Civil Revision No.3125 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3125 of 2009 (O&M) Date of decision : 02.09.2009 Rajeev Inder Singh ......Petitioner VERSUS Rachhpal Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Ramandeep Singh Pandher, Advocate, for the petitioner. Mr.H.S.Grewal, Advocate, for respondents No.1 and 2. Mr.Arun Palli, Senior Advocate assisted by Mr.Jai Bhagwan, Advocate,for respondent No.3 ***** A.N.JINDAL, J(ORAL): This revision petition is directed against the order dated 11.02.2009, passed by Addl. District Judge, Amritsar dismissing the appeal of the petitioner-plaintiff (herein referred as 'the plaintiff') against the order dated 09.05.2008, passed by Civil Judge (Junior Division), Amritsar. The trial Court as well as the appellate Court declined to grant ad-interim injunction to the plaintiff restraining the defendants from alienating and dispossessing or demolishing any construction in the suit property during the pendency of the suit. Factual background of the case is that plaintiff claimed 1/4th share of plot measuring 550 square yards bearing Khasra No.357 min. situated in Sultanwind Suburban, Mahal II Daburji G.T.Road, Amritsar as shown red in the site plan appended to the plaint. He further averred that he, being unable to manage the affairs of the said property, executed a general power of attorney on 04.08.2006 in favour of defendant No.1- respondent No.1 (herein referred as 'defendant No.1') for management of the said property. Defendant No.1, in order to cause undue benefit to himself and loss to the plaintiff, sold the said property to his wife i.e. defendant Civil Revision No.3125 of 2009 (O&M) 2 No.2-respondent No.2 (herein referred as 'defendant No.2'). When the plaintiff came to know about the said alienation executed on 07.08.2006 by defendant No.1, he immediately got the general power of attorney cancelled vide document dated 22.08.2006. He has challenged the sale deed being collusive and without consideration. He further added that defendant No.1 did not pay anything to him but got entered the mutation in favour of defendant No.2. Thereafter, defendant No.2 further sold the said property to defendant No.3. Thus, he has filed this suit for annulling the said sale deeds and claimed his ownership over the property. Alongwith the suit, the application for ad-interim injunction has also been filed. Upon notice, defendants No.1 and 2 contested the suit while stating that the plaintiff had duly authorized defendant No.1 to transfer the suit property and he had transferred the same in that capacity for valuable consideration and amount was paid to the plaintiff. It was also stated that plaintiff is not in possession of the property. Now defendant No.3, to whom the property has been sold by defendant No.2, is the owner and in possession of the same. Similarly, defendant No.3 has also claimed himself to be the bonafide purchaser of the share of the plaintiff in the suit property for valuable consideration and without notice. Thus, all the defendants prayed for dismissal of the suit as well as application for ad-interim injunction. Both the Courts below declined to grant injunction in favour of the plaintiff. Heard. Apparently, the defendant No.1, after the power of attorney was executed in his favour on 04.08.2006, executed the sale deed in favour of his wife within three days of the execution of the power of attorney i.e. on 07.08.2006 which itself indicates that the defendant No.1 did not act for good management of the property. His act itself indicates that he entered into transaction of sale with his wife to benefit himself and cause loss to the plaintiff. No evidence has been brought on record in order to prima facie establish if the consideration of Rs.2,00,000/- as involved in the sale deed executed by defendant No.1 in favour of defendant No.2 was ever handed over to the plaintiff. Had the plaintiff any intention to alienate the property to defendant No.1 or his wife then it was not necessary for him Civil Revision No.3125 of 2009 (O&M) 3 to execute the power of attorney and he could directly execute the sale deed in favour of defendant No.2. The further act of mis-management stands established from the circumstance that even after the cancellation of the power of attorney by plaintiff on 22.08.2006, the defendant No.2 did not stay her hands to keep the property for herself and sold the same to defendant No.3 on 11.09.2006. This hurried transaction of sale duly establishes a prima facie case in favour of the plaintiff that he never executed the power of attorney for sale of the property. Rather, it was only to look after and manage the same and the recitals if any with regard to bestowing the power of alienation upon defendant No.1, were ceremonial in nature and he may not have intended actually to empower him to sell the property. In any way, defendant No.1 could not misuse the power of attorney to cause loss to plaintiff but could act only for the benefit and betterment of the estate. Similar observations were made in case Mt.Jan vs. Mt.Fajjan and another AIR 1938 Lahore 351 wherein it was observed as under:- “Power-of-attorney must be strictly pursued, and are construed as giving only such authority as they confer expressly or by necessary implication. The following are the most important rules of construction : (1) The operative part of the deed is controlled by the recitals. (2) Where authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the proper performance of the particular acts. Bearing in mind the above principles, the recitals in the power of attorney leave, I think, no doubt that the main object of the plaintiff was to entrust the management of the land to Mt.Fajjan, as she was married and was no longer in a position to manage it. It was obviously not the intention then to sell the property. If this had been so, the land would have been sold soon after the power of attorney had been executed. Mt.Fajjan has not given any explanation as to why the land was sold in the year 1934, some five years after the execution of the power of attorney. It is not suggested that there was any difficulty in Civil Revision No.3125 of 2009 (O&M) 4 connection with the management of the property, which necessitated the sale. The sale cannot, therefore, be defended unless it be held that the power of attorney gave unqualified authority to Mt.Fajjan to sell the property whenever she liked. After carefully considering the recitals in the document and the circumstances in which the document was executed, I feel no doubt that there was no intention to give Mt.Fajjan any general power to sell the land. In this aspect of the question the respondents cannot get any assistance from the provisions of S. 237, Contract Act. The sale deed makes reference to the power of attorney, the contents of which must be presumed to have been known to the vendee Abdul Aziz. For the reasons stated above, it seems to me that the recitals in the document taken as a whole show clearly that Mt.Fajjan was only authorized to sell the property when it was necessary for the purpose of the management, (for example, it might have been necessary to sell part of the property if the land was encumbered and the debt could not be discharged otherwise). The vendee, however, did not trouble to ascertain why the sale of the land was necessary and consequently he cannot be protected." This judgment was followed in case Smt.Nand Kaur vs. Mastan Singh and others 1990 Civil Court Cases 501 wherein it was observed that when the main purpose of the general power of attorney was to fight litigation and subsequent management of the property then it will be deemed that authority given for special purpose followed by general authority to sell, mortgage or gift but actually no authority was given to attorney to alienate the property. In the instant case also, the specific power given vide power of attorney was to manage the property. In any case, no such power was given to defendant No.1 to enter into collusive sale of the same in favour of his wife without consideration. Both the Courts below did not take a note of the aforesaid facts of the case and the law of the land on the point. As such, this Court is constrained to hold that plaintiff has got a prima facie case in his favour for grant of injunction and if the property changes hands certainly Civil Revision No.3125 of 2009 (O&M) 5 on account of accrual of the multiple litigation, the plaintiff will certainly suffer an irreparable loss. The plaintiff, being himself the owner of the property, being deprived by defendant No.1 of his property, for reasons, has a balance of convenience in his favour. Consequently he is entitled to grant of injunction qua further alienation. As regards possession, both the parties claim possession over the property which is still to be adjudicated upon at the time of trial. However, perseverance of the property which is the prime consideration during the pendency of the suit, would remain in the mind of the Court while granting injunction. Resultantly, I partly allow this petition, set aside the impugned order and restrain the defendant No.3 from further alienating and changing the nature of the property. However, both the parties shall maintain status quo with regard to possession over the demised premises during the pendency of the suit. However, any expression of opinion made in the preceding paras would not effect the merits of the case. (A.N.Jindal) Judge 02.09.2009 mamta-II