R. S. A. No. 1055 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1055 of 2009 Date of Decision : July 22, 2010 Basso Kaur .... Appellant Vs. Puran Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. K. K. Garg, Advocate for the appellant. Mr. P. S. Sekhon, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Defendant Basso Kaur has filed the instant second appeal after remaining unsuccessful in the trial court and partly successful in the lower appellate court. Suit was filed by Bhag Singh @ Bhanga Singh (since deceased and represented by respondent Puran Singh as his legal representative) against the appellant. Appellant-defendant is real sister of original plaintiff. The plaintiff's case is that vide registered General Power of Attorney dated 08.06.2001, the plaintiff appointed the defendant as his R. S. A. No. 1055 of 2009 2 attorney to manage his 24 kanals 11 marlas land. On the basis of Power of Attorney, the defendant, without plaintiff's consent, sold the said land to her son Dev Singh and sister's son Major Singh for Rs.4,61,000/-, vide sale deed dated 13.06.2001, registered on 14.06.2001 and received the entire sale consideration from the vendees for and on behalf of the plaintiff, but the defendant did not pay the said sale consideration to the plaintiff in spite of requests. The plaintiff earlier filed suit No.185 of 02.08.2001 against the defendant and the aforesaid vendees challenging the sale deed. However, plaint of the said suit was rejected under Order 7 Rule 11 of the Code of Civil Procedure (in short – CPC), vide order dated 21.03.2002, on account of non-payment of court fee. The plaintiff, in the instant suit, claimed recovery of Rs.4,61,000/- being sale consideration and Rs.55,320/- as interest thereon @ 12% per annum since 13.06.2001 – the date of sale deed till the filing of the suit. The defendant raised various objections and pleaded that plaintiff had orally agreed to sell the aforesaid land to Major Singh and Dev Singh and had himself received the entire sale consideration from the said vendees. The plaintiff then gave Power of Attorney dated 08.06.2001 in favour of the defendant requiring her to execute the sale deed and accordingly, the defendant, with plaintiff's consent, executed the aforesaid sale deed of plaintiff's land in favour of the aforesaid vendees. The defendant did not receive any sale consideration from the vendees and R. S. A. No. 1055 of 2009 3 rather the plaintiff has himself received the same earlier. It was also pleaded that previous suit No.185 of 02.08.2001 was compromised by the plaintiff and was withdrawn on 12.05.2002 by mentioning that the plaintiff had received the entire sale consideration and nothing was due. The plaintiff also received Rs.1,00,000/- from the vendees Major Singh and Dev Singh, by way of said compromise. Learned Civil Judge (Junior Division), Budhlada, vide judgment and decree dated 20.09.2007, decreed the plaintiff's suit for recovery of Rs.4,61,000/- with simple interest @ 6% per annum w.e.f. 13.06.2001 (the date of sale deed) till recovery. First appeal preferred by the defendant has been partly allowed by learned Additional District Judge, Mansa, thereby modifying the judgment and decree of the trial court and decreeing the plaintiff's suit for recovery of Rs.3,61,000/- with interest @ 6% per annum w.e.f. 13.06.2001 – the date of sale deed till recovery. Feeling still aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. It is undisputed that the defendant, as Power of Attorney holder of the plaintiff, executed sale deed of the plaintiff's land in favour of her son Dev Singh and sister's son Major Singh for consideration of Rs.4,61,000/-. According to the recital in the sale deed, the entire sale consideration of Rs.4,61,000/- was received by the defendant on behalf of the plaintiff. R. S. A. No. 1055 of 2009 4 Learned counsel for the defendant-appellant, however, contended that plaintiff himself had received the entire sale consideration from the vendees. In support of this contention, the defendant has also examined Chanan Singh (DW-2) and Gurtej Singh (DW-3) – both witnesses of the sale deed. However, their oral evidence, contradicting the documentary evidence, cannot be looked into. Both of them are witnesses of the sale deed. It has been recited in the sale deed that sale consideration has been received by the defendant. Consequently, oral statements of these two witnesses and also of the defendant herself, that sale consideration had been received by the plaintiff, cannot be accepted. If the plaintiff had himself received the sale consideration, there would have been recital to this effect in the sale deed. Consequently, defendant's version that plaintiff himself had received the sale consideration directly from the vendees cannot be accepted. On the other hand, as mentioned in the sale deed, the sale consideration was received by the defendant for and on behalf of the plaintiff and admittedly, the defendant has not paid the same to the plaintiff. Consequently, the plaintiff is entitled to recover the same from the defendant. Learned counsel for the appellant vehemently contended that vide compromise dated 12.05.2002 Ex.D-1 (Annexure A-1), the plaintiff received Rs.1,00,000/- from vendees Major Singh and Dev Singh and therefore, nothing remained due from the defendant to the plaintiff. This contention cannot be accepted. Firstly, the plaintiff denied having received R. S. A. No. 1055 of 2009 5 Rs.1,00,000/- from the vendees and denied having entered into any such compromise. Secondly, plaintiff was not confronted with alleged compromise Ex.D-1 in his cross-examination, although orally it was suggested that he had entered into such compromise, which he denied. Without confronting the plaintiff with the document Ex.D-1, the said document cannot be used against the plaintiff. Thirdly, benefit of this document has also been given to the defendant by the lower appellate court. Vide this document, the plaintiff allegedly received Rs.1,00,000/- from the vendees. The said amount has been deducted from the sale consideration by the lower appellate court and the suit has been decreed for the balance amount only. Even taking this compromise into consideration, the plaintiff cannot be held disentitled to the balance amount. Admittedly, the sale was effected for Rs.4,61,000/-, as mentioned in the sale deed. Consequently, the plaintiff cannot be completely non-suited merely because he allegedly received Rs.1,00,000/- from the vendees. The plaintiff would not have foregone his claim of Rs.4,61,000/- merely by receiving Rs.1,00,000/-. Fourthly, even document Ex.D-1 shows that alleged compromise was between the plaintiff and vendees and not with the defendant. It was mentioned in the compromise that nothing remained due from the vendees Major Singh and Dev Singh. However, it has nowhere been mentioned in the compromise that no amount remained due from the defendant. By entering into this compromise, the vendees purchased peace for themselves R. S. A. No. 1055 of 2009 6 and they became owners in possession of the land in question and the plaintiff was thereby barred from challenging the sale in their favour. However, on the basis of this compromise, the plaintiff cannot be debarred from staking his claim to receive the sale consideration from the defendant, which the defendant had received for and on behalf of the plaintiff from the vendees. For all these reasons, the contention raised by counsel for the appellant, on the basis of alleged compromise Ex.D-1, cannot be accepted to non-suit the plaintiff completely. There is concurrent finding of fact against the defendant- appellant. The said finding is based on proper appreciation of evidence. Lower appellate court is the final court of fact. Finding arrived at by courts below is not shown to be perverse or illegal in any manner or based on misreading or misappropriation of evidence. On the contrary, the said finding is fully justified by evidence on record and is supported by cogent reasons recorded by the courts below. No question of law, much less substantial question of law, arises for determination in the second appeal. The appeal lacks any merits and is accordingly dismissed. July 22, 2010 ( L. N. MITTAL ) monika JUDGE