R.S.A. No. 523 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 523 of 2011 Date of decision:-28.11.2011 Ram Avtar ...Petitioner Versus Mahender Kumar and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Babbar Bhan, Advocate for the petitioner. RITU BAHRI J. This regular second appeal is against the judgment and decree dated 28.10.2010 passed by the Additional District Judge, Bhiwani whereby the appeal filed against the judgment and decree dated 23.8.2006 passed by the Additional Civil Judge (Senior Division), Loharu has been dismissed. The plaintiff filed the suit for declaration and permanent injunction to the effect that plaintiff No.1 was owner in possession of the suit land. The gift deed dated 14.10.1997 executed by Rajesh Kumar-defendant No.3 on the basis of general power of attorney dated 01.10.1997 allegedly executed by the plaintiff was illegal null and void and not binding on the rights of the plaintiff. Plaintiff No.2 was owner in possession of the land 36 Kanal 3 Marla comprised in Khewat No.41 Khatoni R.S.A. No. 523 of 2011 -2- No.149. The sale deed dated 01.6.1998 executed by defendant No.3 in favour of defendant No.2 was null and void. The facts as per plaint are as under :- “The plaintiff No.1 was a person of 90 years old having four sons namely Kanwar Sain, Rambilas, Nihal Singh and Ram Avtar (plaintiff No.2). He had equal love and affection for all his four sons. Earlier he had land measuring 54 kanals. He exchanged the said land with 36 Kanals 3 Marlas, fully detailed and described in the head-note of the plaint. After getting the said land measuring 36 Kanals 3 Marlas by way of exchange he settled the same in favour of his one of the sons namely Ram Avtar-plaintiff No.2, who had been cultivating the same for the last 18 years. He never executed any power of attorney dated 1.10.1997 in favour of the defendant No.3, rather the same was result of fraud and misrepresentation. In fact a year back, the defendant Nos.3 and 4 obtained his signatures on some blank papers saying that the same were required for constructing a memorial in his name. Even otherwise he had already distributed his property among his sons, so there was no need to execute any power of attorney. He never appeared in the office of Sub Registrar nor he put his signatures or thumb impression on the endorsement of the impugned R.S.A. No. 523 of 2011 -3- power of attorney nor the contents thereof were ever read over and explained to him. Further, he was permanent resident of village Kudal, Tehsil Loharu. In case he had any intention to execute the power of attorney, the same could be executed at Loharu in the presence of witnesses of his own village. The transactions in pursuance to the said power of attorney i.e. gift deed in favour of defendant No.2 of land measuring 100 Kanal 16 Marla, sale deed dated 1.6.1998 in favour of defendant No.2 with respect to land measuring 36 Kanals 3 Marlas for consideration of Rs.2,26,000/- was illegal, null and void. On notice, defendant Nos.1,2 and 4 filed the written statement. They took the preliminary objections regarding maintainability of the suit, cause of action, locus standi, estoppel, non-joinder and mis-joinder of the necessary parties, valuation of the suit and concealment of true and material facts from the Court. The general power of attorney dated 1.10.1987 was valid and legal. The allegation of fraud and misrepresentation were denied. The said general power of attorney was scribed from a regular deed writer. It was registered in the office of Sub Registrar, Bhiwani. The gift deed and sale deed in pursuance to said general power of attorney were not found illegal. Defendant No.2 put in appearance and contested the suit on the same grounds taken by remaining defendants. R.S.A. No. 523 of 2011 -4- On 20.4.2006 replication controverting the contents of written statements and re-asserting the stand taken in the plaint was filed and on 08.3.2000 following issues were framed :- “1. Whether the power of attorney dated 01.10.1997 allegedly executed by Bihari in favour of the defendant No.3 is illegal, null and void? OPP 2. If issue No.1 is decided in favour of the plaintiff, whether the gift deed dated 14.10.1997 and sale deed dated 01.6.1998 executed by the defendant No.3 on the basis of the said impugned power of attorney are also illegal, null and void? OPP 3. Whether the plaintiff is owner in possession of agricultural land measuring 36 Kanals 3 Marlas?OPP 4. Whether the defendant No.2 is entitled for possession of the land measuring 36 Kanals 3 Marlas as asserted in counter-claim? OPD 5. Whether the suit is not legally maintainable? OPD 6. Whether the plaintiff is liable to be estopped from filing the present suit by own act and conduct? OPD 7. Whether the plaintiff has no cause of action or locus standi to file and maintain the present suit? OPD 8. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? OPD 9. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 10. Relief.” Plaintiff-Ram Avtar appeared as PW4 and testified that his father Bihari never executed the impugned power of attorney R.S.A. No. 523 of 2011 -5- dated 01.10.1997 (Ex.D1/A) in favour of defendant No.3. After going through the entire evidence led by the plaintiff and defendants, the trial Court returned the findings against the plaintiff and held that the general power of attorney (Ex.D1/A) bears the signature of the executant. These signatures have not been denied. Initially, the suit was filed by the executant himself challenging the impugned power of attorney on the ground that he has never executed the said attorney voluntarily. He had challenged the validity of the power of attorney on the ground of fraud and fabrication. During the pendency of the suit, said Bihari wished to withdraw the suit. His plea was allowed vide order dated 24.1.2001. The ground of fraud and fabrication were not longer available to the other plaintiffs. It is not the case of the plaintiff that the land in hand of the Bihari was ancestral and co-parcener. The property in the hands of Bihari was his absolute property. Ex.D1 bears the signatures of Bihari Lal as well as Rajesh Kumar and also two attesting witnesses namely Ratti Ram, Lambardar of Bhiwani and Bakhtawar Mal, resident of Village Kudal and his son Kirori Mal appearing as DW7 has admitted his signatures. Ex.D1 has been duly proved. Bihari Lal who was executant of general power of attorney could make a deed in favour of defendant No.1 and sale deed qua 36 Kanal 3 Marla in favour of defendant No.2. The general power of attorney was held to be valid and subsequent transfer deed dated 14.10.1997 (Ex.D2) and Sale deed dated 1.6.1998 (Ex.D4) were R.S.A. No. 523 of 2011 -6- held to be valid and legal. The findings on issue Nos.1 and 2 were returned in favour of the defendants. The findings on issue No.3 were returned in favour of plaintiff that he was in possession of the suit land measuring 36 Kanal 3 Marla. Qua ownership, the issue was decided against him. On issue No.4 that defendant No.2 was held entitled for possession of the land in pursuance to the sale deed dated 1.6.1998 (Ex.D4). The findings on issue Nos.5,6 and 8 were returned against the defendants being not pressed. On issue No.7 the plaintiff-Ram Avtar being son of Bihari Lal had no locus standi to challenge the general power of attorney during the life time of his father. On issue No.9 the trial Court held that the suit was covered under the provisions of Article-I, Schedule-I of the Court Fees Act. The suit was valid for the purpose of Court fee and jurisdiction. This finding is returned. The plaintiff had filed the court fee of Rs.200/-, which was in accordance with the provisions of Court Fee Act under Article-I Schedule-I. The finding was given in favour of defendants and against the plaintiff. In view of the findings returned on issue Nos.1 and 2, the suit of the plaintiff was dismissed. On appeal, the learned Additional District Judge, Bhiwani affirmed the findings recorded by the trial Court. The greneral power of attorney dated 1.6.1998 was executed by Bihari Lal. The general power of attorney had been executed in favour of Rajesh Kumar, who appeared as DW5, who gave the R.S.A. No. 523 of 2011 -7- affidavit (Ex.DW5/A) that the said power of attorney has been executed in his favour. One of the attesting witness Ratti Ram while appearing as DW6 had deposed that he had executed and got registered the power of attorney dated 1.10.1997 (Ex.D1/A) in favour of Rajesh. DW7- Kirori Mal son of Bakhtawar, who was the second attesting witness to the general power of attorney stated that his father had died on 09.4.2004 and Bihari Lal had contacted him on p9hone that he wanted to execute a power of attorney in favour of Rajesh and asked him to send his father Bakhtawar for the said purpose. Bihari Lal had come to their house and disclosed about the execution of power of attorney in favour of Rajesh to Kirori Mal. DW4-Jagdeep Rai clerk in the office of Sub Registrar, Bhiwani brought the summoned record and proved the power of attorney (Ex.D1/A). The power of attorney is registered and based on the photograph of Bihari Lal. Bihari Lal had challenged the power of attorney by filing the civil suit. Subsequently he had withdraw the same by filing an application. The Appellate Court has returned the findings that Bihari Lal was wrongly confined by Ram Avtar Singh in his house. An application under Section 97 Cr.P.C. was filed by Rajesh Kumar before the SDM, Loharu. Warrants of possession of Ram Avtar was issued. Bihari Lal made a statement before the SDM, Loharu who passed the orders on 06.12.2000 Ex.D1 to Ex.D3. These proceedings shows that Bihari Lal was kept wrongly and illegally by Ram Avtar. Bihari Lal was given liberty R.S.A. No. 523 of 2011 -8- to live as per his own free will. Thereafter, on 24.1.2001 Bihari had withdraw the civil suit, which he had filed alongwith Ram Avtar. The plea was taken before the Appellate Court that Bihari Lal could not withdraw from the suit without the consent of co- plaintiff Ram Avtar. The order dated 24.1.2001 and 21.12.2005 were duly confirmed by the Hon'ble High Court vide order dated 24.1.2006. the appeal filed by the plaintiff Ram Avtar was dismissed upholding the judgment of the trial Court. After going through the entire file, I am of the opinion that the general power of attorney has been duly proved by leading evidence. Rajesh Kumar appeared as DW5 in whose favour the general power of attorney has been issued. One of the attesting witness Ratti Ram (DW6) has also deposed that he had executed and registered general power of attorney dated 01.10.1997. Kirori Mal (DW7) deposed that his father was called by Bihari Lal to execute general power of attorney in favour of Rajesh Kumar. This finding of fact that general power of attorney was duly executed, requires no interference. Bihari Lal has initially filed a suit alongwith Ram Avtar challenging the validity of general power of attorney. Subsequently, vide order dated 24.1.2006 he had withdrawn from the suit. It is not out of place to mention that Ram Avtar had illegally and wrongly confined Bihari Lal in his house. On an application made by Rajesh Kumar under Section 97 Cr.P.C., the SDM, Loharu had given liberty to Bihari Lal to stay as per his own free will. All the above facts R.S.A. No. 523 of 2011 -9- shows that the general power of attorney dated 01.10.1997 (Ex.D1/A) and subsequent gift deed dated 14.10.1997 (Ex.D2) and the sale deed are valid transactions. There is no question of law muchless substantial question of law arises for adjudication in this regular second appeal. The regular second appeal is dismissed. November 28, 2011 ( RITU BAHRI ) Vijay Asija JUDGE