Regular Second Appeal Nos.2193 & 2165 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Regular Second Appeal No.2193 of 2011 Jagan Nath and another ...Appellants Versus Gurbax Singh and others ...Respondents 2. Regular Second Appeal No.2165 of 2011 Sudama and another ...Appellants Versus Gurbax Singh and others ...Respondents Date of Decision:- 15.7.2011 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Arun Jain, Senior Advocate with Mr.Amit Jain, Advocate for the appellants. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated, described the compendium of the pleadings and evidence brought on record by the parties, therefore, there appears to be no necessity to again reproduce and repeat the same in this context. However, the crux of the facts, culminating in the commencement, relevant for deciding the instant appeals and emanating from the record, is that Gurbax Singh son of Garib Dass, respondent No.1-plaintiff (for brevity “the plaintiff”) filed the suit seeking a decree for declaration to the effect that he is exclusive owner and in possession of the suit land and the sale deeds dated 6.4.1999 executed by Sudama son of Nanak Chand respondent No.2-defendant No.1 in favour of his wife Sodhan and Hakam Ram (since deceased), being represented by his LR Jagan Nath appellant-defendant No.3(i) and other LRs (for short “the defendants”), with regard to the land in dispute are null, void, result of fraud and inoperative on his right, with a consequential relief of permanent injunction, restraining the defendants from forcibly dispossessing him, raising construction and alienating the Regular Second Appeal Nos.2193 & 2165 of 2011 -2- suit property in any manner. The plaintiff further sought the alternative relief of possession, if he is dispossessed from any part of the suit land by the defendants during the pendency of the suit. 2. The case set up by the plaintiff, in brief in so far as relevant, was that one Roshni widow of Milkhi Ram was exclusive owner and in possession of the suit land, measuring 53 kanals 14 marlas duly described in the heading of the plaint. Out of the suit land, she had gifted the land measuring 16 kanals 6 marlas to her brother-defendant No.1 and the land measuring 2 kanals, out of khasra No.24R/15/1 to one Gurmit Singh and Amar Nath. As such, thereafter Roshni was left with ownership and possession of land measuring 35 kanals 8 marlas alongwith the abadi deh. Roshni was issueless. According to the plaintiff, he is her nephew and used to nourish and look after her and even on her death, he performed his last rites and ceremonies as well. 3. The case of the plaintiff further proceeds that before her death, Roshni had executed a valid registered Will dated 11.12.1998 (Ex.P1) in his (plaintiff) favour with her sound and disposing mind out of love and affection and on account of services rendered by him. By virtue of the Will, plaintiff became exclusive owner of the entire estate left by Roshni. She (Roshni) was stated to have earlier executed a power of attorney dated 3.12.1987 (Ex.D1) in favour of her brother-defendant No.1, who started mis-managing her property. It was explained that in the month of April, 1998, she started residing with the plaintiff. Ultimately, Roshni revoked the general power of attorney (Ex.D1), vide registered cancellation deed dated 28.4.1988 (Ex.P3) in the presence of same marginal witnesses, who attested the power of attorney. It was claimed that on the same day i.e. on 28.4.1988, the factum of registered cancellation deed (Ex.P3) was brought to the notice of defendant No.1 and as such, he started quarreling and insulted her (Roshni). Although after the registered cancellation deed (Ex.P3) of power of attorney (Ex.D1), defendant No.1 did not have any right, but all the defendants Regular Second Appeal Nos.2193 & 2165 of 2011 -3- hatched a conspiracy and Sudama (defendant No.1) executed the sale deeds dated 6.4.1999 (Ex.D1, Ex.D2 and Ex.D7) in favour of his wife-defendant No.2, Hakam Ram (defendant No.3) and Darshan Chand (defendant No.4) without any legal right, which were stated to be illegal, null and void in this behalf. 4. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiff claimed that he became owner and in possession of the property in dispute, in view of the registered Will (Ex.P1), after the death of Roshni on 8.6.1999. The alleged power of attorney (Ex.D1) was duly revoked, vide registered cancellation deed (Ex.P3), which was duly conveyed to defendant No.1 on the same day i.e. on 28.4.1988. Thus, the sale deeds dated 6.4.1999 executed by defendant No.1 in favour of defendant Nos.2 to 4, after more than 11 years of cancellation of power of attorney, are illegal and inoperative on the rights of the plaintiff. On the basis of aforesaid allegations, plaintiff filed the suit for a decree of declaration, in the alternative possession and permanent injunction against the defendants in the manner indicated hereinbefore. 5. The defendants contested the suit. Defendant Nos.1 and 2 filed their written statement, while the remaining defendants filed their separate written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, estoppel, cause of action and locus standi of the plaintiff. However, it was admitted that Roshni widow of Milkhi Ram was the owner and in possession of the entire suit property. She was stated to have voluntarily executed the power of attorney dated 3.12.1987 (Ex.D1), on the basis of which, he (defendant No.1) executed the three sale deeds dated 6.4.1999 in favour of defendant Nos.2 to 4. According to the contesting defendants that cancellation of the power of attorney was not within their knowledge. The will dated 11.12.1998 (Ex.P1) was claimed to be incorrect and fabricated. They have denied the ownership and possession of the plaintiff over the suit land. In all, the sale deeds dated 6.4.1999 executed by defendant No.1 on the basis of power of attorney dated 3.12.1987 (Ex.D1) in Regular Second Appeal Nos.2193 & 2165 of 2011 -4- favour of defendant Nos.2 to 4 were claimed to be legal and valid. Defendant Nos.3 and 4 toed the line of pleadings as contained in the written statement of defendant Nos.1 and 2. It will not be out of place to mention here that all the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 6. Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case :- (1)Whether the plaintiff is the exclusive owner in possession of the suit land as mentioned in the head note no.1 and 3 of the plaint ?OPP (2)Whether the plaintiff is also joint owner/cosharer in joint possession of the suit land on the basis of registered Will dated 11.12.1998 executed by Smt.Roshni in his favour ?OPP (3)Whether the sale deed dated 6.4.1999 executed by defendant no.1 qua the part of the suit land measuring 27 Kanal 8 Marla in favour of his wife defendant no.2 Smt.Sodhan is illegal, null and void, without consideration and not binding upon the rights of the plaintiff?OPP (4)Whether the sale deed dated 6.4.1999 executed by the defendant no.1 qua land measuring 8 Kanal in favour of the defendant no.3 Hakam Ram is illegal, null and void, without consideration and not binding upon the rights of plaintiff ? OPP (5)Whether the sale deed dated 6.4.1999, executed by defendant no.1 in favour of defendant no.4 Darshan Chand qua part of the suit abadi premises as fully described in the head note (iii) of the plaint is illegal, null and void, without consideration and not binding upon the rights of the plaintiff ?OPP (6)If the aforesaid issues are proved whether the plaintiff is entitled for declaration and permanent injunction as prayed for ?OPP (7)Whether the plaintiff is also entitled for decree of exclusive possession of part of the suit land measuring 26 Kanal 8 Marla and also for exclusive possession of the suit abadi premises as fully detailed in the head note of the plaint and also for joint possession of the suit land measuring 9 Kanals as fully detailed in the head note (ii) of the plaint in the alternative ?OPP (8)Whether the suit of the plaintiff is not maintainable ?OPD (9)Whether the plaintiff has concealed the material facts from the court, if so its effect ?OPD (10)Whether the plaintiff has no cause of action ?OPD Regular Second Appeal Nos.2193 & 2165 of 2011 -5- (11)Whether the plaintiff is estopped by his act and conduct to file the present suit ?OPD (11A)Whether the cancellation deed dated 28.4.1988 is illegal, null and void and is not binding upon the rights of defendant nos.1 and 2?OPD 1 & 2 (11B) Whether the defendant no.3 and 4 are bonafide purchaser for consideration without notice?OPD 3 & 4 12. Relief. 7. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 8. The trial Court, after taking into consideration the entire evidence on record, decided issue Nos.1 to 7 in favour of the plaintiff, while the remaining issues were adjudged against the defendants. On ultimate analysis of material on record and in view of findings on various issues, the trial Court decreed the suit of the plaintiff, by means of impugned judgment and decree dated 2.2.2010. 9. Aggrieved by the decision of the trial Court, Jagan Nath and others LRs of Hakam Ram defendant No.3, filed Civil Appeal bearing No.23 of 6.3.2010, titled as “Jagan Nath etc. Vs. Gurbax Singh etc.”, while defendant Nos.1 and 2 filed their separate Civil Appeal bearing No.24 of 6.3.2010, titled as “Sudama and another Vs. Gurbax Singh and another”. The Ist Appellate Court dismissed both the appeals, by way of impugned common judgment and decree dated 11.3.2011. 10. The appellant-defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present separate appeals. That is how I am seized of the matter. 11. Having heard the learned counsel for the appellant-defendants, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeals in this context. 12. As is evident from the record that Roshni widow of Milkhi Ram was the owner of the property in dispute. She was issueless and her husband had expired in the year 1985. She executed and registered the Will dated 11.12.1998 Regular Second Appeal Nos.2193 & 2165 of 2011 -6- (Ex.P1), bequeathing her entire property in favour of the plaintiff. The plaintiff became owner of the suit property, through the medium of this Will after the death of Roshni on 8.6.1999. Both the Courts below have recorded the concurrent finding of fact based on the appraisal of admissible evidence that the Will (Ex.P1) is legal and validly executed by Roshni in favour of the plaintiff. The learned counsel for the appellant did not point out any cogent material, so as to take a contrary view than that of the view taken by the Courts below in this relevant connection. 13. It is not a matter of dispute that Roshni earlier executed a power of attorney dated 3.12.1987 (Ex.D1) in favour of his brother-defendant No.1, but subsequently, it was revoked, by registered cancellation deed dated 28.4.1988 (Ex.P3) in the presence of same witnesses, who attested the power of attorney. It was a specific stand of the plaintiff that the revocation was duly communicated to defendant No.1 on the same day, he became furious and insulted his sister Roshni and cooled only when Roshni executed the gift deed dated 27.5.1988 (Ex.D2) in his favour, with respect to some part of land measuring 16 kanals 6 marlas out of her land. 14. What is not disputed here is that although the power of attorney (Ex.D1) stood revoked by a registered cancellation deed (Ex.P3), which was conveyed, but still defendant No.1 executed the alleged sale deeds (Ex.D1, Ex.D2 and Ex.D7), after more than 11 years, in favour of his wife-defendant No.2 and defendant Nos.3 & 4. 15. Above being the position on record, now the short and significant question, though important that arises for determination in this case, is as to whether the sale deeds dated 6.4.1999 (Ex.D1, Ex.D2 and Ex.D7), executed by defendant No.1 on the basis of power of attorney (Ex.D1) are valid or not? 16. Having regard to the contentions of learned counsel for the appellants, to me, the answer must obviously be in the negative, as the same cannot Regular Second Appeal Nos.2193 & 2165 of 2011 -7- possibly be termed as valid sale deeds executed 11 years after the revocation of power of attorney, by virtue of registered cancellation deed (Ex.P3). 17. Ex facie, the celebrated argument of the learned counsel that since the registered revocation deed was not communicated, so, the sale deeds executed by defendant No.1 in favour of defendant Nos.2 to 4 are legal, is neither tenable nor the observations of this Court in case Smt.Ram Asri alias Nikko v. Rakesh Chand and others 2008 (4) RCR (Civil) 335 are at all applicable to the facts of the present case, wherein, the case of the vendees was that before purchase of the property, he had enquired from the owner, who had conveyed to him by Ram Gopal that he was holding a valid power of attorney of true owner of the land at the time of execution of the sale deed and there was no evidence on record that the factum of cancellation of power of attorney was in the knowledge of the vendees. On the peculiar facts and in the special circumstances of that case, it was observed that plaintiff therein cannot succeed, unless it is proved on record by cogent evidence that vendees had the knowledge of cancellation of power of attorney by the owner and thereafter they purchased the property in dispute. 18. Possibly, no one can dispute with regard to the aforesaid observations, but, to my mind, the same would not come to the rescue of the appellant-defendants in this relevant connection. In the instant case, the execution of revocation/cancellation deed (Ex.P3) is duly proved on the record. 19. Not only that, the positive case of the plaintiff from the very beginning is that the factum of revocation/cancellation deed (Ex.P3) was conveyed to defendant No.1 on the same day. Admittedly, defendant No.1 is the husband of defendant No.2 and they were residing with Roshni in the same house at the relevant time and other defendants were also residing in the nearby houses. In that eventuality, it cannot possibly be saith that he (defendant No.1) did not have the knowledge of revocation deed (Ex.P3). The marginal witnesses and deed writer of power of attorney (Ex.D1) and cancellation deed (Ex.P3) are the same persons, Regular Second Appeal Nos.2193 & 2165 of 2011 -8- who also attested the gift deed (Ex.D2), executed by Roshni regarding some portion of the land in favour of defendant No.1. He (defendant No.1) did not execute any document on the basis of power of attorney in between the years 1987 to 1997. After the execution of the will (Ex.P1) in favour of plaintiff by Roshni, the defendant No.1 executed the three impugned sale deeds (Ex.D1, Ex.D2 and Ex.D7) and disposed of entire property of Roshni, vide these sale deeds, without any legal basis. 20. There is another aspect of the matter, which can be viewed from a different angle. It is not a matter of dispute that the revocation/cancellation deed (Ex.P3) is a registered document. Inter-alia, there appears to be three apparent objects for the registration of a document. At the first instance, the very purpose of registration is to give notice to the world that such a document has been executed. Secondly, to prevent fraud and forgery and to ensure a person dealing with the property that the statement contained in the register as a full and thirdly complete account of transaction, by which, the title of the property may be affected. Therefore, to me, the registered revocation deed (Ex.P3) is a public document as contemplated under sub-section (2) of section 74 of The Indian Evidence Act, 1872 and the date of registered revocation deed (Ex.P3) would be the deemed date of knowledge of it. Thus, if the crux of the totality of the evidence brought on record by the plaintiff as discussed hereinabove, is put together, then, to my mind, the trial Court has rightly concluded that defendant No.1 had the knowledge of revocation deed (Ex.P3), canceling the power of attorney in his favour and he did not have the power to execute the sale deeds dated 6.4.1999 on the basis of power of attorney, after more than 11 years of its cancellation, by means of registered revocation deed dated 28.4.1988 (Ex.P3). 21. Sequelly, the judgment of the trial Court was upheld by the first Appellate Court, by way of impugned judgment dated 11.3.2011. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant Regular Second Appeal Nos.2193 & 2165 of 2011 -9- evidence brought on record by the parties in the right perspective. Having analyzed the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court have recorded the concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 22. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant direction, have already been duly considered and dealt with by the Courts below. 23. Similarly, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 24. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 25. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeals are hereby dismissed as such. (Mehinder Singh Sullar) 15.7.2011 Judge AS Whether to be referred to reporter?Yes/No