HAMID KHWAJI SAHEB SAYYED Vs. KASHILDA EDWARD FONSECA

JUDGEMENT

(1.) THE original plaintiff, presently 85 years old lady approached the Bombay City Civil Court at Bombay by way of a suit for declaration that the agreement dated 7th December, 1981 and the power of attorney dated 21st December, 1981 stood terminated and/or revoked as per the termination letter dated 23rd August, 1989. She also prayed for an alternative relief that the defendant may be ordered and decreed to hand over possession of the suit land to her along with mesne profit from the date of wrongful possession of the suit land by the defendant. In addition to the aforesaid main reliefs, the plaintiff had also prayed for other consequential and incidental reliefs in the suit. It was the case of the plaintiff that she was the owner of the suit land and was in possession thereof. By an agreement dated 7th December 1981, she had agreed to sell and transfer the suit land to the defendant for the price of Rs. 1000/-? and on the terms and conditions contained in the said agreement. She had also handed over to the defendant, the original documents of title for investigation of the title of the suit land. It is further averred by her that she had also executed in good faith a power of attorney on 21st December, 1981 appointing and nominating him for the purpose of looking after two properties including the suit land. The defendant was also conferred with a right to attend Court and legal proceedings and to do the needful in such matters. It is the case of the plaintiff that the defendant had not made payment of the balance amount of Rs. 4,000/- towards the sale price of the suit land under the agreement dated 7th December, 1981 despite several reminders. Finally when the plaintiff got tired of reminding the defendant to comply with the said agreement she terminated the said agreement and revoked the power of attorney by her letters dated 23rd August, 1989, 5th February, 1989 and 2nd October, 1989. As, even after the termination/revocation of the agreement and power of attorney by the aforesaid three letters, the defendant did not hand over the possession of the suit land to the plaintiff she was compelled to approach the trial Court for reliefs as stated hereinabove. According to the plaintiff, the defendant was put in possession of the suit land not under the agreement for sale dated 7th December, 1981 but it was under the power of attorney dated 21st December, 1981 for the purpose of looking after the properties of the plaintiff including the suit land. The defendant was in possession of the suit land under the said power of attorney and he had no other independent right to continue to remain in possession of the suit land. It was the case of the plaintiff that the defendant was not in possession of the suit land under the agreement as he had not complied with the terms and conditions of the said agreement including the making payment of the balance purchase price. Under the said agreement, according to the plaintiff, no right of any nature was created in favour of the defendant. The defendant was given the power of attorney with a view to protect the properties from being encroached upon by one Shri Sutrale in the locality. Since the said Shri Sutrale had been threatening to encroach upon the properties of the plaintiff including the suit land. As the plaintiff being a very old lady could not meet such threats, she had given the power of attorney to the defendant to protect her properties against the encroachment.

(2.) ON receipt of writ of summons, the defendant appeared before the Court and filed his written statement denying the case of the plaintiff that the defendant was put in possession of the suit land under the power of attorney dated 21st December, 1981 and not under the agreement for sale of the suit land dated 7th December, 1981. According to him, he was put in possession of the suit land on and from the date of the agreement i. e. 7th December, 1981 and since then he was carrying on his business of sale and supply of building material from the suit land. It was the case of the defendant that he was always ready and willing to perform his part of the contract i. e. to make payment of the balance amount of Rs. 4,000/- under the agreement but it was the plaintiff who refused to accept the offer on 6 to 7 occasions. It was also the case of the defendant that under the said agreement, the plaintiff was liable to convey to the defendant a clear and marketable title of the suit land but she having failed to comply with the conditions prescribed in the said agreement and in particular to comply with the Clauses 4 and 6 thereof, the plaintiff had no right to cancel the said agreement. The defendant has also specifically pleaded that the plaintiff had never demanded the balance consideration and that she had straight away cancelled the agreement and called upon the defendant to hand over the possession of the suit land by her notice dated 23rd August, 1989 which was replied by him on 5th September, 1989. According to the defendant, the agreement for sale did not stipulate forfeiture or cancellation of the agreement and, therefore, the plaintiff had no right under the said agreement to cancel the agreement. According to the defendant, even the power of attorney could not be revoked as it was irrevocable general power of attorney in favour of the defendant. According to the defendant he was put in possession on and from 7th December, 1981 after making part payment of the purchase price to the plaintiff. The defendant has further averred that from the said date he was carrying on the business of sale of building material and that he was in possession of documentary evidence such as bills, receipts, papers, vouchers etc. for the purpose of his business and that he also had photographs showing that he was carrying on the business on the suit land. According to him, he had developed the business and that the step taken by the plaintiff would ruin his business for no fault of his. The other part of the written statement generally contained denials of the averments contained in the plaint. Both the parties produced a number of documents including the agreement and the power of attorney. Both the parties adduced oral evidence in support of their respective contentions.

(3.) THE trial Court framed as many as seven issues on the basis of the pleadings of the parties and answered the same after recording and accepting evidence adduced by both the sides. The learned trial Judge by her judgment and order dated 26th February, 1998, decreed the suit in terms of the prayer Clauses (a), (aa) and (b) and (c ). A declaration was granted to the plaintiff that the agreement dated 7th December, 1981 and the power of attorney dated 21st December, 1981 stood terminated and revoked as per the termination letter dated 23rd August, 1989. The learned Judge also directed the defendant to hand over possession of the suit land to the plaintiff and to pay a sum of Rs. 500/- per month from the date of institution of the suit till handing over of the possession to the plaintiff. The defendant was permanently restrained by injunction order from acting as per the agreement and the power of attorney and that he was restrained from entering upon the suit land and or constructing any structure thereon.