Sudesh Rani vs Subhash Singh & Ors.
2013 Latest Caselaw 2987 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Date of decision: 16th July, 2013
+                           RFA No.142/2002
       SUDESH RANI                                    ..... Appellant
                         Through: Mr. Ashish Mohan with Mr. Varun
                                    Garg, Adv.
                                 versus
    SUBHASH SINGH & ORS.                       ..... Respondents

Through: Mr. Mahabir Singh, Sr. Adv., Mr. & Mr. Nikhil Jain, Adv. for R-1&2.

Mr. Rakesh Dahiya, Adv. for R-

5,6,7&8.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 7 th November,

2001 of the learned Addl. District Judge, Delhi dismissing suit No.305/1992

(old suit No.64/1985) filed by the appellant for specific performance of an

Agreement dated 24th April, 1969 of sale of property No.12/43, Old Rajinder

Nagar, New Delhi.

2. Notice of this appeal was issued and the appeal was admitted for

hearing on 17th July, 2003. Though the parties were referred to mediation but

the same remained unsuccessful.

3. Shri Tola Singh and Shri Bhagat Singh were the owners of the

property and who were averred to have vide agreement to sell dated 24 th

April, 1969, agreed to sell the property to the appellant. However Shri Tola

Singh died prior to the institution of the suit in the year 1985 and which was

instituted against his heirs and Shri Bhagat Singh. Shri Bhagat Singh also

died during the pendency of the suit and his legal heirs were substituted.

Several of the respondents died during the pendency of the appeal and their

legal heirs were substituted.

4. The counsels have been heard.

5. On the pleadings of the parties in the suit, the following issues were

framed on 16th February, 1987 and 17th September, 1996:-

"(1) Whether the suit of the plaintiff is within time? O.P.P. (2) Whether Sh. Bhagat Singh and Sh. Tola Singh had entered into an agreement dated 24.4.1969? O.P.P.

(3) Whether the agreement dated 24.4.1969 is binding on the defendants? O.P.P.

(4) Whether the defendants are bound and liable to perform specifically the agreement dated 24.4.1969 and execute and register a sale deed in favour of the plaintiff conveying to her quarter No.12/43, Old Rajinder Nagar, New Delhi, if so on what terms? O.P.P.

       (5)    Relief.
       (6)    Whether the plaintiff is ready and willing to perform her part of
              contract? O.P.P.
       (7)    Relief."

6. The counsel for the appellant has fairly informed at the outset that the

issue No.(1) aforesaid qua limitation was decided against the appellant and

the suit for the relief of specific performance was held by the Trial Court to

have been filed beyond the prescribed period of limitation for filing thereof.

7. Article 54 of the Schedule to the Limitation Act, 1963 prescribes

limitation of three years for instituting a suit for the relief of specific

performance, commencing from, if a date is fixed for performance, from the

said date and if no date is fixed for performance, from the date when the

plaintiff first has notice that performance is refused.

8. It has as such been enquired from the counsel for the appellant as to

whether the Agreement to Sell of which specific performance was claimed

provided for any date for performance.

9. The counsel for the appellant has replied that though the Agreement

did not fix any date for performance but the learned Addl. District Judge has

held the suit to have been filed beyond the period of limitation for the reason

of having been filed after three years even from the date when the appellant

instituted a suit for permanent injunction to restrain the respondents/their

predecessors from dealing with the property. It is informed that the said suit

for permanent injunction was filed in the year 1981 and the suit for specific

performance from which this appeal has arisen was filed after nearly four

years therefrom in the year 1985.

10. It has in the circumstances been enquired from the counsel for the

appellant as to what is the error in such finding in the impugned judgment, in

as much as, but for a specific plea in this regard, the appellant on the date of

institution of the suit for injunction is deemed to have notice that the

respondents are refusing performance.

11. The counsel has fairly admitted that there is no specific plea and has

contended that the appellant in the present case, in pursuance to the

agreement to sell, is in possession of the barsati floor and in symbolic

possession of the ground floor of the property and therefore the bar of

limitation would not apply. Reliance in this regard is placed on Parnam

Balaji Vs. Bathina Venkatramayya AIR 1988 Andhra Pradesh 250 to

contend that in such a situation the suit cannot be barred by time.

12. I may at the outset state that Article 54 of the Limitation Act,1963

does not carve out an exception qua contracts in pursuance to which

possession of the property has been delivered. Moreover the judgment relied

upon also does not do so and after arriving at the finding that there was no

refusal to perform, holds that since the purchaser was in possession in part

performance of the contract, limitation did not begin to run for the

enforcement of the contract and the mere lapse of three years from the date

of Agreement did not automatically put an end to the contract. There can be

no dispute with the said proposition of law. As per the language of Article

54 also, limitation begins to run only when the purchaser first has notice that

performance is being refused; since in that case the High Court of Andhra

Pradesh held that there was no refusal, there was no question of limitation

commencing to run. However in the present case there is a finding that the

appellant admitted in the plaint in the suit for injunction filed by her more

than three years prior to the institution of the suit for specific performance

that the respondents were refusing to perform the contract and thus no error

can be found in the finding of the Trial Court of the appellant, at least at the

time of institution of the suit for injunction first had notice of the refusal of

the respondents to perform their part of the Agreement. It is not the case of

the appellants that there was any subsequent agreement.

13. No further argument has been addressed on the aspect of limitation.

Thus, no error can be found in the finding in the impugned judgment of the

claim for specific performance being barred by time.

14. The counsel for the appellant has next contended that the written

Agreement to Sell of which specific performance was claimed, was executed

not by Shri Tola Singh and Shri Bhagat Singh who were the owners of the

property but by Shri Sant Singh and Shri Harnam Singh as attorneys of Shri

Tola Singh and Shri Bhagat Singh respectively. He has further stated that the

Trial Court has held the appellant to have not proved that the said Shri Sant

Singh and Shri Harnam Singh had been authorized by the owners Shri Tola

Singh and Shri Bhagat Singh to execute the Agreement to Sell. He has

further contended that notwithstanding the claim for specific performance

being barred by time, since the appellant is in possession as aforesaid of part

of the premises, the appellant will suffer prejudice from the said findings.

15. The senior counsel for the respondents no.1&2 of course controverts

that the appellant is in possession of any part of the premises.

16. On enquiry whether any finding has been returned by the Trial Court

on the said aspect, both counsels state that no categorical finding has been

returned by the Trial Court and no specific issue also on this aspect was

framed in the suit.

17. The counsel for the appellant has further contended that though the

respondents till date have not instituted any proceedings for recovery of

possession of the portion of the premises in occupation of the appellant but if

the respondents do so, the defence of the appellant to the said proceedings,

notwithstanding the dismissal of her claim for specific performance, could

be of Section 53A of the Transfer of Property Act, 1882 or of adverse

possession or of the claim for possession being barred by time. It is

contended that it is thus important for the appellant to have the finding in the

impugned judgment of there being no Agreement to Sell set aside in as much

as the said finding would be res judicata in the subsequent suit for

possession and would prevent the appellant from taking up the defence of

Section 53A of the Transfer of Property Act, 1882. The counsels have as

such been heard on the said aspect. Even otherwise, it is incumbent to return

finding on all issues.

18. The appellant, to prove that Shri Sant Singh and Shri Harnam Singh

who are claimed to have executed the Agreement to Sell, were authorized by

the owners Shri Tola Singh and Shri Bhagat Singh respectively to sell the

property had relied on power of attorneys executed separately by Shri Tola

Singh and Shri Bhagat Singh in favour of Shri Sant Singh and Shri Harnam

Singh and on which during evidence before the Trial Court Ex.PW8/1 and

Ex. PW9/1 were put. It is argued that the Trial Court has however held the

said documents to have been not proved and thus held Shri Tola Singh and

Shri Bhagat Singh to have not entered into the Agreement of which specific

performance was claimed and being not bound thereby. The counsel has

further argued that the Trial Court has not considered that the perpetual

Lease Deed of the land underneath the property and the Conveyance Deed of

the structure have also been executed by the said Shri Sant Singh and Shri

Harnam Singh as attorneys of Shri Tola Singh and Shri Bhagat Singh. It is

further contended that in the said documents Shri Sant Singh and Shri

Harnam Singh are defined as general attorneys of Shri Tola Singh and Shri

Bhagat Singh and thus Shri Sant Singh and Shri Harnam Singh would also

have a right to sell the property or agree to sell the property.

19. Trial Court record has been perused. Ex.PW8/1 and Ex.PW9/1 have

been put on photocopies of registered power of attorneys purportedly

executed by Shri Tola Singh and Shri Bhagat Singh in favour of Shri Sant

Singh and Shri Harnam Singh respectively.

20. It has been enquired whether the originals of the said documents were

produced/got produced before the Court.

21. The answer is in the negative.

22. It has next been enquired whether the foundation for laying secondary

evidence in the form of photocopies was led.

23. The answer is again in the negative.

24. Needless to state that the respondents/their predecessors denied the

said documents and denied the authority of Shri Sant Singh and Shri Harnam

Singh to enter into Agreement to Sell on behalf of Shri Tola Singh and Shri

Bhagat Singh. In the face of such denial it was incumbent upon the appellant

who was averring so, to prove the said documents and which could have

been proved only by primary evidence i.e. by having the original produced

and/or if the same was not possible by laying foundation for reception of

secondary evidence. In the absence thereof the said documents cannot be

said to have been proved and no error can be found in the reasoning of the

Trial Court.

25. However, since the photocopies on which Ex.PW8/1 and Ex.PW9/1

has been put are of certified copies from the Sub Registrar's office, it has

been enquired from the counsel for the appellant whether the record of the

Sub Registrar's office was requisitioned to show that the original power of

attorneys were registered.

26. Though the counsel had earlier stated that no witness from the Sub

Registrar's office was summoned but now during the dictation has

interrupted and has drawn attention to the testimony of PW11 Shri Rajesh

Kumar, LDC, Sub Registrar Office, Asaf Ali Road, New Delhi. The said

witness has put Ex.PW11/1 also on the document Ex.PW9/1 being the power

of attorney of Shri Tola Singh in favour of Shri Sant Singh. Putting of the

said mark Ex.PW11/1 also was of course subject to objection of the

respondents.

27. Though of course PW11, witness from the Sub Registrar's office

could not identify the signatures of Shri Tola Singh on the original of

Ex.PW9/1 (also Ex.PW11/1) in Sub Registrar's record but did identify the

signatures of the Sub Registrar who had registered the said document. From

the testimony of PW11, the factum of power of attorney having been granted

by Shri Tola Singh in favour of Shri Sant Singh is proved and cannot be

doubted. It further stands proved that Ex.PW9/1 (also Ex.PW11/1) is a copy

of that power of attorney.

28. But strangely, the appellant though had summoned the witness from

the Sub Registrar's office, has not got proved the power of attorney stated to

have been given by Shri Bhagat Singh in favour of Harnam Singh. It has

thus been enquired as to whether the appellant had examined Shri Sant

Singh and Shri Harnam Singh as witnesses.

29. The counsel for the appellant while replying in the negative contends

that since Shri Sant Singh and Shri Harnam Singh were in collusion with the

respondents, the question of the appellant examining them did not arise as

the appellant could not have cross examined the said witnesses who were

likely to depose in favour of the respondents.

30. I am unable to agree.

31. The appellant, with the permission of the Court, could have always

cross examined the said witnesses if found to be not deposing the truth. The

procedure in this regard, of declaring a witness hostile, is not restricted to the

criminal trials only and is equally applicable to civil trials also.

32. Be that as it may, the learned Addl. District Judge in the impugned

judgment has also held that the said power of attorneys, even if held to be

proved, to be not containing any authority to sell or agree to sell the

property.

33. The documents have as such been gone into. Ex.PW8/1, the counsel

for the appellant has highlighted, is irrevocable general power of attorney

authorizing Shri Harnam Singh to represent the executant Shri Bhagat Singh

before all authorities to deal with the said property and to pay all dues with

respect thereto. In fact it also authorizes Shri Harnam Singh to enter into any

Agreement for Sale of the said property and to execute and register the Deed

of Conveyance and receive consideration. The learned Addl. District Judge

has however not held the said power of attorney to be authorizing Shri

Harnam Singh to sell the property for the reason that the same in para 5

thereof contains the consent of the executant Shri Bhagat Singh to ratify all

acts done by the attorney Shri Sant Singh. He has thus held that while the

said power of attorney purports to appoint Shri Harnam Singh as attorney

but seeks to ratify the acts of Shri Sant Singh.

34. The counsel for the appellant has contended that since two power of

attorneys were being prepared, the name of Shri Sant Singh who was the

attorney appointed under the other power of attorney executed by Shri Tola

Singh was mistakenly mentioned in the power of attorney by Shri Bhagat

Singh in favour of Shri Harnam Singh. It is also stated that Shri Sant Singh

was a witness to the power of attorney by Shri Bhagat Singh in favour of

Shri Harnam Singh.

35. It has however been enquired whether any evidence of such a mistake

has been led.

36. The answer is in the negative.

37. The learned Addl. District Judge has further held that the power of

attorney Ex.PW9/1 (also Ex.PW11/1) executed by Sh. Tola Singh does not

even contain a specific power of sale and cannot be said to be authorizing

Shri Sant Singh even if held to be appointed as the attorney of Shri Tola

Singh, to sell Tola Singh's shares in the property.

38. The counsel for the appellant has argued that since the appointment is

as a general attorney, it would include the power to sell also.

39. I am unable to accept the aforesaid contention which is in

contradiction to the other submission made. It is the contention of the

counsel for the appellant that a mistake as aforesaid occurred in the power of

attorney granted by Shri Bhagat Singh in favour of Shri Harnam Singh

owing to the two power of attorneys being executed simultaneously. If that

had been so, the language of both would have been identical. However it is

not found to be so; while one of the power of attorneys i.e. by Shri Bhagat

Singh in favour of Shri Harnam Singh expressly empowers Shri Harnam

Singh to sell or agree to sell Shri Bhagat Singh's share in the property, the

power of attorney executed by Shri Tola Singh in favour of Shri Sant Singh

does not do so, though constituting Shri Sant Singh a general attorney to

manage the property. The only inference possible is that Sh. Tola Singh did

not intend to vest Shri Sant Singh with a power to sell or agree to sell the

property.

40. I am for all the aforesaid reasons not inclined to arrive at a different

conclusion than that reached by the Trial Court before which evidence was

recorded i.e. that the appellant has been unable to prove the authority of the

executants of the Agreement to Sell to do so on behalf of the owners of the

property.

41. No other arguments on any of the other issues have been addressed.

42. During the course of hearing it has also been informed that another

suit for specific performance of an Agreement of Sale of the entire said

property was filed by one Shri Madhusudan Sahni against the respondents

and which has been decreed vide judgment dated 19 th January, 2013 against

the respondents herein and in which suit the appellant herein was also a

party. On enquiry, the senior counsel for the respondents no.1&2 states that

the respondents had not contested the said suit and have not preferred any

appeal against the said decree also. The counsel for the appellant has no

instructions whether the appellant has preferred any appeal against the said

judgment and decree.

43. It cannot be lost sight of that the grant of the relief of specific

performance is a discretionary relief, discretion wherein of course has to be

exercised on settled parameters as laid down in Section 20 of the Specific

Relief Act, 1963. It has been enquired as to what was the sale consideration

in the agreement subject matter of this appeal and how much of it was paid

by the appellant to the respondents.

44. The counsel for the appellant informs that the sale consideration was

Rs.45,000/- and the entire of which was paid in cash to Shri Sant Singh and

Shri Harnam Singh aforesaid.

45. On enquiry that if the entire sale consideration had been paid, why

possession of the ground and first floors was not taken by the appellant, it is

stated that the same were in possession of the tenants and the tenants had

attorned to the appellant. On further enquiry whether there is any finding to

the said effect in the impugned judgment, it is replied in the negative.

46. In the aforesaid circumstances also it is felt that now after more than

40 years and especially when the finding of the plaint for specific

performance being barred by time has been affirmed, it is even otherwise not

appropriate to arrive at a different findings than the learned Addl. District

Judge in so far as to the existence of the agreement is concerned.

47. No merit is thus found in this appeal which is dismissed; however no

costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J JULY 16, 2013 pp