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1997 Supreme(Pat) 778
PATNA HIGH COURT
P.K.Deb, J.
Dr.Amin Ahmad
Versus
Saikina Khatoon
Appeal from Appellate Decree No. 101 of 1991 ;
Decided On : OCTOBER 29, 1997
A power of attorney must be strictly construed and does not confer any authority beyond what is expressly stated therein.
Headnote:
SPECIFIC PERFORMANCE - POWER OF ATTORNEY - CONSTRUCTION - SALE OF LAND - AUTHORITY TO SELL - UNCERTAINTY OF LAND - ORAL AGREEMENT - EVIDENCE - SPECIFIC RELIEF ACT, 1963 - SECTION 29 - CONTRACT ACT, 1872 - SECTION 26 - URBAN LAND (CEILING & REGULATION) ACT, 1978 - SECTION 26.
Fact of the Case:
Plaintiff filed a suit for specific performance of a contract dated 29.9.1980 in respect of 25 Kathas of land appertaining to Plot No. 234, Khata No. 55 of Village Bariatu within the district of Ranchi. The defendants entered into a parole agreement with the plaintiff through her husband for sale of the land at the rate of Rs. 1,000.00 per Katha and a sum of Rs. 5,000.00 was paid to the defendants through defendant No. 2 (Syed Abdul Alim) who was holding power of attorney for and on behalf of all the defendants. It was mutually agreed upon by the plaintiff through her husband and defendant No. 2 (Syed Abdul Alim) that the sale would be completed after obtaining permission to sell from the competent authority as required under Sec. 26 of the Urban Land (Ceiling & Regulation) Act, 1978.
Finding of the Court:
1. The power of attorneys (Exts. 1 and 1/A) had never given any authority for sale of any of the immovable property by the Principal defendant No. 1 and defendant No. 2(d). 2. The analogy brought from Ext. 7 is of no avail when defendants No. 3 to 9 were not there having any authority given to defendant No. 2. 3. The oral agreement in question could not be proved by any evidence whatsoever except by that of the plaintiffs husband and even if that alleged oral agreement is said to be valid, the same can be valid in respect of the share of defendant No. 2 alone and not against others. 4. The plaintiff is not coming with clean hands and the oral agreement alleged and the subsequent actions on the basis of the agreement could not be proved in their proper perspective.
Issues: 1. Whether the defendant No. 2 was competent to enter into any such agreement for sale of the land in suit on behalf of the other defendants? 2. Whether the plaintiff is entitled to a decree for specific performance of contract against the defendants? 3. Whether the plaintiff was willing and still ready to perform her own part of the contract?
Ratio Decidendi: 1. The power of attorneys (Exts. 1 and 1/A) had never given any authority for sale of any of the immovable property by the Principal defendant No. 1 and defendant No. 2(d). 2. The analogy brought from Ext. 7 is of no avail when defendants No. 3 to 9 were not there having any authority given to defendant No. 2. 3. The oral agreement in question could not be proved by any evidence whatsoever except by that of the plaintiffs husband and even if that alleged oral agreement is said to be valid, the same can be valid in respect of the share of defendant No. 2 alone and not against others. 4. The plaintiff is not coming with clean hands and the oral agreement alleged and the subsequent actions on the basis of the agreement could not be proved in their proper perspective.
Final Decision: The second appeal is partly allowed and the decree granted by the original Court affirmed by the first appellate Court is modified to the extent that the suit may be decreed to the extent of refund of Rs. 5000.00 against the defendants with interest at the rate of 9% per annum from the date of receipt i.e. 29.9.1980 till realization. The cost of the suit throughout upto this second appeal should be borne of the suit valuation to the extent of Rs. 5,000.00 only by the defendants.
P.K.Deb, J.
1. This appeal has been preferred under Sec. 100 of the Code of Civil Procedure against the judgment and decree dated 18.5.1991 passed by the then IInd Additional Judicial Commissioner, Ranchi, in Title Appeal No. 42 of 1989 confirming the judgment and decree dated 29.4.1989 passed by the then VIth Additional Subordinate Judge, Ranchi, in Title Suit No. 134 of 1982 (343/87).
2. The respondent as plaintiff filed the abovementioned suit for specific performance of contract dated 29.9.1980 in respect of 25 Kathas of land appertaining to Plot No. 234, Khata No. 55 of Village Bariatu within the district of Ranchi. The details of the suit land have been given in the foot of the plaint itself.
3. The case of the plaintiff is that the defendants on 29.9.1980 entered into a parole agreement with the plaintiff through her husband for sale of the land as mentioned above at the rate of Rs. 1,000.00 per Katha and a sum of Rs. 5,000.00 was paid to the defendants through defendant No. 2 (Syed Abdul Alim) who was holding power of attorney for and on behalf of all the defendants. It was mutually agreed upon by the plaintiff through her husband and defendant No. 2 (Syed Abdul Alim) that the sale would be completed after obtaining permission to sell from the competent authority as required under Sec. 26 of the Urban Land (Ceiling & Regulation) Act, 1978. It is the further case of the plaintiff that in pursuance of the said parole agreement, the defendant No. 2 for self and on behalf of the other defendants applied for permission to sell the lands in favour of the plaintiff before the competent authority on 30.9.1980 and also had sworn an affidavit as necessary under the provisions of law. The said petition for permission was registered as Permission Case No. 986 of 1980 and ultimately permission was granted by the Deputy Collector (Ceiling) Ranchi and the same was communicated vide Letter No. 562 dated 28.2.1981 and the said permission letter was made over by defendant No. 2 to the plaintiffs husband whereupon he offered to pay balance of the consideration amount and requested the defendants kept mum. The plaintiff, as per her case, kept on waiting for response from the defendants. Then a legal notice was issued to defendant No. 2 to execute and register the deed of sale on receipt of the balance of consideration money but the defendant No. 2 did not come forward for execution of the deed nor reply to the legal notice, but then the plaintiffs husband could learn through reliable sources that the defendants were not willing to perform their part of contract as they were negotiating to sell the land with some other person and then another legal notice was issued on 13.3.1982 to defendant No. 2 but when no reply was given then the suit was filed by the plaintiff with a plea that she was and is always willing and ready to perform her part of contract.
4. Originally there were nine defendants only. Defendant No. 1 (Syed Abdul Halim) and defendant No. 2 (Syed Abdul Alim) are the two brothers being sons of Abdul Hussain. The defendants No. 3 to 7 are the sons of Syed Abdul Halim i.e. defendant No. 1 while defendants No. 8 and 9 are the daughters of defendant No. 2, Syed Abdul Alim. Notices on the defendants could not be served through the process of the Court and then substituted service was ordered by publication in the English daily The Statesman published from Calcutta as the addresses of the defendants were of 4, Ustagar lane, Calcutta 14 except defendant No. 2 who was residing at Bariatu, Police Station Bariatu, District Ranchi. The defendant No. 2 (Syed Abdul Alim) appeared by filing vakalatnama and in the vakalatnama it could be found that by different hand after the signature of Syed Abdul Alim (defendant No. 2) it was mentioned that he was appearing as attorney of the other defendants but written statement was not filed. Then the defendant No. 2 was said to be died during the pendency of the suit in the year 1983 and as he
