RSA No.2247 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2247 of 2009 (O&M) Date of Decision: 29.05.2009 Jarnail Singh & Anr. ..Appellants Vs. Smt.Chinti ...Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.P.K.Gupta, Advocate, for the appellants. --- Vinod K.Sharma,J. (Oral) CM No.6728-C of 2009 Allowed. The appellants are exempted from filing the certified copies of Annxure P.1. RSA No.2247 of 2009 and CM No.6729-C of 2009 The defendant/appellants have invoked the jurisdiction of this court under section 100 of the Civil Procedure Code to challenge the judgment and decree dated 8.4.2009, passed by the learned courts below, in a suit for declaration filed by the plaintiff/respondent. RSA No.2247 of 2009 2 The plaintiff challenged power of attorney dated 7.1.2000 on the basis of which defendant No.1 executed a sale deed in favour of defendants No.2 and 3 i.e. the sons of defendant No.1 on 11.1.2000. The plaintiff/respondent filed a suit on the pleadings that she is owner of land measuring 6 kanals 10 marlas situated in village Bhatoli Tehsil Anandpur Sahib, District Ropar. Defendant No.1 was the real brother of the plaintiff whereas appellants/defendants No.2 and 3 are the sons of defendant No.1. Plaintiff, widow sister of defendant No.1 is living with her sons at village Abiana Kalan. Defendant No.1 used to look after the property of the plaintiff in village Bhatoli. The case set up by the plaintiff was that on 6.1.2000 the plaintiff came to village Bhatoli and stayed with her brother. Defendant No.1 told the plaintiff that her old age pension has been stopped and assured her that it can be restarted in case she accompanied him to the office of Sub Divisional Magistrate, Anandpur Sahib. The plaintiff accompanied the defendants where she was informed that affidavit was required to be given by her. Defendant No.1 purchased some papers and got them scribed from the persons sitting there and obtained her thumb impressions and produced her before the clerk in the Tehsil Office. Thereafter, plaintiff was made to sit outside the office and after about half an hour he told her that the papers have been handed over in the office of Sub Divisional Magistrate and assured her that she would get old age pension. The plaintiff/respondent thereafter returned to her village Bhatoli in the evening. On 12.1.2001 she came to know that defendant No.1 had RSA No.2247 of 2009 3 manipulated General Power of Attorney in his favour under the garb of affidavit, and on the basis of said Power of Attorney, executed sale deed dated 11.1.2000 in favour of his sons. The plaintiff sought declaration that the sale deed was illegal, null and void. Suit was contested by taking preliminary objections that the plaintiff/respondent was neither competent to maintain the suit nor it was maintainable in the form set forth. Plea of estoppel was also raised. On merits, it was pleaded that the property in question was inherited by the plaintiff/respondent from her father and the suit land was being looked after and managed by defendant No.1. The plaintiff with a motive, that the suit property should not go out of her parents family executed the general power of attorney, which was got registered in the office of Sub Registrar. Under the said power of attorney he was authorized to look after and manage the suit property, as also to sell the land and to receive the sale consideration. The suit land was sold by defendant No.1 in his capacity of general power of attorney to defendants No.2 and 3 for a consideration of Rs.2,85,000/-. Defendants No.2 and 3 were said to have been put in actual physical possession. It was also pleaded that the plaintiff had herself asked the marginal witnesses to come for registration of general power of attorney. She also purchased stamp papers. Power of attorney was said to have been scribed by Brij Nath and got registered at her own will. The plaintiff had also accompanied defendant No.1 to the tehsil complex. It was claimed that the suit being false, baseless and illegal was liable to be dismissed. Defendants No.2 and 3 also took the same stand. RSA No.2247 of 2009 4 On appreciation of evidence learned courts below recorded a concurrent finding of fact that the general power of attorney was surrounded by suspicious circumstances and was got executed from the plaintiff/respondent in the garb of getting old age pension. The sale deed was immediately executed thereafter, therefore, the learned courts held that the power of attorney was not executed with free will, and that the sale deed did not confer any title on defendants No.2 and 3. The appellants were not held to be bona fide purchasers for consideration. Learned courts below have also been pleased to hold that the power of attorney as well as the sale deed were forged, fabricated being the result of fraud, thus, invalid. Plaintiff/respondent was held entitled to declaration and also to possession of the suit property. The learned trial court also held that the plaintiff/respondent was not estopped by her act and conduct from filing the suit. Suit was held to be maintainable. The suit was decreed by holding the general power of attorney, as well as sale deed was null and void and not affecting the rights of the plaintiff. She was also held entitled to restoration of possession. In appeal, findings recorded by the learned trial court have been affirmed. Learned counsel for the appellants contends that this appeal raises the following substantial questions of law for consideration by this court:- 1. Whether the findings recorded by the learned courts below are the outcome of misreading of evidence? RSA No.2247 of 2009 5 2. Whether the suit for declaration simpliciter was maintainable? 3. Whether the appellants i.e. Defendants No.2 and 3 were bona fide purchasers for consideration? In support of the substantial questions of law, the learned counsel for the appellants vehemently contended that except for bald statement of the plaintiff there was no other evidence to prove, the fraud and misrepresentation, therefore, the findings recorded by the learned courts below are based on no evidence, thus, are perverse. On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellants. The very fact that defendant No.1 is the real brother of the plaintiff, and in pursuance to the power of attorney, immediately executed sale deed in favour of his sons. The learned courts below, therefore, rightly accepted the version of the plaintiff to hold that the power of attorney as well as sale deed were the outcome of fraud and misrepresentation. The facts disclosed show confidence trick played by defendant No.1. The contention that the appellants are bona fide purchasers for consideration, cannot be accepted as sale transaction was between the father and sons, and admittedly no evidence was led to prove the transfer for consideration to the plaintiff/respondent. In the absence of consideration having been passed on to the plaintiff/respondent, and further in view of the fact that defendant No.1 is the brother of plaintiff/respondent and also that the sale was made in favour of his sons, it can safely be said that sale was without consideration RSA No.2247 of 2009 6 as it was not passed on to the true owner. In view of positive evidence, defendants No.2 and 3 cannot be said to be bona fide purchasers for consideration. No fault, therefore, can be found with the findings recorded by the learned courts below. Learned counsel for the appellants, also contended that the learned courts below committed an error in decreeing the suit for possession though the plaintiff had claimed only joint possessio and therefore, the judgment and decree passed is perverse. In support of contention learned counsel for the appellants placed reliance on the judgment of Hon'ble Supreme Court in the case of Gulabrao Balwantrao Shinde and others Vs. Chhabubal Balwantrao Shinde and others AIR 2003 SC 160, wherein Hon'ble Supreme Court has been pleased to lay down that the court cannot make out a new case which was not pleaded. In the case of Gulabrao Balwantrao Shinde and others Vs. Chhabubal Balwantrao Shinde and others (supra) the plaintiff had filed a suit for partition claiming half share in the property, whereas learned courts below had declared him owner of entire property. It was in that situation that the Hon'ble Supreme Court was pleased to lay down that no new case could be made out. In the present case the plaintiff had challenged the power of attorney as well as the sale deed and once these were declared to be null and void, being outcome of fraud, no fault can be found in decreeing of the suit, and ordering the restoration of possession to the plaintiff/respondent. It is well settled law that fraud vitiates every act. Learned counsel for the appellants also placed reliance on the RSA No.2247 of 2009 7 judgment of Hon'ble Supreme Court in the case of Jagdish Dutt and another Vs. Dharam Pal and others AIR 1999 SC 1694 to contend that in case of undefined share the decree for possession cannot be given effect to except by suit of partition. This judgment again is not relevant to the matter in issue, as the sale deed has been challenged on the ground of fraud and misrepresentation. There is no question of undefined share. Reliance was also placed on the judgment of this court in the case of Arjan Singh & Ors. Vs. Hem Raj and Ors. 1983 PLJ 56 to contend that in a suit filed by co-sharer for joint possession, a decree for joint possession cannot be granted and only declaration can be granted, with right of possession by way of partition. This judgment has also no application to the facts of present case as the suit was not filed for joint possession as co-sharer but to challenge the sale deed executed by defendant No.1 on the basis of general power of attorney obtained by fraud. No fault, therefore, can be found with the judgment and decree passed by the learned courts below. The substantial questions of law raised are answered against the appellants. The appeal is dismissed in limine, but with no order as to costs. 29.05.2009 (Vinod K.Sharma) rp Judge