KUNTI DEVI Vs. UTTAM SINGH AND ORS.

JUDGEMENT

(1.) The present appeal has been directed against the judgment and decree dated 28.11.2009 passed by the Additional District Judge, Gurdaspur, affirming the judgment and decree dated 08.02.2002 passed by the Civil Judge (JD), Pathankot (for brevity, 'the trial Court') whereby the suit filed by the respondent/plaintiff -Uttam Singh for specific performance of the agreement to sell dated 17.08.1993, was decreed.

(2.) Facts relevant for disposal of the present appeal are that, as per allegations in the plaint, an agreement to sell dated 17.08.1993 in regard to plot measuring 270 square feet along with a shop constructed thereon, detailed in para 1 of the judgment of the trial Court situated in Village Pathankot, Tehsil Pathankot was executed by the appellant through her attorney Anil Kumar Sharma. Out of total sale consideration of Rs. 40,000.00, a sum of Rs. 25,000.00 was paid towards earnest money at the time of agreement and sale deed was agreed to be registered on or before 16.08.1995 at the expenses of the plaintiff/respondent No. 1 on payment of balance sale consideration of Rs. 15,000.00. The plaintiff always remained ready and willing to perform his part of the contract but the defendants committed breach thereof. On 16.08.1995, the plaintiff remained present in the office of Sub Registrar Pathankot for execution and registration of the sale deed but the defendants did not turn up. Notice dated 09.09.1995 was served upon the defendants calling upon them to get the sale deed registered on 19.09.1995 but the defendants did not come forward to perform their part of the agreement. Hence the suit.

(3.) The appellant filed the written statement, contested claim of the plaintiff, denied execution of agreement to sell with the averments that the agreement is a false and fictitious document. She never appointed defendant No. 2 as her attorney, therefore, he (defendant No. 2) was not competent to enter into an agreement to sell in respect of the suit property of which she is a co -owner along with her two brothers and sisters as it was inherited by them from their father. The plaintiff had already received back the amount of Rs. 25,000.00 from Anil Kumar Sharma -defendant No. 2, alleged to have been paid to him as a part of sale consideration at the time of execution of the alleged agreement to sell. When she came to know about the fake and manipulated alleged power of attorney, she got the same cancelled through publication in newspaper Punjabi Nojawan Saptaiki. The price of the shop was Rs. 3,00,000.00 and as such there was no occasion for her to enter into an agreement to sell for Rs. 40,000.00. A false and frivolous notice was received from the plaintiff that didn't require any reply. All other material averments of the plaint have been denied with a prayer for dismissal of the suit.