R. S. A. No. 2699 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2699 of 2006 Date of Decision : August 20, 2010 Yash Pal .... Appellant Vs. Surinder Sharma and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Des Raj Mahajan, Advocate for the appellant. Mr. M. K. Garg, Advocate for respondent no. 1. Mr. Anil Kumar Malik, Advocate for respondent no. 2. * * * L. N. MITTAL, J. (Oral) : Plaintiff Yash Pal, who was successful in the trial court, but has been unsuccessful in the lower appellate court, has filed the instant second appeal. Facts in this case are not very much in dispute. Regular Second Appeal No. 195 of 1996 (in short - R. S. A. No. 195 of 1996) was pending in this Court relating to suit land, in which respondent Moti Sagar R. S. A. No. 2699 of 2006 2 (since deceased) was being represented by his son Yash Pal – plaintiff herein as his legal representative. The suit land is situated in Tehsil Jagraon. The plaintiff, who is native of Jagraon, had shifted his residence to District Ghaziabad and was carrying on business in Delhi. For this reason, the plaintiff gave registered General Power of Attorney dated 19.07.1996 (Ex.D-1) in favour of defendant-respondent no.2 Darshan Lal Bhola, who is also native of Jagraon. Defendant no.2, as attorney of the plaintiff, sold the suit land to defendant no.1 Surinder Sharma vide two sale deeds dated 11.10.1996. The plaintiff's case is that he had given the aforesaid Power of Attorney to defendant no.2 primarily for defending the aforesaid R. S. A. No. 195 of 1996 and it was only mentioned incidentally in the Power of Attorney that defendant no.2 could sell, transfer or mortgage the suit property, but in fact, defendant no.2 had no authority to sell the suit property nor defendant no.2 paid the sale consideration of the suit property to the plaintiff. Ostensible sale consideration of Rs.40,000/- in each sale deed is also grossly inadequate, but even the said amount has not been paid to the plaintiff. On these averments, the plaintiff challenged the aforesaid sale deeds and sought declaration that he continues to be owner in joint possession of the suit land, which is share in joint land. Defendant no.1 inter alia pleaded that he has purchased the suit property vide aforesaid sale deeds executed by defendant no.2 as attorney R. S. A. No. 2699 of 2006 3 of the plaintiff and is bona fide purchaser of the suit land for consideration. Under the General Power of Attorney, defendant no.2 had the authority to sell the suit land on behalf of the plaintiff. The suit has been filed by the plaintiff in collusion with defendant no.2. Sale deeds were executed after decision of R. S. A. No. 195 of 1996 by this Court on 07.09.1996. Defendant no.1 also alleged that he has since further sold the suit property. Defendant no.2 pleaded that in exercise of power given to him by the plaintiff by registered General Power of Attorney dated 19.07.1996, he (defendant no.2) had sold the suit property to defendant no.1 and even defendant no.1 had been meeting the plaintiff. Defendant no.1 even ensured to see that sale consideration was paid to the plaintiff by defendant no.2. Various other pleas were also raised. Learned Civil Judge (Junior Division), Jagraon, vide judgment and decree dated 16.05.2003, decreed the plaintiff's suit. However, first appeal preferred by defendant no.1 has been allowed by learned Additional District Judge (Adhoc), Ludhiana, vide judgment and decree dated 28.01.2006 and thereby, suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that Power of Attorney was executed by plaintiff in favour of defendant no.2 R. S. A. No. 2699 of 2006 4 with primary purpose of defending R. S. A. No. 195 of 1996 and it was only incidental that power to sell, transfer and mortgage the suit property was also mentioned in the Power of Attorney and the said recital did not authorize defendant no.2 to sell the suit land, as primary aim of the Power of Attorney was to give authority to defendant no.2 to defend the aforesaid R. S. A. No. 195 of 1996 on behalf of the plaintiff. Reliance in support of this contention has been placed on judgment of this Court in the case of Smt. Nand Kaur vs. Mastan Singh and others reported as 1990 Civil Court Cases 501 (P&H) and judgment of Lahore High Court (predecessor of this Court) in the case of Mt. Jan vs. Mt. Fajjan and another reported as A. I. R. 1938 Lahore 351. On the other hand, learned counsel for respondent no.1 contended that the Power of Attorney clearly stipulated that defendant no.2 had authority on behalf of the plaintiff to sell the suit land and consequently, defendant-respondent no.1 is bona fide purchaser of the suit land for valuable consideration on the strength of said Power of Attorney. I have carefully considered the rival contentions. Power of Attorney (Ex.D-1), which was admittedly executed by the plaintiff in favour of defendant no.2, is reproduced hereunder :- “I, Yash Pal S/O Sh. Moti Sagar S/O Sh. Tara Chand R/O B-III, Indrapuri Colony, Distt. Gaziabad (U.P.) now at Village Dugri, R. S. A. No. 2699 of 2006 5 Teh & Distt. Ludhiana am the executant of General Power of Attorney whereas my father Sh. Moti Sagar executed a WILL Vasika No. 475 dated 17.2.1989 in the Office of Sub Registrar, Jagraon, Ludhiana. Now my father has expired and I am his legal heir. He had got some property Khasra No. 1242, 1243, 1209, 1210, 1207, 1424, 1249, 1425, 1420 situated at Jagraon, Teh Jagraon, Distt. Ludhiana and case is pending in Punjab & Haryana High Court, Chandigarh. I am unable to look after, manage the said case so with my full consent I appoint, nominate and constitute Sh. Darshan Lal Bhola S/O Sh. Heera Lal S/O Sh. Mohan Lal R/O H.No.2120/36, Mohalla Hargobindpura, Ludhiana as my legal and lawful attorney to do all acts, deeds and things regarding the said property which falls in my shares from my father's property and the case which is pending in Punjab and Haryana High Court Chandigarh the said attorney is authorised to R. S. A. No. 2699 of 2006 6 do every act, To give all sorts of applications, affidavits, statements and declaration in every department/courts. To appoint advocate, Arbitrator to enter into compromise to superwise and to file objections if any when the case will be decided then the property which will fell in my share he can sell, transfer and mortgage the said property. Then he can make agreement and receive the earnest money, to purchase the stamps and to refund the stamp which is/are not in used. To appoint Special Power of Attorney and to cancel the same if needed. My attorney can do all acts, deeds and things from the lower court to supreem courts. All his acts, deeds and things done by him may consider as all are done by me in person. Hence this General Power of Attorney has been written for record. Dated 19/7/96” Perusal of the aforesaid Power of Attorney clearly reveals that it was executed with twin purposes i.e. to authorize defendant no.2 to do all R. S. A. No. 2699 of 2006 7 acts, deeds and things regarding the suit property falling to the share of the plaintiff and also to do all acts, deeds and things regarding the case (R. S. A. No. 195 of 1996), which was pending in this Court. Consequently, it cannot be said that primary purpose of the Power of Attorney was to authorize defendant no.2 to only defend the R. S. A. No. 195 of 1996. On the other hand, both purposes of the Power of Attorney were equally important i.e. to authorize defendant no.2 to do anything regarding the suit property and also to defend the pending R. S. A. No. 195 of 1996 on behalf of the plaintiff. This conclusion is further strengthened by the recital in the Power of Attorney to the effect that after decision of the pending RSA, the attorney would be competent to sell, transfer or mortgage the property falling to the share of the plaintiff. Thus, from bare perusal of the contents of Power of Attorney, it becomes manifest that defence of the pending RSA was not the only or main purpose of executing Power of Attorney. On the other hand, conferring of power to sell, transfer and mortgage the suit property falling to the share of the plaintiff consequent to decision in the RSA was also equally important purpose of executing the Power of Attorney. Judgment in the case of Smt. Nand Kaur (supra) is not attracted to the instant case because in that case, the primary purpose of the Power of Attorney was to give power for litigation and also for management of the land and it was incidentally mentioned that power to mortgage, sell and gift the land was also there. In that case, substantial part of contents of Power of Attorney R. S. A. No. 2699 of 2006 8 related to power of litigation and management of the land. In the instant case, however, both purposes occupy equal space and importance in the contents of Power of Attorney. Similarly, in the case of Mt. Jan (supra), Power of Attorney was executed for the management of the land. Power to mortgage or sell the property was just casually mentioned and property was to be sold when it was necessary for the purpose of management of the property. In the instant case, however, power of management of the suit land was not separately given by plaintiff to defendant no.2 through the Power of Attorney. A bare reading of the Power of Attorney (Ex.D-1) reveals that power to sell, transfer and mortgage the suit property was not mentioned casually or incidentally, but was also the primary purpose of executing the Power of Attorney along with purpose of defending the pending RSA. Accordingly, both the judgments cited by counsel for the appellant are not applicable to the facts of the instant case and the aforesaid contention advanced by learned counsel for the appellant cannot be accepted. Consequently, the sale deeds executed in favour of defendant no.1 are valid and defendant no.1 acquired valid title over the suit land. Having found as aforesaid, another important question arises in this second appeal for determination. The question is :- “Whether defendant no.2 has paid the sale consideration to the plaintiff and if not, R. S. A. No. 2699 of 2006 9 whether plaintiff is entitled to relief of recovery of the sale consideration from defendant no.2 ?” The aforesaid substantial question is, therefore, being determined be me. It is undisputed that at the time of registration of sale deeds, the entire sale consideration was received from defendant no.1 by defendant no.2 on behalf of the plaintiff, as is also manifest from the endorsements of registration of the sale deeds, which carry presumption of correctness. It is not even the case of defendant no.2 that he had not received the said consideration from defendant no.1. On the other hand, version of the defendants is that defendant no.2 had paid the sale consideration to the plaintiff. However, there are only bald and oral statements of the defendants to this effect. On the other hand, plaintiff specifically pleaded and stated that he had not received the sale consideration from defendant no.1. Consequently, payment of sale consideration by defendant no.2 to the plaintiff has not been proved at all. It appears to be improbable that defendant no.2 paid the sale consideration to the plaintiff without any receipt, particularly because the General Power of Attorney was registered document and defendant no.2 executed registered sale deeds on behalf of the plaintiff. Thus, payment of sale consideration by defendant no.2 to the plaintiff after having received it from defendant no.1 is not proved. Consequently, plaintiff is entitled to recovery R. S. A. No. 2699 of 2006 10 of the sale consideration of Rs.80,000/- from defendant no.2. Substantial question of law, framed herein above, is answered accordingly. For the reasons recorded herein above, the instant second appeal is allowed partly. Judgments and decrees of the courts below are set aside and plaintiff's suit is decreed for recovery of Rs.80,000/- against defendant no.2 only, along with interest thereon @ 12% per annum since 11.10.1996 – the date of sale deeds till 16.05.2003 – the date of the decree of the trial court and thereafter @ 6% per annum till recovery. However, suit against defendant no.1 remains dismissed. The parties are left to suffer their respective costs throughout. August 20, 2010 ( L. N. MITTAL ) monika JUDGE