RSA No.3927 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.3927 OF 2004 DATE OF DECISION: 25 th APRIL, 2011 Dharam Singh & another .... Appellant Versus Kanwaljit Singh & others .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Anil Kshetarpal, Advocate for the appellants. Mr. Ashish Aggarwal, Advocate and Mr. Kulwant Singh, Advocate, for respondent No.1. Mr. Amandeep Singh, Advocate for Mr. B. S. Bedi, Advocate for respondent No.2. * * * * L.N. MITTAL, J. (ORAL) Defendants No.4 and 5 Dharam Singh and Jagdish Chander have filed the instant second appeal bearing Regular Second Appeal No.3927 of 2004 titled Dharam Singh and another versus Kanwaljit Singh and others. By this common order, I am also disposing of Regular Second Appeal No.995 of 2005 titled as Balkar Singh versus and Kanwaljit Singh & others, preferred by defendant No.1 Balkar Singh arising out of the same suit. Suit was filed by Kanwaljit Singh-respondent No.1-plaintiff against Balkar Singh, Sardara Singh since deceased and represented by respondents No.3 to 6 as his legal representatives, and Ranjit Singh as the only three defendants. During pendency of the suit, defendants No.4 and 5 (appellants herein) namely Dharam Singh and Jagdish Chander were also impleaded as RSA No.3927 of 2004 -2- party. Plaintiffs' claim is that power of attorney dated 19.10.1982 allegedly executed by plaintiff in favour of defendant No.2 Sardara Singh is illegal and null and void having been obtained by impersonation and it was never executed by the plaintiff. Consequently, sale deed dated 27.01.1983 executed by defendant No.2 as attorney of the plaintiff in favour of defendant No.1 regarding plaintiff's share in the joint land is illegal and null and void and in the same manner, subsequent sale deed dated 06.06.1986 executed by defendant No.1 in favour of defendants No.4 and 5 is also illegal and null and void. Plaintiff accordingly sought declaration that he is owner in possession of the suit land measuring 12 Kanal i.e. 240/19228 share in joint land measuring 961 Kanals 8 Marlas and the aforesaid sale deeds are illegal and null and void etc. The plaintiff also sought relief of joint possession of the suit land. Defendants No.1 to 3 contested the suit and broadly denied the plaint allegations. It was alleged that plaintiff himself executed the power of attorney on the basis of which defendant No.2 executed sale deed in favour of defendant No.1 who then executed sale deed in favour of defendants No.4 and 5. Defendants No.4 and 5 also took the same stand and also alleged that they are bona fide purchasers of the suit land for valuable consideration. All the defendants also raised objection of the suit being barred by limitation, besides other pleas. Learned Additional Civil Judge (Senior Division), Karnal vide judgment and decree dated 01.10.2002 decreed the plaintiffs' suit. Against judgment and decree of the trial court, there were two first appeals i.e. one by defendants No.4 and 5 and other by defendant No.1. Learned Additional RSA No.3927 of 2004 -3- District Judge, Karnal vide common judgment and decrees dated 31.07.2004 dismissed both the said appeals. Feeling aggrieved, instant two second appeals have been preferred i.e. one by defendants No.4 and 5 and other by defendant No.1. I have heard learned counsel for the parties and perused the case files. Insofar as finding of the courts below that power of attorney in question was not executed by the plaintiff and consequently the said power of attorney and resultant impugned sale deeds dated 27.01.1983 and 06.06.1986 are null and void, is concerned, the said finding is fully justified by the evidence on record. Plaintiff and defendant No.2 are residents of Karnal. Suit land is also situated in District Karnal. The alleged power of attorney was executed in Delhi. The plaintiff has categorically stated that he never executed the said power of attorney. There is practically no evidence to depict that the said power of attorney was executed by the plaintiff. On the contrary, the plaintiff has examined handwriting and finger print expert, who has opined that alleged disputed signatures and thumb impressions of the plaintiff on the impugned power of attorney are not his signatures and thumb impressions, as the same did not match with his standard signatures and thumb impressions. Science of comparison of finger prints is perfect science. No evidence to the contrary has been led. Defendants have not examined any handwriting or finger print expert to rebut the plaintiff's evidence. The power of attorney purports to have been drafted by one R. D. Anand, Advocate of Delhi High Court, but even the said Advocate has not been examined as witness by the defendants to depict that the aforesaid power of attorney was executed by the plaintiff. There is thus un-rebutted evidence led by the plaintiff that the power RSA No.3927 of 2004 -4- of attorney was not executed by him. Consequently the said power of attorney is null and void and sale deed dated 27.01.1983 executed on its basis and subsequent sale deed dated 06.06.1986 executed on the basis of the first sale deed are also, therefore, null and void. There is no infirmity in the concurrent finding of the courts below to this effect. The said finding is based on proper appreciation of evidence and is supported by detailed reasons recorded by the courts below. The said finding does not warrant interference in second appeal as it is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. The solitary question that remains to be adjudicated upon relates to the bar of limitation. At the outset, it may be mentioned that at the time of motion hearing it was projected that defendants No.4 and 5 were impleaded as party to the suit in amended plaint dated 12.09.2002. However, perusal of the record reveals that plaintiffs moved application dated 27.09.1997 for impleading defendants No.4 and 5 as party to the suit. The suit was instituted on 09.05.1996. Defendants No.4 and 5 were impleaded as party vide order dated 25.10.1997. Learned counsel for the appellants vehemently contended that sale deeds had to be challenged within three years but the suit was filed after 13 years of the first sale deed and after almost 10 years from the date of the second sale deed and more than 11 years after the second sale deed, defendants No.4 and 5 were impleaded as party and therefore the suit is barred by limitation. It was contended that sale deeds could be challenged within three years of execution thereof under Article 58 of the Schedule to the Limitation Act 1963 (in short, the Act). Reliance in support of this contention has been placed on judgment of this court in the case of Gajjan Singh versus Virsa Singh and others, 2007(3) RCR (Civil) 3. RSA No.3927 of 2004 -5- On the other hand, learned counsel for respondent No.1-plaintiff vehemently contended that plaintiff has filed suit for joint possession of the land on the basis of title and therefore, the suit is covered by Article 65 of the Schedule to the Act and the suit is well within limitation. It was pointed out that defendants have not taken the plea of acquiring title by adverse possession. Reliance in support of this contention has been placed on two judgments of Hon'ble Supreme Court i.e. in the case of C. Natrajan Versus Ashim Bai & another, 2007(4) RCR (Civil) 736 and in the case of Indira versus Arumugam, 1998(2) PLJ, 109 and also judgment of this court in the case of Harnam Kaur and others versus Malkiat Singh and others, 1986 PLJ, 687. It was also submitted that the power of attorney being based on fraud and impersonation is null and void because fraud vitiates all acts and consequently the power of attorney and the subsequent sale deeds in question are also null and void. It was also contended that the plaintiff came to know of the impugned power of attorney and sale deeds only 15 days before the filing of the suit when he contacted the Patwari to take copy of Jamabandi for raising loan and thus the suit is within the limitation. I have carefully considered the rival contentions. Judgment of this Court in the case of Gajjan Singh (supra) relied on by counsel for the appellants supports the contention of the counsel for the appellants to some extent. However, in view of judgments of Hon'ble Supreme Court in the cases of Indira (supra) and C. Natrajan (supra) relied on by counsel for respondent No.1, the contention raised by counsel for the appellants cannot be accepted. According to these two judgments of Hon'ble Supreme court as well as judgment of this court in the case of Harnam Kaur (supra), suit for possession based on title is not barred by limitation unless the defendant RSA No.3927 of 2004 -6- proves his adverse possession for 12 years before the filing of the suit. In the instant case, the plaintiff's suit is for possession based on title and defendants have not even pleaded their adverse possession for 12 years preceding the filing of the suit. Consequently, the suit cannot be said to be barred by limitation. In the case of C. Natrajan (supra), the suit had been filed after 15 years from the date of the sale deed but still the suit being for possession on the basis of title was held to be within limitation. This judgment is applicable to the facts of the instant case on all fours. Even otherwise, on plain principle, Article 65 of the Schedule to the Act would govern the suit as the suit has been filed for possession on the basis of title. This view finds support from judgments in the cases of Indira (supra), C Natrajan (supra) and Harnam Kaur (supra). For the reasons aforesaid, I have no hesitation in affirming the finding of the courts below that suit is within limitation. Learned counsel for the appellants contended that appellants are bona fide purchasers of the suit land for valuable consideration and sale in their favour is, therefore, protected. The contention cannot be accepted. Section 41 of the Transfer of Property Act, 1882 lays down that where with the consent, express or implied, of the person interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it. In the instant case, however, neither defendant No.2 nor defendant No.1 was ostensible owner of the suit property with the consent (express or implied) of the plaintiff. Consequently, benefit of Section 41 of the Transfer of Property Act, 1882 cannot be extended to the appellants and they cannot be said to be bona fide purchasers of the suit RSA No.3927 of 2004 -7- land because there was no, express or implied, consent by the plaintiff to depict defendant No.2 or defendant No.1 as ostensible owner of the suit land. As a necessary consequence of the aforesaid discussion, I find no merit in these appeals. Accordingly both the appeals are dismissed. ( L. N. MITTAL ) JUDGE 25.04.2011 'raj'