R. S. A. No. 3101 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3101 of 2010 Date of Decision : September 22, 2010 Ranjit Singh .... Appellant Vs. Kabal Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sanjeev Kumar Arora, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant no.3 Ranjit Singh, having lost in both the courts below, has come in second appeal. Suit was filed by Kabal Singh – respondent no.1-plaintiff against respondents no.2 and 3 and against the appellant. Paramjit Kaur through her attorney Ajit Singh is defendant no.1/respondent no.2 and also Paramjit Kaur herself is defendant no.2/respondent no.3, whereas appellant Ranjit Singh is defendant no.3. The plaintiff alleged that Paramjit Kaur appointed Ajit Singh as her attorney vide registered General Power of Attorney dated 11.09.1998. R. S. A. No. 3101 of 2010 2 Pursuant thereto, Ajit Singh, as attorney of Paramjit Kaur, agreed to sell the suit land measuring 09 kanals 06 marlas to the plaintiff @ Rs.2,80,000/- per acre i.e. for total consideration of Rs.3,43,000/- and received Rs.3,00,000/- as earnest money and executed agreement dated 12.09.1998. Sale deed was to be executed up to 16.09.1998. However, Paramjit Kaur vide sale deed dated 14.09.1998, sold the suit land to defendant no.3-appellant. Defendant no.3 was already aware of the agreement dated 12.09.1998 in favour of the plaintiff, who had informed defendant no.3 about the same, but in spite thereof, defendant no.3 purchased the suit land. The plaintiff accordingly sought specific performance of the agreement to sell and also sought declaration that sale deed dated 14.09.1998 in favour of defendant no.3- appellant is illegal and null and void. Defendant no.1 denied the agreement and other averments of the plaintiff. Defendant no.2 also denied the plaint allegations. Defendant no.2 alleged that she never appointed Ajit Singh as her attorney to sell the suit land. She pleaded that she is illiterate and she had simply asked and requested Ajit Singh to manage her land. She did not authorize him to sell the suit land. The impugned agreement is sham transaction. The suit land was already under mortgage with defendant no.3 Ranjit Singh with possession. The alleged Power of Attorney is result of fraud and misrepresentation. The Power of Attorney was obtained from her on the pretext that her land was to be managed by Ajit Singh. R. S. A. No. 3101 of 2010 3 Defendant no.3 claimed to be bona fide purchaser of the suit land without notice and knowledge of the impugned agreement dated 12.09.1998. Learned Civil Judge (Junior Division), Ferozepur, vide judgment and decree dated 16.10.2007, decreed the plaintiff's suit. First appeal preferred by defendant no.3 stands dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 30.09.2009. Feeling aggrieved, defendant no.3 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that Paramjit Kaur had not appointed Ajit Singh as her attorney to sell the suit land and had simply asked him to manage her land. The contention cannot be accepted. There is registered General Power of Attorney executed by Paramjit Kaur in favour of Ajit Singh. Paramjit Kaur has admitted that she had executed the said Power of Attorney, although allegedly to authorize Ajit Singh to manage her land, but not to authorize him to sell her land. However, admittedly, the General Power of Attorney authorized Ajit Singh to even sell the suit land. Recital in the General Power of Attorney has to be taken at its face value. Self serving statement of Paramjit Kaur that she had not authorized Ajit Singh to sell her land cannot be accepted. The Power of Attorney is registered one and therefore, carries some authenticity. R. S. A. No. 3101 of 2010 4 Moreover, the plaintiff had no reason to disbelieve the recital in the Power of Attorney authorizing Ajit Singh to sell the suit land. In addition to it, the plea of defendant no.2 that she had simply authorized Ajit Singh to manage her land is falsified by the fact that the land was already under mortgage with possession with defendant no.3 and consequently, nothing was left for Ajit Singh to manage the suit land on behalf of Paramjit Kaur. Consequently, the entire version of defendant no.2 in this regard has to be rejected. Learned counsel for the appellant next contended that appellant-defendant no.3 is bona fide purchaser of the suit land for consideration. This contention also cannot be accepted. It has come in evidence that land of plaintiff and defendant no.3 are adjoining. They are residents of same village. The suit land is also of the same village. Consequently, courts below have rightly come to the conclusion that defendant no.3 had knowledge of the impugned agreement in favour of the plaintiff. It is also so because suit land was under mortgage with defendant no.3 and therefore, when plaintiff agreed to purchase the suit land, it was natural for the plaintiff to inform the mortgagee defendant no.3 about the impugned agreement. In addition to the aforesaid, it has to be noticed with significance that sale deed in favour of defendant no.3 was executed by defendant no.2 in tearing hurry. Defendant no.2 executed Power of R. S. A. No. 3101 of 2010 5 Attorney in favour of Ajit Singh on 11.09.1998, which was Friday. Next working day was 14.09.1998 being Monday. Sale deed was executed on 14.09.1998 by defendant no.2 in favour of defendant no.3 in tearing hurry giving rise to inference that defendant no.3 is not bona fide purchaser of the suit land. There is another very significant circumstance depicting that defendant no.3 is not bona fide purchaser of the suit land. Impugned agreement was executed for consideration of Rs.3,43,000/-. However, sale deed in favour of defendant no.3 has been executed for consideration of Rs.1,71,500/- only i.e. half the sale consideration mentioned in the impugned agreement. No sane person would sell his property for half the price being fetched in the market. The very fact that the sale deed in favour of the appellant was executed for half the sale consideration mentioned in the sale agreement would go a long way to establish that defendant no.3- appellant is not bona fide purchaser of the suit land. Learned counsel for the appellant vehemently contended that the lower appellate court erroneously observed that there is no mention in the sale deed about mortgage, whereas in fact, specific recital about mortgage has been made in the sale deed. However, merely on the basis of this contention, concurrent finding of the courts below cannot be set aside. In this context, it would not be out of place to notice that sale deed has been executed for consideration of Rs.1,71,500/- and the said amount was R. S. A. No. 3101 of 2010 6 allegedly received by vendor-defendant no.2 in advance. However, it would depict that the mortgage money of Rs.1,00,000/- was not adjusted out of the sale consideration. This significant circumstance would again go to show that defendant no.3 is not bona fide purchaser of the suit land and the sale deed in his favour is a sham transaction. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Concurrent finding recorded by the courts below against defendant no.3-appellant is based on proper appreciation of evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. The appeal is found to be bereft of any merit and is accordingly dismissed in limine. September 22, 2010 ( L. N. MITTAL ) monika JUDGE