Punjab-Haryana High Court
Harmeet Kaur vs Partap Kaur And Ors. on 14 March, 2002
JUDGMENT V.K. Bali, J.
1. Harmeet Kaur the appellant (hereinafter referred to as the plaintiff) in the present regular second appeal filed a suit for a decree of declaration to the effect that she was owner of the land in dispute as fully described in the plaint on the basis of sale deed dated 6.8.1984 for a sum of Rs. 40,000/-. She further prayed that the respondents be restrained from interfering in her peaceful possession. It may be mentioned here that she also pleaded that prior to sale that came about in her favour on 6.8.1984, Partap Kaur original owner of the land had mortgaged the same to her husband Jagraj for a sum of Rs. 12,500/-.
2. Respondents No. 3 to 5 (hereinafter referred to as defendants) entered defence and contested the cause of the plaintiff by inter-alia pleading that the original owner Partap Kaur sold the land in dispute to them by virtue of sale deed dated 15.6.1983. Inasmuch as after execution of sale deed the owner refused to get the deed registered, they were constrained to file a civil suit against her under Section 77 of the Indian Registration Act calling upon her to get the sale deed registered. This suit, it appears from the proceedings of this case was decreed on 20.8.1986. Pursuant to the directions issued by the learned Subordinate Judge in the said case, the sale deed in favour of defendants came to be registered on 23.5.1986. It is relevant to mention that against the said judgment and decree, Partap Kaur filed an appeal before the first appellate court on 12.5.1987 which was dismissed. On respective pleadings of the parties, the learned Subordinate Judge framed following issues:-
1. Whether the plaintiff is owner in possession of the suit land? OPP
2. Whether the plaintiff has no locus standi to file the suit? OPP
3. Whether the court has no jurisdiction to try the suit? OPP
4. Whether the plaintiff has no cause of action to file the suit? OPP
5. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPP
6. Relief
3. After resultant trial, the suit of the plaintiff was dismissed. Constrained, she filed an appeal which met with no success as the same also came to be dismissed vide order dated 3.9.1992. Hence, the present regular second appeal.
4. Mr. Hemant Bassi, learned counsel representating the plaintiff contends that even though both the sale deeds, be it one that was set up by the plaintiff or the other that was set up by defendants, might have been proved in accordance with law and the findings to that effect as returned by the learned appellate court, may be correct, yet, in so far as the sale deed that was set up by the defendants is concerned, the same was through an attorney of the original owner who happened to be her son. This sale deed was invalid inasmuch as the attorney was not authorised or empowered to sell the land as the dominant purpose of appointing an attorney was that he should manage the land.
5. After hearing learned counsel for the parties and examining the records of the case with their assistance. I find no merit in the contention of the learned counsel as noted above. I have gone through the power of attorney Ex.DW5/1 as also findings of the appellate court on the precise point as has been raised by learned counsel for the plaintiff, wherein it has been clearly observed by the learned Additional District Judge that the contents of the power of attorney would cloth him with the following powers:-
a) Power to give the disputed land on lease.
b) Power to mortgage the disputed land.
c) Power to sell the disputed land.
6. No doubt, the power of attorney contains the initial recital with regard to management of land but the powers to lease, mortgage and sale have also been specifically given to the concerned attorney. It may be recalled, at this stage, that it was a case of general power of attorney and that being so, the judgment relied upon by the learned counsel in support of his contention in The Prince Line Ltd. v. The Trustees of the Port of Bombay, A.I.R. 1950 Bom. page 130 That where the special powers are followed by general words, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers and as enlarging these powers only when necessary for the carrying out of the purposes for which the authority is given would be of no assistance to learned counsel for the plaintiff.
7. Mr. Bassi then contends that the sale deed in favour of defendants came to be registered by virtue of orders passed by the Civil Court in the proceedings of the very case in hand and such a procedure could not possibly be adopted. Inasmuch as the sale deed that was set up by the defendants was unregistered, same could not be read in evidence and that being so, same could not confer any valid title in favour of the defendants. This contention of learned counsel also needs to be repelled as records of the case would manifest that the sale deed came to be registered by virtue of orders passed by the Subordinate Judge dated 30.8.1986. The operative part of the judgment would clearly suggest that it was registered on the dint of orders passed by the court in a litigation between the defendants and original owners.
8. Mr. Bassi contends that the land which was subject matter of mortgage, could not be purchased before the land was redeemed. Thus point, it appears, has been raised for the first time before this court. Be that as if may, if the property, subject matter of suit was subject to a mortgage, surely, defendants would get it with all the encumbrances, i.e., with the liability of mortgage. It could not be urged either on the dint of statute, rules or precedent that the original owner had no authority to sell and the defendants had no right to purchase the land till such time the mortgaged was redeemed. 9. Finding no merit in the appeal, the same is dismissed.