RSA No.3175 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3175 of 2008 (O&M) Date of decision: 17.3.2009 Dhoop Singh s/o Shish Ram ......Appellant Versus Smt. Panmeshwari Devi w/o Ram Kishan ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Kulvir Narwal, Advocate for the appellant. * * * Rakesh Kumar Garg, J. CM No.9470-C of 2008 CM is allowed subject to all just exceptions. Annexures P-1 and P-2 are taken on record. RSA No.3175 of 2008 (O&M) This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff for declaration to the effect that General Power of Attorney dated 6.7.1974 and lease deed dated 27.8.1974 and subsequent mutation No.4954 dated 21.10.2000 are illegal, null and void and not binding upon the rights of the plaintiff and that the defendant has no right, title or interest in the suit land along with a further prayer restraining the defendant from interfering in the peaceful possession of the plaintiff over the suit property has been decreed. The brief facts and circumstances giving rise to this appeal are that the suit was filed by the plaintiff claiming herself to be owner and in possession of land measuring 2 kanals 8 marlas situated at Siwana village Badli, Tehsil Bahadurgarh, District Jhajjar. It is alleged that the husband of RSA No.3175 of 2008 (O&M) 2 the plaintiff Smt. Panmeshwari Devi was owner in possession of the suit land, who vide registered gift deed No.1972 dated 21.8.1970, gifted the said property in favour of his wife and for the same, Mutation No.3457 was also got effected in her favour on 21.8.1972. After becoming owner of the suit land, she also cultivated the same and, therefore, defendant had no concern whatsoever with her ownership and possession over the suit land. It was alleged that the defendant illegally and unlawfully forged a General Power of Attorney of the plaintiff on 6.7.1974 and got executed a lease deed bearing No.784 dated 27.8.1974 for 99 years and on the basis of such lease deed, he also got the suit land mutated in his favour. Thus, the plaintiff challenged the General Power of Attorney dated 6.7.1974, lease deed dated 27.8.1974 and subsequent mutation No.4954 dated 21.10.2000 as illegal, null and void and prayed that the same are liable to be set aside. On notice, the defendant appeared and contested the claim of the plaintiff by taking some preliminary objections regarding locus-standi, estoppel and maintainability of the suit etc. On merits, he denied that the plaintiff became owner in possession of the suit land and further averred that the plaintiff appointed her husband, namely, Ram Kishan as her General Power of Attorney of the suit land who had executed the registered lease deed dated 27.8.1974 and the possession of the suit land was also handed over to him on the day of execution of lease deed itself and, therefore, he was cultivating the suit land since the year 1974. The trial Court, after hearing learned counsel for the parties, and after going through the evidence, held that General Power of Attorney dated 6.7.1974, lease deed dated 27.8.1974 and mutation No.4954 sanctioned on the basis of the lease deed were illegal and not binding upon the plaintiff and were liable to be set aside and declared the plaintiff as RSA No.3175 of 2008 (O&M) 3 absolute owner in possession of the suit property further restraining the defendant from interfering in peaceful possession of the plaintiff over the suit property. Feeling dissatisfied against the aforesaid judgment and decree of the trial Court, the defendant filed an appeal which was dismissed by the Lower Appellate Court vide impugned judgment and decree dated 3.9.2008. While dismissing the appeal, the Lower Appellate Court observed as under: “Though, plaintiff has denied the execution of the lease deed, but defendant has proved the lease deed of the suit land in his favour while examining Ajay Kumar, son of deceased Deed Writer as DW2. He also examined one of its attesting witnesses namely Harpat as DW3 and who has also corroborated this fact. But, plaintiff has proved a registered gift deed Ex.P10, by examining Sh. Sri Pal Sharma, Advocate as PW2 and who testified that he had seen the gift deed, which he had written on the asking of Ram Kishan in favour of Smt. Panmeshwari Devi. Plaintiff also examined Satyawan as PW3 and who brought the summoned record of the gift deed as Ex.P10. Thus, plaintiff has proved registered gift deed Ex.P10 in her favour and thereby she became actual owner of the suit land whereas defendant has proved the lease deed Ex.D2 dated 27.8.1974. It is the case of the defendant that he got the lease deed executed on the basis of a G.P.A dated 6.7.1974, which was got executed by plaintiff in favour of her husband. Plaintiff has denied this fact and in order to prove that she had RSA No.3175 of 2008 (O&M) 4 not executed any such G.P.A nor did she thumb mark any such document, plaintiff examined Sh. V.B. Kashyap, Forensic Science Expert, Jhajjar as PW5 and who examined the alleged thumb impression of plaintiff on the alleged G.P.A Mark-A and he submitted and proved his report as Ex.PW5/B, photographs-sheet as Ex.PW5/C to Ex.PW5/J and its negative Ex.PW5/K and in his report Ex.PW5/B, he opined that the disputed thumb impressions Q/1 and Q/2 on the one hand and disputed thumb impression Q/3 on the other hand are not affixed by one and the same person. Thus, the disputed thumb impressions Q/1 to Q/4 are not identical with the specimen thumb impression S/2. Thus, the disputed thumb impressions are not of Smt. Panmeshwari Devi. Whereas defendant did not examine any other expert to prove his report as false one and to prove the thumb impression of plaintiff on the disputed G.P.A. It is a settled principle of law that the vendee is also required to prove that his vendor was having a valid title. The vendor in this case was husband of the plaintiff, being her attorney. Thus, defendant was required to prove that he was holding a legal power of attorney of her wife. Thus, the onus to rebut the evidence of the plaintiff that the original General Power of Attorney was having the thumb impression of plaintiff was shifted upon the defendant but he did not examine any expert in his counter evidence. Though, he examined a Finger Print Expert RSA No.3175 of 2008 (O&M) 5 namely Sh. Deepak Jain to prove the disputed thumb impression on the lease deed issued in his favour. If defendant has failed to prove the valid title of his vendor, then the subsequent document executed by such person do not validate the title of his vendor. Moreover, on perusing the lease deed Ex.D2, it is quite evident that it was made for a period of 99 years. Thus, this document is not a lease deed but it is indirectly a sale deed. Even if it is taken to be a lease, then it was made for a consideration of Rs.50/- per year. But, defendant has not proved that he was making payment of the amount of lease consideration to the plaintiff or her husband. Thirdly, the lease deed Ex.D2 was got executed on 27.8.1974. But, its mutation was got effected on 21.10.2000 i.e. after 26 years and that too when Ram Kishan had died in the year of 1994. This is another circumstance, which gives rise to an inference that the alleged General Power of Attorney of the suit land in favour of Ram Kishan, allegedly made by his wife Smt. Panmeshwari Devi (plaintiff) is a fake and forged document and, therefore, Ram Kishan, the husband of the plaintiff had no authority to execute any better title in favour of the defendant. It is also pertinent to mention here that the original owner of the suit land was Ram Kishan, the husband of the plaintiff. He transferred the suit land in favour of his wife i.e. plaintiff by way of a registered gift deed Ex.P10 dated 21.8.1970. When Ram Kishan had already gifted RSA No.3175 of 2008 (O&M) 6 away as such his property in favour of his wife, then there was no occasion to lease out of the suit land through her husband to the defendant by appointing her as General Power of Attorney. The contention of the learned counsel for the appellant that the lease deed was got executed in favour of defendant by Ram Kishan with the express/implied consent of the plaintiff. But, there is no evidence even to prove this fact.” Still not satisfied, the defendant has filed the instant appeal challenging the judgment and decrees of the Courts below. I have heard learned counsel for the appellant. Both the Courts below on appreciation of evidence have recorded a finding of fact that the defendant has failed to prove the valid title of his vendor Ram Kishan. Undisputedly, the case of the appellant is that he got the lease deed dated 27.8.1974 executed on the basis of General Power of Attorney dated 6.7.1974 which was executed by the plaintiff-respondent in favour of her husband. This fact was denied by the plaintiff and in order to prove that she had not executed any such General Power of Attorney, the plaintiff examined Sh. V.B. Kashyap. Forensic Science Expert, Jhajjar as PW-5 who examined the alleged thumb impression of the plaintiff on the alleged General Power of Attorney and submitted and proved his report Ex.PW-5/B. In his report, he opined that the disputed thumb impressions are not identical with the specimen thumb impression whereas the defendant did not examine any expert to prove his report as false one and to prove the thumb impression of the plaintiff on the disputed General Power of Attorney. It is well settled principle of law that the vendee is required to prove that his vendor was having a valid title. The vendor in this case was husband of the plaintiff-respondent, being her RSA No.3175 of 2008 (O&M) 7 attorney. The defendant was required to prove that he was holding a legal power of attorney of his wife. Thus, the onus to rebut the evidence of the plaintiff that the original General Power of Attorney was having the thumb impression of the plaintiff, was upon the defendant. Although he examined a Finger Print Expert, namely, Sh. Deepak Jain to prove the disputed thumb impression on the lease deed issued in his favour yet the appellant failed to prove the General Power of Attorney. Thus, no fault in the findings of the Courts below could be pointed out by the learned counsel for the appellant. Consequently, I find no merit in this appeal. No substantial question of law arises. Dismissed. March 17, 2009 (RAKESH KUMAR GARG) ps JUDGE