adv.

Dr. L.S. Chaudhary, Adv.

Mr. Ajay Chaudhary, Adv.

Ms. Rakhi Tomar, Adv.

Mr. Anurag Tomar, Adv.

Mr. Parambir Singh, Adv.

Mr. Viresh Chaudhary, Adv.

Ms. Manju Jetley, AOR

For Respondent(s) Respondent-in-person

Mr. P. N. Gupta, AOR Ms. Bharti Gupta, Adv.

Mr. Manish Aggarwal, Adv.

Ms. Runal Rastogi, Adv.

UPON hearing the counsel the Court made the following O R D E R

The appeal is dismissed in terms of the signed order.

Pending application(s), if any, stands disposed of

accordingly.

(ASHWANI KUMAR) (MADHU NARULA) COURT MASTER COURT MASTER

(Signed reportable order is placed on the file)