RSA No.1590 of 2010 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1590 of 2010 Date of decision: August 23 , 2011. Gurdip Singh & Ors. ... Appellant(s) v. Avtar Singh & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri B.S. Saini, Advocate for Shri Premjit Kalia, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. (Oral): CM No.4780-C of 2010 For the reasons stated in the application, the same is allowed, subject to all just exceptions and the legal representatives of the deceased plaintiff-appellant are permitted to prosecute the instant appeal. Main case The appellants herein are legal representatives of Kartar Singh plaintiff. Plaintiff having lost in two rounds of litigation, has preferred the present second appeal. Plaintiff had instituted a suit for declaration to the effect that he is owner in joint possession to the extent of half share in joint land measuring 32 kanal 7 marlas situated in village Gurdaspur, detail and description of which was given in the head note fo the plaint. Similarly, he further prayed that he is owner in joint possession to the extent of half share RSA No.1590 of 2010 -: 2 :- in land measuring 25 kanal 4 marlas situated in village Aujla, detail and description of which was given in the plaint. It was pleaded in the suit that the suit land jointly fell to the share of three brothers, i.e., defendant No.1 and Takhat Singh. Takhat Singh was having 1/3rd share whereas plaintiff and defendant No.1 were co-sharers to the extent of 2/3rd share. Takhat Singh died issueless without having any widow, therefore, it was claimed that share of Takhat Singh will devolve upon the plaintiff and defendant No.1 in equal shares. Therefore, to the estate of Takhat Singh, plaintiff and defendant No.1 were co-sharers to the extent of half share each. In other words, claim was raised that the share of Takhat Singh in the suit land was to be inherited jointly by the plaintiff and defendant No.1 in equal shares. Defendant No.2 and 3, namely, Diljit Singh and Jagit Singh, who are sons of defendant No.1 – Avtar Singh, upon appearance, in the written statement raised a plea that they had purchased the share of Takhat Singh in both the villages vide registered sale deeds dated 11.11.1986 and 18.7.1986. Sale deeds were executed by Avtar Singh, defendant No.1 as attorney of Takhat Singh. Takhat Singh had executed a general power of attorney in favour of his brother Avtar Singh, defendant No.1 on 16.1.1984. Plaintiff filed replication controverting the pleadings made in the written statement and reiterated those in the plaint. The trial court formulated following issues:- 1. Whether the plaintiff is entitled to a decree of declaration that he is owner in joint possession to the extent of ½ share in the joint holding measuring 32 kanals 7 marlas and detailed in the head note of the plaint? OPP 2. Whether the plaintiff is entitled to a decree of joint possession to the extent of ½ share in the joint land RSA No.1590 of 2010 -: 3 :- measuring 25 kanals 4 marlas detailed and described in the head note? OPP 3. Whether the plaintiff is entitled in the alternative relief of joint possession of ½ share of the land measuring 32 kanals 7 marlas and 25 kanals 4 marlas as described in the head note of the plaint? OPP 4. Whether the suit of the plaintiff is time barred? OPP 5. Whether the plaintiff's suit is not maintainable? OPD 6. Whether defendants No.2 and 3 have become owners of the share of deceased Takhat Singh by way of registered sale deeds dated 11.11.1986 and dated 18.7.1986? OPD 7. Relief. After the parties had led their evidence, the trial court dealt with issues No.1 to 3 together. The trial court noticed the fact that the plaintiff had challenged the sale deeds on the ground of fraud and fabrication. The general power of attorney executed by Takhat Singh in favour of defendant No.1 Avtar Singh was assailed being illegal, null and void on the ground that Avtar Singh had executed the sale deeds in favour of his sons without receiving any consideration. It was argued that the general power of attorney was misused. The trial court noticed the fact that to prove fraud and fabrication, as alleged, plaintiff had only examined Nihal Singh PW1. The defendants contended that the suit property was self- acquired property of Takhat Singh and he had every right to execute general power of attorney and the sale of the same. The trial court further took into consideration the fact that it was admitted by the plaintiff in cross RSA No.1590 of 2010 -: 4 :- examination that he was serving in the Army; after retirement, he remained separately in a tent in the village and thereafter he had built his house. The court further relied upon documents Ex.D5 and D6 to hold that Takhat Singh was residing with the defendants. As such, defendants and Takhat Singh were separate in residence from the plaintiff. In those documents, the court held that execution of power of attorney was duly proved by DW1 and the power of attorney vested all rights regarding alienation of the property in the attorney Avtar Singh. The power of attorney was executed in the year 1984 and the sale deeds were executed in the year 1986. The court further held that Takhat Singh remained alive till 1989 and during his life time, he never challenged the sale deeds. Thus, non-challenge of the sale deeds by Takhat Singh during his life time and sanction of mutation at his instance were taken as good reasons to negate the plea of joint possession raised by the plaintiff. In view of the above facts, issues No.1 to 3 were decided in favour of the defendants and against the plaintiff. Similarly issue No.6 was decided in favour of the defendants and against the plaintiff. The court, while deciding issue No.4, further held that the sale deeds were executed on 18.7.1986 and 11.11.1986 and challenge was made to their validity on 15.3.2001, thus, the suit was barred by limitation. Issue No.5 was also decided against the plaintiff and in favour of the defendant. The above stated findings have been upheld by the lower appellate court. Shri B.S. Saini, Counsel appearing for Shri Premjit Kalia, Advocate for the appellants, has failed to substantiate the argument that the sale deeds should be declared null and void as they were result of fraud and misrepresentation. Counsel has raised much emphasis on the fact that the RSA No.1590 of 2010 -: 5 :- sale deeds executed by Avtar Singh, defendant No.1 in favour of his sons, should be rejected as no sale consideration was paid. This argument has been rightly rejected by the two courts below for the reason that Takhat Singh was living with the family of Avtar Singh and during his life time, he had not challenged the sale deeds. The two courts below have correctly appreciated the evidence and have given due weightage to the fact that the sale deeds were executed in the year 1986 and Takhat Singh died in the year 1989. Thus, a belated challenge to the sale deeds is to be rejected. This Court will not be justified in interfering with the findings of fact returned by both the courts below, especially when during the course of arguments, Counsel has failed to formulate any question of law, much less a substantial one, for the consideration of this Court. Hence, there is no merit in the present appeal and the same is dismissed in limine. [Kanwaljit Singh Ahluwalia] August 23, 2011. Judge kadyan