The plaintiff must prove readiness and willingness to perform the contract, and a power of attorney holder cannot depose for acts done by the principal prior to the conferment of the power of attorney.

ALKA SARIN, J.

1. The present appeal has been preferred by the defendant-appellant against the concurrent findings recorded by both the Courts below vide judgments and decrees dated 25.01.2010 and 17.09.2010 whereby the suit of the plaintiff-respondent was decreed.

2. The brief facts relevant to the present lis are that the plaintiff-respondent filed a suit for possession by way of specific performance of agreement to sell dated 27.03.1998 in respect of land measuring 23 kanals 12 marlas situated at Village Bhakriana, Tehsil Phagwara, District Kapurthala as fully described in the plaint on payment of balance sale consideration of Rs.6,55,000/-. The case set up by the plaintiff-respondent was that he was a resident of a foreign country and Sewa Singh was his duly authorized attorney and was fully conversant with the case. The defendant-appellant represented himself as owner of the suit land and made an offer to sell and on 27.03.1998 the parties entered into an agreement to sell. The price of the suit land was settled at the rate of Rs.9,00,000/- per acre and out of the total sale consideration of Rs.26,55,000/-, a sum of Rs.20,00,000/- was paid to the defendant-appellant by the plaintiff-respondent as earnest money i.e. Rs.9,00,000/- was stated to have already been paid and Rs.11,00,000/- was paid by cheque. The date of execution of the sale deed was fixed as 25.03.2000 which was later extended to 24.03.2001 with the mutual consent of the parties vide a separate endorsement (Ex.P2). It was further averred that on 24.03.2001 the plaintiff-respondent through his attorney remained present in the office of the Sub-Registrar, Phagwara along with the balance sale consideration and registration charges but the defendant-appellant did not turn up. The plaintiff-respondent got his presence marked. The plaintiff-respondent is again stated to have got his presence through his attorney marked on 26.03.2001 along with the balance sale consideration etc. but the defendant-appellant did not turn up. It was further averred that the plaintiff-respondent was always ready and willing to perform his part of the contract.

3. The suit was contested by the defendant-appellant stating therein that though the suit land was owned by him, he never entered into any agreement to sell dated 27.03.1998. It was further averred that the plaintiff-respondent and the defendant-appellant were cousin brothers and the plaintiff-respondent had asked the defendant-appellant for an amount of Rs.11,00,000/-. The said Rs.11,00,000/- was handed over to the plaintiff-respondent and the plaintiff-respondent had issued a post-dated cheque for Rs.11,00,000/- dated 27.03.1998 which had wrongly been connected with the agreement to sell.

4. Replication was filed by the plaintiff-respondent wherein the averments made in the plaint were reiterated and those in the written statement were denied.

5. On the basis of the pleadings of the parties, the following issues were framed :

1. Whether the defendants executed agreement to sell dated 27.3.1998 in favour of the plaintiff and received earnest amount of Rs. 20 lacs ? OPP

2. Whether the plaintiff is still ready and willing to perform his part of the contract ? OPP

3. Whether the plaintiff has cause of action and locus standi to file the present suit ? OPP

4. Whether the suit is properly verified ? OPP

5. Whether the suit is within time ? OPP

6. Whether the suit is filed by legal and duly appointed attorney of plaintiff ? OPP

7. Whether the suit is maintainable ? OPP

8. Whether the alleged agreement to sell is forged and fabricated ? OPD

9. Whether the plaintiff is entitled for decree of specific performance of agreement to sell dated 27.3.1998 ? OPP

10. Relief.

6. The Trial Court, vide judgment and decree dated 25.01.2010, decreed the suit of the plaintiff-respondent. Aggrieved by the said judgment and decree, an appeal was preferred by the defendant-appellant which was dismissed by the First Appellate Court vide the judgment and decree dated 17.0