RSA No.969 of 2005 : 1 : In the High Court of Punjab and Haryana at Chandigarh. (1) RSA No.969 of 2005 Date of decision: 29.01.2008. Surinderpal Singh and another Versus Dhruvinderpal Singh and others. (2) RSA No.632 of 2005 Date of decision: 29.01.2008. S.Surjit Singh and others Versus S.Dharuwinderpal Singh and others Present: Mr.Amit Rawal, Advocate,for the appellants. Mr.Arun Palli, Senior Advocate, with Mr.Jai Bhagwan, Advocate. Mr.OP Nagpal, Advocate. Mr.Dinesh Ghai, Advocate. PERMOD KOHLI, J. This judgment of mine will dispose of RSA Nos.969 and 632 of 2005 as they have arisen out of the same impugned judgment and decree. RSA No.969 of 2002 has been preferred by Surinderpal Singh and Satish Kumar who were defendant Nos.3 and 4 in the suit, whereas RSA No.632 of 2005 has been filed by S. Surjit Singh, Smt. Tarawanti, Padam Jain, Ashok Jain and Vinod Jain. Appellant No.1 S. RSA No.969 of 2005 : 2 : Surjit Singh was defendant No.1 in the suit whereas appellant Nos. 2 to 5 are the legal representatives of Ballabh Dass Jain, defendant No.2 in the suit. Both the appeals are against the judgment and decree dated 01.11.2004 passed in Civil Appeal No.105T/16.10.2003/3.12.2003 by the learned Additional District Judge, Patiala. In RSA No.969 of 2005, Respondent Nos.1 to 4 were the plaintiffs in the suit. They are also arrayed as legal heirs of Malwinderpal Kaur, plaintiff No.3 in the suit. The plaintiff-respondents herein filed a suit for declaration challenging the judgment and decree dated 30.03.1989 passed in Civil Suit No.40 of 27.01.1989 passed by Mr. N.D. Bhatara, the then Sub Judge Ist Class, Patiala, on the ground that the same has been procured by fraud and misrepresentation and not binding upon the rights of the plaintiffs. A further prayer of permanent injunction was made restraining defendant Nos.3 and 4 from getting the possession of the property in dispute from defendant Nos. 5 to 7. The allegations made in the plaint are:- That father of plaintiff Nos. 1 to 4 (Vishvinder Pal Kaur and Upinderpal Kaur daughters of Mohinderpal Singh now deceased) and husband of plaintiff No.5, migrated from Gujaranwala, now Pakistan and filed a claim for rehabilitation. They were entitled to land in lieu of the land left by them in Pakistan. Defendant Nos.1 and 2, namely, Surjit Singh and Ballabh Dass Jain, respectively, approached the plaintiffs with an offer to help them in getting the allotment of land representing to be professionals. They asked for a Power of Attorney from the plaintiffs for representing them before the Department of Rehabilitation. A Power of Attorney dated 06.01.1979 was duly executed and given to them. It is RSA No.969 of 2005 : 3 : further alleged that the plaintiffs came to now that defendant Nos.1 and 2 have forged various documents in order to grab the land which was yet to be allotted to them. The defendants had also obtained the signatures of the plaintiffs on various documents including blank vakalatnama, plain papers etc. and the same were used and presented before the Rehabilitation Department. On acquiring the knowledge of the intentions of defendant Nos. 1 and 2, plaintiffs No.1 to 4 cancelled the Power of Attorney vide cancellation deed bearing No.2183 dated 24.1.1983, registered with the Sub Registrar, Mussoorie. Similar, cancellation deed was also made by Pushpinderpal Kaur plaintiff No.5 at Batala and got the same registered on 08.02.1983. It is also stated that the plaintiffs thereafter filed two separate suits for permanent injunction titled “Dhruvinder Pal Singh and others Vs. Surjit Singh and others being Civil Suit No.484T dated 05.04.1989 and another suit titled “Pushpinderpal Kaur Vs. Surjit Singh and others being Civil Suit No.21 dated 03.04.1989. Both these suits were decided on 07.12.1989 by Mr. B.S.Sidhu, the then Sub Judge Ist Class, Patiala. It is further alleged that the plaintiffs also issued registered notices to defendant Nos.1 and 2 intimating them regarding the cancellation of their Power of Attorney and for restraining defendant Nos.1 and 2 from acting as their attorney. It is alleged that notice was received by defendant No.2, but the service was refused by defendant No.1. A proclamation to this effect was also published in the newspaper “Arrested Voice” on 05.02.1985 which was for the information of the General Public about the cancellation of the Power of Attorney's. The plaintiffs also specifically mentioned that despite the information of the cancellation of the Power of Attorney, defendant Nos.1 and 2 fabricated an agreement to sell on a piece of paper with respect RSA No.969 of 2005 : 4 : to the suit land and based upon the said agreement to sell, a suit No.40 of 1989 for specific performance came to be filed by Surinderpal Singh and Satish Kumar, defendant Nos.3 and 4 in the present suit. It is alleged that the plaintiffs herein were defendants No.3 to 7 in Civil Suit No.40 of 1989 and they were never served in the suit which came to be decreed on 30.03.1989. It is further stated that, as a matter of fact, no notice was served upon the plaintiffs and they never engaged any counsel nor filed any vakalatnama or written statement. It is averred that the plaintiffs never entered into an agreement to sell in respect to the suit land in favour of defendant Nos.3 and 4 and the agreement was handiwork of defendant Nos.1 and 2. They further alleged that they never authorized their attorneys to execute the agreement to sell nor any earnest money was ever received by them. The decree was challenged on the allegations of fraud stating that the vakalatnama produced in the Court also had the signatures of Malwinderpal Kaur and Upinderpal Kaur who died before the date of the filing of the vakalatnama in the Court and their signatures were scored off from the Power of Attorney. It is alleged that this vakalatnama was given to defendant Nos.1 and 2 in the year 1979. The suit was contested by defendant Nos.1 and 2 and 3 and 4 respectively by filing separate written statements. Defendant Nos.1 and 2 denied the forging of the documents including vakalatnama and the agreement to sell. It is alleged that the vakalatnama was given by the plaintiffs with their free consent as and when they required. They also denied the factum of cancellation of the Power of Attorney and pleaded that the agreement to sell was genuinely executed by the plaintiffs and earnest RSA No.969 of 2005 : 5 : money was paid to them. The allegation regarding Mr.Surinder Singh, Advocate, who is alleged to have appeared on behalf of the plaintiffs (defendants in Civil Suit No.40 of 1989), are also denied. They also denied that the signatures of Malwinderpal Kaur and Upinderpal Kaur on the vakalatnama were forged. Defendant Nos.3 and 4 while denying the allegations made in the plaint also pleaded in their written statement that the suit has been filed by the plaintiffs in collusion with defendant Nos.1 and 2 and that they are bonafide purchasers of the land in dispute. Apart from the above, the defendants also pleaded that the suit is not maintainable as the plaintiffs are not in possession of the suit land. On the pleadings of the parties, the following issues were framed by the learned Trial Court :- 1. Whether the judgment and decree dt.27.1.89 is illegal, null and void and result of fraud as alleged? OPP 2. Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP 3. Whether the plaintiffs are entitled to the decree of injunction as prayed for? OPP 3-A Whether the suit is not maintainable as the objection filed by the plaintiffs on execution under Section 47 C.P.C. on the RSA No.969 of 2005 : 6 : same grounds which have been taken in the present suit, have been dismissed on 7.4.93? OPD 4. Whether the suit is not maintainable? OPD 5. Relief. The plaintiffs besides examining PW-1 Gurnam Singh, PW-2 Tarsem Chand, PW-3 Manjit Kaur and PW-4 Dhruvinderpal Singh (plaintiff No.1) also placed on record a number of documents which, inter-alia, included the General Power of Attorney dated 6.1.1979 Exhibit P-1; General Power of Attorney dated 2.2.1979 Exhibit P-2; Cancellation deeds Exhibits P-3 and P-4; Notice Exhibit P-5; Dak Register Exhibit P-5/A; Notice dated 19.5.1984 Exhibit P-5; Notice dated 18.2.1983 Exhibit P-6; Postal receipts Exhibits P-7 and P-8; UPC Receipts Exhibits P-9 to P-11, copy of the judgment dated 7.12.1989 Exhibit P-15, Vakalatnama Exhibit P-19; death certificate of Upinderpal Kaur as Exhibit P-19; death certificate of Palwinderpal Kaur as Exhibit P-20; written statement of defendant Nos.1 and 2 as Exhibit P-23; allotment letter dated 24.6.1980 as Exhibit P-26 and a number of other documents including interim order passed in Civil Suit No.40 of 1989. The learned trial Court decided issue Nos.3 and 4 regarding maintainability of the suit. It came to the conclusion that the present suit being simplicitor for declaration and injunction is not maintainable as the RSA No.969 of 2005 : 7 : plaintiffs were never in possession of the suit land which stands delivered to defendant Nos.3 and 4 on the basis of the sale deed executed by defendant Nos.1 and 2 pursuant to the judgment and decree dated 30.03.1989 passed in Civil Suit No.40 of 1989. The trial Court also did not accept the plea of the plaintiffs that the property in question is in possession of defendant Nos. 5 to 7 as lessees thereof under the plaintiffs. Regarding issue No.3-A, the learned trial Court observed that the decree passed in Civil Suit No.40 of 1989 was put to execution and the plaintiffs filed the objections in the said execution petition and after that the execution was withdrawn by the Decree Holder, the objections were dismissed. It also observed that the plaintiffs having failed to pursue their objections, dismissal of their objections operate as res judicata and the separate suit is not maintainable. In so far as the merits of the controversy are concerned, the learned trial Court while deciding issue Nos.1,2 and 3 observed that the plaintiffs have failed to prove the cancellation of the Power of Attorneys and the communication to defendant Nos.1 and 2. It also held that the original Power of Attorneys were never produced in Court and no permission was obtained for leading secondary evidence. Even the allegations of the plaintiffs that notices were sent to defendant Nos.1 and 2 regarding cancellation of the Power of Attorneys requesting them not to act on the basis of the Power of Attorneys, were also not proved. The learned trial Court has also returned a finding that the plaintiff have not challenged the agreement to sell and the consequential sale deed pursuant to the impugned judgment and, thus, they are not entitled to any relief. The suit of the plaintiffs, accordingly, came to be dismissed vide judgment and decree RSA No.969 of 2005 : 8 : dated 20.09.2003. Aggrieved of the aforesaid judgment and decree, the plaintiffs filed an appeal before the learned Additional District Judge, Patiala, being Civil Appeal No.105T/ dated 16.10.2003/03.12.2003 which has been decided vide the impugned judgment and decree dated 1.11.2004. The learned Lower Appellate Court has reversed the judgment and decree dated 20.09.2003 of the learned trial Court and decreed the suit of the plaintiffs by setting aside the judgment and decree dated 30.03.1989 passed in Civil Suit No.40 of 1989 and directed the revival of Civil Suit No.40 of 1989 from the stage of filing of the written statement. It also directed the Sub Judge Ist Class, Patiala, to call for the record of the Civil Suit No.40 of 1989 and proceed to try the suit by providing opportunities to the plaintiffs who were defendants in the said suit. The learned Lower Appellate Court has been persuaded to set aside the judgment and decree of the learned trial Court on the following facts:- (i) The Power of Attorneys in favour of defendant Nos.1 and 2 were duly cancelled vide cancellation deeds Exhibits P-3 and P-4. The learned Lower Appellate Court found that the findings of the trial Court regarding in-admissibility of Exhibits P-3 and P-4, are incorrect. The trial Court refused to rely upon these documents on the ground that these documents were copies of cancellation deeds and have not been proved. However, the learned Lower Appellate Court found that the original documents were produced in the Court and these documents are per se admissible in evidence. The learned RSA No.969 of 2005 : 9 : Lower Appellate Court also came to the conclusion that notices were duly sent to defendant Nos.1 and 2 through post and the original postal receipts are on the record. Notice of cancellation of Power of Attorneys have also been published in the newspaper. (ii) Defendant Nos.1 and 2 were restrained from acting as Attorneys and were directed to surrender the original Power of Attorneys vide judgment and decree dated 07.12.1989 whereby they were proceeded ex-parte. (iii) The learned Lower Appellate Court has also observed that the agreement to sell dated 23.9.1989 is on a plain paper and seems to be ante dated. (iv) Regarding the passing of the decree in Civil Suit No.40 of 1989 dated 30.03.1989, the learned Lower Appellate Court has observed that the suit was presented on 27.1.1989. It was registered and summons were directed to be issued to the defendants on payment of process fee for 15.02.1989 as also by dasti process, as requested. The addresses of defendant Nos.3 to 6 (Plaintiffs in the present suit) was given that of Mussoorie, whereas that of Pushpinderpal Kaur was that of village Begowal, District Gurdaspur. On the date of hearing i.e. 15.02.1989, one Surinder Singh, Advocate, appeared on behalf of the defendants and filed written statement almost admitting the claim of the plaintiffs in the said suit. It also observed that the written statement was filed on behalf of all the defendants in the suit and RSA No.969 of 2005 : 10 : signed by Surjit Singh and Ballabh Dass Jain, defendant Nos.1 and 2 and Surinder Singh, Advocate, on behalf of defendant Nos.3 to 7 (plaintiffs in the present suit). The learned Lower Appellate Court also observed that the Vakalatnama produced by Surinder Singh, Advocate, on behalf of defendants in the suit,also have signatures of Upinderpal Kaur and Malwinderpal Kaur, which were scored off. According to the learned Lower Appellate Court, on the basis of the death certificates produced Upinderpal Kaur died on 31.10.1982 whereas Bhavinderpal Kaur died on 2.11.1979. It was, accordingly, concluded that Vakalatnama obtained by defendant Nos.1 and 2 in the year 1979 has been misused by defendant Nos.1 and 2 and Surinder Singh, Advocate, was never engaged by the defendants in Civil Suit No.40 of 1989. Another important fact noted by the learned Lower Appellate Court is that the defendant Nos.3 to 7 were never sued through attorneys and the written statement has not been signed by any of the defendant Nos.3 to 7. To the contrary, the same has been signed by Surinder Singh, Advocate. Even during the trial of Civil Suit No.40 of 1989, after framing of issues, none of the defendant Nos.3 to 7 appeared as a witness and defendant Surjit Singh appeared as a witness on behalf of all the defendants in his capacity as attorney which had been cancelled. The learned Lower Appellate Court also observed that the agreement to sell being on plain paper was impounded by the Court on charging the penalty, to procure the decree. The learned Lower Appellate Court, accordingly, came to the conclusion that the decree dated 30.03.1989 in Civil Suit No.40 of 1989 has been procured by fraud. RSA No.969 of 2005 : 11 : (v) Regarding the maintainability of the suit, the learned Lower Appellate Court observed that question of possession is required to be considered in Civil Suit No.40 of 1989. It also observed that the objections filed by the plaintiffs in execution, are still pending and, thus, the findings of the learned trial Court on the question of maintainability of the suit have also been set aside. I have heard the learned counsel for the parties at length and perused the record of the appeal. Mr.Amit Rawal, learned counsel appearing for the appellants has referred to various judgments. In RSA No.969 of 2005, notice of motion was issued on 17.03.2005. Along with the appeal Civil Miscellaneous Application No.5421-C of 2005 also came to be filed seeking stay of the proceedings before the Court of Mr. MPS Pahwa, Civil Judge (Senior Division), Patiala, in Civil Suit No.40 of 1989, which was ordered to be put up along with the main case, but no order came to be passed thereafter. Subsequently, another Civil Misc. Application No.2235-C of 2007 was also filed seeking the same relief. This application, however, came to be withdrawn on 15.03.2007 with liberty to approach the trial Court for the requisite relief. It appears that yet another Civil Misc. Application No.3667-C of 2005 was filed wherein also a notice was issued on 24.04.2006. While these applications were pending, another Civil Misc. Application No.3221-C of 2007 was filed for staying the operation of the impugned decree dated 01.11.2004 and this Court while issuing notice directed that “in the RSA No.969 of 2005 : 12 : meantime, final order be not pronounced by the trial Court.” I am informed that the proceedings before the learned trial Court in Civil Suit No.40 of 1989 are otherwise concluded where both the parties have led their evidence and only final judgment is to be pronounced which has been stayed by this Court by virtue of order dated 23.04.2007. Proceedings in Civil Suit No.40 of 1989 were initiated pursuant to the impugned judgment and decree whereby the suit was revived from the stage of the filing of the written statement and despite various applications neither the judgment and decree impugned has been stayed by this Court nor the proceedings in Civil Suit No.40 of 1989 were stayed. However, by virtue of the order dated 23.04.2007 only final pronouncement of the judgment by the trial Court has been stayed in Civil Suit No.40 of 1989. Mr. Amit Rawal, learned counsel appearing for the appellants has assailed the findings of the learned Lower Appellate Court on the following grounds:- (i) that the suit simplicitor for declaration is not maintainable in view of the provisions of Section 34 of the Specific Relief Act; (ii) that no relief can be granted as the sale deed executed in favour of defendant Nos.3 and 4 pursuant to the decree dated 30.03.1989 in Civil Suit No 40 of 1989, has not been challenged; (iii) that the suit is barred by limitation as the plaintiffs had the knowledge of the filing of the suit. He has referred to Sita Ram Vs. Hari Krishan, 2000 (1) Civil Court Cases, 704 (H.P.), wherein it has been laid down RSA No.969 of 2005 : 13 : that in a suit for declaration and injunction where the plaintiff is not in possession and the relief of possession is not claimed, the suit is not maintainable. He has also relied upon Smt. Ramti Devi Vs. Union of India, JT 1995 (1) S.C. 223, wherein the Hon’ble Supreme Court has held that the duly registered document remains valid and binds the parties unless challenged and suit has to be filed within a period of three years from the date when cause of action accrues. He has further referred to the statement of the plaintiff to argue that the plaintiffs had the knowledge of the filing of Civil Suit No.40 of 1989 and, thus, the suit to challenge the decree dated 30.03.1989 filed beyond three years, is barred by limitation. Mr. Arun Palli, learned Senior Advocate, appearing for the respondents has, however, controverted the aforesaid arguments by referring to the averments made in the plaint. He has referred to the prayer made in the present suit before the learned trial Court wherein it has been mentioned that defendant Nos. 3 and 4 be restrained from taking possession from defendant Nos. 5 to 7 who are in actual possession of the land and claim to be tenants on the land. Based upon this prayer, it is argued that ,as a matter of fact, actual physical possession of the land was not with defendant Nos.3 and 4 but with the defendant Nos.5 to 7. Thus, there was no necessity of claiming possession in the suit. He has further argued that the sale deed has been executed pursuant to the decree dated 30.03.1989 and since the decree stands challenged and has been set aside, all consequential RSA No.969 of 2005 : 14 : actions are resultantly non-est and void. The sale deed is not binding upon the plaintiffs, particularly when they are not parties to the document. It is argued that rights of the parties are now dependant upon the outcome of the Civil Suit No.40 of 1989 which stands revived and trial wherein already stands concluded by virtue of the impugned judgment. Regarding limitation, he has argued that there is absolutely no material on record to show that the plaintiffs had the knowledge of the passing of the decree on 30.03.1989. He has also referred to Article 59 of the Limitation Act, which reads as under:- Description of suit: “59. To cancel or set aside an instrument or decree or for the receission of a contract: Period of Limitation: Three years. Time from which period begins to run:-When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescineded frist become known to him.” Under the aforesaid Article, limitation starts from the date when the facts entitling the plaintiff to have the decree set aside become known to him. According to Mr. Palli, admittedly, the summons were never served upon the plaintiffs in Civil Suit No.40 of 1989 and, thus, the limitation would not commence from the date of the decree, but from the date of the knowledge and the suit is within limitation. RSA No.969 of 2005 : 15 : Proviso to Section 34 of the Specific Relief Act prevents the Court from passing a decree for declaration where the plaintiffs is able to seek further relief than a mere declaration of title, omits to do so. In the present case, the suit is not for declaration of the title but for declaration that the decree obtained by the defendants in the suit is a nullity and, thus, the embargo on the power of the Court to make a declaration envisaged under proviso to Section 34 of the Specific Relief Act will not be attracted. Otherwise also, the plaintiffs have mentioned in the prayer part that the actual physical possession is with defendant Nos.5 to 7 in their capacity as tenant and consequently an injunction has been sought against them from handing over the possession to defendant Nos. 3 and 4 and also an injunction against defendant Nos.3 and 4 from taking possession from defendant Nos.5 to 7. No material has been placed on record to rebut this averment. Therefore, the arguments advanced by Mr. Rawal is without any substance. The plea that the plaintiffs have not challenged the sale deed is also not of any relevance as the sale deed is the consequence of the decree dated 30.03.1989 and the plaintiffs are not party to the same. Once the decree itself is declared as non-est and illegal, all follow up actions have to go. In the present case, by virtue of impugned judgment and decree and as a consequence of setting aside of decree dated 30.03.1989, the suit already stands revived and, thus, the sale deed executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 is of no consequence as the sale has been made as a result of the decree and loses its existence on account of the setting aside of the decree itself. The plea that the suit is barred by limitation