2006 Supreme(AP) 1515

Andhra Pradesh High Court
Judges : L.NARASIMHA REDDY
D.N.RAJU - Appellant
Versus
SANTOSH VERMA - Respondent
Decided On : 12/13/2006
S. A. 212 Of 2005

Headnote:

Constitution of India – Civil Law - Agreement of sale - 1st respondent, who executed the agreement of sale, filed a writ-ten-statement, stating that the G. P. A. (Ex. G-11), executed in his favour was cancelled by the principal, and as such, he cannot take any stand in the suit - One, who is said to have been appointed as G. P. A. by the 1st respondent, filed a written-statement. It was pleaded that the suit schedule property is part of urban agglomeration, and with a view to protect the surplus land, an agreement of sale was executed, in favour of the 2nd defendant. He denied the execution of any agreement of sale in favour of the appellants, and stated that the suit agreement is a fabricated document, brought into existence with the collusion of the erstwhile - It is also stated that the 2nd defendant-Society never had a President and that the suit agreement is not binding upon the 1st defendant. He has also made a reference to an earlier agreement of sale, in favour of his mother and others, and ultimately prayed for the dismissal of the suit - Additional written-statements were filed and well first one was mostly devoted to painting out the defect in the cancellation of the G. P. A. , in his favour. In the second one, a plea was taken as to the genuinity of the agreement of sale, particularly with reference to the purchase of stamp papers, in the name of a third party – Held 1st respondent, who deposed as DW-2, categorically admitted that cw-1 was her GPA. till the same was cancelled, through Ex. B-6. In her affidavit filed in lieu of chief-examination, she made reference to a transaction entered into by her, through CW-1, as her gpa. It is obviously for this reason that in the cross-examination, she stated that she has nothing to do with the suit schedule property. She was not even aware whether the appellants are the members of the 2nd respondent society. The relevant excerpts of her evidence read as under : "i am no more interested in the suit land. I am aware that the proceedings were pending with regard to the suit land on the file of the High Court, I do not know the minute details - Vide agreement - Court agreed to sell the suit land to Housing co-operative Society in view of the law prevailing at that time - Clear that DW-2 executed the GPA in favour of CW-1, and several transactions, undertaken by him, had her approval. Though she stated in her affidavit in lieu of chief-examination that she did not authorize CW-1 to execute Ex. A-1, the same stood belied in view of her admissions in the cross-examination. That, however, is a factual aspect, which cannot be the basis for adjudication of a Second Appeal. The point is that once there existed subsisting GPA in favour of CW-1, executed by DW-2, the latter cannot avoid her liability under it. In case, she was of the view that Ex. A-1 is not binding upon her, the only course open to her was to file a suit for cancellation of Ex. A-1. No steps were taken in that direction. On the other hand, she has stated in the open Court that she has no concern about the suit schedule land. Therefore, the relief of specific performance ought not to have been denied to the appellants - Second Appeals are allowed