RSA No.1905 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1905 of 2008(O & M) Date of Decision:24.04.2009 Iqbal Singh & Ors. ....appellants Versus Balwant Singh & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.P.K.Gupta, Advocate for the appellants Mr.Akshay Bhan, Advocate for the respondents **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit for possession filed by the plaintiff-respondent was decreed. It was alleged in the plaint that plaintiff was owner of the suit land and was in possession as co-sharer. He resides in Canada and in the year 1993 he came to India and left for Delhi from Amritsar on 13.10.1993. He took the flight on 17.10.1993 for Canada and thereafter he came back to India and landed at Delhi Airport on 09.02.2005. When he went to his village Kasel in March 1995, he found that defendant Nos.4 to 8 were in illegal possession of the land which they allegedly had purchased from defendant Nos.2 and 3 who had purchased the same from defendant No.1, who executed the sale deeds allegedly as attorney of the appellant. It is further the case of the appellant that defendant Nos.1 to 3 who are near relations hatched a conspiracy to grab the suit land belonging to the plaintiff in his absence. Defendant No.1 was alleging that the plaintiff had RSA No.1905 of 2008 2 executed a power of attorney dated 15.10.1993 in his favour whereas the plaintiff had not executed any power of attorney in favour of defendant No.1 on 15.10.1993 as alleged and said power of attorney was a forged and fabricated document. Appellant also got registered a criminal case against defendant No.1 and the witnesses on 31.03.1995 at Amritsar. Since the plaintiff had not executed any power of attorney in favour of defendant No.1, so defendant No.1 was not competent to deal with the land of the plaintiff and defendant No.1 had no right to execute the sale deed in respect of the suit property in favour of defendant No.2 and 3. Defendant Nos.2 to 8 had also got sanctioned the mutation in respect of the suit property which was illegal. The plaintiff had challenged the mutation which was set aside by the Collector and the case was remanded to Assistant Collector First Grade who again sanctioned the said mutation without giving notice to the plaintiff. Plaintiff requested the defendants to admit his claim over the suit land but the defendants did not bother. Hence the plaintiff filed the present suit. Notice of the suit was issued to the defendants. Defendant Nos.1 to 3 did not appear despite service, so they were proceeded against ex parte. Defendant Nos.4 to 8 contested the claim of the plaintiff and filed joint written statement. It was averred in the preliminary objections that defendants were bona fide purchasers for valuable consideration having purchased the suit land through three different sale deeds dated 04.11.1994 from defendant No.2 and 3 who had purchased the property from attorney of the plaintiff for valuable consideration. It was also stated that the plaintiff had also consented to the sale deed and as such he was estopped by his act and conduct from challenging the sale. Various preliminary/legal objections were raised. It was denied that the power of attorney was forged and fabricated document. Dismissal of the suit was prayed for. RSA No.1905 of 2008 3 From the pleadings of the parties the following issues were framed by the trial Court: 1. Whether the plaintiff is entitled to relief of possession of the land measuring 83K-5M bearing khata and khasra numbers fully described in the head note of the plaint and 1/6(one sixth)share of land bearing khata No.367/1613 khasra No.78/16/1(6-0)? OPP? 2. Whether the plaintiff has executed power of Attorney in favour of defendant No.1 Ram singh who subsequently, sold the same to defendants No.2 and 3 and if so, its effect?OPD 3. Whether defendant Nos.2 and 3 further sold land to answering defendants vide three sale deeds dated 04.11.1994 who are therefore bona fide purchasers?OPD 4. Whether the suit of the plaintiff is not properly valued for the purpose of court fee and jurisdiction?OPD 5. Whether the plaintiff is estopped by his act and conduct from filing the present suit?OPD 6. Whether the mutation in respect of answering defendants have been sanctioned which has gone unchallenged?OPD 7. Relief. After perusing the evidence on record and hearing the learned counsel for the parties, the trial Court decided all the issues in favour of the plaintiff and as a result decreed the suit filed by him holding that plaintiff never executed any valid power of attorney in favour of defendant No.1. It is relevant to mention here that during the pendency of suit the appellants had also moved application dated 08.04.2002 before the RSA No.1905 of 2008 4 trial Court for leading additional evidence which was declined vide order dated 08.01.2003 passed by the trial Court. The relevant observations of the trial Court are as under: “The contention raised by the ld.counsel for the defendants No.4 to 8 is that plaintiff Balwant Singh had executed valid power of attorney dated 14.10.1993 registered on 15.10.1993 in favour of Ram Singh, defendant No.1. The ld.cousnel for the defendants has contended that said Power of Attorney had been proved on the record as valid document and consequently sale deed executed by defendant No.1 in favour of defendants No.2 and 3 in favour of defendants No.4 to 8 was valid document and binding upon the plaintiff. However, the ld.counsel for the defendants had failed to prove that Balwant Singh in fact executed any valid Power of Attorney in favour of his brother Ram Singh, defendant No.1. Perusal of said Power of Attorney Ex.P-1 reveals that it contained the signatures of Balwant Singh, plaintiff apart from containing the signatures of the witnesses Swinder Singh, Pal Singh and Dilbagh Singh. Dilbagh Singh had however appeared as DW5 and he had deposed that he never put his signatures on the said power of attorney and the writing Dilbagh Singh on the said power of attorney Ex.P-1 was not in his hand. Said statement of Dilbagh Singh also cast a doubt on the authenticity of the Power of Attorney. Apart from it, PW3 Vikram Raj Singh Chohan, handwriting and fingerprint expert has categorically deposed on oath that he compared the disputed signatures of plaintiff Balwant Singh on the said Power of Attorney dt.14.10.1993 registered on RSA No.1905 of 2008 5 15.10.1993 with the standard signatures of plaintiff Balwant Singh marked as Q1 to Q3 on the registered mortgage deed dt.14.06.1990 Ex.D-6 marked as S1 to S3 and he was of the opinion that disputed signatures of plaintiff Balwant Singh marked as Q1 to Q3 on the power of attorney dated 15.10.1993 did not tally with standard signatures of plaintiff Balwant Singh on the registered mortgage deed dt.14.06.1990 marked as S1 to S3. It may be pertinent to mention here that registered mortgage deed dt.14.06.1990 Ex.D-6 is an authentic document produced by defendants themselves, so , Finger and Handwriting expert has categorically had given his opinion that disputed signatures of Balwant Singh plaintiff on the power of attorney dt.15.10.1993 did not tally with the signatures of Balwant Singh, plaintiff on the said mortgage deed Ex.D-6. No expert evidence in rebuttal of the expert evidence has been led by the plaintiff although ld.counsel for the defendants had placed on record the application for leading rebuttal evidence but said application was placed by defendants at a very belated stage and the said application moved by the ld.counsel for the defendant was dismissed on the ground that defendants had not cared to lead any expert evidence despite the fact that ld.counsel for the plaintiff had long ago brought on the record his desire to lead expert evidence and thus had put the defendants on alter qua, the intention of the plaintiffs for leading the expert evidence. PW3 Vikram Singh Chauhan has deposed on oath before the court that he compared the disputed thumb impression of Balwant Singh, marked as D1 to D2 on the said Power of Attorney RSA No.1905 of 2008 6 with the standard thumb impression of Balwant Singh,plaintiff marked as A1,A2 and by no stretch of imagination it could be said that both tallied with each other. Plaintiff Balwant Singh, while deposing before the court as PW1 has categorically denied that he ever executed any power of attorney in favour of his brother Ram Singh, defendant No.1. He has specifically stated that said Power of Attorney Ex.P-1 was a sham transaction and was the result of fraud played upon him by defendant No.1 Ram Singh in connivance with the defendants No.2 and 3. This witness had deposed that rather he had got a criminal case registered against his brother Ram Singh in the Police Station, at Amritsar as soon as he came to know about fraud played upon him by the defendants. On the other hand, the ld.counsel for the defendants has not led ay expert evidence. More significantly the ld.cousnel for the defendants has not produced Power of Attorney original or certified copy on the record whether power of attorney has been executed by the plaintiff. Learned counsel for the defendants has examined DW6 Pal Singh who is the one of the marginal witnesses of this power of attorney but said witness has simply stated that he knew Balwant Singh, plaintiff who executed a Power of Attorney in favour of his brother and he had put his signatures on the same. Apart from it, this witness has not dared to state anything else. This witness has failed to state that Power of Attorney was scribed by such and such person or that it was read over to executant Balwant Singh, plaintiff or that plaintiff Balwant Singh had executed the same in favour of Ram Singh, RSA No.1905 of 2008 7 defendant No.1 after admitting its contents to be true and correct. More interestingly, and significantly this witness has also not stated that he identified his signatures on the power of attorney which was already exhibited as Ex.P-1. So by no stretch of imagination it can be said that Pal Singh PW6 proved the Power of Attorney in accordance with the provisions of law. Moreover, some of the witnesses examined by defendants have stated that sale consideration in respect of Rs.1,78,500/- was received at home and some of the witnesses stated that said amount was received at Tehsil Compound before the scribe. DW1 Swinder Singh had deposed before the court in his examination-in-chief that sale consideration was received at Tehsil Compound before scribe. DW4 Gurbachan Singh had deposed on oath before the court that amount of the sale consideration was received in village, so in view of my aforesaid discussion it is crystal clear that ld.counsel for the defendants has failed to prove that Balwant Singh, plaintiff ever executed valid power of attorney in favour of defendant No.1 Ram Singh and thus sale deeds executed by Ram Singh defendant No.1 in favour of defendants No.2 and 3 are held to be not valid. In view of my aforesaid discussion, issued No.2 is decided against the defendants and in favour of the plaintiff.” Feeling aggrieved from the judgment and decree of the trial Court, defendant Nos.4 to 7 filed an appeal before the Lower Appellate Court. Defendant No.2 also filed the cross-objections alleging that he was never served in the suit and the decree was passed against him ex parte and when he came to know about the ex parte decree he moved an application under Order 9 Rule 13 for setting aside the same and the said RSA No.1905 of 2008 8 application was pending in the Court. However, it may also be mentioned here that cross-objections filed by defendant Sukhdev Singh were dismissed on the ground that he had already moved an application under Order 9 Rule 13 CPC for setting aside the judgment and decree of the trial Court. The appeal filed by defendant Nos.4 to 7 was dismissed by the Additional District Judge(Ad hoc), Fast Track Court, Amritsar, vide impugned judgment and decree dated 24.05.2008. While dismissing the appeal, the Lower Appellate Court affirmed the findings of the trial Court holding that the power of attorney alleged to be executed by the plaintiff in favour of defendant No.1 was forged document and as such the sale deed executed by defendant No.1 in favour of defendant Nos.2 and 3 were not valid documents and therefore appellants were not bona fide purchasers of the suit property. The relevant observations of the Lower Appellate Court are as under: “Counsel for the appellants Sh.A.K.Vermani argued before me that in this cases there is sufficient evidence to prove that the power of attorney was given by the plaintiff to defendant No.1 who is his real brother and the power of attorney having been duly executed, the sale effected by defendant No.1 in favour of defendants No.2 and 3 was a valid sale and defendants No.4 to 8 purchased the property from defendants No.2 and 3 for a valuable consideration and as such, defendants No.4 to 8 i.e.the appellants are bona fide purchasers for consideration and as such the findings of the trial Court that they are not bonafide purchasers for consideration is liable to be set aside and the suit is liable to be dismissed. However, I do not find any force in the said contention. I have carefully examined the evidence on the RSA No.1905 of 2008 9 file. In this case, issue No.2 was as to whether plaintiff executed power of attorney in favour of defendant No.1 and the burden of the same was on the defendants. In this case defendants No.1 to 3 did not contest the suit. The suit was contested only by the appellants. The defendants did not get produced the original power of attorney on the file. Even the defendant No.1 was not summoned to appear and depose regarding the execution of the power of attorney in his favour by the plaintiff. However, a copy of power of attorney was got produced by the plaintiff. As per Ex.P-1 power of attorney was attested by three witnesses namely Swinder Singh, Pal Singh and Dilbagh Singh. The defendants examined Swinder Singh, one of the attesting witness of the power of attorney as DW2 who has simply stated that he knew Balwant Singh and his attorney Ram Singh had executed a sale deed of his land in favour of Sukhdev Singh and Harbans Singh. He did not utter even a single word that power of attorney was executed by Balwant Singh in favour of his brother Ram Singh and he had attested that power of attorney as a witness. No other witness of the power of attorney was examined. A number of witnesses were examined regarding the sale deeds but none regarding the power of attorney. Defendants examined Pal Singh also as DW6 and he simply stated that Balwant Singh had given a power of attorney to his brother. He did not state that the power of attorney was read over to Balwant Singh and he signed the same after admitting it as correct or that he attested the same in the presence of Balwant Singh. On the other hand, plaintiff examined one of the attesting witness of RSA No.1905 of 2008 10 the power of attorney namely Dilbagh Singh Sarpanch and he stated that no power of attorney was executed by Balwant Singh in favour of his brother Ram Singh nor any such power of attorney was got registered by Ram Singh. He had not even signed the registration endorsement and no attestation of the power of attorney was done by him. He never appeared before the Sub-Registrar and the certified copy Ex.P-1 does not bear his signatures. It shows that even Dilbagh Singh denies the execution of power of attorney. In this case, plaintiff even examined a handwriting expert namely Vikramraj Singh Chohan as PW3 and in his statement he stated that he is M.Sc.in Forensic Science dealing with handwriting and finger prints etc.and he is first Class LLB from Punjabi University, Patiala and he got certificate of Merits. He has also done First Class M.B.A. He topped the Punjabi University in both certificate courses in Urdu and Diploma Course in Urdu. He is a document expert for the last seven years and have examined and given opinions in about 3000 cases in various courts of Punjab, Haryana, Himachal, Rajasthan and Chandigarh. He had received practical training from renowned expert Dewan K.S.Puri, International Forensic Criminologist and senior consulting Documents Expert. He worked with him as his associate documents expert till he died on 09.02.1998. Since then he is Head and Incharge of the Bureau 'Patiala Bureau of Indentification, founded by late Dewan K.S.Puri. He is also the life member of Indian Academy of Forensic Science, Indian Science Congress RSA No.1905 of 2008 11 Association, Punjab Science Congress, Punjab Academy of Forensic Medicine and Toxicology and Federation of Indian Photography. He has attended National and International Conferences, conventions and workshops. He examined disputed signatures of Balwant Singh on power of attorney and then he gave an opinion that the same are not of Balwant Singh. He gave a detailed report and he was cross- examined at length. The endorsement on power of attorney purported to be thumb marked also by Balwant Singh and the handwriting expert gave opinion that thumb impressions are not of Balwant Singh. Science of thumb impression is a perfect science and the opinion of the expert is there that the thumb impressions are not of Balwant Singh. He also gave opinion that signatures thereon are also not of Balwant Singh. As such, the renowned expert gave opinion that signatures and thumb impressions of Balwant Singh are forged. The defendants did not produce any reliable evidence regarding the execution of power of attorney. The contention of learned counsel for appellants that the appellants having purchased the property from defendants No.2 and 3 for consideration are bonafide purchasers is not tenable. When it is not proved that the plaintiff had executed power of attorney in favour of defendant No.1, therefore, the sale effected by defendant No.1 in favour of defendants No.2 and 3 who are the near relatives is not binding on the plaintiff. It was a fictitious document and, therefore, purchase of the land by the appellants from defendants No.2 and 3 cannot be said to be a bonafide transaction. The plaintiff was residing in Canada and in his RSA No.1905 of 2008 12 absence, power of attorney was forged and the transactions were effected. As such, it cannot be said that the transactions were bonafide. Rachpal Singh defendant as DW7 and in his statement, he stated that when he and other defendants were constructing the house, Balwant Singh did not raise any objection. The evidence in this case shows that as soon as Balwant Singh came to India, he got a criminal case registered regarding the forgery of the power of attorney. As such there was no question of plaintiff being present at the time when the construction was made. At the time of the construction, if he did not raise any objection it cannot be said that the transaction is bonafide. In his cross- examination, Rachhpal Singh defendant stated that he does not know that Ram Singh had prepared a forged power of attorney of Balwant Singh . He did not make any inquiry regarding the power of attorney being forged. He does not know if a case regarding forging of power of attorney is pending against Ram Singh, Dilbagh Singh, Swinder Singh and Pal Singh in the court at Amritsar. Sukhdev Singh is the sister's husband of Ram Singh and Harbans Singh is the brother of Sukhdev Singh and it was mentioned in all the three sale deeds that the payments were made before the Deed Writer and he cannot state the total amount paid by him. The sale deed in favour of Sukhdev Singh and Harbans Singh was not entered in his presence. He does not know if the sale deeds in favour of Sukhdev Singh and Harbans Singh were signed by Balwant Singh himself or somebody else. The above statement of the witness shows that he cannot be said to be a bonafide purchaser. He did not make RSA No.1905 of 2008 13 any enquiry before the purchase of the land. As such, there is no force in the said contention. The power of attorney was forged document and as such, the trial Court rightly held that the sale deeds executed by defendant No.1 in favour of defendants No.2 and 3 are not valid documents and appellants are not bonafide purchasers of the suit property. I, therefore, affirm the findings of the trial Court to this effect.” Still not satisfied, the appellants have preferred this appeal challenging the judgment and decree of the Lower Appellate Court alleging that the following substantial questions of law arise in this appeal: 1. Whether in the facts and circumstances of the present case, the ld.Courts have totally misread the evidence led by the present appellants? 2. Whether in the facts and circumstances of the present case, the lower appellate court is justified in dismissing the first appeal of the present appellants without deciding the application under Order 41 Rule 27 of CPC filed by the present appellants? 3. Whether in the facts and circumstances of the present case, the rights of the present appellants are protected under the provisions of Section 41 of the Transfer of Property Act, 1882 being bonafide purchasers of the suit land against valid consideration vide registered sale deeds? 4. Whether in the facts and circumstances of the present case, the impugned judgments and decrees passed by the ld.courts below are legally sustainable in the eyes of law? RSA No.1905 of 2008 14 5. Whether the simplicitor suit for possession filed by the respondent/plaintiff is maintainable without seeking the declaration? Along with this appeal appellant also placed on record a copy of application dated 09.03.2007 as Annexure A-1 allegedly filed by the appellants under Order 41 Rule 27 CPC before the Lower Appellate Court to contend that in spite of the fact that aforesaid application for leading additional evidence was filed by the appellants before the Lower Appellate Court, the same was not decided by the Lower Appellate Court. On the basis of the aforesaid contention relying upon a judgment of the Hon'ble Supreme Court in the case of Gurnam Singh vs.Saudagar Singh 2005(2) RCR (Civil) 547, it was argued that the documents sought to be produced by the present appellant by way of additional evidence had material bearing on the merits of the present case, whereas the aforesaid application was totally ignored by the Lower Appellate Court while deciding the appeal against the settled principles of law and therefore the judgment and decrees passed by the Lower Appellate Court were legal and sustainable. Taking note of the contention raised by the learned counsel for the appellants, record of the Lower Appellate Court was called for. After perusing the record, it was found that the application under Order 41 Rule 27 CPC filed by the appellants which has been placed on record of the appeal as Annexure A-1 vide Civil Misc.No.5731-C of 2008 stood rejected vide order dated 24.05.2008 passed by the Lower Appellate Court. The appellants also moved Civil Misc.No.6202-C of 2008 and 6203-C of 2008 to allow the appellants to place on record a judgment dated 13.12.2004 passed by Ms.Harpreet Kaur Randhawa, Chief Judicial Magistrate, Amritsar, in FIR No.35 dated 31.03.1995 titled as State versus Dilbagh Singh, whereby Dilbagh Singh etc. were convicted for an offence RSA No.1905 of 2008 15 punishable under Section 420 IPC holding that accused Ram Singh being brother of complainant Balwant Singh in connivance with accused Dilbagh Singh, Pal Singh and Sujja