Agreement to sell--Where the vendor had in pursuance to the agreement delivered possession, received earnest amount, it could not be argued that no interest was created in property

Mr. Anita Chaudhry, J.: - This is an appeal by the unsuccessful plaintiff against the judgments of both the Courts below. The appeal has been filed with a delay of 163 days. The question whether sufficient cause had been shown will be deliberated little later. Before that, a brief sketch of the facts is necessary.

2. A suit was filed by the plaintiffs asserting that they were owners of the suit property to the extent of share mentioned therein. It was pleaded that the power of attorney dated 17.11.1990 executed in favour of defendant No. 2 and the sale deed dated 21.7.2003 did not affect their rights and a prayer for permanent injunction was made restraining the defendants from interfering in their possession. It was pleaded that Telu Ram, their predecessor, had died on 26.5.2001 leaving behind plaintiffs No. 1 to 7 who had inherited the entire estate of Telu Ram and they were in possession to the extent of the share disclosed in the plaint. It was pleaded that plaintiff No. 8 namely Ram Kumar who was earlier arrayed as defendant No. 3 had gifted his half share to plaintiff No. 7 but during the pendency of the suit, plaintiff No. 7 gifted the same land back to Ram Kumar now plaintiff No. 8 and the possession was also delivered to plaintiff No. 8. The plaintiffs came to know of the sale deed dated 21.7.2003 allegedly executed by defendant No. 2 on the basis of a power of attorney dated 27.11.1990 executed by Telu Ram in favour of defendant No. 2. A challenge was made to the sale deed on the plea that it was null and void and not binding on the rights of the plaintiffs and Telu Ram had not executed any attorney in favour of defendant No. 2 nor they had authorised defendant No. 1 to alienate the suit land and the power of attorney was forged and fabricated. It was also pleaded that the power of attorney came to an end on the death of Telu Ram and defendant No. 2 had no right to alienate the land on behalf of Telu Ram after his death. It was also pleaded that no sale consideration had passed.

3. The defendants filed their written statement along with a counter claim and it was pleaded that Telu Ram and Ram Kumar had executed the agreement to sell in favour of defendant No. 2 and possession was delivered to defendant No. 2 and a registered power of attorney had been executed in favour of defendant No. 2 which was irrevocable as the entire consideration under the agreement had been paid and possession had been delivered and defendant No. 2 became the owner. It was pleaded that defendant No. 2 on the basis of irrevocable power of attorney had executed an agreement to sell on 25.11.2000 for a consideration of Rs. 1,16,000/- and he had received Rs. 16,000/- as earnest money and the date of sale was fixed for 15.5.2001 and possession had been delivered. It was pleaded that the date of execution of the sale deed was extended from 15.5.2001 to 31.7.2003 and a writing was made on the reverse side of the first leaf of the agreement to sell. It was pleaded that the suit was collusive between the plaintiffs and defendant No. 3 (now plaintiff No. 8) and, therefore, a bogus gift deed was prepared.

4. In the counter claim, prayer was made that defendant No. 1 was the owner and in possession of the land. In the alternative a prayer for specific performance of the agreement to sell was made.

5. In reply to the counter claim it was pleaded that defendant No. 1 was not entitled to execute the sale deed as the authority to execute the sale deed had come to an end.

6. On the pleadings of the parties, following issues were framed by the trial Court:-

1. Whether the sale deed no. 2064/1 dt. 21.7.2003 is null, void and not binding on the rights of the plaintiff and is liable to be set aside as alleged in the para no. 6of the plaint? OPP

2. Whether the plaintiffs are owner in possession of suit land as detailed in para no. 1 of the plaint to the extent of ½ in equal share, whereas plaintiff no. 8 is owner in possession of the same to the extent