GUNA KRISHNA GAUNS Vs. ANTONIO JOAO BRAGANZA

JUDGEMENT

(1.) The appellants herein are the plaintiffs, and, shall hereinafter be referred to as such, whose suit for declaration and other consequential reliefs has been dismissed by the learned trial Court vide judgment/order dated 30-3-2005, and, aggrieved by the said judgment/order the present appeal has been filed. In order to dispose of the same, some facts are required to be stated.

(2.) The plaintiffs were the owners of a property known as Odlem Bhat admeasuring 22474 sq. mts. surveyed under Nos. 52/3 and 51/3 of village Curca in which there were some mundkarial houses. On or about 24-12-1992, the plaintiffs and defendant No. 1 executed a deed styled as agreement of sale and the plaintiffs also executed in favour of defendant No. 1, an irrevocable general power of attorney. In terms of the said agreement of sale, the plaintiffs agreed to sell the suit property for an amount of Rs. 14 lacs and received a sum of Rs. 3 lacs and the balance was payable on future dates i.e. Rs. 2 lacs on 30-4-1993,Rs. 2 lacs on 30-7-1993, Rs. 6 lacs on 31-12-1993 and Rs. 1 lac on completion of development work. It was further stipulated that on receipt of such payment conveyance of the suit property or part thereof would be executed by the plaintiffs in favour of defendant No. 1 or his nominee. Clause 4 stipulated that vacant possession of the suit property was handed over to defendant No. 1 for the purpose of development and acknowledged that an irrevocable power of attorney was executed for the purpose of development works and to accept the bookings. The parties agreed that defendant No. 1 would be entitled to specific performance of the agreement. The irrevocable general power of attorney contained several clauses and amongst them clause 12 authorised the defendant No. 1 to enter into agreement or agreements of sale of the said property or parts thereof with any prospective purchaser and to accept consideration towards the same from them. Clause 5 authorised defendant No. 1 to attend before any Registrar, Sub-Registrar or Dy. Registrar of Assurances and to execute and present for registration and admit execution by the plaintiffs of any agreement, deed, conveyance, transfer, assignment, assurances, releases, indemnity or other instrument or writing the registration of which is compulsory and generally to do all things necessary or expedient for registering the said deed, instruments and writings or any of them as fully and effectually as the plaintiffs themselves would have done.

(3.) The plaintiffs in spite of the said agreement and irrevocable power of attorney having been executed in favour of defendant No. 1, executed 5 deeds of sale in favour of the mundkars, the last on 21-12-1993 and also accepted sale price in respect of another three sale deeds made under the relevant provisions of the Mundkar Act, all the three sales having taken place on 30-11-1993. The defendant No. 1 also executed either in favour of defendant No. 2 or the remaining private defendants about 10 sale deeds, the last having been executed on or about 27-1-1995. After that, the plaintiffs by public notices dated 29th and 30th April, 1995 revoked the irrevocable power of attorney. Thereafter, on or about 4-11-1995 the defendant No. 1 wrote a letter to the plaintiffs alleging that the plaintiffs had sold about 8259 sq. mts. fraudulently and without the knowledge of defendant No. 1. It was also alleged that the instalments could not be paid as per the agreement for sale on account of failure of the plaintiffs to produce title documents. It was further stated that the defendant No. 1 had agreed to sell about 14,215 sq. mts. at the agreed rate of Rs. 62/- per sq. mt. which worked out to Rs. 8,81,330/- and as the amount of Rs. 3 lacs was paid to the plaintiffs under the agreement dated 24-2-1992 the defendant No. 1 owed to the plaintiffs only a sum of Rs. 5,81,330/- which the plaintiffs were called upon to collect within a period of 7 days from the receipt of the letter without prejudice to the right of defendant No. 1. The plaintiffs replied to the said letter vide reply dated 21-11-1995 contending that the price fixed was low at Rs. 62/- per sq. mt. because the suit property was in occupation of various persons when the actual market price was Rs. 200/- per sq. mt. The plaintiffs stated that the sale deeds in respect of the mundkars was done at the request of defendant No. 1. It was further stated that the statements of defendant No. 1 were false, as defendant No. 1 was throughout denying that he had made any sales and for that he was unable to pay any amount to them. It was stated that defendant No. 1 had no power to sell and the sale deeds made by defendant No. 1 were null and void.