Punjab-Haryana High Court
Ajay Kumar And Others vs Jarnail Singh on 27 May, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No. 1241 of 2013 (O&M) and
RSA Nos. 578-585 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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RSA No. 1241 of 2013 (O&M)
Date of decision : May 27, 2014
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Ajay Kumar and others
............Appellants
Versus
Jarnail Singh
...........Respondent
RSA No. 578 of 2011 (O&M)
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Ajay Kumar Syal son of Ashok Kumar Syal and others
............Appellants
Versus
Charanjit Singh
...........Respondent
RSA No. 579 of 2011 (O&M)
*****
Ajay Kumar Syal son of Ashok Kumar Syal and others
............Appellants
Versus
Butta Ram
...........Respondent
Kukreja Ritu
2014.05.31 12:31
I attest to the accuracy and
integrity of this document
Chandigarh
RSA No. 1241 of 2013 (O&M) and
RSA Nos. 578-585 of 2011 (O&M) 2
RSA No. 580 of 2011 (O&M)
*****
Ajay Kumar Syal son of Ashok Kumar Syal and others
............Appellants
Versus
Kewal Krishan Mahajan
...........Respondent
RSA No. 581 of 2011 (O&M)
*****
Ajay Kumar Syal son of Ashok Kumar Syal and others
............Appellants
Versus
Harjinder Singh
...........Respondent
RSA No. 582 of 2011 (O&M)
*****
Ajay Kumar Syal son of Ashok Kumar Syal and others
............Appellants
Versus
Jagdev Singh
...........Respondent
Kukreja Ritu
2014.05.31 12:31
I attest to the accuracy and
integrity of this document
Chandigarh
RSA No. 1241 of 2013 (O&M) and
RSA Nos. 578-585 of 2011 (O&M) 3
RSA No. 583 of 2011 (O&M)
*****
Ajay Kumar Syal son of Ashok Kumar Syal and others
............Appellants
Versus
Veena Thakur
...........Respondent
RSA No. 584 of 2011 (O&M)
*****
Ajay Kumar Syal son of Ashok Kumar Syal and others
............Appellants
Versus
Lakhbir Singh
...........Respondent
RSA No. 585 of 2011 (O&M)
*****
Ajay Kumar Syal son of Ashok Kumar Syal and others
............Appellants
Versus
Surinder Singh
...........Respondent
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CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
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Present: Mr. Puneet Kumar Jindal, Advocate for the appellants.
Mr. Deepak Thapar, Advocate for the respondent.
*****
Kukreja Ritu
2014.05.31 12:31
I attest to the accuracy and
integrity of this document
Chandigarh
RSA No. 1241 of 2013 (O&M) and
RSA Nos. 578-585 of 2011 (O&M) 4
RAKESH KUMAR GARG, J (ORAL)
This judgment shall dispose of nine appeals i.e RSA No. 1241 of 2013 and RSA No. 578 to 585 of 2011, as in all these appeals, common questions of law on identical facts have been raised on behalf of the plaintiff-appellants, who are aggrieved from the judgment and decree of the trial Court dismissing their suit as well as the judgment and decree of the lower appellate Court which has upheld the findings of the trial Court while dismissing the appeal against the aforesaid judgments and decrees. However for convenience sake, facts are being taken from RSA No. 1241 of 2013.
The appellants filed a suit for declaration to the effect that they are owners of the land as detailed in the head note of the plaint comprising in plot no. 24 in the area of Basti Sheikh near Dussehra Ground, opposite Ghas Mandi, Jalandhar on the basis of a sale deed dated 12.7.1996 registered on 26.7.1996 along with consequential relief of possession for the suit land, after removal of the malba as described and detailed and shown in the site plan attached with the plaint.
It was further averred that plaintiffs are the bona fide purchasers of the suit land for a valuable consideration vide aforesaid sale deed whereas the defendant on the basis of forged and fabricated documents occupied the property in dispute without their consent and thus is a trespasser and has no right to remain in the property in dispute. It was further averred that plaintiffs reported Kukreja Ritu 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 5 the matter to the police but to no effect. They also requested the defendant to hand over the possession of the property in dispute but he refused to do so. The land in dispute was agricultural land and the defendant raised illegal construction thereon during the pendency of the suit despite objections raised by them and thus they were entitled to the possession after removal of the malba on the said plot. Since the defendant did not accede to the request of the plaintiffs, necessity arose to file the instant suit.
Upon notice, defendant appeared and filed written statement raising various preliminary objections with regard to the maintainability of the suit, locus standi of the plaintiffs to file the suit further alleging that the sale deed in question is forged and fabricated document which was executed by Dilbagh Rai through his attorney Ram Lal Gupta. It was further submitted that Dilbagh Rai was not known to the world since long and has not executed any power of Attorney as alleged and even if there was any Power of Attorney, the same is forged and fabricated document and the sale deed was wrongly executed by playing fraud. It was further averred that there was no allotment in favour of Dilbagh Rai and the auction/allotment if any was cancelled vide order dated 5.1.1961 by this Court. Thereafter again the matter went up to the High Court and the sale certificate which was fraudulently obtained by Dilbagh Rai was cancelled vide order dated 4.3.1977. According to the defendant, he had purchased the plot in question from one Janga Kukreja Ritu Singh and constructed a pucca house over there. Dilbagh Rai was 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 6 not entitled to any land as allotment in which he allegedly got the land has already been cancelled and even the sale certificate has been cancelled by the competent authority and, therefore, Dilbagh Rai was not competent to execute the Power of Attorney regarding the land in dispute. It was further submitted that Dilbagh Rai has expired and thus if the principal was not alive, the Power of Attorney is also not alive and therefore the sale deed or any document executed by the Attorney or such Power of Attorney is a null and void transaction. It was further stated that defendant was in possession of the land in dispute and the plaintiffs have no right to call him as trespasser. All other averments made in the plaint were denied and dismissal of the suit was prayed.
Plaintiffs filed replication controverting the averments made in the written statement filed by the defendant and reiterating those of the plaint. It was submitted that earlier in the year 1961 all the auctions were cancelled and the Managing Officer was directed to consider for transfer of land up to the alleged allotment of the lease deed/sub lease. Earlier Janga Singh was offered 8 kanals and 1 marla of land which was held to be void. Later on the DRO-cum- Managing Officer in his proposal proposed amendment of Khasra No. 318, 2616/313 and 322 min total land measuring 9 kanals 10 marlas at the enhanced rate eligibility limit of Rs.14,250/- and with the aforesaid order earlier allotment of khasra no. 312 and 318 was treated as cancelled. Again vide order dated 11.8.1964 Janga Singh Kukreja Ritu was offered land measuring 10 kanals 2 marlas at the market price 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 7 ranging from Rs.1000 to Rs.1500/- per kanal comprising in khasra no. 319 (5-17), 312 (1-16), 3328/311 (1-2), 3327/311 (0-11), 3326/311 (0-7), 305 min (0-4), 310 min (0-1), 321 min (0-1), 322 (0-3) and thus the claim was specified up to the value of Rs.14,415/- and this offer was confirmed. However, Janga Singh failed to deposit the amount and his allotment stood cancelled, whereas the auction in favour of Dilbagh Rai stood confirmed at all levels, the sale deed in favour of plaintiffs was legal and valid document executed by Dilbagh Rai through his Attorney Ram Lal Gupta. Hence the plaintiffs were entitled to the relief claimed by them. It was specifically stated in the replication that Dilbagh Rai was alive.
From the pleadings of the parties, the following issues were framed:
1. Whether the plaintiff is entitled for declaration as prayed for ? OPP
2. Whether the plaintiff is entitled for possession of suit property after removing the Malba? OPP
3. Whether the suit is not maintainable in the present form?OPD
4. Whether the plaintiff has no locus standi to file the present suit? OPD
5. Whether the suit is bad for non-joinder of necessary parties? OPD
6. Whether the sale deed dated 12.07.1996 is collusive Kukreja Ritu document without consideration ?OPD 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 8
7. Whether the plaintiff has no cause of action to file the present suit? OPD
8. Whether the suit of the plaintiff is not properly valued for the purpose of court fee and juridiction? OPD
9. Relief.
Parties led evidence in support of their respective claims. During the pendency of the case, plaintiff Ashok Kumar Syal died on 3.10.2006, accordingly his LRs were ordered to be impleaded in his place.
After hearing learned counsel for the parties and appreciating evidence, the trial Court decided issue no.1 against the plaintiffs. Issues no. 2 was decided in favour of the defendant, whereas issue no.3 was decided against the defendant. Issue no. 4 was decided against the plaintiffs. Issue no. 5 & 6 were decided in favour of the plaintiffs. Whereas issue no. 7 was disposed of being unpressed. Issue no. 8 was decided in favour of the plaintiffs and against the defendant resultantly the suit was dismissed with no order as to costs.
Feeling aggrieved against aforesaid judgment and decree of the trial Court, plaintiffs filed an appeal before the First Appellate Court which was also dismissed vide impugned judgment and decree dated 4.10.2012 and findings of the trial court on all the issues were affirmed.
While dismissing the appeal, the lower Appellate Court Kukreja Ritu observed that the sale in favour of the plaintiffs was made by Ram 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 9 Lal Gupta, on the basis of the Power of Attorney in his favour executed by Dilbagh Rai and others, vide sale deed dated 26.7.1996 whereas it has been proved on record that Dilbagh Rai died on 23.5.1972 as proved on record from the death certificate of Dilbagh Rai exhibited as D-3 and aforesaid piece of evidence has remained unrebutted. The contention of the appellants to the effect that the sale in question on the basis of Power of Attorney given by Sh. Dilbagh Rai was still good, in the absence of knowledge of the death of Principal to the attorney holder and further argument raised on the basis of Section 202 of the Indian Contract Act, 1872 to the effect that there was no express termination of the agency, therefore, the same cannot be terminated even by death, was also rejected on the ground that no interest in the suit property was created by the Power of Attorney in favour of the Attorney Holder and thus the same came to an end on the death of the principal which took place on 23.5.1972 in the instant case and it was not the case of the appellants that the death of the Dilbagh Rai was not known to his Attorney Ram Lal Gupta. Relevant paragraphs of the judgement of the Lower Appellate Court reads thus:
"15. It was the contention of the learned counsel for the appellants that the learned trial court has erred in ignoring the provisions of Section 202 of the Indian Contract Act, 1872 and has further submitted that the sale by Ram Lal Gupta, attorney of Dilbagh Rai, Assu Kukreja Ritu Nath and Samal Bai stood good as he was not having 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 10 knowledge of death of Dilbagh Rai, Assu Nath and Samuel Bai. This infact, is a major point to be determined in this case and the entire case of the appellants hinges on the same. After perusing the entire evidence and going through the relevant provisions of law, I am unable to subscribe to the above contention of learned counsel for the appellants. Admittedly, the sale in favour of the plaintiffs vide sale deed dated 26.7.1976 was made by Ram Lal Gupta on the basis of power of attorney in his favour executed by Dilbagh Rai and others. It has been duly proved on record that Dilbagh Rai above said died on 23.5.1972 and even the death certificate of Dilbagh Rai has been proved on record as Exhibit D-3. This piece of evidence has not been rebutted in any manner by the plaintiffs/ appellants. Learned counsel for the appellants had referred to Sections 201 and 202 of the Indian Contract Act, while submitting that the power of attorney was irrevocable and the sale on the basis of the same would still stand good if the death was not in knowledge of the attorney holder. The relevant provisions of Section 201 of the Indian Contract Act, 1872 are as under:-
"201" Termination of agency.
An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of Kukreja Ritu 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 11 the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors."
The relevant provisions of Section 202 of the Indian Contract Act, 1872 are also reproduced as under:-
"202" Termination of agency, where agent has an interest in subject- matter.
Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency can not, in the absence of an express contract, be terminated to the prejudice of such interest."
16. As per the provisions of Section 202 of the Indian Contract Act, 1872, the case in which the agencies coupled with the contract and there is no express contract for termination of the same, there cannot be any termination even by death. Now, perusal of above provisions reveals that the basic ingredients required for Kukreja Ritu 2014.05.31 12:31 seeking refuge under section 202 of Indian Contract Act I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 12 would be that the agency is coupled with interest i.e. the case in which there is an existing interest of the attorney holder in the subject matter of the power of attorney. In the light of the above fact, the power of attorneys Exhibit P-3, P-4 and P-5 has been looked into. Perusal of the same would reveal that in the same, there is absolutely no mention that any interest of the power of attorney holder has been created in the property in question vide said power of attorney. As such, when no interest is recorded or has been created in favour of the agent, qua the property, it would not make out whether the same was irrevocable or revocable and the same came to an end on the death of the principal. In the present case, the death of principal Dilbagh Rai took place on 23.5.1972. There is nothing on record to show that the said certificate was forged and fabricated. Even otherwise, the plaintiffs/ appellants never claimed that any interest has been created in favour of Ram Lal Gupta. Thus, the sale made after the death of the Principal cannot be termed to be with authority as the very authority stood terminated on the day of death of the principal.
17. Further, it was never pleaded by the plaintiff/ appellant that the death of Dilbagh Rai was not known to his attorney, Ram lal Gupta. It has come in the cross- examination of DW-4, Pritpal Singh that he had disclosed Kukreja Ritu 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 13 to the defendant in the year 1996 that Dilbagh Rai had died. Perusal of statement of PW-4, Ashok Kumar reveals that his examination in chief is absolutely silent regarding death of Dilbagh Rai nor does he say that the death of Dilbagh Rai was never in the knowledge of his attorney, Ram Lal Gupta. He has not even denied the fact that Dilbagh Rai might have died in the year 1974. He has further stated that the suit property, in possession of defendant was purchased by them in the year 1959 and thereafter has stated that in fact, the same was purchased on 22.07.1976. Onus lay heavily upon the plaintiffs/ appellants to prove the fact that in fact, Ram Lal Gupta had an authority on the date of execution of sale deed for executing the same qua the property in question on behalf of Dilabgh Rai & Ors, in favour of the plaintiffs/ appellants. Apparently, this fact has not been proved in any manner by the plaintiffs/ appellants. It is clear that the power of attorney in favour of Ram Lal Gupta had come to an end immediately on the death of Dilbagh Rai and thereafter, any sale made on the basis of said power of attorney would be without any legal authority and sanctity.
18. As far as, the arguments that the defendant/ respondent had no right, title or interest in the property in question, suffice to say that it were the plaintiffs/ appellants to prove their own case but they have Kukreja Ritu 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 14 miserably failed in doing so. As per the record, auction sale in favour of Dilbagh Rai was set aside and the matter went up to the Hon'ble high Court, where the appeal filed by Dilbagh Rai was also dismissed on 05.01.1961. Evidently, the said order has not been challenged before the Hon'ble Supreme Court of India by Dilbagh Rai and as such, the same stands good. Moreover, there is photocopy of the order of Hon'ble High Court dated 04.03.1977 passed in COCP No. 222 of 1976, wherein, counsel for the respondent no. 1 i.e. M/s Gupta & Company had suffered a statement that the sale certificate issued by Managing Officer in favour of Dilbagh Rai regarding the dispute was not valid and had ceased to have any effect and therefore, did not press the contempt petition. This also shows that it was admitted by the attorney holder of Dilbagh Rai himself that the sale in favour of Dilbagh Rai had ceased to have any effect. This reflects adversly on the plaintiffs/ appellants. Ex.D-6 is the order vide which sale in favour of Dilbagh Rai was set aside. Nothing has been brought on record to show that infact, the plaintiffs/ appellants had any right, title or interest over the property in question. Further, perusal of the judgment and decree EX.P-4 reveals that the sale deed dated 12.07.1996 registered on 26.07.1996 in question was no relied upon and was Kukreja Ritu 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 15 held to be not proved. Further judgment and decree dated 17.07.2000, which is EX.D-9 on the file shows that this very sale deed was in question before the court in the said case and the same was held to have not been proved to have been duly executed. From the entire evidence on file, it is clear that the plaintiffs/ appellants had failed to prove their case and thus, the learned trial court has rightly dismissed the suit of the plaintiffs/ appellants.
19. As a sequel of my above discussion, the findings as returned by learned trial court on issues framed are hereby affirmed and no ground for interference is made out. Resultantly, this appeal fails and the same is hereby dismissed. Counsel fee is assessed at Rs. 2000/-. Decree Sheet be prepared accordingly. Record of learned lower court be sent back along with copy of this judgment and appeal file be consigned to record.
Still not satisfied, the plaintiffs have filed the instant appeal stating that the following substantial questions of law arise in this appeal for consideration of this court:
i) Whether the judgment and decree of the Ld. Lower court is sustainable as much as none of the contention raised on behalf of the plaintiff/Appellants was considered and decided by the Ld. Lower Appellate Kukreja Ritu 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 16 Court ?
ii) Whether Defendant/ Respondent has any locus standi to challenge the sale deed (Ex.P-1) executed in pursuance of agreement to sell dated 27.9.1959 in favour of predecessor in interest of plaintiff/ Appellants?
iii) Whether the courts below could have relied upon unexhibited/ marked document i.e Death Certificate of Dilbagh Rai wherein the address and particulars of Dilbagh Rai have not been mentioned?
iv) Whether the courts below could have ignored the facts that predecessor in interest of Plaintiff/ Appellants had paid the entire sale consideration through Agreement to sell (Ex.P-11) and in part performance thereof came to possess the land in dispute and, therefore entitled to protect their possession against encroacher/ land grabber?
v) Whether in facts and circumstances of the case the sale deed duly registered with the Sub Registrar executed in favour of Plaintiff/ Appellants could be ignored at the instance of 3th party/ encroacher?
vi) Whether the Plaintiff/ Appellants are entitled to protect their possession U/S 53-A of the Transfer of Property Act being put in to possession by lawful owner in part performance of agreement to sell dated 27.09.1959 Kukreja Ritu 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 17 (Ex.P-11)?
vii)Whether the sale deed executed in favour of Plaintiff/ Appellants could be questioned despite the fact that neither of the parties to the deed nor any lawful attorney/ agent was having knowledge about the death of the principal?
viii) Whether provisions of Section 201 of the Contract Act would apply in the facts and circumstances of the case when agent had an interest in the immovable property and such rights were lawfully transferred in favour of the Plaintiff/Appellants by virtue of the Agreement to sell keeping in view provisions of Section 202 and 209 of the Contract Act, after receipt of full and final sale consideration?
Counsel for the appellants has vehemently argued that the Courts below have wrongly held that the sale deed in question in favour of the plaintiffs was not valid. According to the counsel for the appellants, there is no material whatsoever to reach to the conclusion with regard to the death of Dilbagh Rai prior to the execution of the sale deed. In fact the death of the Dilbagh Rai has not been proved on record in accordance with law. Rather it has been duly established by the appellants on record that Dilbagh Rai had entered into a valid legal agreement to sell in favour of plaintiff-appellants on 27.9.1959 vide Ex P-11 (the translation version Ex P-12). The aforesaid agreement to sell clearly reveals that the entire sale Kukreja Ritu 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 18 consideration was received by Sh. Dilbagh Rai through his attorney Sh. Ram Lal Gupta and merely a formality of executing sale deed was to be performed and the said formality could not be completed due to non issuance of allotment letter by the rehabilitation department. Whereas the possession of the property was delivered in favour of the vendee/appellants in part performance of the said agreement to sell. Counsel for the appellants has further argued that provisions of Sections 202 & 208 of the Indian Contract Act have been ignored erroneously as Power of Attorney is not automatically terminated on the death of principal. It takes effect only when the factum of death becomes known to the agent. Whereas in the instant case when sale deed was executed in favour of the appellants, factum of death of principal (assuming for the sake of argument that principal was dead on that date) was neither known to the agent nor was in knowledge of the purchaser plaintiff. Even defendant was not aware of the death of the said Dilbagh Rai thus such a plea was not even available to them. Moreover in the instant case, GPA holder was having interest in the property which forms subject matter of the agency and the defendant-respondent, who is encroacher, has no locus standi to raise such a plea as raised. The defendant has failed to show any title or even semblance of ownership rights entitling him to protect his possession over the suit land which was occupied by him forcibly and thus the substantial questions of law as raised do arise in this appeal and impugned Kukreja Ritu judgments and decrees of the Courts below are liable to be set aside 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 19 and they are entitled to the decree as prayed.
However, learned counsel appearing for the respondent has vehemently opposed the arguments as raised on behalf of the appellants and has stated that both the Courts below have recorded concurrent findings on the basis of appreciation of evidence on record and thus no interference was warranted by this Court while exercising its jurisdiction under Section 100 CPC. According to the counsel for the respondent, no title vested in Dilbagh Rai as till date the allotment in his favour stands cancelled. Once that is so, no legal and valid title of the suit land can be transferred on his behalf in favour of the appellants on the basis of alleged sale deed. Counsel for the appellants has further argued that even if defendant is not the allottee of the suit land, he has a right to defend his possession over the suit land against the whole world except the true owner and the appellants have failed to prove their title over the suit land to claim possession. Counsel for the respondent has further submitted that the Power of Attorney in favour of a person comes to an end immediately on the death of the principal and, therefore, the argument raised on behalf of the appellants is liable to be rejected. Learned counsel has also argued that in the instant suit, the agreement to sell was executed in favour of the plaintiffs on 27.9.1959, whereas the sale deed has been executed on 12.7.1996 i.e after a lapse of 37 years and during this period Dilbagh Rai has never appeared on the scene despite the fact that there was a lot of Kukreja Ritu litigation between the parties and whole of the litigation was on his 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 20 behalf through his Attorney Sh. Ram Lal Gupta and appellants have failed to prove the fact that Dilbagh Rai was alive or that they had no knowledge of his death. Moreover, no interest in favour of General Power of Attorney was created in the suit property vide document in question and, therefore, the reliance of the appellant upon Section 202 and 208 of the Contract Act is of no help to him. Learned counsel has further argued that neither appellants have pleaded nor proved that the land in dispute was purchased in the name of Dilbagh Rai on the basis of his verified claims and the appeal is liable to be dismissed.
I have heard the counsel for the parties and have perused the impugned judgments and decrees of the Courts below as well as the record. Appellants are claiming the suit property on the basis of a sale deed dated 12.7.1996 registered on 26.7.1996 from its owner Sh. Dilbagh Rai through its General Power of Attorney Sh. Ram Lal Gupta. It is further not in dispute that property in dispute was originally allotted to Sh. Dilbagh Rai in auction proceedings and thereafter the said allotment remained subject matter of litigation between said Dilbagh Rai on one hand and defendant-respondent (including his predecessor-in-interest) on the other hand and till date the rights of Dilbagh Rai in the property in dispute have not crystallized on the basis of the allotment to him. It is the case of the appellants that Dilbagh Rai had constituted Sh. Ram Lal Gupta as his lawful General Power of Attorney in the year 1959 who was Kukreja Ritu authorised to sell and further execute the sale deed. According to 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 21 them said Ram Lal Gupta on behalf of the Dilbagh Rai executed an agreement in their favour to sell the land in dispute and received the total sales consideration on September 19, 1959. Since the allotment of suit land remained under litigation sales deed could not be executed and the same was executed on 26.7.1996 by Sh. Ram Lal Gupta and thus they have become the lawful owners of the suit property. However, it is the case of the defendants/respondents that Dilbagh Rai died on 23.5.1972 as his death certificate has been proved on record as Ex. D-3 and therefore, Ram Lal Gupta could not have executed the sale deed in favaur of the appellants as power of Attorney came to an end on the death of Dilbagh Rai and, therefore, no valid title was vested in the appellants. However, the case of the appellants is that the death of Dilbagh Rai has not been proved on record and moreover assuming even if Dilbagh Rai has died prior to the execution of sale deed in question that is of no significance in the absence of any express termination of the agency, the General Power of Attroney in favour of Ram Lal Gupta remained valid in the absence of knowledge of the death of the principal to the General Power of Attorney Holder.
However, the argument as raised is misconceived and liable to be rejected. It may be noticed that in the plaint appellants have not pleaded that Dilbagh Rai was alive and GPA in favour of Ram Lal Gupta was still valid, whereas, defendants in their written statement have specifically pleaded that whereabouts of Kukreja Ritu Dilbagh Rai are not known to the world for long and he had died. 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 22 However, in the replication, appellants denied the aforesaid fact and specifically pleaded that Dilbagh Rai is alive. Despite taking the aforesaid plea, the appellant failed to bring on record any evidence to prove the fact that Dilbagh Rai was alive on the date of execution of the sale deed. The respondents while placing on record, the death certificate Ex. DB of Dilbagh Rai discharged their burden proving the factum of the death of Dilbagh Rai on 23.05.1972. Thereafter, it was for the appellants to controvert the aforesaid death certificate of Dilbagh Rai by producing evidence on record to the effect that Dilbagh Rai was alive as the appellants while controverting the averments made in the written statement have taken a specific plea in the replication that Dilbagh Rai was alive. Thus, in view of the death certificate of Dilbagh Rai which remain unrebutted findings recorded by the Courts below to the effect that Dilbagh Rai had died in the year 23.5.1972 cannot be interfered with.
The arguments of the counsel for the appellant that the said factum of the death of Dilbagh Rai was not to the notice of GPA and therefore, the same will not come to an end is again misconceived and in fact not available to the appellants as in the instant case the appellants are asserting their right in the suit property on the basis of sale deed executed by Ram Lal Gupta GPA on behalf of his Principal Dilbagh Rai, thus, it was for the plaintiff- appellants to prove the fact that at the time of execution of the sale deed Dilbagh Rai was alive and the GPA given by him was valid and Kukreja Ritu has not come to an end. In the instant case, agreement to sell was 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 23 executed in favour of the plaintiffs on 27.9.1959 whereas the sale deed has been executed on 12.7.1996 i.e after a lapse of 37 years and admittedly during this long period, Dilbagh Rai never appeared on the scene despite the fact that there was a lot of litigation between the parties and the whole litigation was fought on behalf of Dilbagh Rai through his Attorney, Sh. Ram Lal Gupta. Keeping in view the aforesaid facts and the fact that the appellants have failed to prove that Dilbagh Rai was alive or that they had no knowledge of his death, Section 202 cannot be pressed into service to argue that General Power of Attorney in favour of Ram Lal Gupta has not come to an end despite the death of Dilbagh Rai.
Faced with this situation, learned counsel for the appellant made an effort to raise an argument on the basis of Section 208 of the Indian Contract Act and has contended that Dilbagh Rai by executing the General Power of Attorney in favour of Ram Lal Gupta had created an interest in his favour and, therefore, the termination of the General Power of Attorney does not effect such an agent. Again the argument raised here is liable to be rejected. A perusal of the aforesaid Attorney would show that no personal interest was created in favour of Ram Lal Gupta by Dilbagh Rai by virtue of Power of Attorney in question. A perusal of the Power of Attorney would show that all acts were to be done on behalf of Dilbagh Rai for his benefit. Though Ram Lal Gupta was given a free hand to even purchase the properties in the name of Dilbagh Rai and sell them. Kukreja Ritu
At this stage, learned counsel appearing on behalf 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 24 of the appellants has half heartedly attempted to raise another argument to the effect that the document question i.e General Power of Attorney in favour of Ram Lal Gupta was basically a document in question whereby Dilbagh Rai had sold his verified claims in favour of Sh. Ram Lal Gupta and thereafter he had nothing to do with the said claims or the property purchased and, thus, the General Power of Attorney in favour of Ram Lal Gupta was a document by virtue of which the verified claims of Dilbagh Rai were sold in his favour and the properties purchased by the said Attorney Sh. Ram Lal Gupta in the name of Dilbagh Rai were for the benefit of Ram Lal Gupta himself and in fact he was the owner of the said properties and, therefore, no fault can be found with the sale deeds executed by him in favour of the appellants. To support this argument, learned counsel for the appellants has referred to the General Power of Attorney whereby Dilbagh Rai had authorised Sh. Ram Lal Gupta to get released his verified claims from the Government and also purchase property/properties from the Government on the basis of the amount of the aforesaid verified claims and was further authorized to sell such properties. However, the argument as raised is liable to be rejected as the same is beyond pleadings. Appellant has made no such averment in its plaint to lay his claim in the suit claiming his title from Ram Lal Gupta.
No other argument has been raised.
In view of the aforesaid, this Court is of the view that Kukreja Ritu no substantial question of law as raised arises in these appeals. 2014.05.31 12:31 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1241 of 2013 (O&M) and RSA Nos. 578-585 of 2011 (O&M) 25 Thus, the appeals being without any merit are dismissed.
May 27, 2014 ( RAKESH KUMAR GARG )
ritu JUDGE
Kukreja Ritu
2014.05.31 12:31
I attest to the accuracy and
integrity of this document
Chandigarh
RSA No. 1241 of 2013 (O&M) and
RSA Nos. 578-585 of 2011 (O&M) 26
Kukreja Ritu
2014.05.31 12:31
I attest to the accuracy and
integrity of this document
Chandigarh