REGULAR SECOND APPEAL NO.4855 OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.4855 OF 2009 DATE OF DECISION: DECEMBER 21, 2010 Buta Singh .... Appellant VERSUS Darshan Singh & another .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Pankaj Katia, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by plaintiff Buta Singh having failed in the both the lower courts. Appellant-plaintiff filed suit against respondents/defendants Darshan Singh and Sukhdev Singh alleging that plaintiff and his brother Bhagwan Singh inherited property from their father. Plaintiff has two sons and four daughters, whereas Bhagwan Singh has two sons and two daughters. Bhagwan Singh has since died. Plaintiff got 6 acres land in excess of the land got by Bhagwan Singh and his heirs from ancestors. Since there remained dispute between the two families over it, with the intervention of relatives, plaintiff agreed to give 47 Kanals 6 Marlas land to Gurlal Singh and Gurdeep Singh sons of Bhagwan Singh. For this purpose, plaintiff executed power of attorney in favour of defendant No.1 Darshan Singh son-in-law of Bhagwan Singh for transferring 47 Kanal 6 Marlas land in favour of Bhagwan Singh's sons, by way of sale deed, but instead of doing so, Darshan Singh-defendant No.1 executed sale deed dated 26.02.1999 regarding 23 Kanals 13 Marlas land in favour of his REGULAR SECOND APPEAL NO.4855 OF 2009 -2- relative Sukhdev Singh-defendant No.2. However, possession of the said land was not transferred to defendant No.2. The said sale deed has been challenged by the plaintiff alleging that he continues to be owner in possession of the said 23 Kanals 13 Marlas land and that the aforesaid sale deed is illegal and null and void. Plaintiff also sought ancillary relief of permanent injunction. Defendant No.1 broadly supported the plaintiff's case but pleaded that he had executed the impugned sale deed in favour of defendant No.2 but possession of the land sold was not delivered to defendant No.2. Defendant No.2 contested the suit and claimed to be bonafide purchaser of the suit land measuring 23 Kanals 13 Marlas for consideration in view of sale deed executed in his favour by defendant No.1 on the basis of power of attorney executed by plaintiff in favour of defendant No.1. It was pleaded that defendant No.2 is owner in possession of the suit land pursuant to the impugned sale deed. Plaint averments were controverted. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Bathinda vide judgment and decree dated 30.07.2008 dismissed the plaintiff's suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge (Fast Track Court), Bathinda vide judgment and decree dated 17.04.2009. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that no sale consideration was passed from defendant No.2 to defendant No.1 or the plaintiff. The contention cannot be accepted. There is recital in the impugned sale deed that entire sale consideration stood paid by defendant No.2 to defendant No.1. The said recital was admitted to be correct by defendant No.1 REGULAR SECOND APPEAL NO.4855 OF 2009 -3- at the time of registration of the sale deed. Defendant No.2 has also stepped in to witness box to depose that entire sale consideration had been paid by him to defendant No.1. This evidence stands unrebutted. The plaintiff who was not present at the time of execution of the sale deed or at the time of alleged payment of sale consideration by defendant No.2 to defendant No.1, could have no knowledge about sale consideration paid by the defendant No.2 to defendant No.1. On the contrary, defendant No.1 was the best witness in this regard, but the plaintiff has not examined defendant No.1 to depose that no sale consideration was paid to him (defendant No.1) by defendant No.2. Defendant No.1 is none else but son-in-law of plaintiff's real brother. Consequently, courts below have rightly concluded that payment of sale consideration by the defendant No.2 to defendant No.1 stands proved. Learned counsel for the appellant also contended that stamp papers for execution of the sale deed were purchased at Nathana, whereas the sale deed was executed at Bathina. However this circumstance does not create any doubt about the sale deed. On the contrary, execution of sale deed by defendant No.1 in favour of defendant No.2 stands admitted. Defendant No.2 has also proved the same by examining not only himself but also attesting witness as well as scribe of the sale deed. In addition to the aforesaid, it has to be noticed that admittedly plaintiff had executed general power of attorney in favour of defendant No.1. Plaintiff's case is that he had executed the power attorney to authorise defendant No.1 to execute sale deed in favour of sons of Bhagwan Singh. However, this plea does not find support from contents of the power of attorney. It may be added that defendant No.2 has even examined the Naib Tehsildar who as Joint Sub-Registrar had registered the power of attorney. REGULAR SECOND APPEAL NO.4855 OF 2009 -4- Said witness has stated that the power of attorney had been read over and explained to the executant i.e. plaintiff who executed it admitting it to be correct. It is thus manifest that the power of attorney was not result of fraud nor the consequent impugned sale deed is result of fraud. It would not be out of place to notice that plaintiff by way power of attorney had authorized defendant No.1 to sell 47 Kanals 6 Marlas land. But defendant No.1 executed the impugned sale deed of 23 Kanals 13 Marlas land only i.e. half of the land which defendant No.1 was authorized to sell. It would also depict that defendant No.1 has not played any fraud with the plaintiff and has not acted with dishonesty. The plaintiff has also not examined Gurlal Singh and Gurdeep Singh sons of Bhagwan Singh plaintiff's brother, as witnesses to substantiate the plaintiff's version that 47 Kanals 6 Marlas land was to be transferred in their favour on account of some family settlement. Thus examined from any angle, plaintiff's version is untenable and has, therefore, been rightly discarded by the courts below. Concurrent finding recorded by the courts below against the plaintiff does not call for interference in second appeal. The said finding is justified by the evidence on record and is supported by cogent reasons and cannot be said to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 16.12.2010 'raj'