RAMESH GANDHI AND OTHERS Vs. KRISHNALAL AND OTHERS

JUDGEMENT

(1.) The appeal is against the judgment and decree dated 04.04.2005 passed in Civil Suit No.1-A/1998 by the Additional District Judge, Durg, whereby the suit for specific performance was decreed.

(2.) As per the pleadings, the original plaintiff namely Kishanlal had entered into an agreement to sell the land bearing Kh. No. 614 admeasuring 16.95 decimal situated at village Balod with one Inderchand, who was arrayed as defendant No.4 in the plaint. It was pleaded that the land was owned by Ramesh Chand, son of Girdharilal Gandhi, defendant No.1, Suresh Chand Gandhi, defendant No.2 (since dead) and Naresh Gandhi, defendant No.3 (since dead), appellants herein. It was pleaded that the agreement of sale was entered with Respondent No.4 for the reason that a power of attorney was bestowed on Inderchand by the original owners namely Ramesh Gandhi, Suresh Chand Gandhi and Naresh Gandhi to sell the land. Consequent to power bestowed upon Inderchand, the agreement of sale was executed and it was agreed to purchase the land for a consideration @ Rs.1500/- per acre. Out of the total sale consideration of Rs.10,875/-, an amount of Rs.5001/- was paid to the said Inderchand in advance and thereafter, plaintiff Kishanlal was placed over possession of the part of land admeasuring 7.25 decimal through defendant No.4 Inderchand. It was further contended that original defendant No.4 Inderchand was in possession of the power of attorney which was signed by defendant No.1 Suresh Chandra. It was further pleaded that after receipt of the amount, the sale deed was not executed, but a suit for ejectment was filed by the original owners which was bearing No.3-A/1998. In such suit for ejectment, during the pendency of suit, one of the plaintiffs had died, consequently, the suit was dismissed having abated. It was stated that in such suit for ejectment the existence of power of attorney in favour of Inderchand by original owners was admitted. So prayer was made for specific performance of sale deed.

(3.) The defendants filed their written statement and contended that the original defendant No.4 Inderchand was not bestowed with power to sell the land. It was further contended that the power of attorney holder did not have any right to sell the land or to execute an agreement of sale and he was only given the right to manage and look after the properties which necessarily did not include to sell. It was further contended that by force, the plaintiff had taken over the possession of the part of property and this fact was disclosed when the defendant visited the spot on or about 01.04.1971 and the defendants were never willing to sell the property. It was further contended that the defendants requested the plaintiff to vacate the premises but it failed. So as a result, in the written statement the counter claim and the amount for mesne profits were also claimed. It was, therefore, contended that the plaintiffs are not entitled for any decree for specific performance of sale.