ASHOK BHUSHAN,J. - (1.) This Civil Appeal by the plaintiff has been filed against the judgment of High Court of Delhi dated 19.7.2005 dismissing the Regular Second Appeal of the appellant. Brief facts of the case necessary to be noted for deciding this Civil Appeal are:- (a) The parties shall be referred to as described in the plaint. The plaintiff filed Suit No. 541 of 1990 praying for specific performance of a contract dated 04.01.1987. Plaintiff's case in the plaint was that defendant No. 2 representing himself to be power of attorney holder of defendant No. 1, his brother, entered into an agreement to sell dated 04.01.1987 for a plot of land measuring 150 sq. yds. for a consideration of Rs. 60,000/-. Rs. 5,000/- was paid by the plaintiff towards earnest money to defendant No.2. Plaintiff claims that possession was also handed over. On 07.01.1987, the terms of the agreement to sell were modified by enhancing the consideration from Rs. 60,000/- to Rs. 65,000/-. Plaintiff claimed to approach the defendant No.2 on 25.01.1987 for execution of Sale Deed, which was declined by defendant No.2 on the pretext of his brother having gone abroad and so defendant No.2 refused to accept the balance consideration. The defendant No.2 and his father when sought to dispossess the plaintiff of the suit property, a suit was filed for Permanent Injunction against defendant No.2 and his father. On the above pleading, suit was filed for specific performance of the contract. (b) Written Statement was filed both by defendant Nos. 1 and 2. Defendant No.1, in his written statement, pleaded that he is neither the owner of the suit property nor entered into an agreement with the plaintiff. The agreements dated 04.01.1987 and 07.01.1987 were denied. It was pleaded that defendant NO.1 having no right, title or interest of any nature in the suit property, there is no question of him acting in any manner to transfer the suit property to the plaintiff. Defendant No.2 in his written statement denied execution of agreement dated 04.01.1987. It was further denied that defendant No. 1 is the owner of the property. It was further denied that defendant No.2 is the attorney of defendant No.1. Alleged original agreement dated 04.01.1987 as well as modified agreement dated 07.01.1987 were also denied. It was pleaded that defendant No.2 is neither the owner of the suit property nor attorney. Oral evidence was also led by the plaintiff and defendants. The trial court framed the following four issues :- "1. Whether the plaintiff has locus standi to file the Present Suit? 2. Whether the suit has not been properly valued for the purpose of court fee and Jurisdiction? 3. Whether the plaintiff is entitled to decree as claimed? 4. Relief" (c) The trial court vide its judgment dated 30.11.1999 decreed the suit for specific performance of contract in favour of the plaintiff. A Regular First Appeal was filed by both the defendants, i.e. defendant Nos. 1 and 2. The appeal was allowed by Additional District Judge on 16.09.2000 dismissing the suit. The judgment dated 16.9.2000 was subsequently recalled and the appeal was heard afresh. The Additional District Judge vide its judgment dated 02.04.2005 again allowed the appeal, dismissing the suit. Aggrieved by the judgment of the Additional District Judge dated 02.04.2005, the Regular Second Appeal was filed before the High Court by the plaintiff/appellant, which has been dismissed on 19.07.2005. Aggrieved against judgment of the High Court, this appeal has been filed.
(2.) Shri Rakesh Khanna, learned senior counsel has appeared for the appellant and Shri P.N. Gupta, Advocate has appeared for the respondent.
(3.) Learned senior counsel appearing for the appellant contends that plaintiff had proved by leading oral evidence that agreement was executed by defendant No. 2 as power of attorney holder of defendant No.1 and payment of earnest money had also been made. The trial court has rightly granted the decree of specific performance of the contract. He contended that execution of agreement having been proved, the First Appellate Court has erred in law in holding that agreement was not executed, relying on some inconsistencies in the oral evidence, which is unsustainable. He submits that defendant No.1 in his written statement has not pleaded that he never executed any power of attorney in favour of defendant No.2. Further, the handing over of the possession to the plaintiff on 04.01.1987 clearly proves the factum of agreement. He further submits that Court below have erred in not looking to the copy of the power of attorney dated 04.11.1986 executed by defendant No.1 in favour of defendant No.2, which was on the record of trial court, which has also been filed in this appeal as Annexure-P-12.;