Regular Second Appeal No.3497 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3497 of 2007 Date of decision: 11.08.2009 1.Des Raj s/o Data Ram r/o Birla Mill Road, Bathinda. 2.Krishna Devi w/o Des Raj s/o Data Ram r/o Birla Mill Road, Bathinda. ..... Appellants. Versus 1.Murti Devi d/o Mukh Ram w/o Kanshi Ram r/o Street No. 4, Naruna Road, Bathinda. 2.Billo Devi d/o Mukh Ram s/o Ishwar w/o Ram Kumar r/o Kabir Basti, Mandi Dabwali, District Sirsa. 3.Santosh Devi d/o Mukh Ram s/o Ishwar, w/o Piara Lal r/o Abohar District Ferozepur. ..... Respondents. 4.Mohal Lal son of Mukh Ram r/o Quarter no.C-2, Emergency Quarters, Punjab Health Systems Corporation, Talwandi Sabo. 5.Sant Ram (deceased ) son of Mukh Ram through its legal representatives: (a) Guddi, (b) Raj, (c) Vinod Kumar, (d) Kala, All progeny of Sant Ram r/o Gali No.1, Naruna road, Bathinda. .... Proforma respondents Regular Second Appeal No.3497 of 2007 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. N.S. Dandiwal, Advocate for the appellants. Mr. Vikas Kumar, Advocate for respondent nos. 1 to 3. Respondent no.4 ex-parte. None for respondent no.5. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 24.08.2007, rendered by the Court of Additional District Judge, Bathinda, vide which it accepted the appeal holding that the plaintiffs (now respondent nos. 1 to 3) were entitled to the decree of possession to the extent of ½ share of the suit house, against the judgment and decree dated 18.10.2006, rendered by the Court of Additional Civil Judge (Senior Division), Bathinda,dismissing the suit. 2. The brief facts of the case, are that Mukh Ram, father of the plaintiffs was the owner in possession of the suit house, on the basis of the sale deed dated Regular Second Appeal No.3497 of 2007 3 02.04.1946. Mukh Ram, father of the plaintiffs, died leaving behind the plaintiffs as well as his sons Roshan Lal (since deceased), Mohal Lal and Sant Ram. Sant Ram expired, leaving behind his legal heirs i.e. Respondent nos. 5(a), to 5(d). Mohal Lal and Shamli Devi appointed Des Raj, as their general power of attorney, vide registered deed dated June 28, 1995 for selling the property, in question. It was stated that the General Power of Attorney executed by Shamli Devi and Mohal Lal, also authorized Des Raj to alienate the share of the plaintiffs. On the basis of that power of attorney, Des Raj, executed the sale deed dated 7.7.1995, in favour of his own wife Krishna Devi, respondent (appellant). It was further stated that the power of attorney authorizing Des Raj to execute the sale deed, in respect of the share of the plaintiffs (now respondents) in the property, in dispute, was illegal. It was further stated that the sale deed, executed by Des Raj on 7.7.1995, in favour of his Regular Second Appeal No.3497 of 2007 4 wife, to the extent of the share of the plaintiffs i.e. ½ share was also illegal. It was further stated that the plaintiffs came to know with regard to the sale deed and power of attorney about 14 days prior to the filing of the suit. It was further stated that they approached defendant nos. 3 and 4 (now appellants) to restore the possession of ½ share of the property belonging to them(plaintiffs), but they refused to do so. On their final refusal, a suit for declaration and possession was filed. 3. Mohal Lal, defendant no.2 (now respondent No.4) put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the suit was not maintainable; and that the plaintiffs had neither cause of action nor locus standi to file the suit. It was admitted that Mukh Ram was the owner of the property, in dispute. It was also admitted that the plaintiffs (now respondents) are the daughters of Mukh Ram, deceased. It was Regular Second Appeal No.3497 of 2007 5 also admitted that the death of Mukh Ram, took place in the year 1969. It was stated that Mohal Lal, defendant no.2, wanted to execute the power of attorney in respect of his own property, but due to inadvertence, it was executed, in respect of the property of other heirs of Mukh Ram also. The remaining averments, contained in the plaint, were denied, being wrong. 4. Krishna Devi and Des Raj, defendant nos.3 and 4 (now appellants), also took up the same preliminary objections, as were taken up by defendant no.2, in his written statement. It was, however, stated that defendant no.3 (now appellant no.2) was the bonafide purchaser of the property, in good faith and for valuable consideration. It was further stated that a family settlement took place during the life time of Mukh Ram as a result whereof, the property, in dispute, fell to the share of Shamli Devi, wife and Mohal Lal, son. It was further stated that Shamli Devi and Mohal Lal entered into an agreement to sell Regular Second Appeal No.3497 of 2007 6 with Krishna Devi. Des Raj, their general power of attorney, was competent to execute the sale deed, in respect of the entire property. The remaining averments, contained in the plaint, were denied, being wrong. 5. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the general power of attorney registered no.428 dated 28.06.1995 and sale deed no.3219 dated 7.7.1995 executed by defendant no.4, in favour of defendant no.3 is illegal, null and void ?OPP 2- Whether the plaintiffs are entitled to the declaration, as prayed for ? OPP 3- Whether the plaintiffs are entitled to the possession, as prayed for ? OPP 4- Whether the suit of the plaintiffs is within limitation ? OPD 5- Whether the plaintiffs have no locus standi and cause of action to file the present suit ?OPD 6- Whether the suit is not maintainable in the present form ? OPD 7- Whether the plaintiffs are estopped by their own act and conduct from filing the present suit ?OPD Regular Second Appeal No.3497 of 2007 7 8- Whether defendant no.3 is bonafide purchaser, if so, its effect ?OPD 9- Whether the plaint is not properly valued for the purpose of Court fee and jurisdiction ?OPD 10- Relief.” 6. The parties led oral as well as documentary evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court dismissed the suit. 7. Feeling aggrieved, an appeal was preferred by the appellants (plaintiffs), which was accepted as stated above. 8. Feeling dissatisfied, the instant Regular Second Appeal, has been filed, by Des Raj and Krishna Devi, appellants. 9. I have heard the Counsel for the parties, and have gone through and perused the evidence and record of the case, carefully. Regular Second Appeal No.3497 of 2007 8 10. The following substantial questions of law, arise, in this appeal, for the determination of this Court:- “1. Whether the first Appellate Court, misread and mis-appreciated the evidence and recorded perverse finding that Shamli Devi and Mohal Lal were not competent to execute the power of attorney, authorizing Des Raj, to dispose of the entire property? 2- Whether the First Appellate Court was wrong in recording perverse finding that no oral family settlement took place, during the life time of Mukh Ram, as a result whereof, the property, in dispute, fell to the share of Shamli Devi and Mohal Lal? 3- Whether the first Appellate Court recorded perverse finding on account of mis-reading and mis- appreciating the evidence that Krishna Devi, now appellant no.2, was not the bonafide purchaser for valuable consideration and in good faith to the extent of ½ share of the plaintiffs (now respondents)? 11. The Counsel for the appellants, submitted that the first Appellate court was wrong in coming to the conclusion that Des Raj was not competent to execute the sale deed, in respect of the entire property, in which the plaintiffs were also having ½ share in Regular Second Appeal No.3497 of 2007 9 favour of the appellant no.2. He further submitted that on the basis of oral family settlement, the property, in dispute, fell to the share of Shamli Devi and Mohal Lal, and, as such, they were competent to execute the power of attorney, in favour of Des Raj, to dispose of that property, in favour of anybody, he liked. He further submitted that even the first Appellate Court fell into a legal error, in holding that appellant no.2 Krishna Devi, was not the bonafide purchaser, in good faith, and for valuable consideration of the property, in dispute. He further submitted that the judgment and decree of the first Appellate Court, being illegal, were liable to be set aside. 12. On the other hand, the Counsel for the respondents, submitted that the first Appellate Court, was right in coming to the conclusion that no cogent and convincing evidence was produced to prove the oral family settlement, whereby the property, in dispute, allegedly fell Regular Second Appeal No.3497 of 2007 10 to the share of Shamli Devi and Mohal Lal. He further submitted that since the property, in dispute, belonged to Mukh Ram, father of the plaintiffs, after his death, respondent nos. 1 to 3 became the owners to the extent of ½ share of the same. He further submitted that since they did not execute any power of attorney in favour of Des Raj authorizing him to alienate their share also, any alienation made by him (Des Raj) in favour of appellant no.2, could be said to be illegal. He further submitted that the first Appellate Court was right in coming to the conclusion, that the wife of appellant no.1, namely Krishna Devi, was not the bonafide purchaser, in good faith and for valuable consideration in respect of ½ share of the plaintiffs (now respondents). He further submitted that the judgment and decree of the first Appellate Court, being legal and valid, were liable to be upheld. Regular Second Appeal No.3497 of 2007 11 13. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. Admittedly, the property, in dispute, was the ownership of Mukh Ram. After the death of Mukh Ram, the plaintiffs (now respondents) became the owners to the extent of ½ share, being his daughters, whereas the other heirs became the owners to the extent of ½ share. No doubt, a family settlement was set up by Des Raj. He stated, in his examination-in-chief while appearing as DW-4 that the property, in dispute, was given in oral family settlement by Mukh Ram, to Shamli Devi and Mohal Lal. However, during the course of cross-examination, it was stated by him, that he purchased the suit property from Shamli Devi and Mohal Lal. There is no sale deed, in the name of Des Raj. On the other hand, it is evident from Ex.P-4 Regular Second Appeal No.3497 of 2007 12 that Shamli Devi and Mohal Lal, appointed him as General Power of Attorney and authorized him to deal with the property including alienation thereof. It was further stated by him during the course of cross-examination that he did not know, as to whether the family settlement was oral or in writing. At one stage, it was stated by him, that he had not brought the document of family settlement, as the same was not in his possession. The first Appellate Court was, thus, right in coming to the conclusion, that no evidence with regard to the family settlement was produced whereby the property, in dispute, was given to Shamli Devi and Mohal Lal, by Mukh Ram, deceased and they became the exclusive owners thereof. 14. Since no family settlement had taken place, nor on the basis of alleged family settlement, Shamli Devi and Mohal Lal had became the exclusive owners of the property, in dispute, after the death of Mukh Ram, (since deceased), the Regular Second Appeal No.3497 of 2007 13 plaintiffs, who are his daughters and his sons also, became the owners thereof in equal shares. The plaintiffs, thus, became the owners of the property to the extent of ½ share. Admittedly, no power of attorney was executed by them in favour of Des Raj. Since they were the owners to the extent of ½ share in the property, in dispute, until and unless they executed the power of attorney, authorizing Des Raj to alienate their share, in the property, in dispute, he (Des Raj) was not at all competent to alienate the same. The alienation on the basis of power of attorney, copy whereof Ex.P-4, in respect of the share of the plaintiffs (now respondents) in the property, in dispute, by Des Raj, in favour of his wife Krishna Devi, was, therefore, illegal. 15. The next question that fell for decision, is, as to whether, Krishna Devi, wife of Des Raj, in whose favour, the property, in dispute, was sold, could be said to be the bonafide purchaser for a Regular Second Appeal No.3497 of 2007 14 valuable consideration and in good faith qua the share of the plaintiffs. Des Raj, DW-4, during the course of cross- examination, admitted that the suit property was earlier owned by Mukh Ram. He, no doubt, stated that Shamli Devi and Mohal Lal, were recorded as owners of the property, in dispute, in the Municipal record. However, his statement in this regard was belied by Ex.R-2, copy of the application given by Shamli Devi and Mohal Lal. It is evident from this document that it was moved on 27.06.1995. In this document, it was stated that Mukh Ram son of Ishwar died in 1969 and the property in dispute, be transferred in their names. It was, on the basis of this application that on 11.7.1995, a noting was put up by the concerned official that the property in dispute had already been sold in favour of Krishan Devi on 7.7.1995 and the same be, in the first instance, transferred in the name of Shamli Devi and Mohal Lal and, ultimately, vide order dated 12.07.1995, Regular Second Appeal No.3497 of 2007 15 mention whereof is made on Ex.P-1, copy of the assessment register, the property was transferred in the name of Shamli Devi and Mohal Lal and thereafter Krishna Devi was shown as owner. It means that before purchasing the property, Krishna Devi did not make any bonafide enquiry as to who were the other owners of the property, in dispute. It was only after the purchase of the property that the documents were created to show her bonafidies. In Pal singh v. Uma Mehta, 1997(1) Civil Court Cases 492 (P&H), it was held that a vendor cannot transfer any title or right better than the title or right he has in the suit property. The first Appellate court, was, thus, right in coming to the conclusion that Krishna Devi, one of the appellants, was not the bonafide purchaser for valuable consideration, and in good faith to the extent of ½ share of the property, in dispute, belonging to the plaintiffs. Regular Second Appeal No.3497 of 2007 16 16. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, subject to the modification that decree for joint possession was required to be passed, being based on the correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The substantial questions of law, depicted above, are answered against the appellants. 17. For the reasons recorded above, the appeal being devoid of merit, must fail, and the same stands dismissed with costs with the modification, in the manner that the plaintiffs (now respondents) being the co-sharers were entitled to joint possession to the extent of ½ share, in the property, in dispute, and the sale deed Ex.D-3/PX to the extent of ½ share in the property, in dispute, of the plaintiffs (now respondents), being Regular Second Appeal No.3497 of 2007 17 illegal, shall not have any bearing on their rights. August 11, 2009 ( Sham Sunder ) dines Judge