Dismissed

Ramchandra v. Navratan

Rajasthan HC10 Mar 2008CFA/53/2002

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a decree for specific performance of an agreement to sell. The appellant alleged fraud regarding a power of attorney used to execute the agreement but failed to provide sufficient evidence. The Court upheld the trial court's finding that the power of attorney was valid and the plaintiff proved readiness and willingness, thereby enforcing the sale of the agricultural land.

What did the court decide?

The appeal filed by the appellant is dismissed. The judgment of the learned lower court is confirmed. The application for action against Madan Lal is rejected. Each party to bear their own costs.

Ramchandra Vs Navratan — Specific Performance | Rajasthan HC (2008)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

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J U D G M E N T

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LRs.of Ram Chandra Vs. Navaratan & another.

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S. B.CIVIL FIRST APPEAL NO. 53 OF 2002 against the judgment and decree dated 14.1.2002 passed by the learned Addl. District Judge No.3, Jodhpur in Civil Original Case No. 154 of 1995.

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DATE OF JUDGMENT : 10^th MARCH, 2008.

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PRESENT

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HON'BLE MR.JUSTICE MANAK MOHTA

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Mr. Mishri Lal Chhangani, for the appellants. Mr. Manish Shishodia, for respondent No.1. Mr. B.S.Chouhan, for the respondent No.2.

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BY THE COURT :

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This appeal is directed against the Judgment

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and decree dated 14.1.2002 passed by the learned Additional District Judge No.3, Jodhpur in Civil Original Case No. 154 of 1995, whereby the learned court-below has decreed the suit in favour of the plaintiff and against defendant No.2-appellant Ramchandra (since deceased).

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Brief facts of this case are that plaintiffrespondent No.1-Navratan filed a suit for Specific Performance of Contract for the sale of agricultural lands against defendant-respondent No.2-Om Prakash and defendant No.2-appellant Ramchandra with regard to 1/5^th share in Khasras No.1088/740, 1036/740 and 1029/740 measuring 35.1 Bighas, 21.12 Bighas and 12.16 Bighas respectively total 69.9 Bighas of land situated at Basni, Jodhpur. It was further stated that Defendant No.2appellant Ram Chandra had executed Power of Attorney authorizing defendant No.1 to sell the said land including the other land in his favour on 11.5.1992. It was alleged that his 1/5^th share measuring about 13 Bighas 17 Biswas of land has been entered in the Khatedari and has been demarcated separately, therefore, defendant-respondent No.2 as Power of Attorney-holder agreed to sell the said land to the plaintiff-respondent No.1 on behalf of defendant No.2-appellant for a total sum of Rs.1,05,000/- as consideration and he took Rs.5000/- as an earnest money on 28.5.92. Thereafter a sum of Rs.10,000/- was also paid and a consolidated receipt (Ex.1) of the amount of Rs.15,000/- was obtained on 28.7.92 with the condition that remaining amount would be paid at the time of registration of the sale-deed. The respondent No.2 (Power of

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Attorney-holder of the Appellant) also executed an agreement to sale (Ex.2) on 28.7.92 of the aforesaid lands in favour of plaintiff-respondent No.1. It was further alleged that the defendant-respondent No.2 did not execute the sale-deed despite repeated reminders. Notice was issued to defendant-respondent No.2 on 24.4.1995 but he did not give any response to the notice. It was further alleged that the plaintiff also met with the appellant but no sale-deed was made, therefore, the suit for Specific Performance of Contract dated 28.7.92 and for possession and injunction for restraining further alienation was filed on 23.5.1995 against both the defendants.

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The learned trial court issued notices of the suit. After service of notices, defendant No.1-respondent No.2 and defendant No.2-appellant filed their separate replies to the suit.

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In the reply, it was admitted by defendant No.1Om Prakash that defendant No.2 executed General Power of Attorney (Ex.A.3A/1) in his favour and on that basis, he made an agreement to sale with the plaintiff and also admitted the receipt of Rs.15,000/- against the agreed consideration of Rs.1,05,000/- and admitted the receipt

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Ex.1 thereof. He further stated that this Power of Attorney was revoked by appellant Ramchandra on 1.8.1992. After 1.8.1992, it did not remain in existence. It was also stated that prior to it, an Agreement to Sale (Ex.A.4A/1) of the same disputed land was executed on 18.10.88 between defendants No.1 and 2 for consideration of Rs.65,000/- but due to scale-rating the market price of the land, defendant No.2 started to avoid the matter. To secure more price, he executed a Power of Attorney in his favour and on that basis, the defendant No.1 agreed to sell the land in the sum of Rs. 1,05,000/- to the plaintiff-respondent No.1 and executed an agreement to sale on 28.7.92 in his favour. It was further stated that defendant No.1 also being a power of Attorney-holder executed an agreement to sale of the land of defendant No.2 situated at Village Pal Jodhpur in favour of the father of the plaintiff Raghunath Prasad on 28.7.1992 in a sum of Rs.1,20,000/- for 15.4 Bighas of Khasra No.285/4. After that, defendant No.2 gave Rs.35,000/- in advance to defendant No.1 on 29.7.1992 and defendant No.1 got receipt of that amount from defendant No.2. It was stated in the reply that defendant No.2 and his son Madan Lal who was doing business of selling milk and wanted money to purchase a taxi-car for business, they decided to sell the lands but due to hike/scale-rating in

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price of lands, later on, they changed their mind and denied to perform the contract.

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Defendant No.2-appellant has filed written statement and in the reply, denied all the averments made against him. He further stated that he was suffering from heart disease and the litigation was pending between him and his brothers regarding partition of ancestral lands. He further stated that his eye-sight was so weak to read and write. He stated that he never authorized defendant No.1 to sell the land in question. He further stated that defendant No.1 has made agreement to sale which was forged and fabricated in collusion with the plaintiff and thereafter, he has filed this suit. It was further stated that from perusal of the Power of Attorney, it is made clear that defendant No.1, and the plaintiff & his father want to grab the land of defendant No.2, therefore, they have prepared forged documents. He further alleged that defendant No.1 has misused his position while taking the benefits of his oldness, infirmity and illness. Defendant No.2 further stated that he has never entered into agreement with plaintiff and his father regarding sale of this land nor he has received any token or advance money. He submitted that market price of the disputed land was over and above Rs.3,00,000/-

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per bigha, thus, selling of 1/5^th portion of the land at Rs.1,05,000/- was not only false but a mockery. It was submitted that in the year 1992, cost of land was about Rs. 2,00,000/- per bigha. It was submitted that the plaintiff has neither paid Rs.15,000/-nor given any notice to him. The plaintiff is not entitled to get any decree for Specific Performance of Contract in his favour. It was stated that the plaintiff has no cause of action to file this suit and valuation of suit has not been properly shown. In the last defendant prayed that suit may be dismissed with exemplary cost of Rs.10,000/- .

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It is also revealed from the record that the plaintiff-respondent No.1 also filed rejoinder to the allegation made by defendant No.2-appellant in his written statement under O.8 r. 9, CPC denying the averment made by defendant No.2 and reiterating his stand taken in the plaint. It was again stated that the delay in filing the plaint was due to defendant's assurance and his personal cause as defendant No.2's son was expired. Thus, on humanitarian grounds, the suit was not filed. It was further stated that he was always ready and willing to purchase the land. His replication was taken on record vide order dated 12.12.1979.

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On the basis of pleadings of the parties, the

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learned trial court framed the following seven issues :-

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“1-आय� व�द पत म� वर��त�न�स�र र�जसव रजल� ज�धप�र क� ग��व ब�सन� म� आर�ज� स�. 1088/ 744,1036/ 744, 1029/744 रकब� 35.1 ब�घ�, 21.12 ब�घ� व 12.16 ब�घ� क�ल जम�न 69.9 ब�घ� पततव�द! स�. 2 क� न�म बह#सस� 1/5 ख�त�द�र! दज� #%। उक आर�ज� क� 1.05,000/- म� व�द! क� ववकय करन� म�ज+र हकय� और 5000/रपय� स�ई प�ट� उस� हदन प�प त हकय� व 10,000/रपय� और क�ल 15,000/- रपय� प�प त कर ववकय इकर�र 28.7.92 क� तनषप�हदत हकय� ?

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2- आय� पततव�द! द�र� इकर�र बय क� अन�स�र इसक5 प�लन� न#!� क5 और ववतधवत ब6च�न क5 क�य�व�#! न#!� कर र#� #6 जबहक व�द! इकर�र क� ह#सस� क5 #र पक�र स� क�य�व�#! करन� क� त6य�र #6 और इस समबनध म� उन#:न� 24.7.95 क� न�हटस भ� हदय� हक पततव�द! उनक� पक म� श�ष र�तश प�प त कर ब6च�न अन�ब�ध क5 प�लन� न#!� करव� र#� #6 ?

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3- आय� व�द! व�द पत म� वर��त तथय: क� अन�स�र व�दगसत आर�ज� क5 इकर�र बय क� अन�स�र श�ष पततफल क5 र�तश 90,000/- अद� करन� क� पश च�तC पततव�द!ग� स� ववतधवत ब�च�न अपन� #क म� तनषप�हदत कर�न� क� अतधक�र! #6 ?

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4- आय� व�द! पततव�द!ग� क� ववरद सE�ई

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तनष�ध�ज� प�न� क� अतधक�र! #6 हक व�दगसत समपतत हकस� अनय क� #सत�नतररत य� अनतररत न#!� कर� व अनतररत हकय� ज�न� क� फलसवरप उसक� अतधक�र: क� ववपर!त ब�असर व अव6ध घ�वषत हकए ज�य ?

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5- आय� व�द! क� व�दक�र� उतपनन न#!� #�त� अत:द�व� तनरसत य�गय #6?

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6- आय� व�द! न� उसक� ववरद तनत�नत झ+ठ� व असतय द�व� उस� #6र�न व पर�श�न करन� क� तलय� हकय� और व# 10,000/- रपय� ववश�ष खच�� प�न� क� अतधक�र! #6 ?

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7- अन�त�ष।"

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During the course of trial, the plaintiff has examined himself as PW 1 Navratan, and also produced PW 2 Nand Kishore, PW 3 Vithaldas and got recorded their statements and documents; Ex-1 receipt, Ex-2 agreement to sale, Ex-3 General Power of Attorney, Ex-3 & 4 are Postal receipts,Ex-5 Carbon copy of notice, Ex-6 and Ex.7 Postal Acknowledgment Receipts, Ex-8 Reply of notice by Om Prakash and Ex-9 copy of the Jamabandi, were produced and got exhibited. In defence, Defendant No.1 Om Prakash produced himself as DW 1/1 and Poonam Chand as DW 1/2. He also produced certain documents Ex.A/A1 to

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Ex.A/8/A and got them exhibited. Defendant No.2-appellant Ramchandra appeared as DW 2/1 and also produced his son Madan Lal as DW 2/2. Defendant No.2 did not produce any documentary evidence.

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After having heard both the sides, learned trial Court has decided and Issue No.1 to 4 in favour of plaintiff Navratan and found the case of the plaintiff proved. Issues No. 5 and 6 have been decided against defendant No.2 and in favour plaintiff. On the basis of the conclusion of findings, the learned trial court decreed the suit for Specific Performace of Contract in favour of plaintiff Navratan and against defendant No.2 Ramchandra and directed the plaintiff to deposit remaining amount of contract Rs.90,000/- in court and informed defendant Ramchandra by Registered letter with A.D. by post. The learned trial court further ordered that after depositing of money in the trial court, the defendant No.2 will execute the sale-deed and get it registered as per agreement to sale dated 28.7.92 (Ex.2) in favour of the plaintiff and possession be handed over to the plaintiff otherwise he would be entitled to get the execution of sale deed and to get it registered in his favour through court and recover the possession of the land in question. It was further directed that defendant No.2 would

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not alienate or transfer the said land to any other person nor he would hand over possession to any other person. The suit against defendant No.1 Om Prakash was dismissed.

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Being aggrieved by the judgment and decree dated 14.1.02 passed by the learned Additional Sessions Judge No.3,Jodhpur, this present appeal has been preferred by defendant No.2 Ramchandra. During pendency of the appeal, the defendant No.2-appellant Ramchandra died, therefore, his L.Rs. were taken on record. They proceeded with the appeal. Notice of appeal was issued to the respondents. During the course of hearing of the appeal, an application under O.41 r. 27 read with Sec.151 CPC was filed by the appellant's side with a view to show and establish the close relationship between Om Prakash and Navratan. On the said application, it was ordered that the same would be considered at the time of final hearing of the appeal.

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I have heard the learned counsel for the parties and carefully perused the record of the case.

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During course of arguments, the learned counsel for the appellant submitted that the learned trial court has not properly appreciated and considered the material available on record and passed an erroneous judgment, that is not sustainable and liable to be quashed and set aside. it was argued by the learned counsel for the appellant that in this case, the issues framed by the learned trial court are not correct while deciding the controversy involved in the case about the pleas taken by the deceased-appellant Ram Chandra. It was urged that from perusal of the issues, it is apparent that the learned trial court has not applied its mind judiciously and has erred in framing the present issues, which did not arise. It was submitted that there was no dispute between the respondents No.1 and respondent No. 2 about execution of the Agreement to Sale dated 28.7.92 despite issue had been framed. It was submitted that the learned trial court has ignored to frame proper issues in the case in view of the defence version of the deceased-appellant. It was contended that framing of proper issues is the responsibility of the concerned court, therefore, the findings on issues are erroneous and against the real controversy in the suit, therefore, the judgment and decree passed by the learned trial court is not tenable.

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It was further submitted by the learned counsel for the appellant that the learned trial court has committed error in clubbing issues No.1 to 3 and in deciding the same jointly. It was submitted that the Agreement to sale dated 28.7.92 was forged and fabricated document, therefore, the deceased Ramchandra was not bound by it. The deceasedappellant has clearly pleaded that power of attorney was executed by him to look after his agriculture land, therefore, the said agreement to sale in question is a forged and fabricated one and thereafter, he cancelled the said power of attorney. It was urged that no doubt it has been pleaded that the power of attorney was executed by the deceasedappellant but that was under mis-representation and fraud that plea is implied by the implicit pleadings of the written statement of the deceased-appellant. The learned courtbelow has totally ignored the evidence adduced by the deceased Ramchandra, under which, he had explained the position but the learned court wrongly concluded that he executed the power of attorney and erroneously held that the respondent Om Prakash was duly authorized agent for the purpose of selling the agriculture land on behalf of the deceased-appellant. It was submitted that Om Prakash was in collusion with respondent No.1 Nav Ratan, therefore, the deceased-appellant was not bound by his deeds and stood

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absolved of his liability qua the said agreement to sale dated 28.7.92.

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It was submitted that the plaintiff Nav Ratan respondent has not produced even his father in evidence though he was an important and material witness. The learned trial court should have drawn an adverse inference against the respondent Nav Ratan for non-production of his father Raghunath, became the appellant has been deprived from making cross on the material issues.

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Learned counsel for the appellant also submitted that the agreement to sale relates to the ancestral joint agricultural property dealing by only one co-sharer on behalf of the other co-sharer is unlawful and not enforceable under the law. The learned Trial Court has completely ignored this vital aspect of the matter and has gravely erred in passing the decree for specific performance regarding agreement to sale which includes the shares of the other co-sharer also. It was further submitted that the deceased Ramchandra had two sons namely; Madanlal and Satya Narain. Their shares could not be alienated in absence of the legal necessity. It was urged that in view of it, the decree passed by the learned trial court is contrary to the settled principles of

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Hindu Law. It was submitted that the learned trial court while appreciating the evidence available on record has not properly considered that the power of attorney remained in force for 2 month 20 days only and soon thereafter it was cancelled by the deceased-appellant by issuing a notice to respondent Om Prakash but it was not conveyed by Om Prakash to Raghunath and Nav Ratan, for the reason best known to him as the agreement to sale was executed three days prior to that. It was also urged that the conduct of respondent Om Prakash in not informing the deceased Ramchandra with regard to agreement to sale made by him immediately after cancellation of power of attorney creates doubt on the veracity of his statement and support the allegation of collusion between them, therefore, no reliability could be given on his statement and the plaintiff was not entitled to get an benefit out of his statement.

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Learned counsel also submitted that plaintiffrespondent Navratan has not been able to explain the delay of 2½ years in filing the suit. It was contended that the plaintiff-respondent Nav Ratan has concealed the material facts regarding relationship with the respondent Om Prakash. It was urged that in fact, respondent No.1 is the real brother-in-law of respondent No.2. This fact came to

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his knowledge later on. Thus, as regards the conduct of collusion with respondent Om Prakash, it was submitted that respondent Nav Ratan has not come with clean hands in court, therefore, he is not entitled to get discretionary relief of specific performance in suit. It was further submitted that plaintiff-respondent Nav Ratan and respondent Om Prakash are close relatives and in that respect, it was submitted that the appellant has filed an application under O.41 r. 27 CPC along with some documents. Those documents clearly establish the close relationship between two, therefore, a prayer was made to take on record or appellant be allowed to produce additional evidence in this respect. It was urged that they are material evidence to support the appellant's plea.

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It was contended that so far as readiness and willingness of respondent No.1 Nav Ratan to perform his part of the contract was concerned, the evidence on this material aspect was insufficient and unreliable. It was submitted that neither the plaintiff was having sufficient fund with him nor he has been able to prove so. No notice was given to the appellant Ramchandra for showing his readiness and willingness to perform the contract. It was urged that the suit on the basis of agreement was filed after

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a delay of 2½ years. Thus, the mandatory requirement of Sec.16(C) of the Specific Reliefs Act could not be said to have been proved but the learned trial court has not properly considered the issue in right perspective. The learned counsel for the appellant placed reliance on the judgments given by the different courts in support of his contentions.

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On the basis of the aforesaid submission, it was prayed that the judgment and decree of the learned trial court may be quashed and set aside and the appeal may be allowed.

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Learned counsel for the plaintiff-respondent Mr. Manish Shishodia appearing on behalf of the respondent No.1 has refuted the contentions placed by the appellant's side and argued that the appellant has neither pleaded nor proved the submissions sought to be made by way of appeal. The appellant has also failed to lead evidence documentary or otherwise, so as to make out a case for interference by the appellate court. It was submitted that the conduct and lack of bonafides of the deceased-appellant was apparent on the record. It was submitted that the original appellant Ram Chandra had gone to the extent of

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denying his own son Satya Narain by saying that he is having only one son named Madan Lal who lived near Bholibai Ka Mandir and he has no other son in his statement before the learned trial court. It was urged that from perusal of the application for taking L.Rs of Ramchandra on record, it was found that one Satyanarain has been shown as son of Ramchandra. Thus, his statements are not reliable and not trustworthy.

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It was submitted by the leaned counsel for the respondent that the appellant Ramchandra had admitted execution of Power of Attorney. Now saying another thing against the written registered document, is not sustainable. It was also contended that the appellant, in his crossexamination, had admitted that his son Madanlal had signed on the Power of Attorney Ex.3A. Thus, he was estopped to raise contention contrary to evidence on record. It was argued that prior to this agreement to sale, the deceasedappellant Ramchandra executed Agreement to sale dated 18.10.1988 and receipt of consideration was given in favour of Om Prakash but there was no satisfactory explanation to this effect given by Ramchandra as to how the agreement and receipts were executed by him in favour of Om Prakash. It was urged that respondent Om Prakash has deposed

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these fact and in cross-examination, not a single question was put to Om Prakash in that respect. Thus, the allegations of misrepresentation and fraud in obtaining the power of attorney were baseless. It was also submitted that when Ramchandra admitted the execution of the power of attorney while saying that he has given power of attorney only for taking care of the property but as per recitals in the power of attorney, since Ramchandra had authorized Om prakash to sell his said land, therefore, a heavy burden was on the appellant to prove this assertion that power of attorney was executed only to take care of the land and not for selling the land but the appellant remained fail to prove this aspect. The learned trial court has rightly concluded this aspect. It was further submitted that thereafter, Om Prakash executed agreement to sale as power of attorneyholder in favour of the respondent Navratan and received Rs.15,000/-. These facts were admitted by Om Prakash. He also received Rs.20,000/- from Raghunath Prasad. In this way, total sum of Rs.35,000/- was received by the appellant as is evident from Receipt Ex.A-6A/1. This receipt was executed by Ramchandra on 29.7.92 contains averment regarding sale of the land to Navratan vide agreement to sale dated 28.7.92.

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It was further contended that so far as the argument regarding the appellant being not bound by the deeds of respondent No.2 Om Prakash is concerned, it was submitted that the agreement to sale was executed prior to the cancellation of the power of attorney. It was submitted that on the day of execution of agreement, the respondent No.2 Om Prakash was authorized to sell the property and, therefore, it was not open for the appellant to now contend that he was not bound by act of Om Prakash. It was further submitted that the documents so produced on record clearly established that deceased Ramchandra had also executed agreement to sale in respect of the land in question in favour of Om Prakash much prior to execution of the power of attorney and had also received the consideration amount. It was prayed that the learned lower court has considered these all the facts and passed the correct judgment, that may be maintained.

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It was also submitted that with regard to the contentions of readiness and willingness and time of 2½ years in filing of the suit, the learned trial court has rightly recorded the finding. It was submitted that after execution of the agreement to sale (Ex.2) the plaintiff had met the appellant at his house where Ramchandra assured execution

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of sale deed time and again as his son Madanlal was not available and ultimately when they failed to execute the sale deed. Thereafter the plaintiff immediately filed this suit. It was further submitted that the plaintiff was always ready and willing to perform his part. He has deposed on oath that he was having funds, thus, the finding of the learned trial is correct in this respect.

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It was also submitted that the plaintiff is related to respondent No.2 was well within the knowledge of the appellant but no cross examination in this regard has been done despite the appellant himself in his cross-examination on 28.8.2001 as DW 2/1 had stated the existence of knowledge regarding the said relationship. It was urged that on the basis of mere relationship, no adverse inference could be taken of collusion, therefore, the application filed by the appellant in this respect under O.41 r. 27 CPC is not at all relevant to accept and deserves to be rejected.

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It was further contended that when Ramchandra had been examined in Court, at that time, his son Madanlal was present, who admitted the signature of Madanlal from A to B on the power of attorney and DW 2 Madan Lal is saying that he made the signature on the power of attorney at the

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instance of the father. There are various documents including the agreement to sale executed by Ramchandra in favour of Om Prakash, contained signature of Madanlal as a witness, which has not been disputed by the appellant, therefore, the contentions placed by the appellant are not having any basis and deserve to be rejected.

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It was also submitted that the appellant has not produced any evidence before the learned trial court to show that value of the land was more than what was settled at the time of the agreement to sale and therefore, the finding recorded by the learned trial court is absolutely just and proper. In the present case, the appellant has not produced any documentary evidence and has failed to raise any specific defence, therefore, deciding some inter-linked issues jointly have not caused any prejudice to him the learned trial court was empowered to do so in the light of the issues. It was submitted that the issues framed by the learned trial court were complete in view of the pleadings of the parties. The appellant had never made submission before the learned trial court in this respect. If he wishes to add or alter any other issue. Thus, the contentions placed by the appellant at this stage are with some ulterior motive, that is not tenable. It was submitted that learned trial court

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has not committed any error or irregularity in deciding the matter in favour of the plaintiff, the judgment may be confirmed and it was prayed that appeal may be dismissed. Learned counsel for respondent No.1 also placed reliance on the judgments in support of his contentions.

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Learned counsel for the respondent No.2 Om Prakash, supported the judgment and decree passed by the learned trial court.

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I have considered the rival contentions placed by the learned counsel for the parties and perused the findings on all issues and conclusions drawn thereon. Keeping in view, the contentions raised, I have carefully perused the record of the case and authorities cited by the learned counsel for the parties. The main question for consideration arises in appeal is whether the learned trial court was not justified in passing the decree of Specific Performance in favour of the plaintiff and against the appellant since deceased Ramchandra?

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Before adverting to the contentions, it would be proper to scan in brief the evidence produced by the parties before the learned trial court.

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PW-1 Navratan himself appeared in the court and deposed that he wanted to purchase land in Jodhpur, therefore, he met Om Prakash-defendant No.1, on which, Om Prakash told him that he is having power of attorney of Ram Chandra-defendant No.2 to sell the land situated at Basni, Jodhpur. He further stated that thereafter he met Ram Chandra and his son Madan Lal with Om Prakash. They also assured him that Om Prakash is his power of attorneyholder and he has authorized him to deal with the land. It is further stated that Ram Chandra also told him that he is having 1/5^th share in a separately demarcated land at Basni in the concerned khasras. PW-1 further stated that with Ram Chandra the price of the land was settled at Rs.8000/per bigha. It was further stated that as per verbal agreement Ram Chandra agreed to sold 13 bighas 17 biswas of land. PW-1 has further stated that on 28.5.1992 he paid Rs.5000/- as advance money to Om Prakash the power of attorney holder of Ram Chandra. He also stated that on that day he along with his father, Om Prakash, Madan Lal son of defendant No.2 visited the land. It was stated that a total consideration of Rs.1,05,000/- was settled and out of that, he paid Rs.10,000/- on 28.7.1992 and obtained a consolidated receipt (Ex.1). He has further stated that one witness-Nand Kishore also put his signature

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on the receipt and it was also signed 'E' to 'F' by G.C. Mathur, Advocate. PW-1 also stated that Om Prakash showed him the power of attorney given by Ram Chandra and a copy of that was given to him. PW-1 has stated that on 28.7.1982 an agreement to sell was written on a stamppaper of Rs.5/- (Ex.2), the original whereof is Exh.2 and its photocopy is Ex.2A having signatures at “A” to “B” of Om Prakash on that. He further stated that one month thereafter he along with his father met Om Prakash and offered him full money and requested him to get the registry of the land. Om Prakash assured him that he will get the registry of the said land directly from Ram Chandra where Ram Chandra assured him that he will get the registry in favour of the plaintiff. PW-1 has further stated that time and again he met Ram Chandra but he kept for prolonging the matter on one pretext or the other. PW-1 has further stated that he was always ready and willing to purchase the land and he was having sufficient fund with him. He has further stated that thereafter he gave notice dated 24.4.1995 through his advocate to both Om Prakash and Ram Chandra for the specific performance of the contract.

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Lengthy cross-examination has been made. In cross-examination, he has stated that he is doing private

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contractor-ship and sometimes he is doing service. He has stated that he is having Rs.3 lacs with him, that was departed by his grand-father. In cross-examination, he has also stated that Om Prakash also told him that he is having agreement to sell of the very same land executed by Ram Chandra. In cross- examination, he has denied the suggestion given by defendant No.2-appellant that he was not having sufficient funds.

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PW-2 Nand Kishore is witness of the receipt (Ex.1A). He has stated that in May, 1992 transaction with regard to the land situated at Basni was settled between the plaintiff and defendant No.1-Om Prakash and in that respect receipt (Ex.1A) was written and on that receipt Om Prakash has made his signatures “A” to “B”. He has also made signature “C” to “D” as witness. In cross-examination he has stated that the conversations regarding deal of land was settled at the house of defendant No.1. He has also stated that at that time Ram Chandra was also sitting.

¶93

PW-3 Vithal Das - is the Notary Public. He has stated that he personally knew Om Prakash. The agreement dated 28.7.1992 (Ex.2) was produced before him for attestation and that was accepted and executed before me and it bears

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his signature “A” to “B”. He has further stated that he made entry of that agreement in his register at Sr. No.1596. He also produced photocopy of the entry made in his register. He stated that the agreement to sell pertains to 1/5^th share of land of Ram Chandra made in favour of Navratan situated at Basni, bearing Khasra No.1088/740 against the consideration of Rs.1,05,000/- . He has also stated that Om Prakash executed that agreement as a power of attorney holder of Ram Chandra and full details of land were given in the agreement.

¶96

DW-1 Om Prakash is the power of attorney holder of Ram Chandra (owner of the land). He has stated that Ram Chandra S/o. Mishri Lal, by caste Ghanchi, R/o. Kabutaron Ka Chowk, Jodhpur has given him a general power of attorney (Ex.A-3/1) and that power of attorney was got registered on 11.5.1992. He has further stated that the power of attorney given was in relation to sale of land situated at Basni for Khasras No.1088/740, 1036/740 and 1029/740, total measuring 69 bighas 9 biswas and Khasra No.285/4 measuring 15 bighas 4 biswas at village Pal. He has further stated that Ram Chandra was having 1/5^th share in the land situated at Basni. DW-1 Om Prakash has stated that the power of attorney was executed

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by Ram Chandra, who put his thumb impression “A to “B” on that document. He has further stated that son of Ram Chandra, namely, Madan Lal was also present. Madan Lal and Ganpat Lal-Advocate identified Ram Chandra before the Sub-Registrar. He has further stated that after accepting the execution of power of attorney by Ram Chandra before the Sub-Registrar, he made the registration of that document. DW-1 has further stated that on the basis of the power of attorney dated 11.5.1992, he was authorized to sale the concerned land situated at Basni and village Pal and under that authority, he made the agreement to sell with Navratan on 28.7.1992 with regard to 1/5^th share of land measuring i.e. 13 bigha 17 biswas situated at Basni and got that agreement attested by Notary Public. The agreement to sale (Ex.2) and its photocopy (Ex.2A), which bear his signature “A” to “B”. He has made agreement to sell 1/5^th share of land situated at Basni at a total consideration of Rs.1,05,000/- and against that he received an advance amount of Rs.5000/- at the time of transaction and Rs.10,000/- at the time of execution of agreement to sale and in this way, he received Rs.15,000/- from Navratan and stated that the receipt thereof was given is Ex.1A. DW-1 has also stated that on the basis of the power of attorney he has also made an agreement to sale with Raghunath Prasad-

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¶100

father of the plaintiff with regard to the land situated at village Pal, Jodhpur. Om Prakash stated that on 18.10.1988Ram Chandra made an agreement to sell with regard to his 1/5^th share of land situated at Basni and Pal at a consideration of Rs.61,000/- in his favour.

¶101

DW-1/2 Poonam Chand is the attesting witness of the power of attorney. He has stated that on 11.5.1992 the power of attorney was registered in favour of Om Prakash. He has stated that transaction of the land in question was made first with Om Prakash by Ram Chandra then Om Prakash with power of attorney made transaction with plaintiff-Navratan. He has further stated that he is aware about the whereabouts of the land in question.

¶102

DW-2/1-Ramchandra owner of the land appeared in witness box and stated that was having land at Basni near Darby Textile Factory. He has also stated that he was knowing Om Prakash.He has stated that he has not authorized Om Prakash to sell the land on his behalf but he has assigned him the task to look after his land. He has also stated that he is illiterate, having poor eye-sight and is suffering from heart disease and most of the time remained bed-ridden, therefore, he has authorized Om Prakash to look

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after his land and he never authorized him to sell the land. He has stated in his statement that his brothers after beating him, threw him out of the house, therefore, he has filed a suit for partition of ancestral property. He has further stated that he never made any agreement to sell of his land with Om Prakash. He has also stated that on 11.5.1992 he did not execute or get registered the power of attorney in favour of Om Prakash but stated that the power of attorney was given to look after the land. He has stated that he went to the office Sub-Registrar along with Om Prakash and 2-3 other persons. Om Prakash assured him to take care of his interest and watch the land and on this pretext, he made power of attorney but later on when he came to know through the Patwari that the power of attorney had been obtained to sell the land, then he cancelled the power of attorney through registered-deed and a notice to that effect was given to Om Prakash. He has further stated that Om Prakash took undue advantage of his illiteracy and oldness. He has stated that if any land has been sold by Om Prakash, he is not bound by that agreement. In this statement he has also denied any agreement to sell with Om Prakash and receipt of any consideration in lieu of that .

¶105

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DW-2/2 Madan Lal is the son of defendant No.2-Ram Chandra, who stated that his father gave power of attorney in favour of Om Ji Mathur and he witnessed that power of attorney. He has further stated that thereafter the power of attorney in favour of Om Prakash was cancelled by his father.

¶107

After thorough perusal of the witnesses of both the sides, I have also perused the relevant documents exhibited by both the sides and keeping in view the material available on record, I have deeply considered the contentions placed by the learned counsel for the appellant.

¶108

The first contention raised on behalf of the appellant is that the learned lower court has not framed proper and required issues on the pleas taken in written statement. Learned counsel for the appellant has cited the judgments given in the case of C.Vellalsamy Vs. C. Chinnakannu (2001 AIHC 2939). In that case, looking to the nature of the suit, issue with regard to delivery of the property was not framed. In Jagdev Singh Vs. Smt. Amrit Kaur and others (1997 AIHC 1186), unwanted issues were framed. In Nandihalli Patil Akkihalappa & Anr. Vs. Neelakantana Goudra Channdana Gouda (1994(1) Kar.L.J.

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no issue was framed with regard to the allegation of nominal price shown in the sale-deed. In Smt. Shanti Vs. Tarawati and others (1996(2) CCC 714), the question of power of appellate court in framing the issues was dealt with. In Makhan Lal Bangal Vs. Manas Bhunia and others (AIR 2001 SC 490), the scope of framing of issues was explained. It was an election petition in which allegations of corrupt practice on different issues were agitated but no separate issues were framed and a general issue was framed. I have considered the contentions and have perused the pleadings of the parties.

¶111

The defendant No.2-appellant in his written statement has not specifically denied the execution of power of attorney in favour of Om Prakash to sell the land but he has stated that the authority was given to look after the agricultural land. The defendant No.2 has also stated that the said power of attorney Exh.3/1A was forged and fabricated and has been obtained by playing fraud. The main stress of the appellant was that no specific issue was framed by the learned lower court in this respect but from the perusal of the written statement submitted by the defendant No.2, no specific ground has been alleged as to how the said power of attorney was forged and fictitious rather on

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the contrary he is admitting the execution of the power of attorney. Further it is revealed from the record that no application was made by the defendant No.2 before the learned lower court to alter, amend or to frame additional issues. It is also revealed from the pleadings of the parties that the said power of attorney was executed in favour of Om Prakash on 11.5.1982. Om Prakash has stated in his written statement that before executing this power of attorney,Ram Chandra had also made an agreement to sell the land in question in his favour on 18.10.1988 vide Ex.A/4A/A, though receipt of consideration under that agreement to sell has been denied by Ram Chandra but from the statement, it is revealed that Om Prakash was a known person to Ram Chandra prior to the execution of power of attorney. Thus, looking to the pleadings of the parties, the issues framed by the learned lower court are complete and wide enough to cover each and every contentions of the appellant. Issues No.5 and 6 have been framed again with regard to pleas taken by the appellant. Further-more, defendant No.2-appellant was not debarred from leading any evidence in respect of the issues raised by way of written statement. Thus, in this way there was no prejudice of any sort in non-framing of specific issues. Further, before leading the evidence, both the parties were

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aware that what they have to meet out.

¶116

It was also contended by the learned counsel for the appellant that as the defendant No.1-Om Prakash is admitting the execution of the agreement, therefore, framing of issue No.1 was not at all required. Thus, the learned lower court has un-necessarily framed issue but to my mind, this contention of the learned counsel for the appellant is not correct as the suit has been filed against both the defendants on the basis of that agreement (though the agreement was executed by Om Prakash as the power of attorney holder of defendant No.2), therefore, the issue in this respect was necessary to be framed. Therefore, after consideration of the entire contentions raised on behalf of the appellant, I do not find that any improper framing of issues was made and that caused injustice to defendant No.2-appellant. The contention raised in this respect are not sustainable. The authorities cited by the learned counsel for the appellant are of different nature and that is not the position in the present case. Thus, the authorities do not support the contention of the learned counsel for the appellant.

¶117

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The next contention raised by the learned counsel for the appellant was that the learned lower court has decided issues No.1 to 4 jointly, therefore, it was urged that proper examination and appreciation of the evidence on each issues could not be made, which has caused prejudice the appellant's case. I have perused the authorities cited by the learned counsel in this regard : [1] Om Prakash Vs. State of Himachal Pradesh (AIR H.P.18), [2] Lakshmamma Vs. Kamalamma (AIR 2001 Karn.120) and [3] Kamalammal & Ors. Vs. Thirunavukkarasu (2001 A.I.H.C. 3878). In Om Prakash (supra), the conclusion was not found on each issue. In the case of Lakshmamma (supra), one issue with regard to the legality of the wedded wife was found clubbed with other irrelevant issues. Similarly, in Kamalammal (supra) nature of the suit required to give finding on each issue but the issues were clubbed together. In the present case, the suit for was specific performance of the contract on the basis of agreement dated 28.7.1992 and the other issues No.2, 3 and 4 were also related to the same dispute, so looking to the nature of the issues, they could be concluded jointly. The issue No.4 was with regard to injunction, that was also linked with issue No.1. Thus, to my mind deciding of issues No.1 to 4 jointly has not caused any injustice. By perusing the findings on each issues, it is

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revealed that the learned lower court has decided on the material on each issue and has discussed each issue and on that basis all the issues have been concluded simultaneously. On perusing the dispute involved in this case, the authorities cited by the learned counsel for the appellant do not help his contentions. Thus, the contention raised by the learned counsel for the appellant in this regard is having no force.

¶121

During the course of arguments, one contention was also raised that the alleged power of attorney executed in favour of Om Prakash is a forged and fabricated one, which has been obtained by playing fraud and the appellant is not bound by the act/s of the power of attorney holder. It was also contended that in his statement though defendant No.2-appellant Ram Chandra has admitted the factum of giving of power of attorney but it was submitted that the said power of attorney was in fact given to look after the agricultural land and defendant No.1-Om Prakash by misrepresentation and playing fraud, has obtained the power of attorney to sell the land. It was also submitted that the defendant No.2-appellant was a blind, old, infirm and illiterate person, who was incapable of understanding the implication of executing power of attorney, therefore,

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the learned lower court ought to have considered the matter in that respect. In support of his plea of mis-representation, learned counsel for the appellant has relied upon the following authority : [1] Bhagwati Prasad Vs. Chandramaul (AIR 1966 SC 735) and [2] Standard Chartered Bank Vs. Andhra Bank Financial Services Limited & Ors (2006 (6) SCC 94). I have given my thoughtful consideration to this aspect. In the present case, from the perusal of the record, it is revealed that Om Prakash was previously known to defendant No.2-Ram Chander andRam Chandra too has admitted in his statement and it is also revealed that Om Prakash was not having any experience of carrying out agricultural activities. He was a government servant at the relevant time. The said power of attorney was executed and presented before the Sub-Registrar for registration. It is further revealed from the record that appellant's son-Madan Lal was also present at that time and he made his signature on the power of attorney and got it registered. Thus, in these circumstance it cannot be believed that the power of attorney given by Ram Chandra was only for the purpose to look after the agricultural land. From the evidence, it has not been made clear by Ram Chandra that he was having a major son, then why he had authorized Om Prakash to look after the land and that too a person who is not having

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experience of agriculture, therefore, the reasons given for giving the power of attorney to look after the agricultural land does not inspire confidence. Contrary to that, the power of attorney is a registered one. No protest/ objection was made before the Sub-Registrar. Neither it has been made a ground while cancelling the power of attorney by Ram Chandra that the power of attorney has been obtained by fraud or mis-representation. Though the appellant has pleaded that the power of attorney was obtained by fraud or misrepresentation but looking to the overall material on record, it cannot be believed. Contrary to this, the power of attorney holder-Om Prakash has stated that prior to the said power of attorney, the agreement to sell for the land was made in his favour by Ram Chandra and in the year 1988, a consideration in respect was given to him and those documents have been proved by Om Prakash. Defendant No.2-Ram Chander has simply denied the execution and receipt of consideration but in his statement, he is admitting the acquaintance with Om Prakash, therefore, mere denial is not sufficient.

¶126

On the basis of the above discussion, the contention of the learned counsel for the appellant that the power of attorney was forged and fabricated, is not

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sustainable. Though the defendant No.2-Ram Chander has denied the execution of any agreement to sale in favour of Om Prakash and receipt of consideration in lieu thereof but he has not filed any replica to the written statement of Om Prakash. It was contended that the power of attorney was given to look after the agricultural land but to my mind if that was the cause, then there was no need of giving written power of attorney, much more to get it registered. Therefore from this angle the cause given by the appellant for giving power of attorney is not believable. The authorities cited by the learned counsel for the appellant do not help his contention. It was held in AIR 1966 SC 735 and in 2006(6) SCC 94 even if a plea was not specifically taken in pleadings, an aggrieved party will not be dis-entitled to rely on relevant points, he was not restricted to lead evidence but in this case, the defendant No.2 mostly has pleaded his defence on the oldness, sickness, illiteracy and blindness but from the record, it has not been proved that due to oldness or sickness, the defendant No.2-appellant was unable to understand the action taken by him. Merely on account of oldness or illiteracy, such presumption cannot be drawn. It is revealed from the statement of Ram Chandra that as soon as he came to know that the power of attorney was for the sale of land, he immediately cancelled

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the power of attorney through registered deed and a notice was issued to Om Prakash. In this way, it is clear that Ram Chandra was very much conscious about his rights. Thus, the contention raised with regard to the power of attorney obtained by fraud or misrepresentation, is not tenable.

¶131

It was also contended that the concerned property was the ancestral property and Ram Chandra alone was not competent to deal with the property. Ram Chandra was having son and there was no legal necessity to issue power of attorney in favour of Om Prakash to sell agricultural land. In this regard learned counsel for the appellant cited the following judgments : [1] M.M. Ragunath Vs. M.M Basirulla (2000 A.I.H.C. 349), [2] Surendra Singh Vs. Kapoor Singh (2002) 10 SCC 109), [3] Ahswinkumar Manilal Shah Vs. Chhotabhai Jethabhai Patel (AIR 2001 Gujarat 90), [4] Awadesh Yadav Vs. Suresh Thakur & Ors. (2002 (10) SCC 156) and [5] Viseshar Yadav Vs. Govind Swami (2006 (48) AIC 466). I have considered the contentions. From the perusal of the record, it is borne out that the power of attorney was executed by Ram Chandra and Ram Chandra at that time was the head of the family. Ram Chandra in his statement in court has deposed that he was running hard for money and was not having proper

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funds for the treatment of his son, who was suffering since long from disease. He has also stated that previously he was getting Rs.500/- per month from his brother but during those days his brother stopped to sent money to him. DW-2 Madan Lal is not stating anything contrary to that. It is further revealed that the power of attorney was executed by Ram Chandra and at that time his son was present and he also put his signature as a witness thereon. Thus, from the evidence adduced from the defendant No.2-appellant's side the contention raised by the appellant is not having any force. Ram Chandra being the head of the family as well as the khatedar of the land, was competent to deal with the land. No other witness has been produced from the defence side in this respect before the learned lower court. The learned lower court has considered these facts and I find no irregularity in arriving at the same conclusion. I have perused the authorities cited by the learned counsel for the appellant but they are on different issues and do not help the appellant.

¶134

During the course of arguments, it was also contended that the power of attorney has not been found proved. The learned lower court has wrongly concluded that it was proved and Om Prakash was duly authorized to act as

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Agent. It was contended that merely by registration of power of attorney, it cannot be presumed that the power

¶137

of attorney has been proved. As a matter of fact, this contention is not sustainable as defendant No.2 himself has stated that he gave the power of attorney but stated that was given to look after the agricultural land, but that cause was not found trustworthy. The son of Ram Chandra has also admitted that the power of attorney was executed. On the other hand, defendant No.1 Om Prakash in whose favour the power of attorney was executed has admitted that the power of attorney was given in his favour. It is also pertinent to mention here that the same power of attorney has been cancelled later on, meaning thereby that the power of attorney executed on 11.5.1992 is impliedly found proved. Thus, from the aforesaid circumstance where the appellant-Ram Chandra has admitted to this extent that the power of attorney was given and the reason given for giving the power of attorney was to look after the agricultural field is not found trustworthy, therefore, the existence of power of attorney on the day of execution of the agreement to sell stands proved. In these circumstance, there was no need to produce the writer of the power of attorney.

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During the course of arguments, much stress

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has been given by the learned counsel for the appellant that there was a collusion between Om Prakash, plaintiffNavratan and his father Raghunath to grab the land of Ram Chandra. The contention of collusion is mainly based on two grounds – firstly there was a close relationship between Om Prakash and plaintiff-Navratan and secondly after the cancellation of the power of attorney, no immediate intimation was given by Om Prakash to the plaintiffNavratan and further not intimating the fact with regard to the agreement to sell to appellant-Ram Chandra. Thus, it is alleged that there was a collusion. I have considered the material available on the record. It is revealed that Navratan is having relationship with Om Prakash, though, he has denied but to my mind merely on the basis of relationship between Om Prakash and plaintiff-Navratan it cannot be concluded that there was collusion between them to grab defendant-appellant's land. The second ground stated in this respect is with regard to non-intimating the fact of cancellation of the power of attorney to plaintiffNavratan. In this respect, it is revealed from the record that the agreement to sell was executed when the power of attorney was in existence. Thus, mere non-intimating the

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fact of cancellation of power of attorney would not amount to collusion between each other. On the contrary, it has come in the evidence of Navratan that after the agreement to sell when he met Om Prakash, then Om Prakash told him that he will get the registry directly from defendant No.2appellant Ram Chandra. Further non-intimating of fact of making agreement to sell to defendant No.2-appellant also could not be said to be a ground for drawing inference of collusion between Om Prakash and plaintiff-Navratan. In this respect, it is revealed from the record that the power of attorney was given on 11.5.1992 and Om Prakash on the basis of that power of attorney only made agreement to sell of the said agricultural land with plaintiff-Navratan though he was in a position to sell the land through registered-deed but he has not done so. It is further revealed from the stand taken by Om Prakash that of the very same land, Ram Chandra has made an agreement to sell in his favour long back on 18.10.1988 (Ex.A-4A/1) and a considerable money has been given to the defendant-appellant Ram Chandra. It is also revealed that after the said agreement to sell executed by Om Prakash in favour of Navratan on 28.7.1992, a further amount of Rs.35,000/- was given by Om Prakash to Ram Chandra and the receipt thereof (Ex.1) was given by defendant-appellant. Thus, on the basis of

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this factual position, the contention of collusion is not believable and on that basis no adverse inference could be taken. In the same reference, the learned counsel for the appellant also contended that for such collusive action made by the so-called Agent-Om Prakash, the defendant-appellant is not bound by that. In this respect counsel for the appellant cited the judgment of Ram Kaur Vs. Raghubir Singh (56 Indian Cases 631). I have perused the authority. In that case, the lease-deed granted by the Agent was found against the interest of the principal but that is not the position in the present case. In my opinion if it would have been a case of collusion, then Navratan would have filed a suit immediately after cancellation of the power of attorney but he has not filed so and he again and again kept meeting defendant-appellant Ram Chandra for getting the sale-deed executed in his favour. Thus, the contention raised in this respect is not sustainable.

¶145

Learned counsel for the appellant further argues that in this case, the plaintiff has not been able to prove that he was always ready and willing to perform his part of the contract. It was urged that was mandatory in a suit of specific performance of the contract to plead and prove. In the same reference, it was also stated that the plaintiff has

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filed the suit after an inordinate delay of 2 ½ years and on the basis of this contention, it was stated that the suit was liable to be rejected. Learned counsel for the appellant has cited [1] Manjunath Anandappa Vs. Tammanasa (AIR 2003 SC 1391) and [2] Harsahai Vs. Ramcharan (2006(4) RDD 1830 (Raj.). I have perused the judgments. In the case of Manjunath Anandappa (supra), the facts of that case were that the plaintiff filed the suit after a lapse of six years from the date of agreement to sell specially when the property was sold to some another person. It was found that prior to that, no attempt was made by the plaintiff to get the execution. In case of Harsahai (supra), it was found that said agreement was an undertaking for collateral security purpose and there was no other document, which signifies the readiness and willingness of the plaintiff to perform his part of the said agreement but that is not the position in the present case. The plaintiff-Navratan in his statement gave out that he time and again met the defendants. He also gave a legal notice to both the defendants and he has further stated that he was always ready and willing to get the execution of the sale-deed in his favour, therefore, these authorities do not help the contention of appellant.Factually the plaintiff has stated that he repeatedly met the defendants but for one cause or the other they prolonged

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the matter, thereafter he issued legal notice to both the defendants. The learned lower court has also considered the contention while dealing with issue No.2 along with other issues. There is no perversity in the finding. Thus, the contention raised in this respect is not sustainable. Further the contention of the appellant is also not sustainable as the suit has been filed just the expiry of the notice period. The plaintiff has stated that the defendants kept on assuring him to get the sale-deed registered and it is precisely for this reason he could not file suit earlier. That explanation cannot be said to be after-thought and cannot be discarded. The plaintiff-respondent has further stated that he was having sufficient funds with him. He has stated the source of funds in his statement. Thus, the contentions raised in this respect that he was not having funds with him and he was not ready and willing to get the sale-deed registered in his favour are not sustainable.

¶150

During the course of arguments, it was also contended that on the admission of execution of agreement made by defendant No.1 Om Prakash, the court was competent to pass decree in that respect under Order 12 Rule 6 C.P.C. I have considered this aspect of the matter but Om Prakash in his written statement has specifically

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stated that the power of attorney has been revoked and the plaintiff has filed suit against both the defendants, though Om Prakash has admitted the execution of agreement to sell but looking to the nature of the suit as Om Prakash has further stated that the power of attorney has been revoked, therefore, it was not possible to pass decree on his admission. Learned counsel has cited the following authorities in this respect : [1] Rajiv Sharma Vs. Rajiv Gupta (AIR 2004 Delhi 248), [2] Moturi Seeta Rambrahman Vs. Bobba Rama Mohana Rao (AIR 2000 Andhra Pradesh 504) and [3] Jagabandhu Senapati Vs. Bhagu Senapati (AIR 1974 Orissa 120). I have perused the authorities cited by the learned counsel for the appellant in this respect and they are on different factual situation and are of no help to the appellant.

¶153

During the course of arguments, learned counsel for the appellant also contended that the relief of specific performance of contract is discretionary and the court was not bound to grant decree in favour of the plaintiff. It was urged that in the present case, the appellant has not made agreement with the plaintiff. The agreement is said to be made by the power of attorney Om Prakash that too by misrepresentation and playing fraud, thus, the discretionary

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relief should not be granted. Learned counsel for the appellant also cited : [1] Khali Panigrahi Vs. Kamla Devi (AIR 1967 Orissa 100), [2] Manohar Lal Vs. Maya (AIR 2003 SC 2362), [3] Ranganatha Gounder Vs. Sahadeva Gounder (AIR 2004 Madras 520) and [4] Jai Narain Parasrampuria Vs. Pushpa Devi Saraf (2006) 7 SCC 756). I have considered the contentions and gone through the authorities. In the present case, as discussed above, it is found that the appellant executed power of attorney in favour of Om Prakash and on that basis, Om Prakash has made an agreement to sell with the plaintiff-Navratan. The contention raised with regard to the power of attorney and with regard to other issues were not found sustainable. The plaintiff has proved by his evidence that he was always ready and willing to perform his part of the contract and the defendant No.2-appellant earlier gave him assurance to execute the sale-deed and later on he has denied. He has also stated of having funds and stated that he was and is ready to get the execution of the sale-deed in his favour. The agreement to sell has been admitted by its executorOm Prakash. He has also admitted the part-payment of sale consideration. Under these circumstance there is no ground for refusing to grant relief as claimed by the plaintiff. In case of Khali Panigrahi (supra), it was found proved that the

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plaintiff has mis-used his power and on that basis the specific relief was refused. In case of Manohar Lal (supra), it was found that the thumb-impression on blank papers were obtained on wrong pretext and that was converted into the basis of the suit but that is not the position in the present case. In the present case, the agreement to sell was executed by Om Prakash, that was admitted. In case of Ranganatha Gounder (supra), the suit was filed after an inordinate delay but prior to that no attempt was made. In case of Jai Narain Parasrampuria (supra) in that case on the basis of factual matrix, it was found that both the parties were guilty of serious misconduct and false cases were filed against each other and on that basis relief for specific performance of the contract was refused, however, that is not the case here. In this way the authorities cited by the learned counsel for the appellant are not helping their contention. On the contrary, learned counsel for the respondent No.1 has also cited judgment of Hon`ble Apex Court given in the case of Aniglase Yohannan Vs. Ramlatha & Ors. (2005(7) SCC 534). In that case, it was held that where the plaintiff's conduct has been found blemish-less, inference of readiness and willingness on his part is proved, then it was held that the plaintiff is entitled for the relief of specific performance of the contract. In the present case,

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the learned lower court after considering all the facts has used its discretion, that is not found misused of discretion.

¶160

On the basis of the aforesaid discussion, the contention raised with regard to the above-mentioned issues are not sustainable. The finding of the learned lower court in this respect deserves to be maintained.

¶161

During the course of arguments, learned counsel for the appellant also contended that in this case the learned lower court should have taken adverse inference on the basis of non- production of the father of the plaintiff as he was said to be in between the transaction but the learned lower court has ignored this point. In this respect, the learned counsel for the appellant cited the following authorities : [1] Kul Bahadur Rai Vs. Dawa Tshering Lepcha (AIR 1986 Sikkim 18) and [2] Enuga Lakshmamma Vs. Vennapusa Chinna Malla Reddy (AIR 1985 SC 658). I have considered the contentions and have gone through the citations. From the perusal of the record, it is revealed that though Raghunath (father of the plaintiff-Navratan) is stated to be remained present in the land transaction but he is neither a witness of the agreement to sell nor of any receipt thereof. It is said that Om Prakash has made a

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separate agreement to sell with Raghunath but that agreement is not related to the present land, therefore, merely for non-production of Raghunath no adverse inference could be drawn. Thus, the contention raised in this respect are not sustainable and the citations placed in support of the contention are not applicable. In the case of Kul Bahadur Rai (supra), the only witness who can prove the allegation of plaint was not produced. Likewise, in another case Enuga Lakshmamma (supra), the date of birth was under dispute and in that respect the father of the plaintiff was the best witness, who was not produced but that is not the factual position in the present case.

¶164

During the course of arguments learned counsel for the appellant placed contention with regard to appreciation of evidence of the plaintiff especially in case of oldness, sickness and illiteracy. It was argued that the learned lower court has not taken into consideration these material points while appreciating the evidence. The counsel for the appellant has placed reliance on: [1] Bhaiyalal Vs. Ram Din (AIR 1989 Allahabad 130), [2] Manohar Lal Vs. Rajeshwari Devi (AIR 1977 Allahabad 36), [3] Sujan Kaur Vs. Chand Singh (AIR 2003 P& H 364), [4] B.R. Koteshwara Rao Vs. G. Rameshwari Bai (AIR 2004

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Andhra Pradesh 34) and [5] Ramjan Khan Vs.Baba Raghunath Dass (AIR 1992 Madhya Pradesh 22).

¶167

I have considered the contentions, though the appellant has stated in his statement that he is suffering from heart disease and is illiterate and old man but no documentary evidence has been produced with regard to the sickness, blindness etc., but looking to the statement given by the defendant-appellant, it could be believed that he was having understanding on each and everything in the matter. The appellant-Ram Chander has stated the details with regard to his stand taken in the pleadings. The learned lower court has thoroughly considered the evidence. In my opinion merely because of illiteracy and oldness, no adverse interference could be taken when the case is otherwise proved by the plaintiff. It is pertinent to note that defendant No.2-appellant was also found accompanying with his sonMadanLal and he has identified him before the SubRegistrar. Madan Lal has also appeared in the witness-box and he has stated that no undue pressure of any sort was made by Om Prakash at the time of registration of the power of attorney. The authorities cited by the learned counsel for the appellant are on principle but looking to the statement given by these witnesses, no adverse inference

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can be drawn on this on this count. In this way the authorities cited by the learned counsel for the appellant do not help his contention.

¶170

Learned counsel for the appellant has also filed an application under Order 41 Rule 27 read with Section 151 C.P.C. to establish the relationship between the plaintiffNavratan and defendant No.1 Om Prakash with a prayer that it may be taken on record or else he may be given opportunity to adduce evidence in this respect and has cited the following authorities : [1] Smt. Jamna Vs. Bhuwana (AIR 1998 Raj. 214), [2] M/s. Ceean International Private Ltd Vs. Ashok Surana (AIR 2003 Calcutta 263), [3] Trigugi Nath Agarwal Vs. IIIrd A.D.J., Mirzapur [2004(13) AIC 585) and [4] Jayaramdas & Sons Vs. Mirza Rafatullah Baig (2004) 10 SCC 507. I have considered the contentions placed in respect of the application and have perused the authorities. As discussed above, merely on the basis of relationship between two persons, inference of collusion between the parties to grab the land, could not be inferred. It is also revealed from the statement of the defendant-appellant that he was aware about the close relationship between the two, therefore, it was not a new thing to place on record. In addition to that, close relationship between plaintiff and

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defendant No.2 Om Prakash is not so material evidence in deciding the question agitated in the appeal. Therefore the application submitted by the learned counsel for the appellant does not deserve to be accepted and is hereby rejected and the judgments cited by them do not help his contentions.

¶173

In view of the overall discussion made above, I do not find any perversity, illegality or infirmity in the judgment passed by the learned lower court in exercising the discretion for the Specific Performance of Contract in favour of the plaintiff. The main controversy before the learned lower court was well founded that the agreement in favour of the plaintiff-appellant made by Om Prakash that was found proved as well as it was admitted by the defendant No.- Om Prakash at the time of agreement Om Prakash was having the power to attorney to sell the property in question and the contention raised with regard to the power of attorney being forged and having obtained by playing fraud or misrepresentation are found baseless.

¶174

Thus, on the basis of the aforesaid discussion, the contention raised by the appellant from all angles are not sustainable and none of them prevail warranting

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interference in the judgment of the learned lower court. The learned court below has discussed the material available on record at length before passing the judgment and that deserves to be maintained.

¶177

In the result, the appeal filed by the appellant is liable to be dismissed and is hereby dismissed. The judgment of the learned lower court is confirmed. I have also considered the application filed on behalf of Om Prakash with regard to taking action against Madan Lal for giving false evidence but considering all the facts, I do not consider fit to take any further action, the application stands rejected. Looking to the nature of case, the parties are directed to bear their own costs.

¶178

( MANAK MOHTA ), J.

Ramchandra v. Navratan

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Ramchandra v. Navratan

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