Punjab-Haryana High Court
Narinder Nath Kapoor vs Prem Nath Khanna And Others on 20 July, 2009
Author: A.N. Jindal
Bench: A.N. Jindal
In the High Court of Punjab and Haryana at Chandigarh
R.S.A. No. 1661 of 2005
Date of decision: July 20, 2009
Narinder Nath Kapoor
.. Appellant
Vs.
Prem Nath Khanna and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Ashok Aggarwal, Sr. Advocate with
Mr. Suman Jain, Advocate for the appellant.
Mr. Chetan Mittal, Sr. Advocate with
Mr. Vishal Garg, Advocate for the respondents.
A.N. Jindal, J
This appeal is directed against the judgment and decree dated
31.3.2005 passed by the learned Additional District Judge, Kurukshetra,
vide which the appeal filed by the plaintiffs-respondents (herein referred as
the plaintiffs') against the judgment dated 20.8.2002 passed by the Civil
Judge (Sr. Division), Kurukshetra, was accepted and the suit was decreed.
The allegations as set out are that Kaushalya Devi, mother of
the plaintiffs, had purchased land measuring 79 kanals 12 marlas, being ¾
share of the land measuring 106 kanals 3 marlas, vide registered sale deed
dated 7.1.1967, situated within the revenue estate of village Dhurala, Tehsil
Thanesar, District Kurukshetra. On the same day, the above said land was
leased out by its earlier owners namely Kewal Krishan, Rajinder Krishan
sons of Dwarka Dass and Smt. Kaushalya Devi widow of Dwarka Dass, for
a period of 20 years i.e. from Rabi 1967 to Kharif 1987 and the possession
was delivered to the defendant No.1 as lessee. Similarly, plaintiff No.1,
Prem Nath and Kaushalya Devi his mother also purchased 5/25 share out of
the land measuring 206 kanals 3 marlas as fully detailed in the plaint.
Accordingly, defendant No.1 started paying lease money to Kaushalya Devi
as well as the plaintiff No.1 and paid lease amount up to Rabi, 1980 against
receipts. Kaushalya Devi died on 9.6.1980 leaving behind the plaintiffs as
her legal heirs. Thereafter, the defendant No.1 stopped paying the lease
money to the plaintiffs. Later on, taking undue advantage of the absence of
R.S.A. No. 1661 of 2005 -2-
***
the plaintiffs from the village, started claiming ownership over the suit land and filed civil suit No.655 dated 6.3.1987 against Kewal Krishan and Rajinder Krishan, claiming ownership over the suit land by way of adverse possession, and obtained an ex-parte decree dated 10.2.1988 on wrong pleadings, as such the same is not binding upon the proprietary rights of the plaintiffs and does not confer any right or title upon the defendant No.1.
In his written statement, the defendant while contesting the suit set up a plea regarding adverse possession stating that he is in peaceful, continuous and uninterrupted possession of the suit land without payment of rent to anybody including the plaintiffs or their predecessors Kewal Krishan etc. sons of Dwarka Dass. The plaintiffs and everybody in the village was in the knwoledge of his interrupted continuous possession which has now ripped into ownership. In the alternative, he set up the plea that he is inlawful possession of the land as lessee. He also pleaded that the suit is time barred; not maintainable having not been filed by the duly authorised person and the decree passed in his favour is binding upon Kewal Krishan, Rajinder Krishan, Kaushalya Rani and their successors. Malook Singh was not authorised to file the suit to challlenge the decree. On merits, it was submitted that the sale deeds in queestion were executed in favour of the plaintiff and his mother were sham transactions in order to save the land being declared as surplus.
Replications have also been filed. In the wake of the various pleas raised by the parties, the following issues were framed :-
1. Whether Malook Singh is duly authorised general attorney of plaintiff?OPP
2. Whether the judgment and decree dated 10.2.1988 passed in civil suit No.655 of 1987 are null and void as alleged?OPP
3. If issue No.1 is proved, then whether the plaintiffs are entitled for joint possession of the suit land as alleged?OPP
4. Whether defendant No.1 has become owner of the suit land by way of adverse possession?OPD R.S.A. No. 1661 of 2005 -3- ***
5. Whether civil court has no jurisdiction to entertain and try the suit?OPD
6. Whether the suit is not maintainable in the present form?OPD
7. Whether the suit is time barred?OPD
8. Whether plaintiffs have got no locus-standi to file the suit?OPD
9. Relief.
In support of their case, the plaintiffs examined Krishna Singla, H.R.C. Registrar Office, Kurukshetra (PW1), Santokh Singh (PW2), Balbir Singh Patwari (PW3), Jaimal Singh (PW4), Amarjit Singh (PW5), Risal Singh (PW6), Tirath Singh (PW7) and Malook Singh attorney of the plaintiffs (PW8).
After producing documents i.e. lease deed Ex.P1, certified copy of the sale deed Ex.P2, lease deed dated 6.1.1967 Ex.P3, another certified copy of the sale deed Ex.P4, copy of the mutation Ex.P5 to Ex.P8, certified copy of the general power of attorney Ex.PW8/A, certified copy of the judgment dated 10.2.1988 Ex.PW8/B, copy of the jamabandi for the year 1965-66 Ex.P9, copy of the plaint filed in civil suit titled Narinder Nath vs. Kewal Krishan etc. Ex.P10, copy of the jamabandi for the year 1985-86 Ex.P11 and copy of the death certificate Ex.P12, the plaintiffs closed the evidence.
In order to rebut the evidence, the defendant examined Kartar Singh (DW1), Narinder Nath Kapoor himself (DW2), Jagdamba Prasad Clerk (DW3), Sunhera Ram (DW4) and Mihan Singh (DW5).
After tendering into evidence documents i.e. copy of the special power of attorney Ex.D1, copy of power of attorney Ex.D1A, copy of sale deed Ex.D2, certified copy of the judgment dated 10.2.1988 Ex.D2/A, copy of decree sheet dated 10.2.1988 Ex.D3, copy of the agreement Mark-A, the defendant closed the evidence.
Learned trial court decided issues No.1, 2 and 3 against the plaintiffs while issues No.4, 6 and 8 were decided against the defendant No.1 and issues No.5 and 7 were answered against the defendant No.1.
R.S.A. No. 1661 of 2005 -4-*** Consequently, the suit of the plaintiff was dismissed with costs. However, during appeal while holding that the plaintiffs having purchased the property on the basis of the sale deeds, were owners of the same and possession of the defendants since 1966 had not rippened into adverse possession, accepted the appeal and decreed the suit of the plaintiffs.
The substantial questions of law which arises in this case are as under :-
1. Whether Malook Singh being the special power of attorney by way of deed dated 26.4.1990 could replace the plaintiff to prove the nature of the transactions which were in the specific knowledge of the plaintiffs?
2. Whether sale deeds dated 17.10.1966 and 7.1.1967 allegedly executed by Kewal Krishan and Rajinder Krishan in favour of Surinder Nath Kapoor and Narinder Nath Kapoor as well as Prem Nath Khanna were sham and bogus transactions and have been executed in order to avoid land ceiling laws as pleaded in the written statement by the defendant No.1?
3. If the transactions are found to be sham, then what would be the effect of the judgment and decree suffered by Kewal Krishan and Rajinder Krishan?
4. Whether copies of the alleged sale deeds were admissible in evidence without any further proof?
5. Whether the plea of adverse possession as set out by the defendant No.1 as an alternative plea could damage his plea of lessee?
6. Whether the plaintiffs could be considered as owners on the basis of the copy of the copy of the sale deeds which were never acted upon?
7. Whether the sale deeds were executed in favour of Prem Nath Kapoor and Kaushalya Rani with an intention to confer absolute title upon them?R.S.A. No. 1661 of 2005 -5-
*** The plaintiffs through their attorney Malook Singh have claimed ownership over total land measuirng 79 kanals 12 marlas being ¾ share in the land measuring 106 kanals 3 marlas and 5/25 share out of the land measuring 206 kanals 3 marlas situated at village Dhurala, on the basis of the attested copy of the sale deed dated 17.10.1966 as well as 7.1.1967, having purchased the same from Kewal Krishan and Rajinder Krishan sons of Dwarka Dass son of Diwan Chand and Kaushalya Rani. Similarly, Surinder Nath Kapoor purchased 165 kanals 18- ½ marlas being 20/25th share out of the land measuring 206 kanals 3 marlas, so also 1/4th share of the land measuring 106 kanals 3 marlas i.e. 26 kanals 11 marlas situated in village Dhurala, on the basis of the sale deeds of even dates. The plaintiff Kaushalya Rani is the father's sister of Surinder Nath Kapoor and Narinder Nath Kapoor and the plaintiff Prem Nath Khanna and Pran Nath Khanna are the sons of Kaushalya Rani, so the defendant Surinder Nath Kapoor and Narinder Nath Kapoor are the brothers. Surinder Nath Kapoor has been residing at Singapore and has attained the citizenship of that country. The plaintiffs have pleaded that they do not know about the whereabouts of Surinder Nath Kapoor. The relationship of the plaintiffs and the defendants is so close that they could utilize or insert the name of anybody in the transactions. Kaushalya Rani was the daughter of that house. In those days and even to-day, daughters use to relinquish their rights in the property and offer their names to be used for the welfare of the family.
The plaintiffs in order to seek possession or joint possession over the suit land had to stand on their own legs to prove their case while leading best evidence in their possession. The proof of title was sine qua non to seek possession. The original sale deeds (basis of their claim) ordinarily should have been in their possession and power which were never produced. The sale deeds did not see the light of the day for about 24-25 years since the date of their execution till filing of the suit, rather the allegations have been made against the defendant No.1 that the sale deeds were handed over to him for entering and to get sanctioned the mutations are not correct. Halqa Partwari has been examined in order to prove that mutations No.920 and 921 were rejected on 1.3.1968 on the ground that they were null and void. Had the sale deeds been produced before the R.S.A. No. 1661 of 2005 -6- *** Patwari, then he would have proved the same. No admissible copies of the mutations were produced on the record from the revenue record in order to establish that the sale deeds were ever handed over to Halqa Patwari for entering the mutation in their favour. The court had moved on the assumption that the defendant admits the execution of the sale deeds is also not factually correct.
The lower appellate court has tried to record ownership of the plaintiffs from certain admissions while taking certain extract from the written statement, but the court at the time reaching the conclusion regarding such admissions was to examine the written statement as a whole and not a line of it. Admissions have been duly explained in the written statement and it was stated that the sale deeds are sham transactions. Those were never intended to confer title upon the plaintiffs and their names were inserted only to avoid implication of surplus laws. The value of admissions have been elaborately discussed in case Shamsher Singh vs. Gobind Singh 2009 (1) RCR (Civil) 911 wherein it was observed that value and effect as stated, an admission has to be clear, certain and definite and not ambiguous, vague or confused. Statement to operate as an admission must be clear in its meaning. The admission is not conclusive proof of matter admitted, though it may in certain circumstances operates as estoppel. (see K.S. Srinivasan v. Union of India, AIR 1958 SC 419). It has also been held in case of Nagubai Ammal and others v. B. Shama Rao and others, AIR 1956 SC 593, that an admission is not a conclusive as to the truth of a matter stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to its detriment, which it might become conclusive by way of estoppel. It is further held that it must be shown that there is a clear and unambiguous statement by the opponent, then it would be conclusive unless explained.
While examining, the contents of the written statement I am led to see whether there was admission regarding sale deed and payment of lease money. The contents of the reply, if read as a whole, do not amount to admissions at all by the respondents regarding the execution of the sale R.S.A. No. 1661 of 2005 -7- *** deeds and the payment of the lease money. As explained above, it has been duly observed that the defendant has explained that these sale deeds were sham transactions which were never acted upon and were never intended to confer title upon the plaintiff.
As regards the payment of lease money, it has come in the plaint that the lease money was being paid to the deceased Kaushalya Rani against proper receipts. In the natural course in such circumstances, the plaintiffs should have been in possession of the receipts with regard to payment of lease money, but no such receipts were brought on record. To the contrary, while appearing in the witness box Narinder Nath Kapoor has categorically stated that he never paid lease money to Kaushalya Rani or to any of her heirs. The relevant extract of statement of Narinder Nath Kapoor regarding the sales and the lease is reproduced as under :-
"Earlier I was cultivating the land in Tehsil Nakodar which was in the name of his father's sister Kaushalya and her sons. A suit for ejectment was filed against him in the year 1977 and an ejectment order was passed against him. However, in appeal, it was decided in his favour and revision was also dismissed by the Commissioner. There was a compromise between Kaushalya Rani and him in the year 1968. The original compromise is in the case of ejectment and copy of which is mark-A. He had purchased this land as per agreement (objected to beyond pleadings). He had paid the consideration for the sale deeds and got transferred it in the name of his brother Surinder Nath Kapoor and father's sister Kaushalya Rani. He had got transferred in their names only to avoid the surplus laws."
Thus, the observations made by the court are clearly not correct as he has worked on the assumption that the defendant admits the execution of the sale deeds which is not factually correct. No original sale deeds have come on record. Actually, ownership could be proved on the basis of the primary evidence. Any way, the condition precedent to lead secondary evidence was to prove the loss and destruction of the document. Had the R.S.A. No. 1661 of 2005 -8- *** plaintiff been the true owners on the basis of the aforesaid sale deeds, then certainly they must have been in possession of those documents and would not have parted the possession and remained silent for getting return of these documents for 24-25 years. The alleged mutations further go a long way to prove that the sale deeds were not actual and genuine documents, but were the documents showing sham transactions. Even after rejection of the mutations as alleged no efforts were made by the plaintiffs for making the revenue record up to date so that they could be indicated as owners therein. The plaintiffs have also not stepped into witness box to say that they are the owners of the property having purchased the same through Narinder Nath Kapoor defendant No.1. They have placed reliance only on the copies of the copies of the sale deeds kept in the public record.
The sale deed, admittedly is not a public document, therefore, its execution needed to be proved by leading evidence. In Shamsher Singh's case (supra), the court dealt with the method to prove the execution of the document, secondary evidence of which was permitted to be led, and observed that "mere permission to lead secondary evidence would not dispense the appellant to prove the contents thereof, its existence and execution. It is further to be shown that copy has come from proper custody. The question of drawing presumption from a copy, as such, can arise only if it is proved to be executed by the executant." It was further observed that "even if presumption is drawn, it would not amount to proving the contents of the document to be true." Again, the court in para No.28 of the judgment observed as under :-
"The proof of contents of a document may either be proved by primary or secondary evidence. The primary evidence means the document itself produced for inspection of the court whereas secondary evidence is defined under Section 63 of the Evidence Act. Concededly the document in original has not been produced and as such the primary evidence is not forthcoming to prove the contents of the adoption deed. Even mere marking of a document as an exhibit, which is even not the case in hand, does not dispense with its proof. In this regard Sait Tarajee Khimchand and others v. Yelamarti R.S.A. No. 1661 of 2005 -9- *** Satyam & others, AIR 1971 SC 1865 may be referred. There is, thus, no valid case made out by the appellant for placing reliance on the adoption deed either on the ground that it is proved or admitted or on the ground that it is a secondary evidence and presumption would arise about it under Section 90 of the Evidence Act........"
In this regard Hon'ble Division Bench of Madhya Pradesh High Court made an elaborate discussion in case Rekha vs. Smt. Ratnashree, 2006 (1) RCR (Civil) 685 and observed that the certified copy of the sale deed is not a public document merely on the assumption that it is a certified copy of the sale deed being public document and certified copy is also a public document. Similarly this Court in case Ved Parkash vs. Rattan Lal Aggarwal, 2005(1) RCR (Civil) 366 observed as under :-
"7. The argument that the certified copy of the mortgage deed is a public document being a private record kept by public authority is not sustainable in law in view of the Full Bench judgment of this Court in Gutari's case (supra). It has been held therein that what is kept in the records of the Registering Authority is a copy of the original as the original is returned to the party and, therefore, certified copy is from a copy kept in the public record and the said certified copy is made admissible in evidence in terms of the provisions of Section 57(5) of the Registration Act. In the absence of Section 57(5) of the Registration Act, certified copy of such a document would not have been admissible at all. It is held to the following effect:-
".....The explanatory paragraph to Section 65 envisages, as already observed in the earlier part of the judgment, that secondary evidence of the original documents mentioned in clauses (e) and (f) of Section 65, could be adduced only in the form of certified copies and no others. Copies of the true copies given by the Registering authority of the original documents are not R.S.A. No. 1661 of 2005 -10- *** certified copies of the original documents and, therefore, would not be admissible as secondary evidence of the original document. In fact, but for the provision of sub- section (5) of Section 57 of the Registration Act, such a certified copy of a true copy could not have been received in Court to prove the contents of the original document. The said provision of sub-section (5) of Section 57 was incorporated not to enact law of the kind which permitted the giving in evidence of a certified copy of the original, as envisaged by clause (f) of Section 65 of the Act, but to overcome the difficulty of non-reception in evidence of a certified copy of a true copy, the same not being certified copy of the original, which alone qualified to be called secondary evidence in terms of Section 63 of the Act."
8. Still further, while examining the argument that each of the clauses of Section 65 of the Evidence Act has to be read disjunctively and one is not to see as to whether the requirement of any other clause or the rest of the clause is complied with or not before the secondary evidence of the kind permitted by the explanatory paragraph of Section 65 can be let in. It was held that if the other party pleads that the document is forged one, the Court could summon the original and in case the original is not forthcoming on the ground of its loss etc., then unless such a fact is proved the Court would be entitled to draw adverse inference against such a party despite the fact that there is present on the record a certified copy of the original document. It was held as under:-
".....Even in cases where a given document comes within the purview of clauses (d), (e) (f) and (g) of Section 65, there too if the other party pleads that the document is forged one, the Court could summon the original and in case the original is not forthcoming on the ground of its loss etc., then unless such a fact is proved the Court R.S.A. No. 1661 of 2005 -11- *** would be entitled to draw adverse inference against such a party, despite the fact that there is present on the record a certified copy of the original document."
9. In view of the aforesaid Full Bench decision of this Court, certified copy of registered mortgage deed cannot be held to be a public document certified copy of which can be produced in evidence as secondary evidence in terms of Section 65(f) of the Evidence Act."
The plaintiffs have claimed ownership over the suit property on the basis of two sale deeds allegedly executed in the year 1966 and 1967 in their favour. The power of attorney was appointed in the year 1990, therefore, the cannons of law required the plaintiffs to come to the court to remove the ambiguity as to where the original sale deeds have gone, in what circumstances, in what manner these were executed, who paid the price, why they did not claim possession, why do not they own the sale deeds, why they did not ask for lease money and also rebut the evidence by the defendant No.1 that he had purchased the property but their names were got inserted just to avoid the surplus laws.
What to talk of examining Prem Nath Khanna (as Kaushalya Rani had already died) none of the plaintiffs who though were residing in Delhi and are claiming ownership over the suit land and the trial court was not beyond their access, have not examined themselves and also not examined any of the witness to the sale deed and other sort of evidence in order to prove that these transactions are genuine so as to confer absolute title upon them.
The Appellate Court appears to have proceeded on the assumption that the defendant No.1 had admitted the existence of the sale deeds in favour of the plaintiff so there was no requirement of further proof and the admission made by the defendant No.1 was sufficient to record their title enabling them to ask for possession, whereas, the case set up by the defendant No.1 from the very beginning is that the sale deeds dated 17.10.1966 and 7.1.1967 respectively are sham transactions and these were neither acted upon nor produced before the revenue authority for attestation R.S.A. No. 1661 of 2005 -12- *** of the mutations or carrying out the entries in the revenue record. These were kept secret and were concealed for ulterior motive, rather these were never intended to be acted upon and as such, these documents have become useless and waste papers with the lapse of time and are not binding upon them. It was also pleaded that these documents were brought into existence in the name of the plaintiff No.1 and Kaushalya Rani in order to save the land from being declared as surplus area and to avoid the implication of the land ceiling laws, as such, these are the sham transactions. Notwithstanding the fact that no issue with regard to sale deeds being sham transactions was framed, yet the same could be covered under issue No.2 because proof of ownership was dependant upon proof of a genuine and valid document and ownership was a condition precedent for granting relief of joint possession. The trial court rightly discussed that the sale deeds were a sham transactions but the Lower Appellate Court dismissed this specific plea set up by the defendant No.1 without recording the specific findings thereon.
Though a specific denial has been made in the reply to para No.2 of the plaint by the defendant that the sale deeds were a sham transactions having been executed in favour of the plaintiff No.1 in order to save the land from being declared as surplus area and to avoid implication of land ceiling laws. No specific denial to this plea has been made by the plaintiff in the replication stating that the sale deed was executed in his favour for a valuable consideration conferring absolute right of ownership upon him. Admittedly the plaintiffs were not present at the time of execution of sale deeds and that they were not delivered possession. Similarly, no evidence was led by the plaintiff as to how the sale deeds were acted upon after their execution. No evidence has been led in order to establish as to when these sale deeds were handed over to the revenue officers for sanctioning the mutations. Neither any witness has been examined nor any document has been proved in order to establish if the plaintiffs or their attorney have ever received the lease money from the plaintiffs, rather Malook Singh the alleged power of attorney states that no lease money was received by him. His plea that that the plaintiffs had been receiving the lease money up to 1980 has turned to be a false as no receipts have been brought to prove the same. The crux of the evidence is that R.S.A. No. 1661 of 2005 -13- *** neither the plaintiffs remained in possession of the sale deeds nor they ever handed over the same to the defendant No.1 for sanctioning the mutations, nor revenue officers ever sanctioned the mutations on the basis of said documents. Had the mutations been rejected on the ground of non appearance of the defendant No.1, then the plaintiff would have made efforts for re-entering the sale deeds with the revenue authorities and in case of rejection, would have filed the appeals. Had they been actually owners of the property, they would have not relinquished the recovery of the lease amount from the defendant No.1. The plaintiffs never appeared in the witness box to own the sale deeds, made efforts for taking possession of the land for the last 24 years prior to the filing of the suit from the defendant No.1 on the strength of the alleged sale deeds. Even after the expiry of the period of lease i.e. in the year 1986, the suit was filed four years after the expiry of the lease, that also goes to show that the plaintiff never claimed ownership over the land on the basis of the said sale deeds and never asked for possession. The inference of the document being sham could be drawn from the fact that they did not take any step to claim lease money for ten years as according to them the defendant No.1 did not pay them the lease money after 1980. The evidence further shows that earlier Kartar Singh and his sons tried to dispossess the defendant No.1 from the suit land and failing to do so, they under the garb of the power of attorney, which was actually not given to him by Surinder Nath Kapoor for filing the suit are using the same against defendant No.1. Similarly, Malook Singh also preferred to keep the plaintiffs behind the curtain and for any false bargain, speculation, fictitious transaction or mis-representation continued to contest himself and he blatantly stated that he would not examine the plaintiffs.
To the contrary, in order to prove that these were sham transactions, the defendant No.1 himself appeared in the witness box and fully explained about the nature of the transactions as sham stating that Surinder Nath Kapoor had appointed him as power of attorney which has not so far been cancelled by him. Thus, sale deeds and lease deeds were got scribed in order to save the land from being surplus laws, in favour of Surinder Nath Kapoor, Prem Nath and his mother Kaushalya Rani. He has further explained that since Kaushalya Rani was his father's sister, Prem R.S.A. No. 1661 of 2005 -14- *** Nath was his cousin, therefore, he got inserted their names in order to avoid land ceiling laws. He also submitted that for this reason, the mutations in respect of the lease deeds and sale deeds were not got registered for 30 years by any body. They neither claimed nor paid any lease money to them. Regarding the allegations with regard to surplus area, the statement of Narinder Nath Kapoor stands like a rock being un-rebutted from any source. He states that the case with regard to surplus area of this land was pending in his name and that he remained successful in getting the said surplus land saved and decision was made in his favour. The case had started in the year 1972 and after the pendency of about 8 years, it was decided in his favour in the year 1980. With regard to the earlier dispute prior to the filing of the suit between Kartar Singh etc. he had stated that first of all Darshan Singh tried to dispossess him from the suit land regarding which he obtained the stay from the court and thereafter Kartar Singh and his sons tried to interfere in his possession whereupon he filed a suit for stay against them and when the proceedings started in other suits, then the said suit was withdrawn. The aforesaid facts were neither rebutted by the attorney nor the plaintiffs while appearing in the witness box therefore, these facts, since not denied and rebutted, would be treated as accepted by the plaintiffs and inference would be drawn that whatever the plaintiffs state is not correct.
Learned counsel for the respondents has tried to contend that plaintiffs have appeared in the witness box through their attorney Malook Singh, therefore, he has substituted the plaintiff. As such his statement should be accepted. As regards the power of attorney in favour of Malook Singh, I need not to go in minute if he was duly appointed attorney or not but his power to appear in place of plaintiffs and capacity to disclose the facts which were in the specific knowledge of the plaintiffs is significant question into controversy.
In this regard, if Malook Singh is treated to be an attorney authorised to file the suit and act on their behalf, even then he could not take place of the principal and make the statement of the facts about which he was not in the knowledge. The alleged sale deeds took place in the year 1966, whereas, Malook Singh was appointed attorney in the year 1990, what transpired in the year 1966 between the parties and how the sale deeds R.S.A. No. 1661 of 2005 -15- *** came into existence and from which source Surinder Nath Kapoor or the plaintiffs received the money and when he handed over the same and to whom he handed over the same for making purchase of the property, could only be answered by the plaintiffs and not by mere holder of the power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the plaintiffs so as the defendants, therefore, he could neither depose from his personal knowledge nor could he be cross examined on those facts which are to the knowledge of the principal. Similar observations were made in case Janki Vashdeo Bhojwani and another vs. Indusind Bank Limited and others AIR 2005 SC 439. In the aforesaid Indusind Bank's case (supra), the Apex Court observed that Order 3 Rules 1 & 2 CPC empowers the holder of the attorney to act on behalf of the principal but the term 'act' would not include deposing in place of and instead of the principal. It was further observed that in other words the power of attorney holder has rendered the some acts in pursuance of the power of attorney he may depose for the principal in respect of such acts, but he cannot depose for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined. The court after discussing various judgment i.e. Vidhyadhar v. Manikrao, (1999) 3 SCC 573, Shambhu Dutt Shashtri v. State of Rajasthan, (1986) 2 WLL 713, Ram Parsad vs. Hari Naraian AIR 1998 Rajasthan 185, and a dissenting view reported in case Humberto Luis vs. Floriano Armando Luis (2002) 2 Bom CR 754 finally observed as under :-
"21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled.
22. In the view that we have taken we hold that the R.S.A. No. 1661 of 2005 -16- *** appellants have failed to discharge the burden that they have contributed towards the purchase of property at 38, Koregaon Park, Pune. This being the core question, on this score alone, the appeal is liable to be dismissed."
In these circumstances it could well be observed that Malook Singh could not depose all the material facts which are in the special knowledge of the plaintiffs, therefore, he could not rebut the facts which were deposed by Narinder Nath Kapoor. In the absence of examination of any of the plaintiffs to rebut the facts as given by the defendant No.1, leading to the transactions whatever was stated by Narinder Nath Kapoor defendant No.1 would be treated as correct and adverse inference would be drawn against the plaintiff. Malook Singh had no personal knowledge and was not well conversant with the facts of the case as he only figured in the year 1990. Had he been present at the time of sale deeds or lease deeds in the year 1966, then he must have signed same. Needless to say, whole of his testimony (Malook Singh) appears to be false at the face of it and is not sufficient to discharge the onus. Barring the statement of Malook Singh whose testimony is of no consequence and whose statement cannot be taken as the statement of the principal, there is no other evidence which may be treated as sufficient to shift the onus. The fact remains that there is no other evidence on the file to prove the ownership of the plaintiff over the suit land and that the sale transactions though could not be recorded as benami transaction in view of the specific bar created under the Benami Transaction Prohibition Act, yet, the same could be treated as sham one. As such the transactions of sale dated 17.10.1966 and 7.1.1967 allegedly executed by Rajinder Krishan and Kewal Krishan in favour of the plaintiffs as well as Kaushalya Rani, could be termed as sham transactions.
Admittedly, Surinder Nath Kapoor was a Singapore resident. Nothing has been shown if he had any source of income in India to come in possession of Indian Rupee, therefore, in order to establish that the transactions in his name were genuine one and he had made the payment of consideration, he could establish regarding bringing of Singapore dollars to India and the conversion of these dollars to Indian Rupees by leading any R.S.A. No. 1661 of 2005 -17- *** cogent evidence but that was not done. Similarly, no source from which the money was paid by Prem Nath and Kaushalya Rani to the vendees has been shown. The payment of consideration which was in specific knowledge of the plaintiffs was to be proved by them but they have not stepped into the witness box to prove the same.
It may further be observed that the vendees never intended to transfer the property by way of sale in favour of Surinder Nath Kapoor or the plaintiffs as they either on the same day or one day earlier to it had executed a lease deed in favour of Narinder Nath Kapoor and handed over the possession to the lessee for 20 years. Later on they allowed a declaratory to be passed in favour of defendant No.1. The plaintiffs never objected to this transfer of possession and never protested that since they had spent the money, therefore, possession should be delivered to them. If in reality, it was a transaction of sale in favour of Surinder Nath Kapoor or the plaintiffs, then they would not have allowed the lease deeds to be executed and would not have parted the possession of Rs.47,000/- without receiving the possession of the property or they would not have remained silent for 24 years without getting the fruits of the sale allegedly executed in their favour. It could also be noticed that when neither the possession of the property in question was delivered nor sale deed thereof were given to the purchaser i.e. plaintiffs, then mere registration of the sale deed cannot operate to pass the title to the vendee or to pass any interest to them in the property purported to have been passed to him. Similar, observations were made in case Parshotam Dass vs. Yar Ali, AIR 1928 Oudh 439 (DB), Mahton vs. Hussaint Mian AIR 1920 Patna 774, Joginder Naraina Rai Chaudhary vs. Manmatha Nath Chatterejee, AIR 1917 Cal. 589 (DB).
The Apex Court while elaborating the circumstances which could enable the court to hold that the sale deeds were genuine or a sham transaction observed in case Kaliaperumal vs. Rajagopal and another 2009 (2) Recent Civil Reports 471 that the court is to examine the intention of the parties which can be gathered from the document itself or from the conduct of the parties. No doubt the court further observed that such intention could be gathered and determined from the recitals of the sale deed, but, it also observed that when the recitals are insufficient and R.S.A. No. 1661 of 2005 -18- *** ambiguous, the surrounding circumstances and conduct of the parties can be looked into for ascertaining the intention subject to the limitations placed by Section 92 of Evidence Act. Thus, in other words, the court observed that proving of document to be sham transaction could be gone into while invoking Section 92 of the Evidence Act. It has been further observed in Rajagopal's case (supra) that "there is yet another circumstance to show that title was intended to pass only after payment of full price. Though the sale deed recites that the purchaser is entitled to hold, possess and enjoy the scheduled properties from the date of sale, neither the possession of the properties nor the title deeds were delivered to the purchaser either on the date of sale or thereafter. It is admitted that possession of the suit properties purported to have been sold under the sale deed was never delivered to the appellant and continued to be with the respondents. In fact, the appellant, therefore, sought a decree for possession of the suit properties from the respondents with mesne profits. If really the intention of the parties was that the title to the properties should pass to the appellant on execution of the deed and its registration, the possession of the suit properties would have been delivered to the appellant."
In this case also, neither the possession was delivered to the plaintiffs nor it was promised that it would ever be delivered to them. The argument that no evidence could be led to prove the nature of the document except the contents thereof, cannot be sustained as it is well settled that the plea that title has not passed on the execution of the sale deed can be raised from the contents of the document and intention of the parties behind the execution of the document which could be gathered from the recitals in the document and from other attending circumstances brought on record i.e. circumstantial evidence, conduct of the parties and inconsistencies in the recitals of the document. After examining the entire evidence, the contents of the documents and other extrinsic evidence, it is open for the court to infer that the contents of the document intended not to transfer title. This is what the lower Appellate Court has not done and it fell in error in touching the issue of sham transaction and proceeded on the assumption that since the sale deeds were admitted to have been executed, therefore, the plaintiffs are the owners.
R.S.A. No. 1661 of 2005 -19-*** No doubt there was a heavy burden upon the defendant to show that the transactions were sham but the defendant has succeeded to lead sufficient evidence for enabling this court to hold that the transactions of sale were sham transactions and were not intended to be executed in favour of the plaintiffs. The plaintiff No.1 or Kaushalya Rani are not signatory to the sale deeds which shows that they were not present at the time of transaction. No document to prove that they ever came and and entered into transactions at all has been brought on record. They did not pay the money for getting the land transferred; never took the possession; never asked for the lease amount from the defendant No.1, never proceeded to get an entry of mutations made in their favour on the basis of the sale deeds; never demanded the original sale deeds; never asked for the lease money; never stepped into the witness box to own the sale deeds; the said sale deeds were never acted upon by them and they never visited the land.
To be precise, the crucial issue before me is about the nature of the transactions. A distinction must be borne in mind in regard to nominal and fictitious nature of transactions which is no transaction in the eyes of law at all and the nature and the character of the transaction as reflected in the deed of conveyance. The plaintiffs and the defendant No.1 were having fiduciary relationship, the later could get the benefit of his brother's, father's sister and her son's name and utilize their names particularly in the situation that they were cordial in their relations at that time and in order to avoid the implication of a surplus laws. As such mere insertion of their names in the sale deeds do not confer any title upon the plaintiffs to seek possession of the land.
As regards the right to challenge the transactions as sham, the defendant being the lessee and got inserted the name of the plaintiff in order to avoid the surplus laws, and also having civil court decree in his favour had every right to challenge the said transactions as sham and fictitious transactions. It was observed in case Kashmiri Kumar vs. Durga Chaan Deb, AIR 1923 Cal. 521 that when the deed is challenged as a fictitious document which was never designed as a genuine document in order to effect the transfer of title, it would be open to a stranger to the deed to impeach it as absolutely void and wholly invalid on all available grounds R.S.A. No. 1661 of 2005 -20- *** without any restrictions. Similarly, in case Brundaban Misra vs. Iswar Swain and others, AIR 1983 Orissa 172 after discussing the judgments delivered in cases Sudhakar Sahu vs. Achutananda Patel, AIR 1967 Orissa 89, and Sanatan Miohapatra vs. Hakim Miohammad Kazim Mohammad, AIR 1977 Orissa 194, observed that when a transaction is challenged as a fictitious document which was never designed as a genuine deed in order to effect the transfer of title, it would be open to a stranger to the deed to impeach it as absolutely void and wholly invalid on all available grounds without any restrictions.
So long as judgment and decree dated 10.2.1988 is not set aside, it would remain binding upon the plaintiffs on one side and Kewal Krishan and Rajinder Krishan on the other side. The ex-parte decree being as good decree as obtained after contest, would remain binding upon them and consequently the sale as well as mortgage transactions entered into by Narinder Nath Kapoor on the strength of the decree would be quite valid and he would also remain bound by those transactions of sale and mortgage. Eventually, as the civil court decree as well as the revenue records spoke to the volumes about the title of the defendant No.1, therefore, the vendees of the defendant No.1 were not supposed to make further enquiry into it. Not only this the plaintiff as well as his alleged attorney allowed the title or interest to pass upon the defendant No.1 and his vendees and did not speak for years to challenge the same, therefore, the mortgagees or sales effected by defendant No.1 would be treated as valid and they would be deemed as bona-fide purchasers for valuable consideration without notice.
As regards the question of adverse possession raised by the defendant as alternative does not matter much as this court has already held the sale transactions to be sham and fictitious, therefore, the claim set up by the defendant No.1 for adverse possession against Rajinder Krishan and Kewal Krishan is valid and has been recognized by a decree. In any case, in civil law, the defendant No.1 could raise as many pleas as were permissible to him and the alternative plea of tenancy as set up by him could not damage the plea of adverse possession, as the specific case of the defendant No.1 is that he neither paid any lease money to Rajinder Krishan and R.S.A. No. 1661 of 2005 -21- *** Kewal Krishan nor to the plaintiffs.
Consequently, all the substantial questions of law are answered in favour of the plaintiffs and against the respondents.
For the foregoing reasons, I hereby accept the appeal, set aside the impugned judgment and decree and dismiss the suit of the plaintiffs. However, the parties are left to bear their own costs. Decree sheet be prepared accordingly.
July 20, 2009 (A.N. Jindal) deepak Judge