Delhi High Court
Shri Dharamvir & Ors. vs Shri Ved Singh (Deceased) Through Lrs & ... on 30 May, 2011
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 30.05.2011
+ RSA No.20/2009
SHRI DHARAMVIR & ORS. ...........Appellants
Through: None
Versus
SHRI VED SINGH (DECEASED) THROUGH LRS & ANR.
..........Respondent
Through: None
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. None has appeared for the appellants. Matter has been remained on board. Court notice has been issued and served upon the counsel for the appellants but even then he has chosen not to appear.
2. This appeal had impugned the judgment and decree dated 31.10.2008 which has endorsed the finding of the trial judge dated 13.2.2006 whereby the suit filed by the plaintiffs seeking a declaration to the effect that the sale deed and mutation order RSA No.20/2009 Page 1 of 5 passed on the basis of the sale deed be declared null and void had been dismissed.
3. Plaintiff was stated to be the recorded co-bhumidar of the residential plot No.275, Lal Dora Abadi of Village Mundaka, Delhi. Contention was that defendant no.2 has forged a general power of attorney (GPA) dated 12.8.1983 purported to have been executed by them in his favour; on the basis of this GPA he had got a sale deed executed in favour of defendant no1; defendant no.1 on the strength of this sale deed had got mutation of this property effected in his favour. It was contended that on the date of the execution of this GPA i.e. on 12.8.1983 plaintiff no.1 was only 13 years of age; plaintiff no.2 was 11 years of age; they were minors and not in a position to executed the aforenoted power of attorney. Defendant no.1 has got mutation sanctioned in his favour on 08.11.1995 in collusion with the Tehsildar. Plaintiffs learnt about this only when they obtained a copy of the proceedings from Halka Patwari and inspected the file on 10.4.1996; defendant no.1 is now trying to dispossess the plaintiffs from the suit land on the strength of the sale deed dated 30.10.1995; present suit for declaration, cancellation and permanent injunction had accordingly been filed.
4. Defence was that the suit was not maintainable being RSA No.20/2009 Page 2 of 5 barred by limitation; it was denied that the defendant no.2 had forged any power of attorney; it was stated that the sale deed and the mutation effected by defendant no.2 in favour of defendant no.1 was based on legal documents.
5. From the pleadings of the parties the following six issues were framed:
1. Whether the plaintiffs were the recorded co-bhimidhars of the residential plot NO.257 (1-9) situated within the Lal Dora Abadi of Village Mundaka, Delhi ( in short called as suit property)? OPP
2. Whether defendant No.2 had got fabricated General Power of Attorney dt. 12.9.1993 on behalf of the plaintiffs and whether on the basis of the same, the defendants got a sale deed executed and registered in their favour pertaining to the shares of the plaintiffs in plot NO.257 as alleged in Para 4 of the plaint? OPP
3. Whether the plaintiffs are entitled to the relief asked for? OPP
5. Whether the plaintiffs have not approached this court with clean hands?
6. Whether the plaintiffs have not properly valued the suit property the purposes of court fees and jurisdiction? RSA No.20/2009 Page 3 of 5
OPD
7.Relief.
6. Oral and documentary evidence was led. Issue no.1 was decided in favour of the plaintiff. He was held to be co-bhumidhar in the land. While dealing with issue no.2 the court was of the view that the relief sought for by the plaintiff was only to declare the sale deed and the mutation in favour of defendant no.1 as null and void; the GPA purportedly executed by the plaintiffs in favour of defendants no.2 had not been sought to be cancelled; court was of the view that without seeking declaration declaring that the GPA is null and void on the strength of which the sale deed and the mutation had been effected; relief sought for in the plaint was not permissible; suit was dismissed.
7. This finding was endorsed by the first appellate court.
8. This is a second appeal. It has been admitted and on 17.9.2009 the following substantial question of law was formulated:
1.Whether the courts below were right while dismissing the suit of the appellant seeking declaration and cancellation of Sale Deed dated 30.10.1995 because the appellant did not seek the relief of cancellation of General Power of Attorney dated 12.08.1983 which according to the appellant is a forged and fabricated document?
2.Whether respondent No.2 could execute the Sale Deed in RSA No.20/2009 Page 4 of 5 favour of respondent No.1 for and on behalf of the minors to the detriment of their interest, being not their legal guardian?
9. These are two concurrent fact findings of the two courts below; they do not call for any interference. Appellant has not appeared. Appeal is dismissed in default as also for non prosecution. Merits of the case also stand considered.
10. Appeal is disposed of.
INDERMEET KAUR, J.
MAY 30, 2011 ns RSA No.20/2009 Page 5 of 5