Smt. Subhadra Devi vs Smt. Bimla Devi Sarawgi, Mrs. Rina Didwania, Manish Sarawgi and Miss Dolly Kumari

Poonam Srivastav, J.—This is plaintiffs Second Appeal. The suit was decreed in part. Shri Aparesh Kumar Singh, Advocate appeals on behalf of the appellant and Shri Manjul Prasad, Sr. Advocate, assisted by Shri Dilip Kumar Prasad, Advocate, on behalf of the respondents.

The second appeal arises from Title Suit No.202 of 1975 preferred by the plaintiff against the original defendant Smt Triveni Devi claiming relief of specific performance of contract entered into between the plaintiff and the original defendant- Smt. Triveni Devi. The case set up by the plaintiff before the trial court and as detailed in the plaint is that on 07.12.1972, an agreement to sell was entered into in respect of the property mentioned at the bottom of the schedule of the plaint and alternative relief, in the event the plaintiff is not entitled to relief (a) i.e. specific performance of contract then the defendant be directed to refund Rs. 5,000/- with interest @ 12% per annum with effect hum 07.12.1972 and also compensation of Rs. 10,000/- with interest and also award cost.

The case of the plaintiff is as follows.-

(i) The defendant Smt. Triveni Devi is the owner of the suit land. The defendant entered into an agreement on 07.12.1972 with the plaintiff to sell the suit property to her for a total consideration of Rs. 1,27,500/- The plaintiff paid Rs. 5,000/- as advance to be adjusted against the total consideration. The rate of the land was settled as Rs. 5100/- per katha. It was agreed between the plaintiff and the defendant that the defendant will get her name mutated in the record of State of Bihar and to pay up-to-date rent before 28.02.1972.

(ii) The plaintiff did not get any information from the defendant whether her name had been mutated in the record of State of Bihar, the plaintiff therefore inquired from the defendant and thereafter the plaintiff intimated that the defendant was unable able to get her name mutated till then.

(iii) Although the defendant could not gel her name mutated, the plaintiff agreed to purchase the suit land, consequent thereon the land was measured for preparing the map to be annexed with the sale deed. The plaintiff also requested the defendant to obtain necessary clearance certificate from the Income Tax Department and also a draft of the sale deed was handed over for approval. The defendant thereafter failed to perform her part of the deed and no steps were taken to obtain the necessary documents. This lack of interest was evidently a way to act upon the agreement.

The suit was decreed ex-parte, vide order dated 24.06.1982 with cost against the original defendant Smt. Triveni Devi directing her to execute and register the sale deed in favour of the plaintiff with respect to the suit land after receiving the consideration amount of Rs. 1,27,500/-.

A Misc. Case No. 50/1982 was instituted on 17.07.1982 by the defendant under Order 9 Rule 13 C.P.C. The application to set aside the decree was dismissed on 26.02.1983. A Misc. Appeal was perfected, vide Misc. Appeal No. 26/83(11) which was allowed by the High Court on 15.03.89 and the Title Suit No. 202/75 was restored to its original number. The defendant filed his written statement and denied the pleadings as follows : -

(i) The suit of the plaintiff is not maintainable and the plaintiff has got no cause of action for the suit and that the suit of the plaintiff is false, frivolous and liable to be dismissed. It has also been pleaded that the suit is bad for non-joinder of necessary parties in as much as the suit property was acquired jointly by this defendant along with Smt. Tavern Devi and Smt. Indramani Devi, but only this defendant has been impleaded in the suit. The suit is also barred by limitation.

(ii) The defendant never entered into any agreement with the plaintiff on any date nor did she receive any advance amount from the plaintiff, and that it appeared that the plaintiff in course of ex-parte hearing filed the purported agreement and alleged in the deposition that the defendant entered into the agreement through her agent. The alleged document is illegal, void and not binding on her because Sri Harakh Chand Saraogi was not empowered or authorized to enter into any agreement with the plaintiff. The plaintiff had full information that the name of the defendant was not mutated, It is false to state that the suit property was ever measured in pursuance to the alleged agreement. On these grounds it has been pleaded that the plaintiff is not entitled to any relief, far less the reliefs claimed.

During trial the original defendant Smt. Triveni Devi died. Her legal heirs were substituted by order dated 12:09.1995, who were respectively substituted as defendant nos. 1 to 5, namely, Smt. Chandra Kala Devi and others.

On behalf of the plaintiffs, three witnesses were produced during trial. On 12.02.2004, P.W. 1- Nandlal Pandey was examined. He is a formal witness. He has proved the Special Power of Attorney dt. 11.02.2004, executed by the plaintiff Smt. Subhadra Devi in favour of her elder brother Gopal Narayan Singh, as Ext-1 has also proved the acceptance in writing and signature of Gopal Narayan Singh on Ext-1 and Ext-2. This power of attorney was, authorizing Gopal Narayan Singh to contest the suit on behalf of the plaintiff.

The suit was decreed, vide judgment dated 08.04.2004 passed by Sub-Judge-VI Ranchi, ex-parte since the defendants did not appear to contest the trial after filing their written statement. The suit was decreed ex-parte, partly against the defendant with cost. The defendant was directed to refund Rs. 5,000/- with interest @ 12% with effect from 07.12.1972 till the payment and they were also directed to pay Rs. 10,000/- with 6% interest as compensation from the date of institution of the suit till the date of recovery. However, the decree for specific performance was declined by Sub-Judge-VI, Ranchi. The plaintiff preferred first appeal being Title Appeal No. 22/2004 in the court of Additional Judicial Commissioner- XVI, Ranchi. The appeal was dismissed without cost. The judgment and decree passed by the lower court was set aside. The decree for refund the amount of Rs. 5,000/- with interest and also compensation was dismissed, vide judgment and order dated 13.12.2006 by the Additional Judicial Commissioner- XVI, Ranchi. The instant Second Appeal was filed and the appeal was admitted on the following substantial question of law : -

(I) Whether in absence of an appeal or a cross objection by the defendants-respondents, can the decree of refund and compensation granted by trim court in favour of plaintiff-appellant be set aside, in an appeal by plaintiff-appellant against refusal of specific performance of contract by invoking Order 41 Rule 33 C.P.C. ?

(II) Whether refusal of relief of specific performance of contract is sustainable as it is completely based on complete misconstruction of the contract (Ext. 4) and its true nature specially in absence of any clause disentitling the plaintiff to get relief of specific performance ?

Counsel appearing on behalf of the appellant Shri Aparesh Kumar Singh has advanced two fold arguments, The first submission is that the appellate court erred in law while setting aside the decree of the trial court to the extent of refund of earnest money with 12% and payment of cost with 6% interest in absence of any cross appeal against the judgment and also for the reason that the defendants had failed to prefer any cross objection. The second argument is that burden was on the shoulders of the defendant to negate the existence of agreement to sale since the deed of agreement was exhibited before the trial court and was marked as Ext. 4. The defendants neither contested the suit alter filing their written statement nor set up a cross appeal, the lower appellate court had no jurisdiction to set aside the part of the decree which was in favour of the appellant.

I proceed to examine the two questions of law which is argued by the counsel as substantial question of law. In a suit for specific performance, the basis of the claim set up by the plaintiff is the agreement and it is the bounden duty of the plaintiff to establish that the agreement to sale is a legally executed valid document by a person who has a right to enter into contract fur the subject matter of the suit. In the instant case, the agreement to sale is not signed by the defendant- Smt. Triveni Devi, but it is signed by one Harakh Chand Sarawgi as constituted power of attorney, Ext. 5 is the receipt dated 07.12.1972 denoting payment of Rs.5,000/- as earnest money pursuant to the agreement dated 07.12.1972. This receipt is also issued by Harkh Chand Sarawgi on behalf of the defendant. Smt. Triveni Devi. The plaintiff has not pleaded in his plaint that the agreement of sale was entered into on behalf of the defendant by a Power of Attorney- Harakh Chand Sarawgi. There is not a whisper that Smt. Triveni Devi had authorized her power of attorney to execute any agreement whatsoever or to accept money on her behalf and issue a receipt thereof. I have noticed that the power of attorney in neither on record nor mentioned anywhere and, therefore, the plaintiff has not set up- claim on the basis that an agreement was entered into on behalf of the defendant, rather the assertion in the plaint is that the defendant agreed to sale the property in question on certain terms and conditions which is a part of the agreement and detailed in both the judgments as well as in the plaint and forms part of the record. Obviously, in absence of any document to cannot the agreement Ext. 4 and the receipt Ext. 5 with the defendant which was incumbent on the plaintiff to substantiate the assertions of the plaint the arguments to the said effect has no legs to stand. The agreement is the foundation of the plaintiffs'' case, but there was nothing to connect the defendant with Ext. 4. There was no agreement that a third person who signed the said deed was authorized or had any authority to act on behalf of the defendant vis-a-vis subject matter of the suit. No attempt was made on behalf of the plaintiff to procure the said power of attorney as a secondary evidence as well, therefore, the agreement to sale exhibited is only a waste paper. Admittedly, the agreement to sale is neither signed by the defendant nor the receipt depicts any acceptance of money as an advance towards the aforesaid agreement. The only signanture on the two documents is of alleged power of attorney Harakh Chand Sarwagi. P.W. 3 is the only witness who has come forward to depose in favour of the plaintiff, but has not stated anywhere regarding existence of power of attorney. The trial court should have constituted a separate issue on the question of power of attorney since there was a specific denial in the written statement by the defendant. No doubt, alter filing of the written statement, the defendant failed to appear on various dates fixed during the trial, but since written statement is a part of the pleading, the court should have examined the authority of Harakh Chand Sarawgi, who was the signatory to the agreement of sale and also signed the receipt regarding payment of earnest money. Besides the plaintiff was liable to substantiate its case.

Counsel on behalf of the appellant submits that the power of attorney executed in favour of Harakh Chand Sarawgi by the the defendant, was not in possession of the plaintiff and the deed of agreement to sale was exhibited and was relied by the trial court. The lower appellate court could not have reversed the finding. Section 65 of the Evidence Act deats with the cases in which secondary evidence relating to documents can be accepted. Section 65 lays down formalities to be observed for such admissibility when the original document is in custody of the adversary who has an obligation to produce it, but fails to produce it in spite of notice, then the secondary evidence may be admitted on appropriate proof. In the present case, no notice wag ever given to the plaintiff to produce any such power of attorney. There was no assertion in the plaint itself. In fact, the plaintiff case as set up before the trial court at the inception of the suit is that the agreement to sale was entered into by the defendant and she was a party to the contract. Her signature is not on the deed of agreement, on the contrary, the signature of Harakh Chand Sarawgi exists on the two documents i.e. agreement and the receipt to depict payment of earnest money. There is no application on record for producing the document and no notice to the defendants. The defendant did not appear to contest during the trial, therefore, the plaintiff should have substantiated its case by means of sufficient proof. Section 66 of the Evidence Act deals with ''Rules as to notice to produce''. Perusal of Section 66 is sufficient to hold that the procedure provided for existence of a secondary evidence was neither followed nor the document falls under any of the conditions of the proviso to Rule 66 and, therefore, the only conclusion is that the plaintiff miserably failed to substantiate its case and existence of agreement to sale and also that any money was received by the defendants towards advance.

Learned counsel has relied on a decision of the Apex Court, Banarsi and Others Vs. Ram Phal, , paragraphs- 9, 10, 11, 14 and 15

I have gone through the decision of the Apex Court. In the present case, no doubt, no counter claim was filed and no appeal was preferred against the judgment. It was the plaintiff himself who was not satisfied with the decree and award of compensation and also return of earnest money the plaintiff preferred the appeal which was dismissed holding that there was no agreement to sale. The basis of both the relief is admittedly, the agreement to sale and the appellate court while making an assessment of the grounds of appeal conclusively arrived at a decision that the deed of agreement to sale or the receipt denoung payment of earnest money is not signed by the defendant. There is no pleading to the effect that the deed was executed on behalf of the defendant by a power of attorney. The entire theory of power of attorney was disbelieved and thus the said agreement which is the foundation of the plaintiffs'' case was held to be a sham. Once a finding was arrived at, that the plaintiff had failed to prove the power of attorney or to establish that any agreement or contract to sale was entered into by the defendant, obviously, the return of earnest money or the compensation awarded has necessarily to go even though no counter claim was preferred, the evidence of the plaintiff that the agreement to sale was executed by the power of attorney, cannot be read as there was no pleading to that effect and, therefore, the principles, laid down in the case of Banarsi (supra), has no relevance to the facts of the present case.

Learned counsel has also relied on two oilier decisions. Recent decisions of the Apex Court are : Laxman Tatyaba Kankate and Another Vs. Smt. Taramati Harishchandra Dhatrak, and Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, . These decisions relate to the manner of proof required in a case where the plaintiff asserts on an act of attorney holder who has endorsed the signature. Unless the pica of attorney holder is set up and such a attorney holder is examined and evidence is led to substantiate the authority of the attorney holder, no relief can be granted to such a plaintiff. Evidently, in the instant case, in absence of any pleading, evidence or any such stand taken by the plaintiff right from the inception of the suit, contention of the appellant cannot be accepted. A heavy burden lay on the shoulders of the plaintiff which was not discharged by him, he" cannot be allowed to take advantage of the fact that the agreement was marked as Ext. 4 and the receipt as Ext. 5.

In the circumstances, the plaintiffs'' case cannot be accepted as trustworthy. A copy of the power of attorney was also not brought on record and there was no assertion in the plaint. There was nothing to connect Exts. 4 and 5 with the defendant. No notice was given to the defendant to produce the document.

Thus, on overall consideration of the entire evidence on record, I am of the opinion that the question of Jaw does not arise in the instant appeal. The appeal has no merits and is accordingly dismissed with cost.