Punjab-Haryana High Court
Smt.Bhana vs Krishan Kumar & Others on 4 May, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.4938 of 2010 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No.4938 of 2010 (O & M)
Date of decision:04.05.2012
Smt.Bhana ......Appellant
Versus
Krishan Kumar & others ......Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Sanjay Mittal, Advocate, for the appellant.
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G.S.SANDHAWALIA J.
1. The present appeal has been filed by the plaintiff who is aggrieved against the dismissal of her suit for declaration and the relief of possession and against the partial modification by the lower appellate Court whereby she has been held entitled to the relief of ` 70,000/- with 6% interest from the date of institution of the suit from defendant No.1.
2. The suit was filed on the ground that the defendants were the sons of the plaintiff's real brother, Rampat and that in the year 1988, they had played a fraud with her by getting blank papers thumb marked on the ground that her land was being acquired for the purpose of construction of JNL canal. Defendant No.1 had misused the thumb mark and got a general power of attorney in his favour on 08.09.1988 and thereafter, executed sale deed in favour of defendants No.2 & 3 who are his real brothers for ` 70,000/- on 09.09.1988. Accordingly, it was contended that the said general power of attorney and sale deed was also not binding upon the plaintiff.
3. The suit was contested by the defendants and it was pleaded that she had sold her share and no compensation amount was due in the year RSA No.4938 of 2010 2 1988 in respect of the land acquired for the JLN canal and the amount of ` 70,000/- had been paid to the plaintiff in the presence of Jai Narain, Ex- Member Panch, Ram Kishan, Panch and Prem Sukh, Lambardar. The trial Court framed the following issues:
1. Whether the general power of attorney in favour of defendant No.1 dated 08.09.1988 was procured by defendant No.1 by playing fraud upon the plaintiff as alleged? OPP
2. If issue No.1 is proved in favour of the plaintiff, to what effect is the sale deed dated 09.09.1988 executed by defendant No.1 as General Power of Attorney of the plaintiff in favour of defendant No.2 and 3? OPP
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the suit is not filed within time? OPD
5. Whether the suit is bad for non-joinder of Virender, petition writer and joint Sub-Registrar, Rewari as alleged in P.O.No.37? OPD
6. Whether the plaintiff is estopped by her act and conduct from filing the present suit? OPD
7. Whether the suit is Benami and collusive and has been filed at the instance of Kusumlata and Nariani widow of Daya Nand, if so, to what effect? OPD
8. Relief.
5. The plaintiff examined only herself and defendants examined several witnesses namely Rakesh Kumar, Tehsildar, Ram Kishan, Virender Kumar, Deed-writer, Prem Sukh, Lambardar, Raj Pal, Krishan Kumar and Mahender Singh.
6. The trial Court came to the opinion that there was nothing on record to show that any fraud had been played by the defendants and the stamp papers were purchased by her and the documents were duly signed and attested by the Joint Sub-Registrar who had appeared as DW1 and there was only the sole statement of the plaintiff and in the absence of any RSA No.4938 of 2010 3 averments of fraud and misrepresentation, no relief could be granted to her.
The fact that the suit had been filed after limitation on 06.06.2000 and no complaint had been filed also weighted with the Addl. Civil Judge, Rewari who dismissed the suit on 08.12.2008. The appeal filed before the Addl.District Judge, Rewari was partly allowed vide judgment and decree dated 16.08.2010 by holding that the plaintiff was entitled for recovery of ` 70,000/- with 6% interest from the date of institution of the suit on the ground that there was no document to show that the sale consideration had been paid by Krishan Kumar to the plaintiff and the modification was done and it was held that the suit was maintainable.
7. Counsel for the appellant has contended that the appellant is a old lady and her nephews had misused her thumb impressions taken on blank papers, and therefore, the lower appellate Court was in error in only granting the relief of recovery of ` 70,000/- with 6% interest. The said submission of the counsel for the appellant is not sustainable as the power of attorney was registered before the Sub-Registrar, Rewari who had stated that she had appeared before him for the execution of the general power of attorney and the documents had been read over and after understanding the same, she put her thumb impression on the same. Subsequently, the sale deed has been executed by defendant No.1 in favour of defendants No.2 &
3. The Deed-writer has also deposed in the same terms that the power of attorney was executed by the plaintiff in favour of Krishan Kumar and was signed by Jai Narain and Ram Chander. The power of attorney is a registered document and there is a presumption in favour of the same and admittedly, the plaintiff took no action regarding the said power of attorney which had been executed and the subsequent sale which took place and the RSA No.4938 of 2010 4 suit has been filed on 06.06.2000, challenging the power of attorney executed on 08.09.1988, after a period of 12 years, and therefore, the findings recorded by the Courts below that there is no proof that there was any fraud which was effected upon the plaintiff is not liable to be interfered with. The plaintiff is a old lady and during her lifetime, was wanting to give the land to her nephews and even possession was with them and now, after a period of 12 years, has had a change of mind and is seeking the relief of possession also. The provisions of Order 6 Rule 4 Code of Civil Procedure specifically provides that the plaintiff has to give details of misrepresentation, fraud or breach of trust and the particulars have to be given and they have to be exemplified in the form of dates and items in the pleadings. In the present case, the plaintiff has failed to plead her case in specific manner as to how she was frauded and the registered general power of attorney was got executed from her by her nephews. Once the sale deed had been effected and the allegation that the sale consideration was not received, the only remedy was to sue for the sale consideration as has been held by this Court in Ajmer Singh & others Vs. Nishi Kumar & another 2003(3) PLR 729 as under:
"16. The definition of 'sale' indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another. The transferor cannot retain any part of his interest or right in the property, otherwise it will not amount to sale. As per the aforesaid definition, it is further clear that the transfer of ownership should be in exchange for a "price paid or promised or part-paid and part-promised".
Therefore, it is not necessary that at the time of execution of the sale deed, the entire price of the sale should have been paid. A document can be executed even if part of the sale consideration was promised to be paid in future. If from the recitals in the sale deed it appears that title would pass after RSA No.4938 of 2010 5 payment of consideration, the inference would be that until consideration is paid, there is no transfer. On the other hand, if it appears that passing of title is not depending upon the passing of consideration and had the vendor intend to pass title without receipt of consideration, the document must be held to be one conveying title. The real test is the intention of the parties. In order to constitute a sale, the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in present or in future. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record.
17. On the basis of the aforesaid principle, if the contents of the sale deed dated 23.5.1974, conduct of the parties and the evidence available on the record is analysed, it would be clear that intention of the parties in the instant case was to transfer the land in question to the defendants. In the instant case, the registered sale deed was executed. Even possession of the land in question was also delivered. Further, part of the sale consideration was agreed to be paid by the defendants by 22.5.1975. In the sale deed it has been clearly mentioned that he has definitely transferred the land in question to the vendee by this sale deed. He has used the words "Katai Tor Par Vikarie Kar Di Hai." This averment in the sale deed expressly indicates that the vendor had transferred the land in question. But merely because there was a condition in the sale deed that if the remaining sale consideration was not paid by the aforesaid date, the sale will be deemed to be cancelled does not itself reflect the true intention of the parties that the plaintiff did not want to transfer the land in question to the defendants. If that would have been the intention, after the expiry of the said particular date i.e. 22.5.1975, the plaintiff would have immediately filed the instant suit or would have issued a notice to the defendants that since they have failed to pay part of the sale consideration, as agreed by them, therefore, the sale in question was liable to be cancelled. There is no evidence to this effect that the plaintiff did take any such step till the filing of the instant suit in the year 1978. RSA No.4938 of 2010 6 Rather, in his statement as PW3, the plaintiff has stated that when the balance amount was not paid by the defendants within the stipulated time, he did not issue any notice to the defendants. This conduct of the plaintiff indicates that intention of the parties was only to transfer the land in question. Merely because part of the sale consideration, which was agreed to be paid in future, was not paid, it cannot be said that the title did not pass vide registered sale deed, particularly when possession was also handed over to the vendees at the time of execution of the registered sale deed. In such a situation, the only remedy available to the vendor was to sue for consideration. My this view is supported by Kutcherlakota Vijayalakshmi v. Radimeeti Rajaratnamba and Ors., A.I.R. 1991 Andhra Pradesh 50 and Lakshmi Narain Barnwal alias Lakshmi Narayan v. Jagdish Singh and Anr., A.I.R. 1991 Patna 99."
8. The plaintiff choose to file for declaration and possession which has been rightly denied and the lower appellate Court has thus, only granted the relief of recovery of ` 70,000/- along with interest @ 6% in view of the fact that there was no proof that the amount was received by her.
9. The findings recorded by the Courts below are findings of fact and are not liable to be interfered in the present facts and circumstances and in the absence of any question of law arising for consideration. The present regular second appeal is dismissed in limine and the judgment and decree of the lower appellate Court below is upheld.
04.05.2012 (G.S.SANDHAWALIA) sailesh JUDGE