IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 371 of 2007 Date of Decision: 24th March, 2008 Smt. Vidya Devi & others Appellants Versus Kamli Devi and others Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr.G.R.Palsra, Advocate. For the respondent No.1: Mr.Bhupender Gupta, Sr. Advocate, with Mr.Janesh Gupta, Advocate, for respondent No.1. Sanjay Karol, J. (Oral) Appellant-plaintiff filed a suit for declaration that she is owner in possession of 1/3rd share of land comprised in Khata No.240/211, Khatauni No.417/418, Khasra Nos. 342, 593, 125, Kita- 3, total measuring 2-10-14 Bighas, situated in Mauja Mumail, Tehsil Karsog, District Mandi, H.P., alongwith defendant No.1 and proforma defendants No.4 to 6. A declaration sought was to the effect the General Power of Attorney Ext.PW-1/A executed by her as also sale deed executed between defendant No.1 and defendants No.2 and 3 be held to be null and void. Whether the reporters of Local Papers are allowed to see the Judgment? 2 The plaintiff alleged that she being an illiterate and aged lady could not participate in the partition proceedings pending before the Assistant Collector, Ist Grade, Karsog, and consequently agreed to execute the Power of Attorney in favour of defendant No.1 for the purposes of representing her in the said proceedings. Accordingly, defendant No.1 got the Power of Attorney typed and on 16.10.2001 also brought plaintiff to Karsog for the purposes of registration. The Power of Attorney was executed in the presence of witnesses Hari Singh and Ram Pyari and presented before the then Sub Registrar (Tehsildar), for registration. It was only when the Sub Registrar made enquiry from the plaintiff it was disclosed that there was also a recital in the document authorizing defendant No.1 to alienate her share in the suit land. The plaintiff informed the Sub Registrar that such recital was contrary to her understanding and desire and consequently registration did not take place. Thereafter, on 8.11.2001, defendant No.1 again brought the plaintiff to Karsog under the pretext of executing the power of attorney alleged to have been prepared afresh. The plaintiff was produced before the Sub Registrar and her signatures were taken on the papers, which, however, were neither read over nor explained to her. The document was registered in this matter. Subsequently, she discovered that her share in the land had been sold by defendant No.1 in favour of defendants No.2 and 3 for a consideration of Rs.1,45,000/- as per sale deed dated 23.4.2003. The defendants resisted the suit on the ground that Power of Attorney was validly and voluntarily executed by the plaintiff. 3 Based on the pleadings of the parties the following issues were framed:- “1. Whether the plaintiff alongwith proforma defendants are entitled for the decree of declaration of 1/3rd share in the suit land comprised in Khatta No.240/211, Khatauni No. 417/418, Kita-3, measuring 2-10-14 Bighas and 1/6th share of the land measuring 2-10-16 Bighas Khatta No.241/242, Khatauni No. 419, Kita-2, as prayed? OPP 2. Whether the General Power of Attorney is prepared in favour of defendant No.1 dated 8.11.2001 is a result of undue influence and fraud played by defendant No.1 which is illegal, null and void? OPP 3. Whether the Sale deed executed by defendant No.1 in favour of defendants No.2 and 3 dated 23.4.2003 and subsequent Mutation No. 867 dated 25.4.2003 in favour of defendant No.2&3 is null and void? OPP 4. Whether the revenue entries are also illegal, null and void? OPP 5. Whether the plaintiff is entitled for the decree of permanent prohibitory injunction? OPP 6. Whether the plaintiff has got no cause of action? OPD 7. Whether the plaintiff is estopped to file the suit by his act, conduct and deeds? OPD 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 9. Whether the defendants No.2&3 has purchased the suit land n the basis of valid general power of attorney of plaintiff? OPD 10. Relief.” After considering the material on record, the trial Court arrived at its conclusion that Power of Attorney dated 8.11.2001 was a result of undue influence and fraud played by defendant No.1 and as such is 4 illegal, null and void and Sale deed dated 23.4.2003 executed by defendant No.1 in favour of defendants No.2 and 3 is consequently null and void. Plaintiff through his brother was found to be in cultivating possession and no sale consideration was paid to the plaintiff. Therefore, the suit of the plaintiff was decreed. Judgment and decree dated 15.6.2004 passed by Civil Judge (Jr. Division), Karsog, District Mandi, in Civil Suit No.33 of 2003 titled as Kamli Devi vs. Smt. Vidya Devi and others, was assailed by contesting defendants No.1 to 3 in terms of Civil Appeal No. 83 of 2004, titled as Smt. Vidya Devi and others vs. Smt. Kamli Devi and others, before the Additional District Judge, Mandi, H.P. The first Appellate Court, appreciated the material on record and while upholding the findings returned by the trial Court arrived at the conclusion that execution of Power of Attorney was by an act of fraud and that defendant No.1 herself had admitted that possession of plaintiff’s share was with plaintiff’s brother Shri Shyam Lal and that no sale consideration had been paid to the plaintiff by her. I have perused the summoned record. I see no infirmity in the conclusion arrived at by the Courts below. The present appeal arises out of concurrent findings of fact. There is no perversity in the conclusions and the material has been correctly appreciated by the Courts below in its entirety. The share in the land jointly owned by plaintiff, defendant No.1 and proforma defendants 4 to 6 was transferred by defendant No.1 to her son and husband without any consideration, consent and knowledge. The plaintiff is admittedly an illiterate and aged lady and 5 obviously the confidence she had reposed in defendant No.1 has been breached. In my view, no question of law, much less any substantial question of law arises for consideration in the appeal. The appeal is dismissed. However, there shall be no order as to costs. 24th March, 2008 (Sanjay Karol) (C) Judge.