R. S. A. No. 3747 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3747 of 2010 Date of Decision : September 20, 2010 M/s Sunraj Software Pvt. Ltd. .... Appellant Vs. Raj Pal and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sumeet Goel, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant no.2 M/s Sunraj Software Pvt. Ltd. has preferred the instant second appeal having remained unsuccessful in both the courts below. Bis Ram – plaintiff (since deceased and represented by respondents no.1 to 4 as his legal representatives) filed suit against Jaswant Saini – respondent no.5 (defendant no.1) and against the appellant- defendant no.2 alleging that he is permanent resident and proprietor of Village Ghata and was co-sharer in two patties thereof namely Asha and Phoola patties. The plaintiff was co-owner in joint possession of the suit land. He had also constructed his house thereon. He never sold the suit R. S. A. No. 3747 of 2010 2 land to anybody. He never appointed defendant no.1 Jaswant Saini as his attorney. The alleged Power of Attorney dated 24.01.1996 on behalf of plaintiff in favour of defendant no.1 is forged and fabricated. Sale deed dated 02/03.05.2000 executed by defendant no.1 as attorney of plaintiff in favour of defendant no.2 is also, therefore, null and void. The said sale deed is fictitious document alleged to have been executed at Mumbai, although the same could not be executed and registered there in respect of property of District Gurgaon. The plaintiff accordingly sought declaration that he is owner in joint possession of the suit land i.e. 827½ marlas land out of 52,264 marlas land described in the plaint and the alleged sale deed and consequent mutation are liable to be ignored and plaintiff is not bound by the same. Injunction was also claimed. The defendants controverted the plaint allegations and inter alia pleaded that the plaintiff executed Power of Attorney and thereby, appointed defendant no.1 as his attorney and accordingly, defendant no.1 executed sale deed of the suit land on behalf of plaintiff in favour of defendant no.2 and paid the sale price of the suit land to the plaintiff. The plaintiff has no right to challenge the Power of Attorney and the sale deed. The plaintiff has turned dishonest on account of increase in prices of the land. Sale deed and mutation are legal and valid. The defendants also made counter claim alleging that the plaintiff executed agreement dated 24.01.1996 to sell the suit land measuring 42 kanals @ Rs.2,90,000/- per acre to defendant no.2 – appellant M/s Sunraj Software Pvt. Ltd. and one R. S. A. No. 3747 of 2010 3 M/s Lunar Finance Ltd. and received the sale consideration from them from time to time through cheques and cash and possession was also delivered to the said vendees in part performance of the contract on the date of execution of the agreement. At the same time, plaintiff also appointed defendant no.1 as his special Power of Attorney after receiving the consideration. The original agreement, receipt and special Power of Attorney executed by the plaintiff were not traceable and only photocopies thereof were available with the defendants. Accordingly, the defendants claimed declaration and injunction and in the alternative, specific performance of the agreement. Learned Civil Judge (Senior Division), Gurgaon, vide judgment and decree dated 19.12.2009 decreed the plaintiff's suit and dismissed the counter claim of the defendants. First appeal preferred by both the defendants stands dismissed by learned Additional District Judge, Gurgaon, vide judgment and decree dated 23.04.2010. Feeling aggrieved, defendant no.2 only has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended the plaintiff himself agreed to sell the suit land to defendant no.2 – appellant and M/s Lunar Finance Ltd. and received the entire sale consideration and executed Power of Attorney in favour of defendant no.1, who accordingly executed sale deed of the suit land in favour of the appellant. R. S. A. No. 3747 of 2010 4 I have carefully considered the aforesaid contention, but find no merit therein. Alleged special Power of Attorney and agreement to sell, as pleaded by the defendants, have not been produced. It has been pleaded that the same have been lost, but photocopies thereof are available. This version of the defendants defies all logic because the original documents would have been kept in safe custody instead of photocopies thereof. Moreover, defendants also pleaded receipt regarding payment of sale consideration, but the said receipt has not seen the light of the day and even photostat copy thereof has not been produced. The defendants also pleaded some payment of sale consideration through cheques, but no evidence has been led in this regard. Sale deed was also executed and got registered at Mumbai, although the same should have been done at Gurgaon, as the suit land is situated in District Gurgaon. It is also significant to notice that relief of specific performance claimed by the defendants in their counter claim was hopelessly barred by limitation as the alleged agreement pleaded by the defendants was said to be dated 24.01.1996 and the suit was filed on 18.07.2002 and apparently, the counter claim was filed some time thereafter i.e. more than 6½ years after the date of alleged agreement. Consequently, defendants could not make counter claim for specific performance of the alleged agreement as the said claim was hopelessly barred by limitation. Defendants, by way of counter claim, could also not raise the plea of part performance of the alleged agreement under Section 53-A of the Transfer of Property Act as the said R. S. A. No. 3747 of 2010 5 plea could be raised by way of defence only and not by way of suit or counter claim. In addition to the aforesaid, it would also not be out of place to notice that according to defendants' version, suit land measuring 42 kanals was allegedly agreed to be sold @ Rs.2,90,000/- per acre and total sale consideration would come to Rs.15,22,500/-, but impugned sale deed was executed by defendant no.1 in favour of defendant no.2 for Rs.1,24,000/- only. It is thus manifest that the defendants have committed a big fraud not only with the plaintiff, but also with the State ex-chequer. There is concurrent finding of fact by both the courts below against the defendants. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal in any manner so as to warrant interference in second appeal. On the contrary, the said finding is justified by evidence on record and is supported by detailed reasons recorded by the courts below. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is thus found to be bereft of any merit and is accordingly dismissed in limine. September 20, 2010 ( L. N. MITTAL ) monika JUDGE