RSA No. 2860 of 2008 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2860 of 2008 Date of Decision: 27.7.2009 Mangal Singh and others ......Appellants Versus Ranjit Singh and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Kanwaljit Singh, Senior Advocate, with Shri Rakesh Chaudhary, Advocate, for the appellants. Shri Ashish Gupta, Advocate, for respondent Nos. 1 and 2. Shri S.S. Rangi, Advocate, for respondent No.3. HEMANT GUPTA, J. (Oral). Defendant Nos. 9 to 12, vendees from defendant No.7-Ranjit Singh son of Saudagar Singh, in pursuance of the sale deed dated 12.9.1995, are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the aforesaid sale deed was found to be illegal, null and void. The challenge in the suit is to the various instruments of sale executed by defendant No.7 in favour of defendant Nos.8 and 9 to 12. The plaintiff claimed that such instruments of sale will not affect the rights of the plaintiff and defendant Nos. 1 to 6 in the property in dispute. The plaintiff and defendant Nos. 1 to 6 are the daughters of one Saudagar Singh, whereas defendant No. 7 is the son of Saudagar Singh. Defendant No.8 is RSA No. 2860 of 2008 (2) the wife of defendant No.7, whereas defendant Nos. 9 to 12 are purchaser from defendant No.7. Admittedly, Saudagar Singh was the owner of the suit land. The plaintiff averred that Saudagar Singh was murdered by defendant No.7 and Baljit Singh, another son of Saudagar Singh, but defendant No. 7 lodged a report that their father is missing. Plaintiff and defendant Nos.1 to 6 were present in the house, but they were threatened by defendant No.7 and Baljit Singh not to disclose this fact to any person, otherwise, they would be killed. Mehar Kaur wife of Saudagar Singh and Baljit Singh have died and, therefore, the plaintiff and defendant Nos. 1 to 7 are the only legal heirs of Saudagar Singh. It is alleged that defendant No. 7 has got forged Power of Attorney dated 8.8.1995 registered on 9.9.1995 in Uttar Pradesh by impersonation and in collusion with the witnesses and scribe keeping in view the fact that Saudagar Singh has already died on 19.10.1992. On the basis of such forged Power of Attorney, defendant No.7 has executed instruments of sale, which were challenged in the present suit. Defendant Nos.2 to 6 filed a joint written statement denying the story of murder of Saudagar Singh and in fact pleaded that Saudagar Singh is alive and that after his release from jail on being convicted of a murder charge, he felt shy and left the village and started residing in a Gurudwara for his livelihood. Saudagar Singh used to visit Gurudwara at Anandpur Sahib and Fatehgarh Sahib, where he met many persons of the area concerned. He was requested to come to the village, but he did not agree. It was pleaded that since Saudagar Singh is alive, he might have executed Power of Attorney in favour of his son Ranjit Singh. The story of death of Saudagar Singh was said to be concocted. In a separate written statement RSA No. 2860 of 2008 (3) filed on behalf of defendant No.7, the suit was said to be time barred. It was stated that Saudagar Singh was not murdered by defendant No.7 and Baljit Singh or that the plaintiff and defendant No.7 were present at the time of alleged occurrence and that he along with Baljit Singh has threatened the plaintiff or defendant Nos. 1 to 6. It was denied that the forged Power of Attorney was got executed by impersonation and in collusion with the scribe and witnesses. The Power of Attorney was said to be valid and legal document. Death of Saudagar Singh on 19.10.1992 was denied. Defendant Nos. 9 to 12 in their written statement alleged that they are owners in possession on account of sale executed by defendant No.7 and that such sale has been effected by Saudagar Singh, through his attorney. The learned trial Court returned a finding that there is voluminous evidence on record to show that since 1992, no-one has seen Saudagar Singh. Defendant No.7 has failed to file reply to the application filed by the plaintiff for producing Saudagar Singh in Court. In fact, on 20.2.1998, he has given a statement that he is unable to produce Saudagar Singh. It was also found that defendant Nos. 1 to 6 have taken a plea that Saudagar Singh was alive but no cogent and convincing evidence was led that he was alive till date. PW4 Ranjit Kaur, real daughter of Saudagar Singh has supported the fact that Saudagar Singh was killed by defendant No. 7 and Baljit Singh on 19.10.1992 she has seen the occurrence with her own eyes. DW1 Jaspal Singh has also admitted that he has not heard of Saudagar Singh after 1995 and he never visited Saudagar Singh at any point of time. DW2 Daljodh Singh, son-in-law of Saudagar Singh deposed that he has not seen Saudagar Singh after 1996. DW5 Inderjit Kaur, wife of defendant No.7 has admitted that she has never seen her father-in-law. Her RSA No. 2860 of 2008 (4) marriage was solemnised in the year 1994. The testimony of DW12 Gurdial Singh, the alleged brother-in-law of Saudagar Singh was found to be of an unreliable witness as he was not conversant with the number of sons of Saudagar Singh nor conversant with the situation of Harmandir Sahib. His statement that he met Saudagar Singh in Gurudwara, was negated by the Court. DW13-Didar Singh in cross-examination deposed that Saudagar Singh was not heard for the last 14 years. On the basis of testimony of near relations i.e., sons and daughters of Saudagar Singh, it was concluded that he has not been heard of since the year 1992 except by his one son defendant No.7-Ranjit Singh. It was held that Ranjit Singh failed to produce Saudagar Singh although he availed one and half years' time for the same. The learned trial Court negated the argument that the suit is premature having been filed in the year 1996 as the civil death cannot be presumed before seven years, but for the reason that on the date of the filing of the written statement or on the date of the decision of the suit more than seven years have passed and neither his sons; daughters nor any other relatives have heard of Saudagar Singh, therefore, he is presumed to be dead. It was found that the Power of Attorney dated 9.9.1995 bears photographs of Saudagar Singh and Ranjit Singh, but they do not bear the seal of Sub Registrar, Jansath, U.P. The marginal witnesses of the aforesaid Power of Attorney were resident of Jaspalon, Tehsil Samrala, District Ludhiana and none was from District Mujaffarnagar (U.P.). No person from village Kashampur, Tehsil Jansath, was the signatory to the Power of Attorney to show that Saudagar Singh has taken a temporary abode in that village and he has executed Power of Attorney in favour of his son Ranjit Singh. The Court found that the witnesses have been procured from far off RSA No. 2860 of 2008 (5) places of Punjab and that there is no evidence on record to show that Saudagar Singh has land or permanent residence in village Kashampur, Tehsil Jansath, U.P. The trial Court also found that the defendants have failed to put forward any explanation as to how the marginal witnesses, Jaspal Singh and Daljodh Singh, happened to be present in Uttar Pradesh at the time of execution of Exhibit D.1. It was found that presence of Daljodh Singh, son-in-law of Saudagar Singh, could be possible, but presence of Jaspal Singh was found to be suspicious. The documents expert Ms. Jassi Anand compared thumb impressions on the Power of Attorney Exhibit D.1 with the earlier Power of Attorney dated 19.2.1988, which was not only proved with the assistance of marginal witnesses examined by the plaintiff, but also admitted by defendant No. 7. The report is that disputed thumb impressions and the standard thumb impressions were not identical. The trial Court concluded that Power of Attorney Exhibit D.1 was a forged and fabricated document and it was procured by an imposter in the office of Sub Registrar, Jansath (U.P.) and it was for this reason that the photographs on the Power of Attorney do not bear seal of the Sub Registrar. Since the Power of Attorney was found to be forged, the sale deed executed on such Power of Attorney was found to be only to deprive the heirs of Saudagar Singh from the property left by Saudagar Singh. It was found that the sale deed Exhibit D.6 in favour of the present appellants will not confer the status of bona-fide purchasers on the appellants as any transaction made on the basis of forged Power of Attorney will not vest them with the status of ownership. With the said finding, the suit was decreed. The learned first Appellate Court found that Saudagar Singh RSA No. 2860 of 2008 (6) executed Power of Attorney dated 19.2.1988 in favour of Ranjit Singh defendant No.7 registered with the Sub Registrar, Samrala on 29.2.1988. Malkiat Singh, PW2, is one of the attesting witness and Nambardar of village Kotla Badla. The said Power of Attorney conferred right of management upon Ranjit Singh defendant No.7. It was found that Power of Attorney Exhibit D.1 is forged and fabricated document. Saudagar Singh is resident of village Kotla Badla and that it is the admitted fact that he has no relation in Uttar Pradesh. The thumb impressions have been compared on the Power of Attorney Exhibit D.1 with the admitted Power of Attorney Exhibit P.1 from PW5- Ms. Jassi Anand, Handwriting and Fingerprints expert. In her report Exhibit P.4, she has opined that the thumb impressions are not identical. It has been further found that no seal of Sub Registrar was affixed on the photographs on such Power of Attorney, but zig-zag lines have been drawn on these photographs so as to mislead the Court. DW12 -Daljodh Singh, son-in-law of Saudagar Singh has deposed that he knew that Saudagar Singh was residing in a Gurudwara, in Uttar Pradesh, but he was not aware as to in which city or place that Gurudwara is situated. He has not explained as to how he came to know that Saudagar Singh was residing in that particular Gurudwara. Even Ranjit Singh appearing as DW4 has deposed that his father was residing in Uttar Pradesh, but he has not disclosed in which city, town or village, his father was residing. Even the Sub Registrar, who has registered the Power of Attorney, has not been examined. It was further found that the first page of the Power of Attorney Exhibit D.1, bears the signatures of Jaspal Singh and Daljodh Singh, but not of Sub Registrar nor there is any stamp of attestation by the Sub Registrar. RSA No. 2860 of 2008 (7) There is no stamp or signatures of the Sub Registrar at the end of the Power of Attorney Exhibit D.1 at page No. 8 nor there is any endorsement that the Power of Attorney contains 8 pages. In view of the facts enumerated, the Courts confirmed the finding recorded by the learned trial Court that the Power of Attorney is forged, fabricated and created one. In view of the said finding, the sale deed Exhibit D.6 in favour of appellants, was found to be illegal, null and void or a sham transaction, not binding on the rights of the plaintiff. Learned counsel for the appellants has vehemently argued that the appellants are purchaser for value and consideration, therefore, the sale on the basis of a registered Power of Attorney is valid and legal. It is also argued that the learned trial Court has taken into consideration that the appellants are residents of the same village as of Saudagar Singh, which is factually incorrect. Therefore, the appellants are proved to be as bona-fide purchaser for value and consideration. Both the Courts have recorded a concurrent finding of fact that the Power of Attorney Exhibit D.1 is forged and fabricated document. In fact, no challenge was made by the learned counsel for the appellants to the said finding. The sale deed in favour of the appellants was executed within 30 days of execution of the Power of Attorney. Thus, it was for the appellants to make reasonable inquiries to find out the truthfulness of the authorisation of defendant No.7. The factum of the land being situated in Punjab and the Power of Attorney being executed in Uttar Pradesh with the attesting witnesses from Punjab, was sufficient to put the appellants on alarm, but the fact that they proceeded with the purchase shows their connivance with defendant No.7 in the illegalities. In any case, the remedy RSA No. 2860 of 2008 (8) of the said defendants is against defendant No.7 alone, but on the basis of forged and fabricated Power of Attorney, no valid and legal title could pass in favour of the defendant-appellants. It is wholly immaterial whether the appellants are residents of the village, where the land in dispute is situated or a different village. The fact remains that it was for the appellants to verify the title of their vendor. It was for the appellants to verify from the village where Saudagar Singh, the alleged owner of the land was available for registration of the Power of Attorney. Still further it was for the appellants to be on guard in view of the fact that Saudagar Singh executed the alleged Power of Attorney on 9.9.1995 in Uttar Pradesh, but he was not available in his village for execution of the sale deed 10 days later i.e., on 19.9.1995. Such facts are sufficient to return a finding that the purchase in favour of the appellants is not bona-fide. Findings of fact, recorded by the Courts below are sought to be disputed by way of re-appreciation of evidence. It could not be pointed out that any evidence has been misread or not taken into consideration. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 27-07-2009 ds