A non-owner cannot confer title or rights over property, and unregistered agreements to sell lack enforceability.

JUDGMENT

This is plaintiff’s appeal under Section 96 CPC, challenging the judgment and decree dated 07.06.2022 passed by learned Additional Senior Civil Judge, New Tehri, Tehri Garhwal, in Original Suit No. 55 of 2017, whereby his suit for cancellation of gift deed was dismissed with cost.

2. The suit was filed by the plaintiff/appellant in the year 2017 under Section 31 Specific Relief Act with the averment that defendant no.3, on instructions from defendant no. 2, executed an unregistered agreement to sell in his favour in respect of a plot of land situate in Village Tapovan, Patti Dhamandsyu, District Tehri Garhwal. In the plaint, he stated that defendant no. 1 is owner of the said land while defendant no. 2 was his power of attorney holder.

(i) It was further stated that price of the land was settled at Rs. 58,24,000/-and plaintiff paid 6,00,000/-, as advance, through cheque to defendant no. 3 which was deposited in the account of defendant no. 2.

(ii) As per the plaint allegation, plaintiff paid 14,00,000/- in cash to defendant no. 3 and the remaining amount was to be paid to defendant no. 3 upto 15.07.2006; defendant no. 3 had assured him that sale deed would be executed in his favour before 15.07.2006, however, the deadline for paying balance sale consideration was extended in view of pendency of litigation, by another agreement executed on 15.07.2006 wherein it was mentioned that sale deed would be executed after vacation of the stay granted by Hon’ble Court. It was further pleaded that when sale deed was not executed by defendant nos. 2 & 3, even after decision in the pending litigation, plaintiff sent a notice for executing sale deed, but, defendant nos. 2 and 3 did not give any reply and when he personally met defendant no. 3, then he started misbehaving with him and threatened him of dire consequences and ultimately, at the instance of plaintiff, a criminal case was registered against defendant no. 3 in police station Muni-ki-Reti, under Section 420 & 506 IPC, in which charge-sheet is filed and case is pending before Judicial Magistrate, Narendranagar.

(iii) It was further stated in the plaint that a gift deed in respect of land in question has been executed by defendant no. 2, as power of attorney holder of defendant no. 1, in favour of defendant no. 4. In paragraph no. 14 of the plaint, plaintiff further stated that apprehending encroachment upon the land in question, he filed a suit for injunction which is registered as civil suit no. 49 of 2017, and is pending.

(iv) Based on these pleadings, plaintiff sought cancellation of registered gift deed executed by defendant nos. 1 & 2 in favour of defendant no. 4, which was registered in the office of Sub Registrar, Devprayag on 12.06.2015.

3. Learned Trial Court issued notice to the defendants. Since defendants were not represented on the date fixed, therefore, on 05.05.2022, learned trial Court ordered that the suit shall be proceeded ex-parte against the defendants.

4. Learned Trial Court considered the pleadings made in the plaint and also the statement made by plaintiff as PW-1 and dismissed the suit, vide judgment dated 07.06.2022 by holding that defendant no. 3 had no right to execute agreement to sell in respect of a property owned by defendant no. 1 as only the owner of property (defendant no. 1) or power of attorney of the owner (defendant no. 2) were competent to execute an agreement to sell. Learned Trial Court observed that no one can transfer a title better than what he has. Learned Trial Court held that there is nothing on record to show that the power of attorney (defendant no. 2) instructed defendant no. 3 to enter into agreement to sell with the plaintiff, on his behalf. Learned Trial Court further observed that if power of attorney is ex