The cause of action of the earlier suit for permanent injunction has to furnish the cause to institute the subsequent suit for specific performance also, to hold that the latter is barred under Order II Rule 2 CPC.

JUDGMENT

Tribhuvandahiya, J. - This is defendant's second appeal against the concurrent findings recorded by both the Courts below.

2. The pleaded facts of the case are, the respondent No.1/plaintiff (hereinafter referred to as the 'plaintiff') filed a suit for specific performance of the agreement to sell dated 24.11.2000 with regard to 3 marla land/suit land. The agreement was executed by respondent/defendant No.2 being General Power of Attorney (GPA) of the appellant/defendant No.1 (hereinafter referred to as 'defendant No.1') for a sale consideration of 50,000. The plaintiff paid earnest money of 48,000 to defendant No.2 in presence of marginal witnesses. The date for execution and registration of sale deed was fixed as 04.11.2002, i.e., after about two years of execution of the agreement to sell. The plaintiff also claimed that at the time of the execution of the agreement, possession of the suit land was handed over to him. On the date fixed for execution of sale deed, the plaintiff was present with the balance sale consideration but the defendant did not turn up, which led to filing of the suit for specific performance, and in the alternative, relief of recovery of 96,000, i.e., double the amount of earnest money.

3. The suit was contested by defendant No.1 pleading that was a case of collusion between the plaintiff and defendant No.2, who were close relatives, and that the agreement to sell was completely false and fabricated document. The general power of attorney given to defendant No.2 was to supervise the plot in question and defend any litigation. This power of attorney was also cancelled on 27.11.2000. Defendant No.2-GPA holder of defendant No.1, filed a separate written statement and admitted the plaintiff's claim. He, however, submitted that after the receipt of earnest money, the general power of attorney was revoked by defendant No.1, and, therefore, the sale deed could not be executed.

4. On pleadings of the parties, following issues were settled by the trial Court:

1. Whether the agreement to sell dated 24.11.2000 has been executed by defendant No.1 under a lawful authority of defendant No.2 for consideration and in a bonafide manner? OPP

2. Whether the plaintiff is entitled to specific performance of the agreement to sell dated 24.11.2000? OPP

3. Whether the plaintiff has always been ready and willing to perform his part of the agreement to sell and is still ready and willing for the same? OPP

4. Whether the plaintiff is entitled to the alternative relief of recovery of 50,000 by way of refund of earnest money etc? OPP

5. Whether the power of attorney dated 31.10.2000 by defendant No.2 in favour of defendant No.1 was only to supervise the plot in question?OPD

6. Whether the present suit is an act of collusion in between the plaintiff and defendant No.2 to grab the plot in question of defendant No.1 by fabricating the agreement to sell in question? OPD

7. Whether the possession of the plot in question was delivered to the plaintiff at the time of agreement to sell in favour of the plaintiff? OPP

8. Whether defendant No.2 is in the habit of grabbing the properties of others by playing frauds to cause wrongful losses to other and to have wrongly gains? OPD

9. Relief.

5. On Issues No.1, 5, 6 and 8, the trial Court held, since defendant No.1 has categorically admitted the agreement to sell dated 24.11.2000, no other proof in that regard is required. Execution of the power of attorney by defendant No.1 in favour of defendant No.2 is also an admitted fact on record. It was got cancelled only on 27.11.2000, after execution of the agreement in question. Since there is a recital in the power of attorney (Ex.P6) as well as in the deed cancelling the same (Ex.D1) that the power of attorney holder is authorized to sell the suit land in question, there can be no escape from concluding that the agreement to sell has been validly executed by the person competent, on receipt of the earnest money. It is also recorded that there was no su