The plaintiff must prove the genuineness of agreements and readiness to perform for specific performance; failure to do so results in dismissal of the suit.

JUDGMENT :

Sathish Ninan, J.

The suit for specific performance of an agreement for sale was dismissed by the trial court. The plaintiff is in appeal.

2. The plaint schedule property having an extent of 4 acres and 44.5 cents belong to defendants 2 to 4. The plaintiff is a trust represented by its chairman. He is hereinafter referred to as “the plaintiff”. According to the plaintiff, he entered into Ext.A1 agreement for sale dated 05.08.2004 with the owners, for purchase of the property for a total sale consideration of ₹ 53,34,000/-. The agreement was entered into through the first defendant as the power of attorney holder of the owners, as per Ext.A12 power of attorney dated 20.07.2004, since they are abroad at United States of America. Under Ext.A1, the period fixed for performance was three months. An amount of ₹ 1 lakh was paid on the date of Ext.A1 towards advance sale consideration. Subsequently the period was extended till December and thereafter, under Ext.A2, the period was extended up to 30.01.2008. Alleging failure on the part of the defendants to honour the agreement, the suit was filed.

3. The defendants denied Exts.A1 and A2 agreements, and also Ext.A12 power of attorney. It was alleged that the first defendant had, in the year 2004, availed a loan from the plaintiff. As security he was caused to sign on a blank stamp paper; the same was fabricated into the agreement for sale.

4. At the time of trial, the witnesses to Exts.A1 and A2 agreements were not alive. The document writers of Exts.A1 and A2 were examined as PWs.3 and 7. PW2, the cousin brother of the first defendant, who claimed to have witnessed the execution of Ext.A1 agreement, was also examined. The trial court, relying on the evidence of the witnesses, upheld Exts.A1 and A2 agreements. However it was found that the plaintiff has failed to prove Ext.A12 power of attorney. Accordingly it was held that, defendants 2 to 4 who are the title holders of the property, are not bound by Exts.A1 and A2 agreements. Thus the suit was dismissed.

5. We have heard Smt.Sumathy Dandapani, the learned Senior Counsel for the appellant and Sri.George Poonthottam, the learned Senior Counsel for the defendants.

6. The following points arise for determination in the appeal: -

(i) Is the finding of the trial court upholding Exts.A1 and A2 agreements sustainable on the evidence on record?

(ii) Was the trial court right in having held that the plaintiff failed to prove the genuineness of Ext.A12, the photostat copy of Power of Attorney?

(iii) Do the decree and judgment of the trial court warrant any interference?

7. The trial court held that the plaintiff succeeded in proving the due execution of Exts.A1 and A2 agreements. The respondents sought to contend against the finding. According to the learned counsel for the appellant, the said finding, which is in his favour, has become final. In the absence of any appeal by the defendants they are precluded from urging any challenge against the said finding, it is argued.

8. We are unable to agree with the contention. In terms of Order XLI Rule 22 of the Code of Civil Procedure, an appeal or cross objection is necessary only as against a decree. In an appeal against the decree, the respondent is entitled to urge against the findings, if any, entered against him in the impugned judgment, even without filing a cross objection. Of course, the explanation to Order XLI Rule 22 makes it clear that it may be open for the respondent to file a cross objection but, it is not mandatory.

9. Firstly we proceed to consider whether the evidence on record justifies the finding of the trial court regarding the due execution of Exts.A1 and A2. 10. Denying the genuineness of Exts.A1 and A2 the defendants contend that the first defendant had, while availing a loan from the plaintiff in the year 2004, entrusted him a signed blank stamp paper as security. The same has been used to fabricate the documents, is the contention. Therefore, the admission is only with regard