RSA No.1841 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1841 of 2010 (O&M) Date of decision: 14.5.2010 Balwinder Kaur ......Appellant(s) Versus Kartar Kaur and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Surinder Garg, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) CM No.5711-C of 2010 Application is allowed subject to all just exceptions. RSA No.1841 of 2010 (O&M) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby her suit for declaration with consequential relief of permanent injunction restraining the defendant- respondents from dispossessing her from the suit land, was dismissed. It is the case of the appellant that previously, she was married to one Lakhvir Singh son of Gurdial Singh, who was murdered during the period of militancy in the State and out of the said wedlock, a son had been born. It was claimed that Gurdial Singh father of Lakhvir Singh had purchased land from Kesho Ram and others, which was given to the plaintiff-appellant by her father-in-law for her maintenance and he also suffered a decree in her favour by virtue of which the appellant Balwinder Kaur became the owner and in possession of said property duly detailed and reflected in the head note of the plaint, situated in village Jaitu. It was claimed that appellant got married with one Harpal Singh son of Uttar RSA No.1841 of 2010 (O&M) 2 Singh against the dislikes of her brothers who were out to take revenge and faced with such a situation, she could not manage her property and appointed one Sukhdev Singh son of Gulzar Singh as her attorney for managing the land but he was never given power of sale/alienation of the property. It was further claimed that she came to know that her attorney namely Sukhdev Singh had executed a sale deed in favour of Harpal Singh son of Uttar Singh, her second husband, on 12.7.1995 which was null and void and ineffective against her rights as the attorney was never given the powers of such alienation. Thus, a decree for declaration was sought to the effect that the appellant was owner in possession of the land measuring 13K-1Marla with consequential relief of permanent injunction restraining the defendans from dispossessing her or interfering into her peaceful possession over the suit property. Defendant-respondents contested the aforesaid suit by raising various preliminary objections. On merits, the factum of previous marriage and death of her husband was admitted. However, it was denied for want of knowledge as to the grant of property by her father-in-law Gurdial Singh. However, it was admitted that she constituted and appointed Sh. Sukhdev Singh as her attorney and the sale deed was executed by him lawfully and was binding upon the parties. Other averments were denied and by way of counter claim, possession of land measuring 2 kanals 15 marals was sought out of the share of the plaintiff-appellant being a joint holding on the grounds that this property was duly sold to them and, thus, entitled to possession. From the pleadings of the parties, the trial Court framed the following issues: “1. Whether the plaintiff is entitled to declaration as prayed for? OPP RSA No.1841 of 2010 (O&M) 3 2. Whether the suit is bade for limitation? OPP 3. Whether the suit is bad for principle of estoppel? OPD 4. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD 5. Whether the suit is not maintainable? OPD 6. Whether the suit is bad on account of necessary party? OPD 7. Whether the defendants are entitled to counter claim? OPD 8. Relief.” After hearing learned counsel for the parties and considering the evidence on record, the suit for declaration was dismissed. It is relevant to mention here that the First Appellate Court vide its order dated 4.9.2009, framed the following additional issues:- “1A Whether the plaintiff is in possession of the suit land as alleged? OPP 1B Whether the plaintiff is entitled to permanent injunction, as prayed for? OPP” and sought a report of the trial Court. Vide its order dated 16.2.2009, the Additional Civil Judge (Sr. Division), Faridkot submitted his report on the aforesaid issues holding that the plaintiff was entitled to restraint order against the defendant- respondents from interfering into the possession of the appellant. The aforesaid findings were also challenged by the defendant-respondents by filing cross-objections which were treated as Civil Appeal No.18 dated 19.2.2010. The Lower Appellate Court vide its judgment and decree RSA No.1841 of 2010 (O&M) 4 dated 26.2.2010 decided both the appeals whereby appeal filed by the plaintiff-appellant i.e. Civil Appeal No.16 of 25.1.2008 was dismissed whereas the appeal i.e. Appeal No.18 of 19.2.2010 filed by the defendant- respondents against the grant of injunction was partly accepted, upholding the findings of the trial Court on issue No.1A and reversing the findings on issue No.1B thereby observing as under:- “Though the plaintiff is in possession of the suit land in the capacity of original owner but by virtue of this co- ownership through inheritance is not entitled to seek a decree of permanent injunction against her co-sharer and the findings of the learned Lower Court on issue No.1A are upheld and that of issue No.1B are set aside and this issue is decided in favour of the defendants.” Not satisfied with the judgment and decree of the Lower Appellate Court passed in Civil Appeal No.16 of 25.1.2008, the present appeal has been filed before this Court. Learned counsel for the appellant has vehemently argued that the findings of the Courts below are perverse and are liable to be set aside and the sale deed in question is to be declared as null and void on the ground that no power or alienation was given to the attorney holder and passing of consideration of the sale deed in question was incorrect. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the sale deed is validly executed when the Power of Transfer was never given by the appellant to the Power of Attorney Holder? RSA No.1841 of 2010 (O&M) 5 (ii) Whether the sale deed is null and void as the passing of consideration is not proved and the sale deed without consideration has no value? (iii) Whether the suit of the appellant is within limitation from the date of her knowledge regarding the execution of sale deed? (iv) Whether the findings of both the courts below are the result of mis-reading of the evidence led by the appellant? I have heard learned counsel for the appellant and perused the impugned judgment and decrees. The case as set up by the appellant before this Court is that Sukhdev Singh son of Gulzar Singh, who was her attorney, had no power of alienation and moreover, the sale deed in question was without any consideration and therefore, she was entitled to the decree as prayed. Both the Courts below on appreciation of evidence have recorded a finding of fact that the appellant has failed to prove that Sukhdev Singh her attorney was not given power of alienation and she has not received the consideration. Learned counsel for the appellant was unable to point out any perversity in the aforesaid findings. Thus, no substantial question of law arises in this appeal in view of the concurrent findings arrived at which could not be found faulted with. Thus, I find no merit in this appeal. Dismissed. May 14, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.1841 of 2010 (O&M) 6