DHARMABIRI RANAversusPRAMOD KUMAR SHARMA (D) THR. LRS. & ANR.

                             [2017] 10 S.C.R. 122


A                          DHARMABIRI RANA
                                      v.
          PRAMOD KUMAR SHARMA (D) THR. LRS. & ANR.
                       (Civil Appeal No. 9906 of2010)
B                            OCTOBER 05, 2017
              [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
         Specific performance: Suit for specific performance of
  agreement to sell property - Denial c~f title by defendant - Held:
c The  Court can order specific performance of (/fl agreement only
  when it is proved that a person allegedly executing an agreement to
  sell has right of transferring the property - When defendants deny
  their entitlement and right, title and interest in the suit property, the
  said question is necessary to be answered before decreeing tlze
  suit - In the instant case, the trial court after noticing tlze said
D pleading on behalf of the defendants did not enter into this question
  or returned any finding as to ownership of the suit property - It
   was not proved that any power of attorner was executed so as to
  enable defendant no.2 to enter into agreement to sell and further
  the execution of agreement was also not proved - Although, copy
  of alleged power of attorney was filed by appellant before this Court
E
  but both the Courts having not considered the same, it was not
  necessary for this Court to consider the same in this appeal - Suit
  was rightly dismissed by first appellate court - No inteiference called
  for.
F        CIVIL APPELLATE JURISDICTION : Civil Appeal No.9906
    of2010.
          From the final Judgment and Order dated 19 .07 .2005 passed by
    the High Court of Delhi at New Delhi in R.S.A. No.171 of 2005.
       Rakesh Khanna, Sr. Adv., Dr. L. S. Chaudhary, Ajay Chaudhary,
G Ms. Rakhi Tomar, Anurag Tomar, Parambir Singh, Viresh Chaudhary,
  Ms. Manju Jetley, Ad vs. for the Appellant.
          P. N. Gupta, Ms. Bharti Gupta·, Manish Aggarwal, Ms. Runal
    Rastogi, Advs. for the Respondents.
           Respondent (in-person).
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                                      122
   DHARMABIRI RANA v. PRAMOD KUMAR SHARMA (D)                                     123
                 THR. LRS. & ANR.

        The Order of the Court was delivered by                                   A
        ASH OK BHUSHAN, J. 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 decidin'g this Civil Appeal are:-
  (a)     The parties shall be referred to as described in the plaint. The        B
         plaintiff filed Suit No. 541 of 1990 praying for specific
         performance of a contract dated 04.01.1987. Plaintiff's case in
         the plaint was that defendant No. 2 representing himself to be
         power of attorney holder of defendant No. 1, his brother, entered
         into •in agreement to sell dated 04.01.1987 for a plot of land           c
         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. Or. 07.01.1987, the terms of the agreement to sell were
         moJ;fied by enhancing the consideration from Rs.60,000/- to
         Rs.65,000/-. Plaintiff claimed to approach the defendant No.2            D
         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   E
         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. I and 2.
         Defendant No.1, in his written statement, pleaded that he is             F
         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. I
         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            G
         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 agreementdated 07.01.1987 were            H
124            SUPREME COURT REPORTS                         [2017] 10 S.C.R.


A            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
B              Suit?
               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?

c              4. Relief'
             (c) The trial court vi de 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
D
             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
E            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 filed.
            2. Shri Rakesh Khanna, learned senior counsel has appeared for
      the appellant and Shri P.N. Gupta, Advocate has appeared for the
F     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. I and payment of earnest money had also been made. The trial
G 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 defen\iant No. I in his written statement
  has not pleaded that he never executed any power of attorney in favour
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   DHARMABIRI RANA v. PRAMOD KUMAR SHARMA (D)                                     125
       THR. LRS. & ANR. [ASHOK BHUSHAN, J.]

of defendant No.2. Further, the handing over of the possession to the             A
plaintiff on 04.01.1987 clearly proves the factum of agreement. He further
submits that Court below have erred in not looking to the copy of the
power of attorney dated 04.11.1986 executed by defendant No. I 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.
                                                                           B
       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 c
defendant No. I 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. I, D
hence there was no question of entering into any agreement of sell by
the defendant No.2 on 04.01.1987. It is 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.
                                                                           E
       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. I and further both the defendants having         F
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         G
sell, we now proceed to consider the findings recorded by the First
Appellate Court.
      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
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126            SUPREME COURT REPORTS                            [20171 IO S.C.R.


A 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. I in the written statement has pleaded that he has no
  right, title or interest of any nature in the Ml it p1 'iperty but no finding was
  returned that defendant No. I is the owner of tile property. The entire
  discussion by the trial court is in Para I 0 of the judgment, which is as
B
  follows:-
             ''ISSUE N0.3, 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. I has stated that he has no
             right title interest of any nature whatsoever in respect of suit
c            property and he has been tmnecessarily dragged. It is stated
             that the defendant No. I 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 .~greement with the
             plaintiff. The defendant No.2 has also deliberately denied the
D            averments of the plaintiff. DW2 Krishan Kumar has even denied
             his signature on EX.PWl/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 Gautam has also stated in his testimony
             about the document having been executed in his presence. He
E
             has admitted his signature at Mark ·c· in Ex.DI mark 'C' Ex.DZ
             and mark 'C' in Ex.D3. He further stated that he cannot be said
             if the 001.,ument DI, D2 and D23 are forged and genuine
             documents. DWI is Rakesh Kumar has stated that he is owner
             of the suit property and earlier Sh. Prabhu Dayal was owner of
F            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 af 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
G
             the suit property nor it was ever executed. From the testimony
             of DWI & DW2 and DW3, it is clear that the document DI, D2
             and D3 were manipulated at a later stage. The testimony of
             DWI, DW2 and DW3 does not inspire any confidence.
             Therefore, I hold that he plaintiff is entitled for a decree of specific
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   DHARMABIRI RANA v. PRAMOD KUMAR SHARMA (D)                                   127
       THR. LRS. & ANR: [ASHOK BHUSHAN, J.]

        performance of agreement to sell. Issue No.3 is decided in favour       A
        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          B
              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. l
              had ever authorized defendant No.2 to enter into agreement        C
              to sell.
       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:-          D
        "The result of the aforesaid discussion is that in the absence of
        any evidence coming on record that appellant No. l was owner
        of the suit property or appellant No.2 was having any power of
        attorney on behalf of appellant No. I execute the agreements in
        favou~ of the respondent, no documents for transfer of title in E
        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.PWl/1 and PWl/3. The agreements
        are thus illegal, unenforceable· and to decree for specific
        perform_ance can therefore be passed in favour of the
        respondent."                                                      F

       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             G
substantial question of law, hence the Second Appeal 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
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128             SUPREME COURT REPORTS                        (2017) 10 S.C.R.


A 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
  ofthe defendant to transfer the property being not there, the passing of
B
  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 tinding that defendant No. I 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
C the execution of agreement has also not been 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.
D            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.
E

      Devika Gujral                                            Appeal dismissed.