IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) R.S.A. No. 3223 of 2008 Chandi Ram. ....... Appellant through Shri S.K.Garg Narwana, Advocate. Versus Reshma Devi and others. ....... Respondent no.1 through Shri V.K.Jain, Senior Advocate with Shri Prashant Vashisth, Advocate. Respondent nos. 3 & 4 through Shri Vijay Sharma, Advocate. None for respondent no.2. (2) R.S.A. No. 3441 of 2008 Rameshwar and another. ....... Appellants through Shri Vijay Sharma,Advocate. Versus Reshma Devi and others. ....... Respondent no.1 through Shri V.K.Jain, Senior Advocate with Shri Prashant Vashisth, Advocate. Respondent no.3 through Shri S.K.Garg Narwana, Advocate. None for respondent no.2. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... R.S.A.No.3223 of 2008 -2- ..... Date of Decision: 25.5.2010 .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This judgment will dispose of the above mentioned two regular second appeals which have been preferred against judgment and decree dated 12.3.2008 passed by the Additional District Judge-I, Jind (hereinafter referred to as `the first appellate Court') whereby the appeal of the plaintiff was accepted and her suit for declaration and possession with a consequential relief of permanent injunction was decreed while reversing the judgment and decree dated 28.8.2006 of the Civil Judge (Junior Division), Narwana (described hereinafter as `the trial Court'). The plaintiff had sought a declaration to the effect that she is owner to the extent of 1/5th share in the suit land and sale deeds dated 3.6.1997 & 9.6.1997 are illegal, null and void being based upon fraud and misrepresentation. She had also prayed that possession of the suit land of her share be also ordered to be delivered to her. Still further, a prayer was also made for granting a decree of permanent injunction restraining Chandi Ram-defendant no.2 from mortgaging or selling in any manner ½ share of the plaintiff's ownership. It was pleaded that the plaintiff had got the aforementioned R.S.A.No.3223 of 2008 -3- ..... 1/5th share in the land in dispute by way of judgment and decree dated 2.2.1988 passed in a civil suit titled as “Reshma Versus Rajmal”; that since then she was owner thereof; that her husband-Rajmal was having two sons, namely, Rameshwar – defendant no.3 and Sube Singh – respondent no.4 from his first marriage; that the plaintiff was the second wife of Rajmal; that as a dispute used to exist between the plaintiff and defendant nos. 3 & 4 with regard to the suit land, she wanted to get her 1/5th share separated; that for this purpose, she came to Narwana on 27.5.1997 where Ganga Singh- defendant no.1 met her; that defendant no.1, on the pretext of helping her, got a general power of attorney executed in his name and also got registered the same for selling, alienating or mortgaging the suit land; that she got a document for cancellation of power of attorney and informed defendant no.1 on 30.5.1997; that the plaintiff is an illiterate lady and does not know the official proceedings; that despite the information about the cancellation of the power of attorney, defendant no.1 executed a registered sale deed on 3.6.1997 in favour of defendant no.2, who further executed a sale deed dated 9.6.1997 in favour of defendant nos. 3 & 4 alienating half share of her land; that the power of attorney as well as both the sale deeds were illegal, null & void and a result of fraud and misrepresentation. Upon notice, defendant no.1 appeared and filed his written statement. He admitted that the plaintiff was owner of the suit land,but averred that she had sold the same. As per defendant no.1, the plaintiff had executed an agreement to sale with him on 13.5.1997 for a sum of Rs.50,000/- per killa and received a sum of Rs.60,000/- from him as earnest R.S.A.No.3223 of 2008 -4- ..... money; that the stamp paper for agreement to sell was purchased by the plaintiff and that defendant nos. 3 & 4 were in possession of the suit land. It was further averred that the plaintiff took defendant no.1 to Hisar on 28.5.1997 and received the remaining sale price of Rs.1,50,000/- in the presence of defendant no.2 and one Raghbir Singh son of Diwan Singh; and that a receipt in that regard was executed by the plaintiff and thereafter, she got registered the general power of attorney in his favour. He denied that the power of attorney was cancelled on 29.5.1997 and alleged that the plaintiff had become greedy after coming to know that the land in dispute was sold by him to defendant no.2 at the rate of Rs.1,25,000/- per acre. Defendant no.1 admitted that defendant no.2 had further sold some land to defendant nos. 3 & 4. He stated that no fraud or misrepresentation was exercised upon the plaintiff and the general power of attorney was binding upon her. He, thus, prayed for dismissal of the suit. In his separate written statement, defendant no.2 averred that he was bona fide purchaser of the suit land and the plaintiff was estopped to file the suit by her act and conduct. He pleaded that the suit land was purchased by him from defendant no.1 on 3.6.1997 for a sum of Rs.4,52,000/- after making relevant enquiries about the power of attorney held by defendant no.1 on behalf of the plaintiff. It was averred that the plaintiff was having all knowledge about the proceedings of the Court as she had got a decree in her favour from Rajmal, her husband, by filing a civil suit. Defendant nos. 3 & 4, in their written statement, pleaded that R.S.A.No.3223 of 2008 -5- ..... they were bona fide purchaser of 1/10th share of the suit land. They, however, admitted that the plaintiff was owner of the suit land to the extent of 1/5th share,but stated that she had sold her land to defendant no.2 from whom they had purchased half share through a validly executed sale deed. The parties went to trial on the following issues:- 1. Whether power of attorney dated 28.5.97 is obtained by fraud and mis-representation and subsequent sale deeds dated 3.6.97 and 9.6.97 are against law, facts, null and void, and not binding upon the rights of the plaintiff and are liable to be set aside?OPP 2. Whether issue no.1 is proved,whether the plaintiff is entitled for possession of ½ share in the total land measuring 180 K 18 M as detailed in the headnote of the plaint?OPP 3. Whether plaintiff is entitled for relief of permanent injunction?OPP 4. Whether plaintiff has got no locus standi to file the present suit?OPD 5. Whether plaintiff is estopped from filing by her own act and conduct?OPD 6. Relief. III (A) Whether defendant no.1 Ganga Singh made wrong statement in the Court?OPP III (B) Whether the defendant no.1 Ganga Singh committed contempt of Court in view of grounds mentioned in the R.S.A.No.3223 of 2008 -6- ..... application dated 3.11.2000. After appraisal of the entire evidence on record, the trial Court dismissed the suit. In appeal, the first appellate Court reversed the findings of the trial Court and decreed the suit of the plaintiff as prayed for. Feeling aggrieved, defendant no.2 has filed R.S.A.No.3223 of 2008, whereas defendant nos. 3 and 4 have preferred R.S.A.No.3441 of 2008. I have heard the learned counsel for the parties and have perused the record. The admitted facts are that the plaintiff was recorded as owner of 1/5th share of the estate of her husband-Rajmal, who was said to have married twice. Defendant nos. 3 and 4 are the sons of Rajmal born to him from his first marriage and are,thus, step-sons of the plaintiff. The evidence on record conclusively points out to a dispute between the plaintiff and defendant nos. 3 and 4. It has emerged from the testimony of witnesses and also that of defendant nos. 3 & 4 that there was a dispute between them and the plaintiff about the land in dispute. This fact is necessarily to be noticed as ultimately the land belonging to the plaintiff through the impugned transactions, i.,e., the sale deeds, came to vest in defendant nos. 3 and 4. Undeniably a power of attorney was executed in favour of Ganga Singh- defendant no.1, but according to the plaintiff, she never intended to execute such a power of attorney and she was misled into executing this document as she believed defendant no.1 to be carrying out the exercise of getting her R.S.A.No.3223 of 2008 -7- ..... share separated from defendant nos. 3 & 4. However, her confidence in defendant no.1 was abused by the latter to get this power of attorney executed on 28.5.1997. She discovered this fact on 29.5.1997 barely after one day when she made enquiries from the person, who had drafted the power of attorney and got prepared the cancellation deed on that day itself and on 30.5.1997 she informed defendant no.1-Ganga Singh over telephone that his power of attorney had been cancelled and on 3.6.1997, the property was alienated in favour of defendant no.2, who further alienated the same on 9.6.1997 in favour of defendant nos. 3 & 4. The haste in which the entire transactions took place and the property of the plaintiff veered from her ownership to defendant no.2 and then to respondent nos. 3 & 4 reveals that the plaintiff had, indeed, been defrauded, more-so when other collateral evidence points to this fraud. Defendant no.1-Ganga Singh, the power of attorney holder, was informed on telephone which call was made by Anup Singh, who was accompanying the plaintiff from a S.T.D.Booth and the receipt of which was placed on record as Mark-X. The Court is not precluded from taking note of a document which has come on record and Mark-X was rightly appreciated in its correct perspective because defendant no.1, in his testimony, denied his awareness of the telephone number at his residence when a specific question was put to him as to whether the telephone number as reflected in the receipt Mark-X was installed at his residence or not. It is not believable that a person would not be remembering the telephone number installed at his residence and, therefore, the answer to such a R.S.A.No.3223 of 2008 -8- ..... question was evasive and sufficient to enable the Court to derive an inference against defendant no.1 that he was concealing the factum of a call having been received and his knowledge regarding cancellation of the power of attorney. Once the Court arrives at such an inference that he was in the knowledge of the cancellation of power of attorney, then the next question is as to whether he was competent to alienate the property in question in favour of another person. The answer obviously is to be in the negative. On 29.5.1997, the power of attorney was cancelled, i.e., within one days of it being executed and defendant no.1-Ganga Singh was informed about this cancellation on 30.5.1997 and despite that, he alienated the property in dispute on 3.6.1997, i.e., within three days and as noticed above, within six days thereafter, the property was further sold to defendant nos. 3 and 4, who are the step-sons of the plaintiff throwing the property in their clutches, the very clutches she was afraid of falling into and for which she was desirous of getting her share separated and for which she relied upon defendant no.1. There is also material on record in the shape of a certified copy of judgment dated 16.3.2009 passed by Additional Chief Judicial Magistrate, Hisar to show that the plaintiff had filed a criminal complaint under Sections 417, 419, 420, 465, 467, 468, 471, 477, 120-B of the I.P.C. against defendant nos. 1 to 4 and one Raghbir. A perusal of this judgment shows that defendant nos. 1 to 4 have been convicted and sentenced by the Court of Additional Chief Judicial Magistrate for the offences alleged against them. R.S.A.No.3223 of 2008 -9- ..... Another suspicious factor is the rate of the land which has been mentioned in the agreement to sell dated 13.5.1997 allegedly executed by the plaintiff in favour of defendant no.1. This document shows that the land was agreed to be sold at the rate of Rs.50,000/- per acre, but on 3.6.1997, the same land was sold for a sum of Rs.4,52,000/-. There is also no evidence to show that Rs.4,52,000/- which allegedly formed the consideration for the sale in favour of defendant no.2 was ever paid by him. All these pieces of evidence conclusively point out to the fact that a fraud had been committed upon the plaintiff, who has been duped of her property. It is a settled proposition of law that fraud vitiates everything and such pleas of fraud which have to be established beyond any shadow of doubt conclusively stand proved for the reasons which have been stated above. This Court is in agreement with the findings recorded by the first appellate Court and the sale deeds are held to be result of fraud and not binding on the rights of the plaintiff. Therefore, she is entitled to a decree of declaration, possession and permanent injunction for which a prayer was made in the suit. Accordingly, the appeals are held to be devoid of any merit and are dismissed. May 25,2010 ( Mahesh Grover ) “SCM” Judge