Delhi High Court
Balbir Singh vs Ganga Vishan @ Vishan Lal Anand on 8 April, 2015
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.13/2014
Decided on : 8th APRIL, 2015
BALBIR SINGH ...... Appellant
Through: Mr.Rajiv K.Garg, Mr.Sanjay Gupta and
Mr.Akshay Gaur, Advs.
Versus
GANGA VISHAN @ VISHAN LAL ANAND ...... Respondent
Through: Ms.Anju Lal and Ms.Shalu Lal, Advs.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This a regular second appeal bearing No.13/2004 titled Balbir Singh v. Ganga Vishan @ Vishan Lal Anand. Although the appeal has been filed in the year 2004, it has been admitted on 12.08.2008 by my learned predecessor and while admitting the appeal, the following ten questions have been framed as substantial questions of law involved in the matter.
(1). Whether the GPA duly executed in favour of the respondent could be held to be cancelled without proof of the deed of cancellation and without proof of the service of alleged notice of cancellation of GPA to the attorney and the appellant/purchaser ?R.S.A. No.13/2004 Page 1 of 17
(2). Whether adverse inference U/s. 114(g) of the Evidence Act ought to be taken against the respondent for not producing himself in the witness box to deny the false allegations in the written statement and to deny his own receipts of money ?
(3). Whether in the circumstances of receiving advance of Rs. 15,000/- himself, the respondent has confirmed and ratified the attorney of Shri S L Malhotra to sell the suit property to the appellant.
And hence whether Shri Sardari Lal Malhotra was competent to execute the receipt dated 2.3.1987 and formal agreement to sell dated 6.7.1990, on behalf of the respondent ?
(4). Whether in the circumstances of non proof of copy of GPA dated 28.2.1985 the learned Additional District Judge could see and read an unproved document (photocopy of GPA) and without comparison with original ?
(5). Whether such copy of GPA dated 28.2.1985 could be read by the learned Additional District Judge without giving the parties an opportunity to lead further evidence and cross-examination on this document ?.
(6). Whether this unproved GPA could be used by the learned Courts to contradict, corroborate the evidence of the parties and whether it could be used to fill in the lacuna of the evidence of respondent ? (7). Whether the learned Additional District Judge could look to this unproved document of photocopy of GPA dated 28.2.1985 to give a finding of fact?
R.S.A. No.13/2004 Page 2 of 17
(8). Whether the learned Courts below had jurisdiction to see unproved alleged deed of cancellation to give a finding of fact of cancelling the GPA of Shri S L Malhotra, and that also against the other evidence of the defendant showing that in fact the GPA dated 28.2.1985 was not cancelled ?
(9). Whether therefore the evidence of the parties was to be read or the unproved documents dated 20.1.1988 was to be read to give a finding that in fact the GPA dated 28.2.1985 in favour of Shri S L Malhotra was not cancelled ?
(10). Whether the findings and judgment of learned Court below is perverse, not based on evidence, and based only on surmises and conjectures, causing substantial injustice to the appellant ?
2. I have heard the learned counsel for the appellant as well as the learned counsel for the respondent.
3. Before dealing with the aforesaid questions, it may be pertinent here to give a brief background of the case leading to the filing of the present appeal.
4. The present appellant filed a suit for specific performance of the agreement to sell dated 06.07.1990 and for permanent injunction. The case which was set up by the appellant in the plaint was that the respondent/Sh.Ganga Vishan is the owner of the property bearing R.S.A. No.13/2004 Page 3 of 17 No.27/3, Tihar II, Ashok Nagar, New Delhi having purchased the same vide sale deed dated 31.07.1965. It was alleged that the respondent/Sh.Ganga Vishan had appointed one Sh.S.L.Malhotra as his attorney on 28.02.1985 in respect of the suit property and authorized him to sell the property in question. The said attorney (since deceased) is alleged to have entered into an agreement to sell in respect of the suit property in favour of the appellant for a total sale consideration of Rs.46,000/-. It was alleged in the plaint that the appellant had made a payment of Rs.41,000/- in four instalments i.e.Rs.15,000/- on 02.03.1987, Rs.15,000/- on 26.08.1988, Rs.5,000/- on 10.10.1989 and Rs.6,000/- on 06.07.1990. It is at the time of receiving the final instalment of Rs.6,000/- on 06.07.1990 that it is alleged by the appellant that the oral agreement to sell the suit property was reduced into writing and receipts were also executed for the payment received by Mr.S.L.Malhotra. It was envisaged in the agreement to sell dated 06.07.1990 that the balance consideration of Rs.5,000/- shall be paid by the appellant at the time of registration of the sale deed by the respondent/Sh.Ganga Vishan. The respondent/Sh.Ganga Vishan, as per the agreement to sell, was required to obtain sale permission from original defendant Nos.2 & 3 before R.S.A. No.13/2004 Page 4 of 17 execution of the sale deed. It was alleged that the respondent/Sh.Ganga Vishan through is attorney Mr.S.L.Malhotra had assured the appellant that the property in question is free from all encumbrances and title of the suit property was clear and without any blemishes.
5. It was further alleged that the respondent/Sh.Ganga Vishan had failed to obtain the requisite permission despite the fact that the appellant/plaintiff had been approaching the respondent/Sh.Ganga Vishan for acceptance of balance payment of Rs.5,000/- and getting his title perfected. The respondent/Sh.Ganga Vishan had been avoiding the same for one reason or the other. It was alleged in the plaint that the appellant was ready and willing to perform his part of the agreement at all times and even at the time of filing of the suit and before filing of the suit, even a notice dated 22.07.1996 was also served on the respondent/Sh.Ganga Vishan requiring him to perfect the title of the appellant and as he had failed to do so, the appellant/plaintiff had been constrained to file the suit for specific performance. The respondent/Sh.Ganga Vishan contested the suit and took preliminary objection with respect to the maintainability of the suit on the ground that the appellant had suppressed material facts. It was alleged by the respondent/Sh.Ganga Vishan that the R.S.A. No.13/2004 Page 5 of 17 appellant/plaintiff had trespassed in the suit property in collusion with Mr.S.L.Malhotra, the attorney of the respondent/Sh.Ganga Vishan. It was also stated by the respondent/Sh.Ganga Vishan that the attorney of Mr. S.L.Malhotra had been revoked on 20.01.1988 by a document which was duly registered. It was also alleged by the appellant that the respondent/Sh.Ganga Vishan is the owner of the property and the appellant has no right, title or interest in the suit property. The suit property was stated to be in occupation of one Sh.Prithipal Singh as a tenant at the rate of Rs.7.50 per month at the time when the property was allotted to respondent/Sh.Ganga Vishan and he was directed to pay rent to the respondent/Sh.Ganga Vishan. It was alleged that Mr.Prithipal Singh had sublet the premises in question to Manjeet Singh and Miyan Khan and had also demolished a portion of the premises. Respondent/Sh.Ganga Vishan through his attorney Sh.S.L.Malhotra filed an eviction petition and got an ex parte judgment in his favour on 17.02.1986. Thereafter the execution application for ejectment of the tenant was also field through the attorney Sh.S.L.Malhtora, but during the pendency o the proceedings, the GPA in favour of Sh.S.L.Malhotra was revoked after giving notice dated 19.01.1988 with an instruction to him to R.S.A. No.13/2004 Page 6 of 17 return the original documents relating to the suit property. On 20.01.1988, revocation deed was registered and a fresh attorney Sh.V.K.Anand was appointed for pursuing the litigation. In the meanwhile, the appellant/plaintiff appeared in the court of learned ARC claiming himself to be in possession of the suit property by virtue of an agreement to sell etc. The execution proceedings were disposed of vide order dated 16.09.1994 directing the respondent/Sh.Ganga Vishan to file a suit for possession. It was admitted that Mr.S.L.Malhotra had been appointed as the attorney on 28.02.1985, but it was stated that he was never authorized to sell the property in question. It was specifically denied that the respondent/Sh.Ganga Vishan had received any amount towards consideration for sale of the property and his signatures on the receipt of Rs.15,000/- were stated to be forged. It was further stated that in view of the revocation of power of attorney of Sh.S.L.Malhotra, the agreement to sell as executed thereafter are null and void and it was prayed that the suit of the appellant/plaintiff be dismissed.
6. So far as the original defendant Nos.2 & 3 are concerned, they took a preliminary objection regarding the maintainability of the suit on the R.S.A. No.13/2004 Page 7 of 17 ground of locus and they also contested their being made a party on the ground that they were neither necessary nor proper parties.
7. The respondent/Sh.Ganga Vishan also filed a suit against the present appellant/plaintiff being suit for possession which was numbered as 574/02. Vide order dated 12.02.2001, the evidence was ordered to be recorded in Suit No.574/02 where the appellant/plaintiff examined himself as DW-1 and proved various documents. The learned trial court, heard the arguments, analyzed the evidence and so far as the suit for specific performance filed by the present appellant/plaintiff is concerned, the appellant has not been able to prove the agreement to sell dated 06.07.1990 having been validly executed in his favour by the respondent/Sh.Ganga Vishan through his attorney. For arriving at this conclusion, the learned trial court has taken note of the fact that the appellant did not prove that the attorney Sh.S.L.Malhotra had any authority under the so called power of attorney dated 28.02.1985 to sell the property and accept the sale consideration for and on behalf of the respondent/Sh.Ganga Vishan. Therefore, if that was the position and Sh.S.L.Malhotra was not competent to sell the property, he could not have created any right, title or interest in favour of the appellant/plaintiff R.S.A. No.13/2004 Page 8 of 17 so as to bind the respondent/Sh.Ganga Vishan. The suit for specific performance was accordingly dismissed on 24.04.2003 by the learned trial court.
8. The appellant/plaintiff feeling aggrieved by the said judgment and decree preferred RCA No.38/2003 which was also dismissed by the first appellate court holding that Sh.S.L.Malhotra was not authorized under the general power of attorney dated 28.02.1985 to have executed an agreement to sell, power of attorney and receipts regarding the sale of the suit property by respondent/Sh.Ganga Vishan to the appellant/plaintiff and whatever limited authority under the general power of attorney was with Sh.S.L.Malhotra, the same had extinguished with the deed of revocation of power of attorney dated 20.01.1988 and appointment of Sh.V.K.Anand as a new attorney vide registered deed of GPA on 20.01.1988. Therefore, the documents executed by Sh.S.L.Malhotra in favour of the appellant/plaintiff cannot bind the respondent/Sh.Ganga Vishan. Accordingly, the first appeal was also dismissed upholding the finding returned by the trial court.
9. It is in this background that the aforesaid ten questions have been framed by my learned predecessor.
R.S.A. No.13/2004 Page 9 of 17
10. I have gone through these questions as well as heard the learned counsel for the parties. In my considered opinion, the questions which have been framed are not questions of law much less substantial questions of law except question No.10 which is as follows:
'Whether the findings and judgment of learned court below is perverse, not based on evidence, and based only on surmises and conjectures, causing substantial injustice to the appellant?'
11. I feel that it would be appropriate to deal with each of the questions and pass observations as have been reflected by the two courts below: QUESTION NOS.1 & 5
(1). Whether the GPA duly executed in favour of the respondent could be held to be cancelled without proof of the deed of cancellation and without proof of the service of alleged notice of cancellation of GPA to the attorney and the appellant/purchaser ?
(5). Whether such copy of GPA dated 28.2.1985 could be read by the learned Additional District Judge without giving the parties an opportunity to lead further evidence and cross-examination on this document ?.
12. The GPA which is sought to be relied upon by the appellant for setting up a case of specific performance is dated 28.02.1985. The learned R.S.A. No.13/2004 Page 10 of 17 trial court has observed that under this document, no power had been conferred on Sh.S.L.Malhotra to transact the property for and on behalf of the respondent/Sh.Ganga Vishan. This finding has been upheld by the first appellate court. If this document itself did not confer any power to the attorney to sell the suit property, everything else become inconsequential, but the fact of the matter remains that the respondent/Sh.Ganga Vishan has proved the registered notice dated 19.01.1988 (Ex.PW1/4) and revocation of power of attorney vide revocation deed executed on 20.01.1988 (ExPW1). The very fact that the document of revocation of power of attorney in favour of Sh.S.L.Malhotra is duly registered, that in itself, is deemed to be a notice to the public at large. Apart from this, there is another aspect of the matter with regard to the proof of the attorney. The basic principle of proof is that one who asserts must prove. The appellant/plaintiff had filed a suit for specific performance claiming that Sh.S.L.Malhotra, attorney, had executed an agreement to sell dated 06.07.1990 in his favour on the strength of that attorney. Therefore, it was essentially for the appellant to prove not only the agreement to sell, but also the attorney. The appellant has not proved that power of attorney by virtue of this agent had the R.S.A. No.13/2004 Page 11 of 17 power to sell the suit property. Only a photocopy thereof has been produced by him. So far as the respondent is concerned, he has not disputed the contents of the photocopy of the attorney produced by the appellant dated 28.02.1985. In the light of the fact that the content of the attorney dated 28.02.1985 having not been contested by any of the parties, therefore, the question framed by my learned predecessor as question No.5 does not arise at all. The parties are not given an opportunity to fill up a lacuna in their case after the pronouncement of the order and, if any party, feels aggrieved, it has to move an application under Order 41 Rule 27 CPC, which, in the instant case, the appellant/plaintiff has not done. This answers question Nos.1 & 5. QUESTION NO.2 (2). Whether adverse inference U/s. 114(g) of the Evidence Act ought to be taken against the respondent for not producing himself in the witness box to deny the false allegations in the written statement and to deny his own receipts of money ?
13. Assuming that an adverse inference is drawn against a person on account of having not entered into the witness box under Section 114(g) of the Indian Evidence Act, 1872, that in itself would not entitle the R.S.A. No.13/2004 Page 12 of 17 appellant/plaintiff to a decree of specific performance. The basic dictum has been affirmati non neganti incumbit probatio i.e. 'one who asserts must prove' and the appellant has miserably failed to prove his case on the issue with regard to the agreement to sell dated 06.07.1990 having been executed validly in his favour by the attorney Sh.S.L.Malhotra when the attorney did not have the power to execute the same. Issue No.2 is accordingly answered in the light of the above and even if an adverse inference is drawn against the respondent, it does not entitle the appellant to a decree of specific performance.
QUESTION NO.3 (3). Whether in the circumstances of receiving advance of Rs. 15,000/- himself, the respondent has confirmed and ratified the attorney of Shri S L Malhotra to sell the suit property to the appellant. And hence whether Shri Sardari Lal Malhotra was competent to execute the receipt dated 2.3.1987 and formal agreement to sell dated 6.7.1990, on behalf of the respondent ?
14. A perusal of the issue shows that the respondent/Sh.Ganga Vishan is alleged to have ratified and confirmed the acts of Sh.S.L.Malhotra by receiving Rs.15,000/- and whether Sh.S.L.Malhtora was competent to R.S.A. No.13/2004 Page 13 of 17 execute the receipt dated 02.03.1987 and agreement to sell dated 06.07.1990.
15. It is contended by the learned counsel for the appellant that even if for the sake of argument, it is assumed that Sh.S.L.Malhotra was not competent to sell the suit property, but the very fact that respondent/Sh.Ganga Vishan had himself executed the receipt dated 02.03.1987 for a sum of Rs.15,000/- tantamount to confirming and ratifying all the facts with regard to the sale of the suit property in favour of the appellant.
16. So far as the aforesaid question is concerned, the answer is to be found in Dharmarajan & Ors. v. Valliammal & Ors; AIR 2008 SC 850 wherein it has been held that the questions formulated were neither questions of law nor substantial questions of law and the High Court was held to be finding out a new case which was not even pleaded and the high court was entering into appreciation of evidence on the basis of non existing substantial questions of law and consequently the order of the High Court was set aside.
17. One of the essential ingredients while deciding a civil case is that not only a party must plead, but also must prove his case and if there is no R.S.A. No.13/2004 Page 14 of 17 pleading with regard to a particular aspect of the matter, then no amount of evidence produced or arguments advanced at the stage of final hearing will be taken cognizance of. In the instant case, the appellant while filing the suit for specific performance has nowhere pleaded that alternatively Sh.S.L.Malhotra, even if it is assumed, that he was not competent to execute the agreement to sell, his actions were ratified by the respondent/Sh.Ganga Vishan by accepting the amount of Rs.15,000/- and therefore, there was a validly executed agreement to sell dated 06.07.1990 by Sh.S.L.Malhotra. In the absence of any such pleading, this argument of the appellant could not be accepted nor could this be treated as a question of law much less a substantial question of law. QUESTION NOS.4 & 6 TO 9
(4). Whether in the circumstances of non proof of a copy of GPA dated 28.2.1985 the learned Additional District Judge could see and read an unproved document (photocopy of GPA) and without comparison with original ?
(6). Whether this unproved GPA could be used by the learned Courts to contradict, corroborate the evidence of the parties and whether it could be used to fill in the lacuna of the evidence of respondent ? R.S.A. No.13/2004 Page 15 of 17 (7). Whether the learned Additional District Judge could look to this unproved document of photocopy of GPA dated 28.2.1985 to give a finding of fact?
(8). Whether the learned Courts below had jurisdiction to see unproved alleged deed of cancellation to give a finding of fact of cancelling the GPA of Shri S L Malhotra, and that also against the other evidence of the defendant showing that in fact the GPA dated 28.2.1985 was not cancelled ?
(9). Whether therefore the evidence of the parties was to be read or the unproved documents dated 20.1.1988 was to be read to give a finding that in fact the GPA dated 28.2.1985 in favour of Shri S L Malhotra was not cancelled ?
18. These questions have been dealt with while discussing question Nos.1 & 5. These are all questions of appreciation of evidence and not questions of law much less substantial questions of law.
19. So far as the last question with respect to the perversity is concerned, I have been taken by the learned counsel for the parties through the evidence and I have also satisfied myself with the findings returned by the two courts below. The case set up of perversity is non- existent when there is absolutely no evidence in order to return and support a finding of fact. This answers question No.10 also that there is no perversity in the finding returned by the first appellate court. R.S.A. No.13/2004 Page 16 of 17
20. In the instant case, it cannot be said that the finding returned by the two courts below with regard to the factum of Sh.S.L.Malhotra being not authorized to execute the sale deed is suffering from any perversity. The said attorney was not authorized to sell the property under the power of attorney dated 28.02.1985 and the same also stood revoked vide duly registered revocation deed dated 20.01.1988 by giving him a notice one day prior to the same.
21. In totality of the circumstance, I do not find that there is any question of law, as formulated by my learned predecessor, involved in the matter which will change the findings returned concurrently by the two courts below.
22. Accordingly, the present appeal is totally misconceived and the same is dismissed.
V.K. SHALI, J.
APRIL08, 2015 dm R.S.A. No.13/2004 Page 17 of 17