RSA No.326 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.326 of 2010 Date of decision: 23.11.2010 Teja Ram ......Appellant(s) Versus Ajay Kumar and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.K. Jain, Advocate for the appellant. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration, that he be declared owner of the suit land and that Rajinder Singh proforma respondent was never appointed a General Power of Attorney on 8.1.1981 and the alleged sale deed executed by Rajinder Singh on 28.9.1987 in favour of defendants was a sham transaction and was ineffective, inoperative upon the rights of the plaintiff with consequential relief of delivery of possession and for injunction, was dismissed. As per the averments made in the suit, one Pat Ram son of Daya Sukh and his sons Raja Ram and Lal Chand were big land owners under the provisions of Punjab Security of Land Tenures Act (hereinafter referred to as the “Act”). The plaintiff who was tenant on the suit land applied under Section 18 of the Act for purchase of suit land and Assistant Collector, 1st Grade, Sirsa on 6.1.1975 allowed purchase application. The plaintiff deposited first installment and mutation No.576 dated 28.7.1976 was attested in his favour. The plaintiff deposited remaining installments RSA No.326 of 2010 2 and since 6.1.1976 was owner in possession of the suit land. It is the further case of the plaintiff that he never appointed Rajinder Singh son of Surja Ram (defendant No.5) as his general power of attorney. The said Rajinder Singh who is closely related to the family of big land owners acted as general power of attorney of the appellant without any legal authority on the basis of a forged and fabricated power of attorney dated 8.1.1981 and executed the sale deed dated 28.9.1987 regarding the suit land in favour of defendant-respondents No.1 to 4. The aforesaid defendant-respondents are sons and relatives of big land owners. Thus, the land transferred by operation of law in favour of the plaintiff under the Act had shown to have reverted to the same family of big land owners by fraudulent transaction, impersonation and manipulating the documents. The aforesaid sale deed and alleged power of attorney are liable to be set aside. The plaintiff was cultivating the land in dispute till June, 1999 as owner but the defendants dispossessed him forcibly and illegally in July 1999 on the basis of illegal revenue record and thus, the revenue record for the year 1991-92 and 1996-97 was liable to be corrected and the plaintiff was entitled to get the possession back. The plaintiff approached the defendants to admit his claim but to no effect. Hence, the present suit. Notice of the suit was issued to the defendants. Defendant No.1 was proceeded against ex parte. The defendants No.2 to 4 filed their joint written statement submitting that the vendor was owner in possession of the suit land in revenue records and had given a valid power of attorney to the proforma-respondent No.5 vide registered general power of attorney dated 8.1.1981 and the said general attorney had sold the suit land to the defendants. The said power of attorney was given to him voluntarily with free consent and conscious mind. The said attorney had powers to sell. The defendants purchased the suit land for a consideration of Rs.48,000/- RSA No.326 of 2010 3 which was paid before the Sub Registrar in the presence of witnesses and the sale deed was duly executed and got registered in their favour and since then they were in possession of the suit land. The plaintiff was never in possession of the suit land rather it was the defendants who were in possession of the suit land as owners since purchase. Rests of the averments were denied and dismissal of the suit was prayed. Proforma-defendant No.5 filed his separate written statement submitting that at the time of sale of the suit land in his capacity of general attorney of the plaintiff, the plaintiff was in possession of the suit land. However, since the date of sale, the defendants were in possession of the same as owners. The family of the plaintiff was well known to his family and he was lawfully appointed as general power of attorney. The plaintiff had duly appeared before the Sub Registrar Sirsa and after completing all the required procedure, Sub Registrar had registered the general power of attorney. Hence it does not lie in the mouth of the plaintiff that deed of GPA dated 8.1.1981 is a forged and fabricated document. The sale deed dated 28.9.1987 in favour of defendant No.1 to 4 was executed and got registered by him in his capacity of general power of attorney as per his instructions and after receiving the sale price of the sold land, he paid the same to the plaintiff. The possession of the suit land was duly handed over to defendants No.1 to 4 at the time of execution and registration of the sale deed dated 28.9.1987 and this fact was also mentioned in the sale deed itself. Rests of the averments were denied and prayer for dismissal of the suit was made. Replication was filed by the plaintiff reiterating his stand as taken up in the plaint and controverting the averments of the defendants. From the pleadings of the parties, the following issues were framed by the trial Court: RSA No.326 of 2010 4 “1. Whether plaintiff is owner in possession of land as alleged? OPP 2. whether the proforma defendant was never appointed as General Power of Attorney and the alleged sale deed executed by Rajinder Singh dated 28.9.1987 is liable to be set aside as alleged? OPP 3. If the above issues are proved in affirmative, whether the plaintiff is entitled for consequential relief of possession of the suit land as alleged? OPP 4. Whether the suit is not maintainable? OPP 5. Whether the suit is barred?OPD 6. Relief.” Thereafter, the parties were called upon to adduce evidence in support of their respective claim. After considering the evidence on record and hearing learned counsel for the parties, the trial Court concluded that the plaintiff-appellant had failed to prove his case that he did not appoint Rajinder Singh as a general power of attorney. The impugned general power of attorney was a registered document and presumption of genuineness was attached to the said documents. As per the said GPA, Rajinder Singh had right to sell the land owned by the plaintiff. Thus, the impugned sale deed cannot be set aside. In view of the aforesaid findings, the suit was dismissed. Appeal filed by the plaintiff before the Lower Appellate Court was also dismissed. The relevant observations of the Lower Appellate Court reads as follows: “After having heard the learned counsel for the parties and perusing the records, I am of the opinion that the core question to be decided in the instant appeal is the RSA No.326 of 2010 5 validity of the GPA Ex.P-1 dated 8.1.1981. It also comes out from the pleadings of the appellant that although he pleaded that the said GPA was a forged and fabricated document, yet its nullity was not sought. No such declaration was prayed for in the suit in question. Once, the said document has not been challenged, its validity although having been challenged indirectly, cannot be gone into. Furthermore, regarding the alleged forgery or fabrication, the appellant has appeared as PW1. He has deposed the said document to be based upon forgery or fabrication. Here, I may notice that the said document was executed by the appellant, his brother Manphool and their wives namely Sarvati and Parmeshwari. However, the suit in question was filed by the appellant only. The stand put-forth by the said persons has not come on record. It is not clear as to whether they ever challenged the GPA in question in any court of competent jurisdiction or not. Except the self serving testimony of PW1 Teja Singh, no evidence has been adduced regarding the alleged forgery and fabrication, PW2 Dharampal has been produced to prove the Sale Deed Ex. P-2 which was the consequence of the GPA in question. However, the said Sale Deed could be gone into regarding its legality or otherwise, only if the GPA in question, would have been declared to be nulla and void. Such is not the case over here PW2 Isher, has not deposed anything about the said aspect. Although the appellant has adduced RSA No.326 of 2010 6 documentary evidence Ex.P-3 (Mutation), Ex.P-4 (purchase order) dated 6.1.1975, Ex.P-5, (Jamabandi) for the years 1981-82 yet the said document do not help the appellant for getting the GPA in question declared as null and void. As opposite to this, the respondents have produced one Arjun Dass, Scribe of the GPA in question. He has specifically deposed about the execution of the said document. It has also come in evidence that the said GPA was entered by him in his Register. Then DW3 Sh. Naurang Singh, one of the attesting witnesses of the GPA in question, has entered the witness box and has supported its execution as well as registration. DW4 has compared the thumb impression of the appellant upon the GPA Ex.P-1 with his specimen thumb impression and after comparison, he has deposed categorically that the thumb impression appearing on the said GPA, were of the appellant himself. Above all, DW-6 Rajinder who as per the document Ex.P-1 was appointed as power of attorney, has categorically deposed about the execution and registration of the GPA in question. It being so, especially when the other executants of the GPA in question were neither impleaded as plaintiff nor as defendant and also were not produced as witnesses in support of the case put-forth by the appellant, in my opinion, appellant has miserably failed to prove his case regarding the alleged forgery and fabrication of the said RSA No.326 of 2010 7 document and further he did not initiate any police action against the respondents or any other effort for the alleged fabrication. The appellant also did not examine any of the experts for comparing the signatures/thumb impression upon the said document. Further more, the above stated Rajinder, despite the allegations in the suit in question, being materially against him, was not impleaded as contesting defendant. As opposite to this, he was merely impleaded as proforma defendant, meaning thereby that no effective relief was prayed for against him. In such factual position, I cannot find myself in agreement with the stand put-forth by the appellant. Further, Sale Deed Ex.P-2 dated 28.9.1987 having been challenged in 1999, the suit in question is barred by limitation also. I have also perused the impugned judgment but I do not find that any of the findings rendered in it is erroneous, against the well settled principles of law or unreasonable. Therefore, keeping in view the principles laid down in a report Jagdish Chand versus Madhuri Devi, 2008 (10) S.C. 497, I confirm the findings rendered by the learned Civil Judge on the issues in question.” Still not satisfied, the plaintiff has filed the instant appeal challenging the judgment and decrees of the Courts below submitting that the following substantial questions of law arise in this appeal: “(i) Whether the judgment and decree passed by the learned Courts below are perverse and are result of misreading of evidence of DW2 and DW3 or not? RSA No.326 of 2010 8 (ii) Whether the judgment passed by the learned lower appellate court is against the provisions of Order 14 Rule 2 and Order 20 Rule 5 CPC or not? 3. Whether the plea of fraud is proved on record in view of Section 13 of the Indian Contract Act or not? 4. Whether the limitation will start from the date of discovery of fraud or from the date of sale deed? In support of his case, learned counsel for the appellant has vehemently argued that the Courts below while returning the findings against the appellant have completely misread the evidence on record which has resulted into perversity of finding. The Courts below have based its judgment and decrees on surmises and conjectures and have not assigned any cogent and convincing reason while passing the impugned judgment and decrees which have caused grave injustice to the appellant and therefore, the judgment and decrees of the Courts below are liable to be set aside. I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. From the submissions made by the learned counsel for the appellant, the only substantial question of law which can said to be arising is “whether the judgment and decrees of the Courts below suffer from perversity.” As noticed by the Courts below, it has come in the evidence that the general power of attorney in question was duly executed by the appellant in favour of defendant-respondent No.5 and the appellant has failed to prove his case regarding the forgery and fabrication of the said document. One of the attesting witnesses of the general power of attorney RSA No.326 of 2010 9 in question has supported the execution and registration of the said general power of attorney. The thumb impressions of the appellant upon the general power of attorney with his specimen thumb impressions were compared and it was found that thumb impression of appearing on the said GPA was of the appellant himself. The appellant also did not examine any of his experts for comparing the signatures and thumb impressions upon the said document to controvert the evidence of expert produced by the defendant-respondent. In view of the aforesaid overwhelming evidence on record, it cannot be argued that the judgment and decrees of the Courts below are perverse in any manner. No other point was argued. In this view of the matter, I find no merit in this appeal. No substantial question of law arises. Dismissed. November 23, 2010 (RAKESH KUMAR GARG) ps JUDGE