R.S.A.No. 522 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 522 of 2007 (O&M) Date of decision: 27.8.2009 Anwar Gautam ......Appellant Versus Rattan Kaur .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Vikas Bahl, Advocate, for the appellant. Mr.Rajbir Sehrawat, Advocate, for the respondent. **** SABINA, J. Plaintiff Anwar Gautam filed a suit for possession, which was dismissed by the Additional Civil Judge (Sr.Divn.) Hisar vide judgment and decree dated 11.11.2004. In appeal, the said judgment and decree were upheld by the District Judge, Hisar vide judgment and decree dated 16.11.2006. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “Delving into the facts first, a suit for specific performance of the agreement dated 7.10.1996 was filed by Anwar R.S.A.No. 522 of 2007 (O&M) 2 Gautam with respect to land measuring 171 kanals 15 marlas i.e. 8/21 share of the total land measuring 450 kanals 17 marlas situated in village Dabra, district Hisar. The case of the plaintiff is that defendant had agreed to sell the land for total consideration of Rs.16,10,000/- out of which he had paid Rs.13,00,000/- and had received possession. The sale deed was to be executed on 30.6.1998 on payment of balance sale consideration. This agreement was entered into by the defendant through her General Power of Attorney. The case of the plaintiff is that he kept waiting in the office of the Sub Registrar on 30.6.1998 for the defendant or her GPA with the balance amount but they did not turn up. The plaintiff got his presence recorded before the Sub Registrar, Hisar and sent a legal notice but the defendant failed to execute the sale deed and therefore the suit. 3. The defendant pleaded that the suit had been filed in collusion with Kanwal Singh who was her real brother and the suit was bad for mis-joinder and non- joinder of necessary parties as Kanwal Singh was a necessary party in the suit and he had committed fraud. It was pleaded that she had never agreed to sell her land to the plaintiff nor had received Rs.13,00,000/- and had not handed over the possession of the land to the R.S.A.No. 522 of 2007 (O&M) 3 plaintiff. It was pleaded that on 9.3.1987 she was owner of land to the extent of 1/3rd share and after the death of her father she got 21 kanals of land and became owner of land measuring 171 kanals 15 marlas. It was pleaded that she had executed a General Power of Attorney in favour of her brother on 9.3.1987 and on that day she was not the owner of the land measuring 171 kanals 15 marlas. It was pleaded that she had cancelled the GPA on 26.2.1997 as her brother was acting against her interest and he was informed about the cancellation and since it did not suit him he played fraud and prepared a false document and ante dated it. It was pleased that had there been any agreement it would have been pointed out by Kanwal Singh when she was seeking partition in the application of partition filed by her and Kanwar had avoided his appearance and took long to appear and had put in appearance after Munadi had been effected. It was pleaded that in order to frustrate her right of partition, a suit was got filed challenging the decree of 1971 executed by her father in her favour and this was intentionally done so that the partition proceedings would be delayed. It was pleaded that the plaintiff had no locus standi to file the present suit and the agreement was based on fraud and mal practice. It was denied that the R.S.A.No. 522 of 2007 (O&M) 4 plaintiff was ready with the balance money in the office of Sub Registrar. It was pleaded that the value of the property was over one crore as it was adjacent to the municipal limit, Hisar.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant entered into an agreement to sell dated 7.10.1996 with the plaintiff? OPP 2. Whether the plaintiff is still ready and willing to perform his part of contract? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the suit is collusive? OPD 6. Whether the suit is bad for mis-joinder and non- joinder of the necessary parties ?OPD 7. Relief. On 4.6.2004 an additional issue was also framed:- 6(a) Whether the alleged agreement dated 7.10.1996 is based on fraud and prepared ante dated to grab the land of the defendant as alleged ? OPD Learned counsel for the appellant has vehemently argued that the suit of the plaintiff was liable to be decreed. The defendant R.S.A.No. 522 of 2007 (O&M) 5 had agreed to sell the suit property to the plaintiff vide agreement to sell dated 7.10.1996 through Kanwal Singh, General Power of Attorney holder of the defendant. Any dispute inter se between the owner and her attorney was no concern of the plaintiff. The plaintiff, after making enquiry, had entered into agreement to sell in question. Admittedly, at the time of execution of agreement to sell, Kanwal Singh was holding a General Power of Attorney on behalf of the defendant. The plaintiff had sufficient means to purchase the property in dispute. Learned counsel for the respondent, on the other hand, has submitted that the agreement to sell in question was nothing but a result of fraud and hence, the defendant was not bound by the same. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Admittedly the defendant is the owner of the property in dispute. There is also no dispute that she had executed a General Power of Attorney in favour of her brother Kanwal Singh on 9.3.1987. At the time of execution of the agreement to sell, the General Power of Attorney was still in force. The same was cancelled by the defendant on 26.2.1997 before the date fixed for execution of the sale deed. In terms of the agreement to sell the sale deed was to be executed on 30.6.1998. Both the parties, in order to prove their respective case, had led their evidence. The plaintiff R.S.A.No. 522 of 2007 (O&M) 6 himself appeared in the witness box as PW-1 and deposed as per the contents of the plaint. The plaintiff also examined PW-2 Ashok Kumar, deed writer, who had scribed the agreement Ex.P-1. The plaintiff also examined PW-5 Satdev Singh to prove the agreement to sell. The said witness is an attesting witness to the agreement to sell. Kanwal Singh appeared in the witness box in support of the case of the plaintiff. In his cross-examination he deposed that relation between him and his sister had gone sour in the year 1997- 98. He had received Rs.13,00,000/- on 7.10.1996. With regard to his examination, learned District Judge in para 16 of the impugned judgment has observed as under:- “Kawal Singh tendered in his affidavit Ex.P-1 wherein he supported the case of the plaintiff. It was also stated that the plaintiff had paid Rs.13,00,000/- to him and the balance was to be paid on the date of execution of the sale deed. It was also stated in the affidavit that when notice was received he had sent it to his sister and had advised the plaintiff to see her for further transaction. In the cross-examination he stated that his sister had executed a GPA in his favour. He stated that his relation with his sister had gone sour in the year 1997-98 but he could not re-collect the month or the date but stated that the earnest amount had been received and his sister wanted to wriggle out of the agreement. To a specific R.S.A.No. 522 of 2007 (O&M) 7 question, he replied that a sum of Rs.13,00,000/- had been received by him on 7.10.1996. He stated that his sister wanted more money and he had told her that a sum of Rs.3,00,000/- would be paid at the time of registration of the sale deed. He stated that his sister was owner of 21-1/2 killa of land when the GPA was executed. A specific question was put to him as to how much land was owned by Rattan Kaur on the day of the GPA was executed. The witness did not give a straight answer. Again the question was put differently and the witnesses replied that it could be possible that on the day the GPA was executed, his sister did not own 171 kanals 15 marlas of land. He could not say as to whether Kulbir Mor was his counsel in the partition suit filed by his sister. He avoided all questions put to him regarding partition suit and the successive application moved therein. All he said was that he did not remember. He stated that he had received a notice sent by P.K.Sandhir, Advocate that he has sent his reply. He stated that on the date fixed for registration of the sale deed he had not told the Tehsildar that his sister had cancelled the General Power of Attorney as he had not appeared before the Tehsildar. He admitted that a revision had been filed against the order passed in the partition R.S.A.No. 522 of 2007 (O&M) 8 proceedings which were pending in the court of Commissioner.” The defendant, on the other hand, appeared in the witness box and deposed that she had executed General Power of Attorney in favour of her brother in good faith. The Power of Attorney was cancelled on 26.2.1996 and an intimation in this regard was sent to the Tehsildar on 30.6.1997. Her brother Kanwal Singh was a sitting MLA for Haryana Vikas Party and also remained Minister for Panchayats and Development Department and the Revenue Department. She received a notice regarding the agreement to sell dated 7.10.1996 in July, 1998 and realized that a fraud had been played on her. Had the agreement to sell in question been in existence in October, 1996, she would have been informed about the same by the co-sharers. The case of the defendant is thus, that the agreement to sell was ante dated and was no agreement in the eyes of law. Admittedly, Rattan Kaur was residing in America and consequently, the possession of the property remained with her brother. The defendant had executed a General Power of Attorney in favour of her brother regarding her property but the same was cancelled in February 1997 as she feared that her brother would sell her property. In fact, the case of the defendant is that she would have got the knowledge of the agreement to sell in case the earnest money had been handed over to her. The attesting witness was R.S.A.No. 522 of 2007 (O&M) 9 known to Kanwal Singh as he was his counsel since the year 1971. The case of the plaintiff, on the other hand, is that Kanwal Singh and his sister Rattan Kaur in collusion with each other wanted to defraud him. Learned District Judge has observed in the impugned judgment that in the register produced by Ashok Sharma, deed writer, there were cuttings in the register. At the time of arguments, original register of Ashok Sharma, deed writer, was summoned but he failed to produce the same. It has also been noticed by the learned District Judge that Rattan Kaur had got a case registered against kanwal Singh under Section 420 of the Indian Penal Code in the year 2001. Police, after investigation, furnished a cancellation report and protest petition was filed by the defendant and the matter was still pending. After appreciating the entire factual matrix of the case, both the Courts below have given a finding of fact that the agreement to sell was not a genuine document and had been executed later on. The finding of fact arrived at by both the Courts below calls for no interference by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 27, 2009 anita