RSA No.565 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.565 of 2010 (O & M) Date of decision: 13.08.2010 Hari Singh .. Appellant Versus Sasvinder Kaur @ Sasvinder Ghai and others. .. Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Parveen K. Kataria, Advocate for the appellant. Mr.G.S.Punia, Advocate for the respondents. * * * * Mehinder Singh Sullar, J. (Oral) The epitome of facts culminating in the commencement, relevant for disposal of the present appeal and emanting from the record is, that Hari Singh, son of Battan Singh, appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for declaration to the effect that he is the owner and in possession of the disputed house, the sale deed dated 10.06.1999 registered on 11.06.1999 (Ex.DW-1/B) in favour of the defendants and the mutation sanctioned thereof, are illegal, sham transactions, result of fraud and does not create any possessory and proprietary rights in favour of the defendants, with a consequential relief of permanent injunction, restraing his daughter-in-law-Sasvinder Kaur @ Sasvinder Ghai, wife of Harpreet Singh and her brother Harminder Ghai, respondent-defendants (for short “the defendants”) from dispossessing him and from further alienating the property in dispute in any manner. 2. The case set up by the plaintiff, in brief, insofar as relevant was, that the defendant No.1 is his daughter-in-law, whereas defendant No.2 is her brother. He (plaintiff) purchased the suit property from Smt.Bhupinder Kaur through her Attorney Harparkash for a consideration of Rs.2 Lacs and the amount was paid by RSA No.565 of 2010 (O & M) -2- him. He (plaintiff) verbally authorized his daughter-in-law (defendant No.1) with clear understanding to purchase the stamp paper and get the sale deed executed in his favour. The defendants have conspired to deprive the plaintiff of his right, got the alleged sale deed executed in their favour and no amount was paid by them before Sub Registrar, at the time of registration of the sale deed. The possession of the suit property was never handed over to the them (defendants). 3. Concisely, the plaintiff claimed that he is actual owner and in possession of the property in dispute but the defendants threatened to dispossess him and to alienate the same without any legal right. On the basis of aforesaid pleadings, the plaintiff filed the suit for decree of declaration and permanent injunction against the defendants in the manner indicated hereinabove. 4. The defendants contested the suit and filed the written statement, inter alia pleading certain preliminary objections of maintainability of the suit, locu standi and cause of action of the plaintiff, etc.. According to the defendants, they are owners of the suit property on the basis of registered sale deed (Ex.DW-1/B) and a mutation has also been rightly sanctioned in their favour in this respect. The plaintiff was stated to be in possession of the suit land as a tenant and an ejectment application was filed against him. Succinctly, the defendants claimed that plaintiff is a tenant in the suit property and he committed breach of terms of tenancy, owing to which, they had to file an ejectment petition against him. The defendants have purchased the property in dispute for valuable consideration and they are bona fide purchasers. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 6. The parties to the litigation brought on record the oral as well as documentary evidence, in order to prove their respective stands. RSA No.565 of 2010 (O & M) -3- 7. Having completed all the codal formalities and on ultimade analysis of evidence on record, the trial Court dismissed the suit of the plaintiff vide impugned judgment and decree dated 16.08.2007. 8. Aggrieved by the judgment and decree of the trial Court, the appellant- plaintiff filed the appeal which was dismissed as well by the first Appellate Court by virtue of impugned judgment and decree dated 29.09.2009. 9. The appellant-plaintiff still did not feel satisfied with the impugned judgments and decree of the Courts below and filed the present appeal, that is how, I am seized of the matter. 10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 11. Ex facie, the argument of the learned counsel that since the defendants did not appear as their own witnesses, to depose with regard to the facts, as they have only examined their Attorney, so, the evidence of their Attorney is not admissible, is neither tenable nor the observation of Hon'ble Apex Court in case of Janki Vashdeo Bhojwani v. Indusind Bank Ltd., 2005(2) SCC 217 is not applicable, wherein it was observed that Order 3 Rule 1 and 2 CPC empowers the holder of Power of Attorney to act on behalf of the principal and this power confines only in respect of acts done by the Power of Attorney holder in exercise of power granted by the instrument. If the Power of Attorney holder has rendered the same acts in pursuance to Power of Attorney, he may depose on behalf of the principal in respect of such acts but he cannot depose for the principal for the acts done by the principal and not by him. 12. Possibly, no one can dispute with regard to the aforesaid observation, but the same would not come to the rescue of the plaintiff in the present controversy. Learned counsel for the plaintiff did not point out which relevant facts were required to be proved by the defendants themselves in order to decide RSA No.565 of 2010 (O & M) -4- the real controversy between the parties. 13. As is evident from the record, according to the plaintiff, that he purchased the property in dispute and paid Rs.2 lacs to the Vendor but defendants have fraudulently got the sale deed executed and registred in their names. In that eventuality, a very heavy burden to prove, was upon the plaintiff to specifically plead and prove the incidents of fraudulent and deceitful acts of the defendants. He has miserably failed in this relevant connection. The plaintiff was legally required to prove his case by adducing cogent evidence and he cannot succeed on the weaknesses of the defendants. No cogent evidence is forthcoming on record, with regard to the payment of sale consideration to the Vendor by the plaintiff. 14. Not only that, Hari Singh-plaintiff (PW-4) admitted that his wife Gurmej Kaur had gone to the Tehsil Complex for the execution of the sale deed. Likewise, PW-6 -Harpreet Singh, who is none else but son of the plaintiff, has so stated and further admitted that the sale deed was not executed in his presence. Only Rs.50,000/- were given to Harparkash on 06.06.1999 and no other amount was paid in his presence. A copy of Ex.PW-1/D is the true and correct copy of sale deed (Ex.DW-1/B), which was got executed and registered by PW-5, the Attorney of Bhupinder Kaur. PW-5 Harparkash has also categorically admitted that son of Hari Singh also accompanied him on 10.06.1999 when the sale deed was executed in favour of the defendants. He also told the fact of execution and registration of the sale deed in favour of the defendants to Hari Singh plaintiff and his wife Gurmej Kaur. 15. That means the factum of execution and registration of the sale deed in favour of the defendants was very much in the knowledge of the plaitniff from the very beginning, but they kept quite and did not challange the sale deed prior to the filing of the present suit. On the contrary, it is not a matter of dispute that the sale deed Ex.DW-1/B was executed and registered in favour of the defendants, which contained photographs of the Vendees. Moreover, the perusal of the Bank RSA No.565 of 2010 (O & M) -5- Certificate Ex.DW-1/D and the testimony of DW-4 Davinder Kumar, Bank Manager would reveals that an amount of Rs.4 lacs was withdrawn by defendant No.1 from her bank account prior to the execution of the sale deed, which corroborates her case that she has purchased the property in dispute and sale deed was duly executed and registered in their name. 16. In this manner, the trial Court dismissed the suit of the plaintiff and the decree was affirmed by the first Appellate Court vide impugned judgment and decree dated 29.09.2009, the operative part of which is as under:- "17. From the above discussed facts, it is clear that the sale deed has been executed in favour of the defendants. At the time of the execution of the sale deed, Gurmej Kaur wife of the plaintiff was present. Only attesting witnesses of the sale deed DW3 Niranjan Dass Lambardar got examined by the defendants, has categorically deposed that the sale deed has been executed in favour of the defendants. He has not been cross-examined in support of the case of the plaintiff that fraud has been played upon him. Moreover, no particulars of fraud have been pleaded by the plaintiff. From Bank Certificate Ex.DW-1/D and testimony of DW-4 Davinder Kumar Joshi, Bank Manager, it is clearly proved that a sum of Rs. Four Lacs was withdrawn by defendant No.1 Sasvinder Ghai from her Bank account which also strengthens the case of the defendants that the sale consideration has been paid by them to the plaintiff. Counsel for the appellant has relied upon above refered authorities in support of her contention that adverse inference has to be drawn against the defendants as they have not stepped into the witness box and only their power of attorney holder has been examined. Authorities cited by the Counsel for the appellant, do not make any absolute law that the party cannot appear in the witness box through his or her attorney. Party is to depose pertaining to a fact which is in his/her personal knowledge. But here, in this case, there is no question of personal knowledge. Execution of the sale deed is not in dispute. Only controversy is that whether the defendants have purchased the suit property in their own names instead of plaintiff. But there is other abundant cogent and convincing evidence on the file in support of the defendants that they have purchased the suit property in a lawful manner. As such, the authorities cited by the Counsel for the appellant, RSA No.565 of 2010 (O & M) -6- are not of any help to the appellant. As such, I am of the considered opinion that the sale deed under challenge is perfectly legal, valid and has been rightly executed in favour of the defendants. Resultantly, the finding of the learned Trial Court upon Issues No.1, 2 and 3, is affirmed. 17. Thus, I am of the view that the Courts below have rightly negatived the claim of ownership of the plaintiff. Therefore, the contrary argument of learned counsel for the appellant-plaintiff stricto sensu deserve to be and are hereby repelled under the present set of circumstances. 18. No other meaningful argument has been raised by learned counsel for the appellant-plaintiff assail the findings of the Courts below in this respect. All remaining submissions, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiff have already been duly considered and dealt with by the Courts below. 19. There is another aspect of the matter, which can be viewed from a different angle. The trial Court as well as the first Appellate Court have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. 20. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the well articulated and well reasoned concurrent above-indicated findings of fact. Such pure concurrent findings of fact, based on the evidence, cannot possibly be interfered with by this Court while exercising the powers conferred under Section 100 CPC unless and until the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by learned counsel for the appellant-plaintiff, so as to take a contrary view, than that of well reasoned decisions already arrived at by the Courts below in this regard. 21. Meaning thereby, the entire case revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is RSA No.565 of 2010 (O & M) -7- beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by the Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under Section 100 CPC, in the obtaining circumstances of the present case. 22. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 23. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. 24. Needless to say that the plaintiff will only be ejected from the disputed house in due course of law and not otherwise. (Mehinder Singh Sullar) August 13, 2010 JUDGE sukhpreet Whether to be referred to report ? Yes/No