IMPORTANT POINTS
Section 41 of the Punjab Courts Act, 1918 is in pari materia with section 100 of the Civil Procedure Code, 1908.
In second appeal, findings of fact by courts below including findings on the basis of documentary evidence cannot be interfered on the ground that findings are erroneous, however gross or inexcusable the error may seem to be. Court can only interfere where there is an error in law or procedure.

JUDGMENT :

HEMANT GUPTA, J.

1. Leave granted.

2. The appellant is plaintiff who has sought specific performance of agreement to sell dated November 5, 2004 in respect of land measuring 193 kanals 18 marlas at the rate of Rs.1,27,000/- per acre. A sum of Rs.12,50,000/- and Rs.1,00,000/- was paid to defendant Nos. 1 and 2 as earnest money at the time of execution of agreement to sale. The date of registration of sale deed was fixed as January 30, 2005. The suit for specific performance was filed on April 3, 2006.

3. The learned trial court vide judgment and decree dated April 13, 2010 decreed the suit. The appeal against said judgment and decree remained unsuccessful when such appeal was dismissed on August 11, 2012. However, in the second appeal, the decree for specific performance of the agreement was declined but instead decree for recovery of Rs.13,50,000/- paid by the appellant along with interest at the rate of 12% was granted. The High Court held that plaintiff was ready and willing to perform the agreement and that Dhanwant Singh was not the attorney to act on behalf of the appellant.

4. Learned counsel for the appellant-plaintiff argued that in view of the judgment of this Court in Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors. ((2016) 6 SCC 157), substantial question of law may not be required to be framed but in second appeal, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918(for short, ‘Punjab Act’).

5. It is argued that the High Court has not recorded any finding which satisfies the tests laid down in Section 41 of the Punjab Act. It is further argued that though the first power of attorney dated September 29, 1999 was not in respect of land in question but in the subsequent power of attorney dated September 14, 2005, the appellant has ratified all the acts of the Attorney Dhanwant Singh including the purchase of movable and immovable property anywhere in her name. It is argued that the agreement dated November 5, 2004 was entered into by the appellant through her son Dhanwant Singh in whose favour registered power of attorney was executed on September 14, 2005. It is the said Dhanwant Singh who has paid the amount to the defendants. The plea of the defendants that Dhanwant Singh was not authorised to act on behalf of his mother is wholly untenable as the defendants having received the amount from Dhanwant Singh. The finding that sum of Rs.13,50,000/- was paid by the appellant through Dhanwant Singh has been accepted by the High Court when the Court recorded the following findings:

“17. Adverting to the facts of the case in hand, agreement of sale dated November 05, 2004 (Ex.P-1) was executed by appellants/defendants No. 1 and 2 on their behalf as well as on behalf of defendants No. 3 and 4, on receipt of a sum of `13.5 lacs as earnest money. Though, amount of earnest money has been disputed by learned counsel for appellants-defendants No. 1 and 2 but there is no cogent and convincing evidence in this regard. So, it cannot be safely concluded that agreement of sale (Ex.P-1) was executed by defendants No.1 and 2 on receipt of a sum of Rs.13.5 lacs as an earnest money. Execution of document has also not been otherwise disputed by appellants-defendants and respondent-plaintiff. Otherwise also, no amount of oral evidence can be taken into consideration and pales into insignificance, in view of a recital contained in document.”

6. In view of the findings recorded, it is argued that the High Court committed material illegality in declining the relief of specific performance on the ground that Dhanwant Singh was not authorised to act on behalf of the appellant and, that the appellant has not appeared as a witness herself.

7. It is also argued that defendants have not raised any plea in the written statement that Dhanwant Singh was not the authorised represe