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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 2885-2887 of 2005

S. Kesari Hanuman Goud            … Appellant

Versus

Anjum Jehan & Ors.                                        … Respondents

With

CIVIL APPEAL NOs. 2888 & 4459 of 2005

J U D G M E N T

Dr.B.S.Chauhan, J.

Civil Appeal Nos. 2885-2887 of 2005

1. These  appeals  have been preferred against  the judgment  and  

order  dated  10.6.2003  by  the  High  Court  of  Judicature,  Andhra  

Pradesh  at  Hyderabad  in  C.C.C.A.  Nos.34  and  33  of  1991  and  

C.C.C.A.No. 92 of 1993, by way of which the appeals filed by the  

respondents  against  the  common  judgment  and  decree  dated  

22.3.1991, in O.S. No.30 of 1984 and O.S. No.135 of 1984, passed by

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the court of the Additional Chief Judge, City Civil Court, Hyderabad,  

have been partly allowed, by modifying the said judgment and order  

of the trial court.  

2. Facts and circumstances giving rise to these appeals are that:

A. The  appellant/plaintiff  was  carrying  on  business  prior  to  

1.1.1978 in the appurtenant land as a tenant, and had made an offer to  

purchase the said premises, alongwith two other premises belonging  

to the landlady Ms.  Anjum Jehan - respondent No.1/defendant No.1  

(hereinafter referred to as `Res.No.1’).

B. The parties entered into an agreement dated 15.10.1977, for the  

sale of land admeasuring 1200 square yards situated at Musheerabad,  

Hyderabad, Andhra Pradesh, for a total consideration of Rs.1,70,070/-.  

Out of which a sum of Rs.25,000/- was paid as earnest  money.  The  

said agreement to sell, provided that the sale deed was to be executed  

within  a  period of  six  months  from the  date  of  agreement,  or  upon  

intimation by the  vendor,  as  she  had to  obtain  permission  from the  

competent authority under Section 27 of the Urban Land Ceiling Act,  

1976 (hereinafter referred to as `the Act 1976), the necessary income  

tax  clearances  and  the  sub  division  permission  from  the  municipal  

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corporation.  The aforesaid suit land was also in the possession of the  

landlady, and had partly been occupied by defendant no. 2/respondent  

(Narsoji).

C. After  the  execution  of  the  said  agreement  to  sell,  the  

appellant/plaintiff  paid  non-agricultural  assessment  tax.    A  legal  

notice dated 18.6.1979 was received by the appellant from Res. No.1  

Ms. Anjum Jehan, stating that she had obtained requisite permission  

from the statutory authorities under the Act 1976, from the income tax  

authorities, and also from the sub-divisional authorities.

D. The  appellant/plaintiff  asked  Res.  No.1  vide  letter  dated  

2.7.1979, to send the copies of the aforesaid permissions, as well as a  

copy of the General Power of Attorney (hereinafter referred to as the  

`GPA’), that had been executed by her.   

E. Instead  of  executing  the  sale-deed  in  favour  of  the  

appellant/plaintiff,  Res.  No.1 tried to sell  the suit  property to other  

persons.   Therefore,  the  appellant/plaintiff  got  a  public  notice  

published in local newspapers on 29.4.1980 and 30.4.1980, in respect  

of  the  suit  property,  stating  that  an  agreement  to  sell  had  been  

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executed  between  the  parties  as  regards  the  said  land,  and  that  

therefore, no other person must purchase the same.   

F. Despite the said notice, the GPA holder of Res. No.1 entered  

into two different agreements to sell with respondent no. 2/defendant  

no.3 (K.S.R.Murthy) on 29/30.4.1980, for open land admeasuring 510  

square yards.

G. The appellant/plaintiff filed a suit bearing O.S. No. 30 of 1984  

on 23.6.1983 for specific performance of the agreement to sell dated  

15.10.1977, directing the Res. No.1 to execute a registered sale deed  

in favour of the appellant/plaintiff, and ignoring the agreement to sell  

in favour of respondent/defendant nos.3, 6 and 7.   

H. Respondent no.3/Defendant No. 7 (K.Y. Rajaiah) filed Original  

Suit  No.  135  of  1984  on  27.12.1983,  for  perpetual  injunction,  

restraining  the  appellant/plaintiff  from  interfering  with  the  

construction of a theatre building, including the compound wall of the  

same, which was in close proximity to his land.   

I. During the pendency of these two suits, Res.No.1 executed a  

sale deed, and she got the same registered on 29.4.1985, in favour of  

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respondent  no.2/defendant  no.3 with respect  to  the part  of  the suit  

property admeasuring 260 square yards,  and the recital  of  the sale  

deed acknowledged the agreement between the appellant/plaintiff and  

Res. No.1.   

J. The  GPA  holder  registered  another  sale  deed  in  favour  of  

respondent no.2/defendant no. 3 on 30.4.1985, with respect to the suit  

property admeasuring 260 square yards.

K. The  trial  court,  vide  judgment  and  decree  dated  22.3.1991  

decreed  the  suit  of  the  appellant/plaintiff  except  for  a  small  area  

admeasuring 65 square yards, which had been purchased by defendant  

no.6 (represented by Lrs. defendant nos.6 to 10), observing that the  

said defendant had no knowledge of any agreement to sell between  

the appellant/plaintiff and Res. No.1. The trial court also dismissed  

Suit No.135 of 1984 that had been filed by respondent no.3/defendant  

No.7 (K.Y. Rajaiah).

L. The  appellant/plaintiff  was  directed  to  deposit  the  balance  

consideration amount in the trial court within a period of four weeks,  

and  the  same  was  duly  deposited  by  the  appellant/plaintiff  on  

6.4.1991.

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M. Both sides preferred appeals before the High Court, and all the  

appeals were disposed of by a common judgment dated 10.6.2003, as  

referred to hereinabove.   

N.   The High Court held, that the appellant/plaintiff was not ready  

and willing to perform his part of the contract, thus, in view of the  

same, there was no occasion to decide issues regarding whether the  

subsequent  purchasers  were  in  fact,  bonafide  purchasers  for  

consideration  without  notice  of  the  agreement  to  sell  between  the  

appellant/plaintiff  and Res.  No.1.  However, the court further held,  

that  the  appellant/plaintiff  would  be  entitled  to  get  the  sale  deed  

executed  in  respect  of  the  said  land,  excluding  the  land  sold  to  

defendant  nos.3,  6  and  7  at  the  rate  of  Rs.750/-  per  square  yard,  

adjusting the amount that had already been paid.   

O. Res.No.1  filed  a  Review  Petition  before  the  High  Court.  

During the pendency of the said review petition, both the sides have  

preferred these appeals. The Review Petition filed by Res. No.1 stood  

dismissed vide order dated 20.2.2004.  The said order is also under  

challenge before us in connected appeal Nos. 2888 and 4459 of 2005.  

Hence, these appeals.   

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3. Shri Anoop G. Chaudhari, learned senior counsel appearing on  

behalf of the appellant/plaintiff,  has submitted that the High Court,  

while  dealing  with  the  first  appeal,  has  decided  the  same  under  

Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred  

to as `the CPC’), giving strict adherence to Order XLI Rule 31 CPC,  

and thus that it ought to have dealt with each and every issue, and  

appreciate all the evidence on record.  It was under an obligation to  

record  findings  on  each  issue  separately.    The  High  Court  has  

committed  an  error  in  appreciating  the  evidence  on  record,  and  

coming to the conclusion that the appellant/plaintiff was not ready and  

willing to perform his part of the contract, as the appellant/plaintiff  

had in fact been issuing public notices, with the intention of  making  

other people aware of the fact that they must not indulge in any kind  

of transaction in respect of the suit property, as the same belonged to  

him. He also had the financial capacity to pay, which stood proved by  

the fact that within a period of three weeks from the date of judgment  

and  decree  of  the  High  Court,  he  deposited  the  entire  amount.  

Furthermore,  the High Court ought to have appreciated the evidence  

on record,  with respect  to  whether  the other  defendants/subsequent  

bonafide purchasers had purchased the land without notice.  Merely  

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saying that the same was not necessary, would mean that the court  

itself has violated the mandate of Order XLI Rule 31 CPC. Res.No.1  

(Ms. Anjum Jehan)  never appeared in the witness box and never filed  

a written statement. The same was filed by her GPA holder.   The said  

GPA was in respect of various other properties, and the GPA holder  

was  not  authorised  to  pursue  suits  in  respect  of  the  suit  property.  

Under  no  circumstance  is  the  GPA holder  competent  to  enter  the  

witness box and to give evidence as a substitute for the original party.  

Thus, the appeals deserve to be allowed, and the judgment and decree  

of the High Court, is liable to be set aside.   

4. Per  contra  Shri  A.T.M.  Rangaramanujam,  Senior  Advocate,  

Shri R. Anand Padmanabhan, Shri Sohan Singh Rana and Shri A.V.  

Rangam, learned counsel appearing on behalf of the respondents, have  

opposed the appeals contending that the High Court has appreciated  

the evidence on record and has reached the correct conclusion.  The  

findings  of  the  fact  recorded  by  the  High  Court  are  based  on  

evidence,  and do not  warrant  any interference by this  Court.   The  

appellant/plaintiff, has not furnished any explanation for the delay, as  

he was duly informed by Res. No.1 of the fact that she had obtained  

the required sanctions/permissions. Had the appellant/plantiff been in  

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a position to perform his part of the contract, he could not have waited  

for a period of more than 4 years to file the suit.  During the pendency  

of the cases, a part of the suit land stood acquired for widening the  

road.   The  appellant  without  having  any  title  over  the  land,  has  

claimed  and  withdrawn  a  huge  amount  of  compensation  

unauthorisedly/fraudulently.  Thus,  the  appeals  are  liable  to  be  

dismissed.   

5. We have considered the rival submissions made by the parties,  

and perused the record.  

6. The trial court, after appreciating the evidence on record came  

to the following conclusions:

I) The evidence  adduced  on behalf  of  the  defendants  does  not  

conclusively establish their plea to the effect that the plaintiff  

himself had cancelled the agreement to sell (Ex.A-1), in view of  

his inability to pay the balance of the sale consideration.   

II) The plaintiff had the capacity to raise and pay the balance of the  

sale consideration under Ex.A-1.  Thus, the plaintiff was ready  

and willing to perform his part of the contract.  

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III) There were inconsistent versions with regard to the extent of  

the land alleged to have been sold to defendant nos.3 and 7.

IV) The  plaintiff  had  paid  the  amount  towards  non-agricultural  

assessment tax and property tax for the suit property.  

V) The plaintiff had not rescinded the suit contract, and had not  

informed the first  defendant that  he was not  in a position to  

complete the sale transaction, and that therefore, defendant no.1  

was at liberty to sell the suit land to any other person, as has  

been contended by defendant no.1

VI) Defendant  nos.3  and  6  were  subsequent  purchasers  for  

consideration  without  notice.  Defendant  no.6  is  a  bonafide  

purchaser  for  value,  without  notice  of  the  agreement  to  sell  

(Ex.A-1).  

7.      The  High Court  while  deciding the  first  appeal  filed  under  

Section 96 CPC, did not consider all the issues as is  required under  

Order XLI Rule 31 CPC.  On the other hand, it dealt with only one  

issue elaborately, without making any reference to the pleadings taken  

by the parties.  The High Court held:  

(i) No steps were taken by the appellant/plaintiff in establishing his  

readiness and willingness to perform his part of the contract.   

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(ii) Only a nominal sum was paid by the appellant/plaintiff in 1977  

and till the date that the suit was filed, no effort was made by the  

appellant/plaintiff to pay the balance amount.  

(iii)  There  has  been  inordinate  delay  on  the  part  of  the  

appellant/plaintiff in filing the suit.  Had he been ready and willing, he  

ought to have approached the court at the earliest.   

(iv) As per the evidence of defendant no. 7, the power of attorney  

holder (DW.1), did not call the appellant/plaintiff and ask him to get  

the sale deed executed, in pursuance of agreement dated 15.10.1977.  

The  appellant/plaintiff  expressed  his  inability  to  get  the  sale  deed  

executed as he had no ready cash.   

(v) There  was  no  requirement  in  law  to  obtain  permission  for  

separate sub-division and thus, Res.No.1 was not required to obtain  

any such sanction.  Furthermore, the said  property had already been  

sub-divided, and bore different numbers.  

(vi) Res. No.1 had obtained the requisite permission from the Urban  

Land  Ceiling  Authorities  in  December  1977,  and  the  

appellant/plaintiff had handed over the draft sale deed to Res. No.1.

(vii) It was because the appellant/plaintiff was not willing and ready  

to  perform  his  part  of  the  contract,  and  was  resorting  to  dilatory  

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tactics, that Res. No.1 had entered into two agreements to sell with  

respondent nos.3 and 7.

(viii) In view of the above,  there was no occasion to examine the  

other  issues,  particularly  those  with  respect  to  whether  the  other  

respondents  were  bonafide  purchasers  for  consideration  without  

notice, and the appeals were hence disposed of, as has been referred to  

hereinabove.  

8. The  plaint  contained  a  specific  averment  in  paragraph  7  as  

under:

“The plaintiff is and had always been ready  and willing to perform his part  of  the suit  agreement and it is the first defendant, who  evaded  to  perform  her  part  of  the  suit  agreement and finally committed to refusal  of the terms of the suit agreement amounting  to refusal on her part to so perform her part  of the suit agreement.”

9. In  the  written  statement,  Res.  No.  1  simply  denied  the  said  

averment, and further averred that:  

“The allegation in para 7 of the plaint that  the plaintiff was always ready and willing to  perform his part of the suit agreement being  incorrect  is  denied.  The allegation that  the  defendant  committed  breach  of  the  agreement and failed to perform her part of  the agreement being incorrect is denied. The  

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Defendant submits on the contrary that the  plaintiff  failed  to  perform  his  part  of  the  agreement  thereby  committed  a  breach  of  the agreement The Defendant, submits that  the  Defendant  performed  her  part  of  the  agreement and was ready to perform her part  of the agreement, It is submitted that finally  when the plaintiff  failed to raise necessary  money  towards  the  sale  price  plaintiff  informed the Defendant that she/is at liberty  to sell the property to anyone.”  

10. A replication was filed by the appellant/plaintiff under Order  

VIII  Rule  9  CPC,  wherein  it  has  been  submitted  in  paragraph  6  

thereof as under:

“The plaintiff is a big businessman having a  business turnover of more than 5 lakhs per  year.  He is always capable of providing and  raising  the  necessary  finances  to  complete  the sale transaction”

11. These are the only pleadings taken by the parties so far as the  

issue of readiness and willingness to perform part of the contract by  

the appellant/plaintiff is concerned.  The appellant/plaintiff examined  

himself  as  PW.1,  and  in  his  cross-examination  he  has  denied  any  

suggestion made to him to the effect that he had ever informed the  

power of attorney holder of Res. No.1, namely, Shri S.S. Noor  Ali,  

that he would be unable to raise the balance of the sale consideration.  

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Nor  he  had  ever  told  defendant  no.  7  that  he  wanted  to  sell  the  

agricultural land to raise money to purchase the suit property.   No  

question  was  put  to  him  in  the  cross-examination,  in  response  to  

which he could establish that he was a man of means, which he has  

thus  stated  in  the  replication,  though  he  has  admitted  that  he  has  

certain  outstanding  dues  towards  the  bank.  He  has  denied  the  

suggestion that he had neither a house, nor agricultural land, and that  

he had no capacity to pay the sale consideration, and further, that he  

had falsely deposed in respect of the same.  

12. The allegation made in  the written statement  stating that  the  

appellant/plaintiff  had told Res.  No. 1 that she was free to sell  the  

land, was not established by leading any evidence.  Additionally,  Res.  

No. 1 lives in the USA.  It is nobody’s case that the appellant/plaintiff  

had  any  communication  with  her.   It  was  not  mentioned  in  the  

averments raised in the written statement, that she had been informed  

anyone of the same through the power of attorney holder.  Further,  

with  respect  to  the  issue  regarding  financial  capacity  to  pay,  the  

appellant/plaintiff examined K. Narayana Reddy (PW.2) and Laxman  

Gore (PW.3). They fully supported his case, deposing that he was a  

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man of means, and that he had sufficient properties and the means to  

purchase the said suit property.  

Thus, the finding recorded by the High Court on this issue is  

perverse being contrary to the evidence on record.  

13. It is a settled legal proposition that the power of attorney holder  

cannot depose in place of the principal. Provisions of Order III, Rules  

1 and 2 CPC empower the holder of the power of attorney to “act” on  

behalf of the principal. The word “acts” employed therein is confined  

only to “acts” done by the power-of-attorney holder, in exercise of the  

power granted to him by virtue of the instrument. The term “acts”,  

would not include deposing in place and instead of the principal. In  

other words, if the power-of-attorney holder has preferred any “acts”  

in pursuance of the power of attorney, he may depose for the principal  

in respect of such acts, but he cannot depose for the principal for  acts  

done by the principal, and not by him. Similarly, he cannot depose for  

the  principal  in  respect  of  a  matter,  as  regards  which,  only  the  

principal can have personal knowledge and in respect of which, the  

principal  is  entitled  to  be  cross-examined.  (See:  Vidhyadhar  v.  

Manikrao & Anr., AIR 1999 SC 1441; Janki Vashdeo Bhojwani v.  

Indusind Bank Ltd., (2005) 2 SCC 217; M/S Shankar Finance and  

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Investment v. State of A.P & Ors.,  AIR 2009 SC 422; and  Man  

Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512).  

14. So far as the notice of the agreement between the appellant and  

Res. No. 1 is concerned, the trial court after taking note of the recital  

of the said agreement in the agreement to sell and sale deed also, has  

held, that, so far as the land sold to respondents other than respondent  

no.6, the parties had been fully aware of the same.  Only respondent  

no.6 had no such notice.  Shri A. G. Chaudhari, learned senior counsel  

appearing  on  behalf  of  the  appellant,  has  submitted  that  the  same  

being a  very small  area,  the appellant  is  not  willing to  disturb the  

possession of defendant no.6.   

15. In the facts and circumstances of the case, as the appellant has  

not yet acquired any title over the land, he has no right to receive  

compensation to the tune of Rs. 29,47,112/-.  However, he withdrew  

the said amount by giving an undertaking to return the said amount to  

Res.  No. 1 in case any such order was passed by the court in this  

regard.  

16. In view of the above, the appeals are allowed.  The judgment  

and decree passed by the High Court is set aside, and the same passed  

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by  the  trial  court  is  restored.   As  a  consequence,  the  appellant  is  

entitled to get the sale deed executed and registered, with respect to  

all the suit land available now (minus the land acquired and the land  

purchased by the  respondent no.6).  

17. The appellant is directed to refund the amount of compensation  

received  by  him  to  Res.  No.  1  within  a  period  of  three  months,  

alongwith 9% interest from the date of receipt till the date of payment.  

Civil Appeal Nos. 2888 and 4459 of 2005

In view of the judgment and order in Civil Appeal Nos. 2885-

2887 of 2005, these appeals are dismissed.  

….……………………………...................................J.                 (Dr. B.S. CHAUHAN)

…..………………………….. ...................................J.  (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI; April  10, 2013

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