The main legal point established in the judgment is that the validity of the agreement to sell, execution of the power of attorney, possession, and delay in specific performance are crucial factors in determining the outcome of a specific performance suit.

ANIL KSHETARPAL, J.

1. The defendant No.1 has filed the present Regular Second Appeal against the concurrent findings of fact arrived at by the Courts below.

2. The plaintiff had filed a suit for possession by specific performance of agreement of sell dated 09.12.1992 with respect to the plot measuring 145-D. It was asserted that the defendant No.1 representing herself to be owner, had agreed to sell the house in question for a sale consideration of Rs. 3,85,000/-. The entire sale consideration was received and the possession was delivered to the plaintiff. The plaintiff claimed that she continues to be in possession in part performance of the agreement to sell dated 09.12.1992. The defendant No.1 also executed a irrevocable power of attorney dated 27.01.1993 in favour of Dalbir Kumar Sharma, Property Dealer authorising him to execute the sale deed in favour of plaintiff on behalf of defendant No.1.

3. The plaintiff had further pleaded that the defendant had maliciously filed a suit for declaration to the effect that she is owner in possession of the suit property and the plaintiff in this suit be restrained from alienating the suit property. The defendant No.1 also had illegally revoked the power of attorney given to Dalbir Kumar Sharma. The defendant No.1 admitted her ownership. However the execution of the agreement to sell and receipt of sale consideration was denied. It was claimed that the plaintiff alongwith her husband Sukhminder Singh Mangat took the signatures of defendant No.1 on some blank papers and forms, for submitting applications for providing amenities in the locality and defendant No.1 in good faith without doubting the bona fides of the plaintiff and her husband namely Sukhminder Singh Mangat appended her signatures.

4. The defendant No.2-Improvement Trust, Ludhiana filed a separated written statement and stated that Pritam Kaur-defendant No.1 had submitted an application for execution of the sale deed. However, later on she submitted that she has not executed any power of attorney.

5. The defendant No.1 did not step into the witness-box to deny the validity of agreement to sell.

6. The learned trial Court after appreciating the evidence available on the record decreed the suit filed by the plaintiff. The learned trial Court also noticed that suit filed by the defendant No.1-Pritam Kaur claiming declaration that she is owner in possession, has been dismissed.

7. The first appeal filed by Pritam Kaur was also dismissed by the learned Additional District Judge after re-appreciating the evidence.

8. I have heard the learned counsel for the appellant.

9. Learned counsel for the appellant has made following submissions:-

(i) The Courts below have heavily relied upon the judgment passed on 16.10.2003 while deciding the suit filed by the defendant No.1-appellant. Such finding cannot be treated as res-judicata. He further submits that there was no issue of res-judicata.

(ii) In the earlier suit decided on 16.10.2003, there was no issue with regard to due execution of agreement to sell and, therefore, the earlier judgment could not be relied upon.

(iii) Counsel for the appellant has further submitted that the agreement to sell dated 09.12.1992 was executed whereas General Power of Attorney is dated 27.01.1993. Although, agreement to sell is of previous date however it has been mentioned that General Power of Attorney has been given to Dalbir Kumar. Therefore, it is obvious that the agreement to sell is a suspicious document.

(iv) The plaintiff has prayed for possession whereas it is the case of the plaintiff that the possession has been delivered to her and she continues in possession.

(v) The Court could not have directed the defendant No.2-Improvement Trust to execute the sale deed in favour of the plaintiff because defendant No.1 was only allottee and no sale deed had been executed in favour of defendant No.1.

(vi) After lapse of 24 years, it would be inequitable to order the specific performance of agreement to sell.