RSA No.1836 of 2010 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.1836 of 2010 (O&M) Decided on: 28.05.2010 **** Krishan Kumar . . . .Appellant Versus Nand Lal and others . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Manjeet Singh, Advocate for the appellant. **** RAKESH KUMAR JAIN, J. Having lost before both the Courts below, defendant No.2 has come up in second appeal. The plaintiffs filed suit for declaration that they are owners in possession of the suit land and the decree dated 20.1.1990 passed in Civil Suit No.176 of 1988 titled as Faqir Chand Vs. Shamo Devi and others by the Court of Sh.R.K. Sondhi, the then Sub Judge, Bhiwani and consent decree dated 10.11.1990 suffered by defendant No.2 in favour of defendants No.2-A and 2-B in Civil Suit No.1274 of 1990 passed by the Court of Shri B.K. Aggarwal, the then Senior Sub Judge Bhiwani and the registered sale deed dated 13.9.1991 executed by defendant No.2 in favour of defendant No.2-C are illegal, null and void and not binding upon their rights. It is alleged by plaintiffs that defendant No.2, in connivance with defendant No.1, who RSA No.1836 of 2010 (O&M) - 2 - happened to be the General Power of Attorney of the plaintiffs obtained a consent decree dated 20.1.1990 on the basis of which mutation No.5119 was also got sanctioned though the said Power of Attorney in favour of defendant No.1 was already got cancelled by the plaintiffs by their notice dated 1.12.1987 and as there was no family settlement between the parties, therefore, the said unregistered decree, pertaining to the subject matter of the value of more than Rs.100/- is of no consequence and all the transactions thereafter carried out by defendant No.2 by suffering another decree on 10.11.1990 in favour of defendants No.2-A and 2-B and the sale deed dated 13.9.1991 in favour of defendant No.2-C are illegal. They also prayed for permanent injunction to restrain the defendant from further alienating the suit land and also dispossessing them forcibly. Defendants No1 and 2 filed a joint written statement. It was alleged that defendant No.1, who was the General Power of Attorney of the plaintiffs has suffered a consent decree in favour of defendant No.2 on the basis of a family settlement. Defendant No.2, after having become rightful owner further transferred the suit land to defendants No.2-A and 2-B by virtue of Civil Court decree dated 10.11.1990 and has also sold the part of the suit land to defendant No.2-C on 13.9.1991. It is further alleged by defendant no.2 that Kala son of Lekhu Mal was his real uncle. His father Parbhu Diyal had died three months before his birth and he was brought up and looked after by his uncle Kala, who had four daughters but no son. He had adopted a son of his sister but unfortunately the adopted son died and his uncle Kala brought him up as his own son. His uncle Kala died in RSA No.1836 of 2010 (O&M) - 3 - Pakistan before partition in the year 1944. His daughters did not succeed to the estate of their father as per the law at that time but the estate of Kala was mutated in favour of his widow Lakshami Bai, who too had died in the riots during partition in the year 1947. It is alleged that he had filed a claim before the rehabilitation authorities and was allotted land at village Sui Tehsil Bawani Khera. The said allotment, however, later on was cancelled. Then the matter was taken up with the Rehabilitation Department, Jallandhar for allotment of land. The Daughters of Lakshami Bai were allowed eight standard acres and thirteen units of land at Villages Tosham, Dang Kalan and Dinod. It is further alleged that as he has been litigating on behalf of the daughters of Lakshami Bai, he asked them to pay Rs.12,000/- along with interest but to no avail. It is alleged by defendant No.2 that his aunt died in the year 1987 and after that a compromise was arrived at between him and plaintiffs with mediation of defendant No.1 on the basis of which the suit property has been transferred by way of a consent decree passed in Civil Suit No.176 of 1988 titled as Faqir Chand Vs. Shamo Devi and others on 20.1.1990. Defendants No.2-A and 2-B did not appear despite service, however, trial Court appointed a Court Guardian on their behalf. He filed the written statement on behalf of defendants No.2-A and 2-B alleging that the decree suffered by defendant No.2 in their favour is valid and binding upon the plaintiffs. Defendants No.2-C did not appear, therefore, he was proceeded against ex parte. RSA No.1836 of 2010 (O&M) - 4 - Defendants No.3 to 5 did not file written statement nor did they appear, therefore, they are also proceeded against ex parte. During the course of proceedings, plaintiff No.1-Shamo Devi and defendant No.1-Gian Chand died and were substituted by their Legal Representatives. After the completion of pleadings, the learned trial Court struck following issues for trial on 16.8.1999: - “1. Whether the plaintiff is the owner in possession of the suit land as described in the heading of the plaint? OPP 2. Whether the decree dated 20.1.1990 No.175 and decree dated 10.11.1990 and registry dated 13.9.1991 are wrong, illegal, null and void and are not binding on the rights of plaintiffs? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? OPP 4. Whether the suit is bad for non- joinder and misjoinder of necessary parties? OPP 5. Whether the plaintiff has not come in the Court with clean hands? OPP 6. Relief.” Both the parties led their oral as well as documentary evidence. The learned trial Court partly decreed the suit of the RSA No.1836 of 2010 (O&M) - 5 - plaintiffs by its judgment and decree dated 04.09.2002 whereby the decree dated 20.1.1990 passed in Civil Suit No.176 of 1988 and decree dated 10.11.1990 passed in Civil Suit No.1274 of 1990 were declared illegal and void and plaintiffs were also held to be joint owners in possession of the suit land. The decree of the trial Court was challenged only by defendant No.2 by way of first appeal, which too has been dismissed by Additional District Judge (I), Bhiwani on 30.7.2009. The present appeal has been preferred by defendant No.2, in which learned counsel for the appellant besides narrating the aforesaid facts has alleged that the substantial question of law involved in this appeal is “Whether the general attorney Gian Chand could suffer consent decree in favour of Fakir Chand on behalf of plaintiffs? It is submitted by learned counsel for the appellant that the power of attorney dated 03.07.1968 registered on 04.07.1968 (Ex.P-6) has neither been cancelled nor revoked, has been duly exercised by defendant No.1 while suffering decree in Civil Suit No.176 of 1988 as defendant No.1 had the power to compromise. However, it is admitted by the learned counsel for the appellant that there was no specific power in the power of attorney (Ex.P-6) to transfer the suit property by way of a consent decree. Learned counsel for the appellant has vehemently argued that the learned first appellate Court has erred in observing that power to enter into a compromise or sell is different from power to transfer the suit property by way of consent decree. It is submitted that power to sell would include power to transfer the property by way of collusive decree. Although on 14.5.2010 case RSA No.1836 of 2010 (O&M) - 6 - was adjourned on the request of learned counsel for the appellant to cite law in this regard but no precedent has been produced before the Court in support of the aforesaid submissions. It may be pertinent to mention that the relation between the donor of the power and the donee of the power is one of principal and agent and the expression ‘agency’ is used to connote the relation which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties. The relationship has its genesis in a contract. where someone other than the person who has a right to act in respect of certain things has, under a contract of agency has the right to act on behalf of principal but the authority conferred by written instrument has to be strictly construed and for what the power of attorney authorizes depends on its terms and purpose for which it is executed. To my mind each recital in the power of attorney constitutes a separate power, for example, power to sell land, power to purchase land, power to appoint pleader, power to file suit, or appear and file written statement etc. All these powers are distinct and separate. Therefore, if a particular power is not conferred on the donee by the donor in the power of attorney, the said power cannot be exercised by donee as it would be out of the purview of the instrument itself. In the background of the aforesaid observations, the judgment and decree suffered by defendant No.1 in favour of defendant No.2 in Civil suit No.176 of 1988 by way of admission is patently illegal because the donor/plaintiffs had not empowered the RSA No.1836 of 2010 (O&M) - 7 - donee/defendant No.1 to transfer the suit property by virtue of a consent decree even if the donee/defendant No.1 had the power to sell or to enter into a compromise in a suit because the sale of land is against a consideration and a compromise in suit is in writing and signed by the parties as provided under Order 23 Rule 3 of the Code of Civil Procedure, 1908 (for short ‘CPC’) but a decree on the basis of admissions, which is governed by Order 12 Rule 6 of the CPC has altogether different connotations. Thus, from the aforesaid discussion, no question of law, much less substantial, is found to have been involved in this second appeal against the concurrent finding of facts recorded by both the Courts below and as such the same is hereby dismissed in limine, though, without any other as to costs. (RAKESH KUMAR JAIN) 28.05.2010 JUDGE Vivek