R.S.A. No. 2097 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 6303-C of 2008 and R.S.A. No. 2097 of 2008 Date of Decision: 01.4.2009 Jai Kanwar and others ...Appellants. Versus Sukhbir Singh alias Sukhbir and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Vikram Singh, Advocate for the appellants. AJAY KUMAR MITTAL, J. Being unsuccessful before the courts below, the plaintiffs have approached this Court by way of present regular second appeal against the judgment and decree dated 11.10.2007 passed by the first appellate court, affirming that of the trial court dated 7.4.2006 whereby the suit of the plaintiffs for declaration and permanent injunction was dismissed. Put succinctly, the facts of the case are that the plaintiffs filed a suit for declaration to the effect that they were the joint owners to the extent of half share of the land measuring 51 kanals 5 marlas situated within the revenue estate of village Patti Kalyana, Samalkha (hereinafter referred to as the “suit land”) and the general power of attorney and four sale deeds and mutations allegedly executed in favour R.S.A. No. 2097 of 2008 -2- of the defendants were null and void and not binding on their rights and as a consequential relief, the plaintiffs had sought a decree for permanent injunction restraining the defendants from alienating the suit land to any other person. It was pleaded that previously Rura was owner of 30 Bighas of land in Patti Kalyana and on his death, his sons, namely, Paltu, Chhotu and Baru became owners of the suit land. Baru purchased some land out of the earnings of the ancestral land and consequently, the entire land in his hands came to be 51 kanals 5 marlas. He died issueless in the month of January, 1999. The plaintiffs who were sons of Chhotu, the brother of said Baru, came to know about the power of attorney and the sale deeds allegedly executed by Baru before his death in favour of the defendants, who were son and grandsons of Paltu, another brother of said Baru. It was further pleaded that in fact said Baru had not executed any document before his death and, therefore, all the four sale deeds and the power of attorney executed in favour of defendant No.1 and the mutations sanctioned on the basis thereof being illegal, null and void and without any legal necessity or consideration, were not binding on the rights of the plaintiff. According to the plaintiff, the power of attorney was result of fraud and misrepresentation played upon deceased Baru with the sole motive of depriving the plaintiffs of their right in the suit land. After coming to know of the aforesaid facts, the plaintiffs approached the defendants to settle the dispute amicably but they failed to do so which gave rise to the filing of the suit, as mentioned above. Upon notice, the defendants filed a joint written statement raising various preliminary objections. It was pleaded that the sale R.S.A. No. 2097 of 2008 -3- deeds were genuine and had been duly registered after fulfilling the legal requirements before the Sub-Registrar, Samalkha by the seller and his authorized representative. Baru was absolute owner in possession of the suit land having his separate holding and he had legal right to alienate the land acquired by him. It was further pleaded that the defendants purchased the suit land by paying adequate consideration and got the sale deed registered and now they were absolute owners in possession of the suit land with all rights, title and interest whereas the plaintiffs had no right, title or interest in the same. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. On the pleadings of the parties, the trial court framed various issues and on appreciation of the oral as well as the documentary evidence led by the parties held that the land in the hands of Baru was not ancestral one and the plaintiffs being sons of brother of said Baru, would have no surviving right in the land held by him. Further, it was held by the trial court that the power of attorney executed in favour of defendant No.1 was a valid document and that the plaintiffs being strangers to the sale deeds had no right to claim that the sale deeds had been executed without any consideration. Accordingly, the trial court vide judgment and decree dated 7.4.2006 dismissed the suit of the plaintiffs. Feeling aggrieved, the plaintiffs took the matter in appeal and the lower appellate court vide judgment and decree dated 11.10.2007 affirmed the findings recorded by the trial court and dismissed the appeal. I have heard the learned counsel for the appellants. R.S.A. No. 2097 of 2008 -4- Both the courts on appreciation of the evidence available on record had come to the conclusion that Baru deceased was the absolute owner of the suit land and he had consciously and of his own volition executed the general power of attorney as well as the sale deeds in favour of the defendants and no fraud was ever played upon him. The courts below have recorded a concurrent finding of fact that the plaintiffs were strangers to the sale deeds and, therefore, they had no right to claim that the sale deeds were invalid being without any consideration. In the wake of the aforesaid finding, the learned counsel for the appellants was unable to point out any substantial question of law to be arising in this appeal. No illegality or perversity could be found in the findings recorded by the trial court and affirmed by the lower appellate court. Further, no misreading or misappreciation of any evidence available on record has been shown by the learned counsel for the appellant warranting interference by this court in the regular second appeal. No question of law, much less a substantial question of law arises in this appeal particularly when the execution of the power of attorney and the sale deeds was held to be within the purview of exercise of the absolute powers over the property. In view of the above, there is no merit in this appeal and the same is hereby dismissed. There shall, however, be no order as to costs. The appeal is time barred by 25 days. An application bearing C.M. No. 6303-C of 2008 has been moved by the appellants for condonation of 25 days' delay in filing the appeal. Since the appeal has R.S.A. No. 2097 of 2008 -5- been dismissed on merits, no separate order is being passed in the application for condonation of 25 days' delay in filing the appeal and the same is disposed of as such. April 01, 2009 (AJAY KUMAR MITTAL) gbs JUDGE