Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 07, 2011. Regular Second Appeal No.194 of 2007 (O & M ) Dalip Singh ….Appellant Versus Gurdial Singh and others ..Respondents Regular Second Appeal No.261 of 2007 (O & M ) Dalip Singh ….Appellant Versus Gurdial Singh and others ..Respondents Regular Second Appeal No.696 of 2007 (O & M ) Gurdial Singh and others ….Appellants Versus Dalip Singh ..Respondent Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) CORAM: HON’BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not. 3. Whether the judgment should be reported in the Digest? Present: Mr. A.K. Chopra, Senior Advocate, with Mr. Rajneesh Chauhan, Advocate, for the appellant in Regular Second Appeals Nos.194 and 261 of 2007. Mr. S.K. Chawla, Advocate, for the appellants in Regular Second Appeal No.696 of 2007. Mr. M.K. Garg, Advocate, for respondent No.6 in all the appeals. Mr. P.S.Dhaliwal, Advocate,for Gurdial Singh (appellant No.1 in Regular Second Appeal No.696 of 2007 and respondent No.1 in Regular Second Appeals Nos. 194 and 261 of 2007. -.- MOHINDER PAL, J. Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) This judgment will dispose of the afore-stated three Regular Second Appeals as they arise out of the suit filed by Dalip Singh (appellant in Regular Second Appeals Nos. 194 and 261 of 2007 and respondent No.1 in Regular Second Appeal No.696 of 2007) and are directed against the same judgment and decree passed by the lower appellate Court. I have heard Mr. A.K. Chopra, Senior Advocate, assisted by Mr. Rajneesh Chauhan, Advocate, appearing for the appellant in Regular Second Appeals Nos.194 and 261 of 2007, Mr. S.K. Chawla, Advocate, appearing for the appellants in Regular Second Appeal No.696 of 2007, Mr. P.S.Dhaliwal, Advocate, for Gurdial Singh (appellant No.1 in Regular Second Appeal No.696 of 2007 and respondent No.1 in Regular Second Appeals Nos. 194 and 261 of 2007 and Mr. M.K. Garg, Advocate, appearing for respondent No.6 in all the three appeals and have gone through the records of the case. The facts, as contained in the plaint, in brief, are given below:- Plaintiff Dalip Singh and Gurdial Singh (defendant No.1) are real brothers. Kartar Singh defendant No.5 (since deceased and represented by defendants-respondents Nos.3 to 9) was the brother of plaintiff Dalip Singh and defendant No.1 Gurdial Singh. Dalip Singh, Gurdial Singh and Kartar Singh owned land measuring 103 kanals 8 marlas, 9 kanals 16 marlas Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) and 17 kanals 2 marlas as per jamabandi for the year 1980- 81 jointly in equal shares. Plaintiff Dalip Singh had settled abroad. In 1972, his marriage was solemnized in India. At the time of betrothal / marriage of the plaintiff, his in-laws had allegedly given him 11 gold coins, which he had given to defendant No.1 Gurdial Singh and defendant No.2 Ranjit Kaur, wife of defendant No.1 Gurdial Singh, for safe custody. In 1973, the wife of plaintiff Dalip Singh also joined him in Canada. The plaintiff having settled in Canada and having full faith in his elder brother Gurdial Singh (defendant No.1) executed general power of attorney dated 9.3.1976 in favour of Gurdial Singh to manage the properties of plaintiff Dalip Singh in India. The plaintiff had been remitting money to Gurdial Singh from Canada and with that money plot measuring 1 Kanal 13 Marlas was purchased in Gurbax Colony, Patiala. A house was constructed on the said plot with the money sent by the plaintiff to defendant Gurdial Singh. When the rates of the properties starting rising, defendant No.1 began to commit breach of trust which the plaintiff had reposed in him by executing a power of attorney in his favour. By misusing the power of attorney, defendant No.1 got the mutation of `Khangi Takseem’ entered by lodging a false report rozenamcha No.68 dated 18.10.1982 and getting a mutation of `Khangi Takseem’ entered on its basis on 29.10.1982. By Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) this `Khangi Takseem’, the plaintiff was allegedly given land of inferior quality. Defendant also fraudulently manipulated mutations of exchange Nos.3083 and 3084 dated 28.1.1984. Defendant No.1 committed another breach of trust when he on 27.2.1985 unauthorizedly and illegally sold valuable abadi plot owned by the plaintiff measuring 1 Kanal 15 Marlas situated in the area of Village Dhimanwali in favour of Kartar Singh and Avtar Singh, defendants Nos. 8 and 9 for a meager some of Rs.6,000/- on the basis of power of attorney executed by the plaintiff in favour of defendant No.1. Further, defendant No.1, on 9.9.1986, fraudulently by misusing the power of attorney, got ½ share of land measuring 1 Kanals 13 Marlas in Gurbax Colony, Patiala, having in it a residential house, exchanged with defendants Nos.2 and 3, wife and son respectively of defendant No.1, with land measuring 16 Marlas. In the said mutation of exchange No. 4692, a reference to an agreement was made. However, the plaintiff never entered into any such agreement to exchange the said property with defendants Nos. 2 and 3. The said alleged agreement was undated. 16 Marlas of land exchanged with the aforesaid land of the plaintiff where a house had also been built, had no match for the land of the plaintiff. Further, defendant No.1, vide mutation of exchange bearing No.7445 dated 8.5.1998 got the remaining half land of plaintiff Dalip Singh in the land Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) measuring 1 Kanal 13 Marlas having a residential house over it, exchanged in his own name and a plot in Rect. No.50 Khasra No.14M/0-19 on the basis of agreement dated 3.9.1997 was given to the plaintiff. However, there was no such agreement. Defendant No.1 also fraudulently purchased 17 Kanals 5 Marlas of land vide sale deed dated 24.12.1975 for Rs.7,000/- in the name of his son Manjit Singh alias Manjit Inder Singh (defendant No.3) and Jarnail Singh (defendant No.7), a friend of defendant No.1, though he (defendant No.1) represented to the plaintiff that the land would be purchased with the joint income of the agricultural land in the name of plaintiff, defendant No.1 and Kartar Singh (since deceased). Further, defendant No.1 had purchased 67 Kanals 2 Marlas of land in his own name without mentioning the name of the plaintiff as co-vendee although the said land had been purchased by defendant No.1 by getting Rs.30,000/- from the plaintiff as share of the plaintiff for the purchase of said land. Further, defendant No.1 purchased 570 square yards for Rs.1,42,500/- for allegedly having access to land measuring 67 Kanals 2 Marlas purchased earlier and adjusted Rs.80,000/- as share of the plaintiff. The sale deed was registered in favour of plaintiff and defendant No.1. Defendant No.1, to save himself from rendering the accounts, mortgaged 8 Kanals of land for a sum of Rs.1,00,000/- in Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) favour of the plaintiff vide registered mortgage deed dated 4.6.1997 by showing Beant Singh as representing the plaintiff. The plaintiff never agreed to it. The plaintiff further alleged that the sale deed dated 4.6.1997 for an ostensible consideration of Rs.1,02,000/- where the plaintiff was represented by said Beant Singh is also a forged document. The plaintiff never appointed Beant Singh to represent him. Ultimately, the plaintiff cancelled the power of attorney dated 9.3.1986 executed by him in favour of defendant No.1 vide cancellation deed dated 9.7.1988. The instant suit was filed by the plaintiff for declaration, possession, rendition of accounts and permanent injunction. The plaintiff alleged that he had also granted licence to defendant No.1 and his son and wife (defendants Nos. 2 and 3, respectively) to make use of the residential house of the plaintiff situated in Gurbax Colony, Patiala, in the above-mentioned 1 Kanal 13 Marlas of land and defendant No.1 and his family members have been residing therein as licencees. As the plaintiff cancelled the power of attorney in favour of defendant No.1, so the licence in favour of defendants Nos. 2 and 3 also stands revoked and the plaintiff is entitled to recover possession of the said residential house. As the said defendants were threatening to dispose of the property of the plaintiff in order to render the decree to be obtained by the plaintiff as infructuous, the Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) plaintiff also sought the relief of restraining the defendants from alienating in any manner the suit property as mentioned in the head note of the plaint. In the reply filed by the contesting defendants, it was, inter alia, pleaded that the partition of the property had taken place as per law and this fact had been admitted by the plaintiff in his letters written to the defendant No.1. It was denied that by now the plaintiff and defendants Nos. 1 and 5 are owners in possession of measuring 103 kanals 8 marlas, 9 kanals 16 marlas and 17 kanals 2 marlas jointly in equal shares as this land had been partitioned amongst the co-sharers and the family partition had been duly notified in the revenue record. The entrustment of 11 gold coins by the plaintiff to defendants Nos. 1 and 2 was denied. It was further alleged that defendant No.1 never misused the power of attorney executed by the plaintiff in his favour. It was further pleaded that the plaintiff did not contribute even a single penny for the purchase of plot and construction of the house in Gurbax Colony, Patiala. It was further pleaded that as desired by the plaintiff, a plot measuring 500 square yards was purchased in Patiala for Rs.6500/- in the name of defendants Nos. 2 and 3 and this plot was exchanged with 500 square yards plot out of 1000 square yards of the plot of the plaintiff vide mutation of exchange No.4692 dated Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) 9.9.1986 on the basis of said power of attorney. It was further pleaded that the house in question in Gurbax Colony, Patiala, is in posh area of Patiala and that is why the plaintiff has now put his claim on the said house. Otherwise, earlier he never staked his claim over this house. In a separate written statement filed by Jarnail Singh (defendant No.7), he pleaded that he was a bona fide purchaser of land measuring 17 Kanals 5 Marlas vide sale deed dated 24.12.1975 for Rs.7,000/- along with Manjit Singh alias Manjit Inder Singh (defendant No.3) son of defendant No.1. The trial Court, after framing issues arising out of the pleadings of the parties decreed the suit of the plaintiff partly by declining to the plaintiff the relief of return of 11 gold coins by defendants Nos. 1 and 2 to the plaintiff. Aggrieved against the judgment and decree passed by the trial Court, both the parties went in appeals before the lower appellate Court. The lower appellate Court partly allowed the appeal preferred by the defendants-appellants i.e their appeal against the relief of 1 Kanal 13 Marlas of land and the house constructed thereon granted by the trial Court in favour of the plaintiff was dismissed and the judgment and decree passed by the trial Court qua this relief in favour of the plaintiff was upheld. So far as the other reliefs granted by the trial Court Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) to the plaintiff, the appeal of the defendants-appellants was accepted and the suit of the plaintiff qua other reliefs was dismissed by setting aside the judgment and decree passed in favour of the plaintiff by the trial Court to this effect. The appeal filed by the plaintiff against the judgment and decree passed by the trial Court whereby the relief prayed by the plaintiff in the suit with regard to return of 11 gold coins by defendants Nos. 1 and 2 to the plaintiff was declined, was dismissed. Aggrieved against the judgment and decree passed by the lower appellate Court, two appeals i.e Regular Second Appeal Nos.194 and 261 of 2007 have been preferred by the plaintiff whereas Regular Second Appeal No.696 has been preferred by the defendants-appellants. Regular Second Appeal No.194 of 2007 has been filed by the plaintiff challenging the judgment and decree of the lower appellate Court whereby the appeal filed by the defendants-appellants was allowed to the extent, indicated above, by setting aside the judgment and decree passed by the trial Court. The other Regular Second Appeal No.261 of 2007 has been filed by the plaintiff against the judgment and decree passed by the lower appellate Court whereby the relief of return of 11 gold coins by defendants Nos. 1 and 2 to him (plaintiff) was declined and the judgment and decree of the trial Court to that extent was Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) upheld. Regular Second Appeal No.696 of 2007 has been preferred by the defendants-appellants against the judgment and decree passed by the lower appellate Court whereby the appeal filed by the defendants-appellants against the judgment and decree of the trial Court was dismissed to the extent indicated above by upholding the judgment and decree passed by the trial Court to that extent i.e judgment and decree of the trial Court in favour of the plaintiff in respect of the plot measuring 1 Kanal 13 Marlas and the house constructed thereon situated in Gurbax Colony, Patiala . So far as claim of the plaintiff that he had not given any authority to defendant No.1 to partition the land which was held jointly by the plaintiff, defendant No.1 and defendant No.5 is concerned, a perusal of the power of attorney dated 9.3.1976 (Exhibit P.1) reveals that Gurdial Singh (defendant No.1) had been given the power to sell, alienate and dispose of the land of the plaintiff in any manner defendant No.1 liked which was for the welfare of the plaintiff. This authority given to defendant No.1 by the plaintiff included the authority to partition the land. Besides, the plaintiff had written letters dated 16.12.1982 and 10.2.1983 to defendant No.1 a perusal whereof shows that the plaintiff had not only given his consent to the partition of the land in question among the three brothers i.e the plaintiff, defendant Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) No.1 and defendant No.5, but had also requested defendant No.1 after the partition of the land to cover the land of the plaintiff by barbed wire. As noticed above, the partition of the land had taken place in the year 1982 and thereafter the plaintiff had been frequently visiting India and inspecting the land owned by him and his brothers, but he did not raise a little finger against the partition. The instant suit was filed by the plaintiff after seventeen years of the partition of land alleging that the partition had not taken place with his consent. It does not appeal to logic. Rather, the plaintiff is debarred from raising any such plea after such a long delay. Had the contention of the plaintiff in this regard been true, he would not have kept mum for such a long period. Also, no evidence has been led by the plaintiff on record to show that he had been given land of inferior quality in the partition and defendant No.1 had kept for himself superior quality of land. Similarly, there is no evidenced on record which could show that the land got in exchange by the plaintiff was in any way inferior to the land which had been given to the other persons in exchange. The mutations of exchange Nos.3083 and 3984 are dated 28.1.1984. After a gap of so many years, the plaintiff cannot be allowed to challenge these mutations of exchange and the lower appellate Court has rightly held that as these mutations suited to the plaintiff, he remained silent and did not raise Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) any doubt about these mutations. The other acts done by defendant No.1 while functioning as general power of attorney of the plaintiff, except the act of transferring ½ share of the land measuring 1 Kanal 13 Marlas in his (defendant No.1’s) own name and also getting the remaining ½ share of the said land measuring 1 Kanal 13 Marlas in the name of his wife and son (defendants Nos.2 and 3) on the basis of some agreement which was not in existence, appear to be due to the necessity and welfare of the plaintiff. Regarding relief claimed by the plaintiff with regard to rendition of accounts, it may be mentioned here that the correspondence between the plaintiff and defendant No.1 by way of letters and depositions made by Dalip Singh plaintiff as P.W.1 and Gurdial Singh defendant No.1 as D.W.4, there appears to be nothing due from defendant No.1 to the plaintiff. Letter dated 3.10.1997 (Exhibit P.9) written by defendant No.1 to the plaintiff shows total details of the amount since 1984 to 1998. Out of the income of Rs.7,69,731/-, the share of the plaintiff was mentioned to be as Rs.3,84,365/-. It is also mentioned in the said letter that Rs.1,00,000/- were given to the plaintiff as mortgage money and Rs.1,02,000/- as consideration price of the sale deed. Admittedly, defendant No.1 remained attorney of the plaintiff for managing his land for about 22 years i.e Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) from 1976 to 1998. During this period, the plaintiff had been coming to India frequently. The plaintiff never claimed during these years that anything was due to him from defendant No.1. It shows that nothing remains to be paid by defendant No.1 to the plaintiff. Therefore, the question of rendition of accounts did not arise. Regarding the handing over of 11 gold coins by the plaintiff to defendants Nos. 1 and 2, allegedly given to the plaintiff by his in-laws at the time of betrothal /marriage ceremony of the plaintiff which took place in 1972, the plaintiff did not examine two independent witnesses i.e Shiv Nandan Lal Arora, Advocate and Shagun Lal Ahuja, though they were available. The witnesses examined by the plaintiff in this regard were the interested witnesses. On the other hand, the defendants had examined an independent witness, namely, Executive Engineer Jaswant Singh Grewal (D.W.1) who deposed that no gold coins or any other dowry articles were given at the time of marriage of the plaintiff to the plaintiff by his in-laws. So the question of handing over these gold coins by the plaintiff to defendants Nos. 1 and 2 did not arise. Both the Courts below have returned a firm finding in this regard, which is upheld. However, all appears to be not well while considering the act of defendant No.1 while dealing with the land of the plaintiff measuring 1 Kanals 13 Marlas situated in Gurbax Colony, Patiala. Defendant on Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) 9.9.1986, fraudulently and by misusing the power of attorney, had got ½ share of land measuring 1 Kanals 13 Marlas in Gurbax Colony, Patiala, having in it a residential house, exchanged with defendants Nos.2 and 3, wife and son respectively of defendant No.1, with land measuring 16 Marlas. In the said mutation of exchange No.4692, a reference to an agreement was made. However, the plaintiff had not entered into any such agreement to exchange the said property with defendants Nos. 2 and 3. The said agreement was undated. Besides, there was no necessity for the plaintiff to agree to the exchange of half of his prime land where a house had also been built with land measuring 16 Marlas. As alleged by the plaintiff, the land exchanged with the aforesaid land of the plaintiff had no match for the land of the plaintiff. Still further, mutation of exchange bearing No.7445 dated 8.5.1998 is there on record which is Exhibit P.W.2/B. By this mutation of exchange dated 8.5.1998, the remaining half land of plaintiff Dalip Singh in the land measuring 1 Kanal 13 Marlas having a residential house over it was taken in exchange by Gurdial Singh (defendant No.1) in his (Gurdial Singh’s) own name and a plot in Rect. No.50 Khasra No.14M/0-19 on the basis of agreement dated 3.9.1997 was given to the plaintiff. Apparently, by this transaction, the total plot which was valuable and was having a residential house Regular Second Appeal No.194 of 2007 (O & M ), Regular Second Appeal No.261 of 2007 (O & M ) and Regular Second Appeal No.696 of 2007 (O & M ) was taken in toto by Gudial Singh and his family leading to the estrangement between the two families of real brothers. It shows that defendants Nos.1 to 3 siphoned valuable built up property of the plaintiff situated in Gurbax Colony, Patiala by giving two vacant plots to the plaintiff. Under the circumstances, it has rightly been held by both the Courts below that defendant No.1 wrongly transferred ½ share of the land measuring 1 Kanal 13 Marlas in his name and got mutation No.7445 sanctioned on the basis of the same. Further, defendant No.1 has also got transferred the remaining ½ share of the said plot in the name of his wife and son (defendants Nos. 2 and 3) on the basis of some agreement, but actually that agreement does not exist and has wrongly got the mutation sanctioned on the basis of the same. This act of defendant No.1, the holder of power of attorney of the plaintiff, is in his personal interest and against the duties imposed upon him by virtue of the said power of attorney. Defendant No.1 has acted not in a prudent manner and according to law while getting the said plot transferred in his name as well as in the names of his wife and son.