Himachal Pradesh High Court
Smt. Kanta Devi And Ors vs Smt Manju And Ors on 23 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 531 of 2007
Date of Decision: 23.3.2018.
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Smt. Kanta Devi and Ors. .........Appellants.
Versus
Smt Manju and Ors. ......Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the appellants: Mr. Sanjay Sharma, Advocate.
For the respondents: Mr. Neeraj Gupta, Advocate.
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Sandeep Sharma, J. (Oral)
Instant regular second appeal is directed against the judgment and decree dated 5.7.2007, passed by the learned District Judge, Shimla, in CA No. 40-S/13 of 2006, affirming the judgment and decree dated 8.3.2006, passed by the learned Civil Judge (Junior Division), Court No.3, Shimla, District Shimla, H.P., in CS No. 111/1 of 1999, whereby suit for declaration and permanent prohibitory injunction having been filed by the plaintiffs-appellants (herein after referred to as "the plaintiffs"), came to be dismissed.
2. In nutshell facts of the case, as emerge from the record are that plaintiffs filed suit in the Court of learned Civil Judge, claiming that they are owner in possession of the suit land as described in the impugned judgment and decree passed by the court below and defendants who have no right, title and interest of any kind in the suit land, and as such, they may be restrained from alienating, encumbering changing or in any manner deal with the suit land/property.
Whether reporters of the Local papers are allowed to see the judgment? ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP -2-
3. Plaintiffs averred in the plaint that they are illiterate and simpleton persons and as such, defendant No.2 namely Gurdyal Singh, resident of village Tundal, Tehsil Kandaghat, District Solan, H.P. taking undue advantage of their .
illiteracy and innocence, approached them on 8.12.1998 with a proposal for sale of land to the extent of 8-18 bighas out of their share and in this regard, got executed an agreement. Plaintiffs further alleged that no consideration was paid by defendant No. 2 to plaintiffs' No. 2 and 3. Subsequently, defendant No. 2 approached all the plaintiffs with the representation that since suit land is joint between the plaintiffs and one Shri Ramanand S/o Gajya, plaintiffs are required to execute general power of attorney in his favour to facilitate partition of the land inter-se plaintiffs and above named person namely Ramanand. Plaintiffs believing aforesaid representation/version put forth by defendant No.2 to be true, executed general power of attorney(s) in his favour on 5.4.1999 and 3.10.1998, which were subsequently registered in the office of Sub Registrar, Shimla. Plaintiffs claimed that contents of General Power of attorney were never read over or explained to them and defendant No.2 took active interest in execution of General Power of Attorney and he without their knowledge and consent, malafidely got incorporated in the General Power of Attorney that defendant No. 2 shall have the right to sell the land. Plaintiff further claimed that they had never consented to such proposal but defendant No. 2 by misrepresenting the true facts exercised undue influence over them and got the GPA executed. Plaintiffs further claimed that intention of defendant No.2 was only to grab the land of the plaintiffs and accordingly, he got the sale deed executed of the entire share of the plaintiffs on 5.4.1999 in favour of defendant ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP -3- No.1. Plaintiffs also stated that they were taken to the office of Tehsildar, Kandaghat by defendant No. 2 for registration of GPA though they are residents of District Shimla. In nutshell, plaintiffs alleged that defendant No.2 in .
connivance with defendantNo.1 in order to deprive them from their property, executed the sale deed of the share of the plaintiff to the extent of 17-16 bighas for the meager sale consideration of Rs. 75,000/-, which was also not paid by defendant No. 2 to the plaintiffs.
4. The defendants refuted the aforesaid allegations put forth in the plaint by filing the written statement, wherein they raised preliminary objections with regard to the proper valuation and jurisdiction. Defendant No.1 further claimed that she is an owner of the suit land as it was sold to her by defendant No.2 as an attorney of the plaintiffs. She further claimed that at the time of the execution of the sale deed, possession was also handed over to her on 12.4.1999. Defendant further claimed that she was not aware of the agreement dated December, 1998. Defendant No.1 specifically denied that power of attorney was got executed by defendant No.2 for the partition of the suit land. She further stated that plaintiffs No. 2 and 3 expressing their interest to sell the land on 1.4.1999, agreed in presence of defendant No. 2, to sell the same to the extent of 9bighas 18 biswas for a consideration of Rs. 3,00,000/-. She also stated that plaintiffs No. 2 and 3 made her to believe/understand that defendant No. 2 is their power of attorney, which fact was otherwise confirmed by defendant No.2. As per defendant No.1, substantial amount of consideration was paid by her to defendant No.2 in the presence of plaintiff and consequent thereupon, all the plaintiffs agreed to sell the suit land measuring 17-16 bighas for a total ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP -4- consideration of Rs. 4,51,000/-. She further stated before the court below that she was made to understand that plaintiff No. 1 had also executed power of attorney in favour of defendant No.2, who subsequently approached her for .
registration of sale deed. Plaintiffs also agreed to pay the registration fee of the sale deed. Defendant No.1 further claimed that plaintiffs are in the habit of cheating people and in past, they had also executed an agreement with some person from Punjab, but after having received the amount of consideration, declined to execute the sale deed. Defendants specifically denied that sale deed was executed between the parties for a sum of Rs. 75,000/- but in fact an amount of Rs. 451000 was paid to defendant No.2 at the time of execution of sale deed. Plaintiffs by way of replication re-asserted/re-affirmed the claim put forth in the plaint, however, denied the averments contained in the written statement.
5. On the basis of aforesaid pleadings, learned court below framed following issues:-
"1.Whether the plaintiffs are entitled for the decree of declaration, as alleged? OPP
2. Whether the sale deed dated 12.4.21999 executed in favour of the defendant No.1 by the defendant No.2 is illegal and wrong? OPP
3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? OPP
4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ?OPD
5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties?OPD
6. Whether the plaintiffs have not approached the court with clean hands?OPD
7. Whether the plaintiffs are estopped from filing the present suit due to their own act, conduct, deed and promises?OPD Whether the suit in the present form is not maintainable?OPD
4.Relief."
6. Subsequently, learned trial Court on the basis of evidence led on record by the respective parties, dismissed the aforesaid suit filed by the ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP -5- plaintiffs. Plaintiffs, being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court filed an appeal under Section 96 of CPC in the court of learned District Judge, Shimla, which also came to be .
dismissed vide judgment dated 5.7.2007. In the aforesaid background, plaintiffs have approached this Court in the instant proceedings, laying therein challenge to the impugned judgments and decrees passed by the courts below.
7. This Court vide order dated 18.12.2008, admitted the instant appeal on the following substantial questions of law No. 1, 3, 4 and 5.
"1. Whether the learned District Judge and learned Trial Court failed to take into consideration the fact that the sale deed which was executed within a period of only seven days from the execution of the General Power of Attorney is shrouded with suspicision and has been wrongly relied upon?
3. Whether the learned Courts below vitiated the entire trial by holding main ingredient of the case i.e. defendant No.2, ex-parte, who misrepresented the facts and exercised undue influence over the appellants and finally succeed in his illegal designs?
4. Whether the learned Courts below further failed to take into consideration the fact that at the time of execution of sale deed the consideration amount was paid to the Defendants No.2 by the defendant No.1 not the appellants?
5. Whether the learned Courts below have mis-construed, mis- appreciated and misunderstood the oral as well as documentary evidence?
8. I have heard the learned counsel for the parties as well as gone through the record of the case.
9. Since this Court had an occasion to peruse the pleadings as well as evidence, be it ocular or documentary adduced on record by the respective parties, during the proceedings of the case, this Court in not persuaded to agree with the contention put forth by the learned counsel for the plaintiffs that courts below have misread, mis-construed and mis-appreciated the evidence led on record by the defendants, especially statements of DWs ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP -6- No.2, 3 and 4, rather this Court having carefully examined entire record finds no illegality and infirmity in the judgments and decree passed by the courts below, which certainly appear to be based upon proper appreciation of evidence led .
on record. Otherwise also questions of law detailed herein above are not question of law much less substantial questions of law, rather same are question of fact which have been duly and properly examined by the courts below.
10. In nutshell, case of the plaintiffs is that they at no point of time had executed general power of attorney authorizing defendant No.2 to execute sale deed in favour of defendant No.1, but unfortunately, plaintiffs have not been able to prove their case by leading cogent and convincing evidence.
11. Smt. Kanta Devi, one of the plaintiff while examining herself as PW3 stated that since their uncle Ramanand was co-sharer, defendant No. 2 approached them that he will get the land partitioned and in this regard, they are required to execute the power of attorney in his favour. She further stated that she had not executed power of attorney in favour of defendant No.2 to sell the land. She further stated that defendant No. 2 had not prepared any document at Kandhaghat nor she had put any signatures on any document there. However, in her cross-examination, PW3 categorically stated that she 2-3 days' prior to the execution of the general power of attorney, they had called defendant No.2, who in turn had taken her thumb impression in her house on the blank papers. She further admitted that she had agreed to sell the land measuring 17-16 bighas, however earlier it was 9-18 bighas. She further denied that sale consideration of the land measuring 17-16 bighas was settled for Rs. 4,51,000/-.
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12. Smt. Banti Devi, plaintiff No. 2 while examining herself as PW4 claimed that they are in possession of more than 17 bighas of land at Bharari Shimla and their uncle is also co-sharer with them in this very land. It has also .
come in her statement that defendant No.2 came with her and plaintiff No. 3 for purchase of 8 bighas of land about six years ago and in this regard, agreement Ext.PW4/A was executed with defendant No.2. It has also come in her statement that she and plaintiff No. 3 had executed power of attorney with defendant No. 2 for partition of the land. This witness further deposed before the court below that when defendant No. 2 had obtained their signatures on Ext.PW2/A, it was blank. It has also come in the statement of this witness that they had gone to register the general power of attorney in the office of Tehsildar, but at that time, they were told by PW2 that same is annexed with partition proceedings but in her cross examination, this witness stated that they had gone to the office of the Sub-Registrar, Kandaghat, for execution of the general power of attorney. She denied that Tehsildar had read over the contents of general power of attorney and thereafter, they admitting the same to be correct put their signatures on it. In her cross-examination, she categorically admitted that when they put their signatures on Ext.PW2/A, it was already written. Interestingly, this witness in her cross examination admitted that they had told husband of defendant No. 1 that defendant No. 2 namely Gurdyal Singh, was their power of attorney. Apart from above, this witness also admitted in her cross examination that they had told husband of DW1 that defendant No. 2 shall be the power of attorney of plaintiff No. 1 also. ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP -8-
13. If the statements made by these material plaintiff witnesses are read in conjunction juxtaposing each other, it can be safely inferred that plaintiffs were in touch with defendant No.1 for the sale of suit land and in this .
regard, they had authorized defendant No.2 as GPA. Though these witnesses have made an endeavor to prove on record that signatures, if any, made by them on the papers were for the purposes of preparation of GPA to effect partition between them and their uncle Ramanand, but as has been noticed herein above, it has come in the cross-examination of these witnesses that they had repeatedly informed husband of DW1 that defendant No. 2 was their power of attorney. If the argument having been made by the learned counsel representing the plaintiffs that plaintiffs had executed general power of attorney in faovur of defendant No. 2 for effecting partition, is accepted, it is not understood that how husband of defendant No.1 came in picture. It has specifically come in the statement of PW4 Smt. Banti Devi that defendant No.2 had come to her for purchase of 8 bighas of land about six years ago. In this regard, agreement Ext.PW4/A was also executed.
14. After having carefully perused statements of these plaintiff witnesses, one thing is quite apparent from record that plaintiffs namely Kanta Devi and Banti Devi, had executed general power of attorney in favour of defendant No.2, who subsequently, sold the land to defendant No.1.
15. Leaving everything aside, this Court finds from the record that the stance put forth by the learned counsel representing the plaintiffs during his submissions is altogether contrary to the stand taken in the written statement ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP -9- because admittedly there is no allegation of fraud or collusiveness alleged by the plaintiffs in their plaint.
16. Entire reading of plaint nowhere suggests that plaintiffs leveled .
allegations, if any, against defendant No. 2 of forgery, rather their consistent stand is that they had put their signatures on the documents Ext.PW2/A, executing general power of attorney in favour of defendant No.2, to represent them in partition proceedings.
17. On the other hand, defendant examined one Shri Dhani Ram Verma, as DW1, who remained posted as Tehsildar at Kandhaghat from year 1996 to 1999, during which period, he was exercising powers of Sub-Registrar. He categorically stated before the court below that on 13.10.1998, Basanti Devi and Geeta Devi, plaintiffs produced before him power of attorney for registration and they were identified by one Med Ram, Ex-Pardhan of Gram Panchayat Kandhaghat. He further stated that he had read over the contents of the general power of attorney to plaintiffs namely Basanti Devi and Geeta whereafter they put their signatures in circle "A" in his presence. He further stated that Ext.PW2/B was produced before him by Smt. Kanta Devi for registration, which was executed in favour of defendant No.2 namely Gurdyal Singh. This defendant witness further stated that Smt. Kanta Devi was identified by one Shri Krishan Dutt.
18. Cross examination conducted on this witness nowhere suggests that plaintiffs were able to extract anything contrary to what he stated in his examination-in-chief, rather it can be safely stated that the plaintiffs were unable to shatter his testimony.
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19. DW2 namely Bal Krishan, also stated that Gurdyal Singh is his neighbour and deal was finalized for sale of the land to the tune of Rs. 4,51,000/. He further stated that Devinder Thakur had paid a sum of Rs. 2,75,000/- as .
advance to defendant No.2 Shri Gurdyal Singh. He further stated that he had also met Smt. Kanta Devi when she executed power of attorney to sell the land in favour of DW2 Gurdyal Sigh. This witness also stated that Smt. Kanta Devi had put her signatures on the power of attorney and the Tehsildar had read over the contents of the same to Smt. Kanta Devi. It has also come in his statement that at the time of the registration of the sale deed, Devinder Thakur, had paid sum of Rs. 75,000/- to Gurdyal Singh and sum of Rs. 2,75,000/- was also paid on 12.10.1998, in his presence. In his cross-examination, this witness further admitted that Gurdyal Singh was not the owner of the suit land and Smt. Manju (Defendant No. 1) had a direct talk for the purchase of land with Gurdyal Singh. Interestingly, it has also come in the statement of this witness that another witness Jagdish Datt Sharma was called by the Gurdyal Singh, who on his asking also put his signatures on the sale deed. He further stated that sale deed was not prepared on the day when Ext.PW2/B was prepared. He stated that he and Jagdish had come to Shimla on the asking of Gurdyal Singh and the Tehsildar read over the contents of the sale deed to him and no amount was paid at the time of the registration of the sale deed and the sale deed was executed for a sum of Rs. 75,000/- and this amount was paid by husband of defendant No.1 two days prior to the registration of the sale deed. He categorically stated in cross examination that deal was settled for a total consideration of Rs. 4,50,000/- in his presence.
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20. Smt. Manju Bhardwaj, defendant No.1 while examining herself as DW3 deposed that a talk with regard to the sale of suit land had taken place between her husband and Gurdyal Singh, as Gurdyal Singh was the General .
Power of Attorney of plaintiffs No. 2 and 3. She stated that sale deed was executed on 12.4.1999 in her presence and in presence of all three sisters (plaintiffs). In her cross examination, she admitted that a sum of Rs. 1,00,000/- was paid to Gurdyal Singh on 5.4.1999, but she was unable to state who scribed the sale deed Ext. PW1/A.
21. DW4 Devinder Kumar, also corroborated the version put forth by PW3 that he had prior acquaintance with DW 2 Gurdyal Singh, who had come to him in the first week of October, 1998 with a proposal to sell the land. He further stated that after having seen the land, he asked DW2 to come alongwith owner of the land.
22. Having closely perused/analyzed aforesaid versions put forth by the defendant witnesses, it can be safely concluded that defendant No.2 Gurdyal Singh approached the plaintiffs with a proposal to sell the land at Chail owned and possessed by the plaintiffs. As has been noticed above, it has clearly come in evidence that plaintiffs were present at the time of execution of sale deed. DW1 Dhani Ram who was Tehsildar at that relevant time, has categorically stated that power of attorney Ext.PW2/A, whereby defendant No.2 was authorized to sell the land, was presented to him by the plaintiffs and he had read over the contents of the same to them. It stands duly proved on record that power of attorney Ext.PW2.A was registered by DW1 in accordance with law and at that time, plaintiff never made any attempt to lodge protest ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP
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with regard to the averments contained in the same, rather they believing them to be correct put/appended their signatures. Plaintiffs have not led any evidence suggestive of the fact that defendant No. 2 procured General Power .
of Attorney Ext.PW2/A fraudulently using undue influence upon the plaintiffs, rather intention of plaintiffs to sell the land through defendant No. 2 is quite apparent from the statement made by the plaintiffs themselves. It is not understood that if defendant No. 2 fraudulently executed PW2/A General Power of Attorney, what prevented the plaintiffs from lodging any complaint against him in the police or in the competent court of law.
23. It has been repeatedly held by the Hon'ble Apex Court as well as this Court that in case of fraud, undue influence or coercion, the pleadings of the parties must disclose full particulars and the case can only be decided on the particulars and there can be no departure from them in evidence. But as has been noticed in the case at hand, there are no pleadings with regard to fraud, undue influence, if any, exercised by the defendants, made in the plaint. General allegations are insufficient even to amount to an averment of fraud of which any court, ought to take notice.
24. Reliance is placed on Judgment passed by this Court in Shri Kripa Ram and Ors. v. Smt. Maina, 2002 (2) Shim.L.C. 213, relevant paras whereof are reproduced herein below:-
10. Section 60 of the Registration Act specifically provides that certificate endorsed on the document, registered by the Registrar, shall not only be admissible in evidence for the purpose of proving that document has duly been registered in the manner provided under the Act but also that the facts mentioned in the document referred to in Section 59 have taken place as mentioned herein.
It is now well settled that presumption of due execution of a document arises from the endorsement of the Sub Registrar under Section 60 of the Act. As far back as in 1928 Privy Council in Sennimalai Goundan and ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP
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another v. Sellappa Goundan and others, AIR 1929 Privy Council 81, interpreting the provisions of Section 60(2) read with Section 115 of the Evidence Act held that where a person admits execution before the Registrar after the document has been explained to him, it cannot subsequently be accepted that he was ignorant of the nature of transaction. In that case, the plaintiff alleged that his father and brothers, .
with an intention of defrauding the plaintiff of his legitimate share in the family properties, entered into a fraudulent collusive partition. The trial Court found that plaintiff's case was proved and he decreed the suit. In appeal, it was held that the plainti9ff failed to make out the alleged fraud and allowed the appeal. The decree of the trial Court was set aside. The Subordinate Judge had found that the partition was unequal because the land allotted to the plaintiff was less than allotted to other brothers. It was found that contemporaneously with the partition, some land that fell into the share of plaintiff Karuppa were conveyed to his second wife Nachakkal by a registered sale deed. Nachakkal gave evidence that the transaction was bogus, as she never paid the consideration for the sale through she admitted execution of the sale deed before the Registrar. Her story that she was ignorant of the nature of the transaction, it was held, cannot be accepted as she had admitted the execution of the sale deed before the Registrar.
11. A Division Bench of this Court Kanwarani Madna Vati and Anr. V. Raghunath Singh and others, AIR 1976 HP 41, interpreting the provisions of Section 62 of the Registration Act, held that here is a resumption of correctness of the document if its execution is admitted before the Registrar. The Division Bench in para-20 observed:
"Under Section 60(2) of the Registration Act the certificate given by the registering officer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in Section 59 have occurred as therein mentioned. Therefore, there is a presumption, which attaches to the correctness of the endorsements made on the document by the registering officer. These endorsements show the presentation of the document personally by Smt. Madna Vati for registration. She was identified by Kr. Jowala Singh and her signatures were also obtained by the registering officer on both the endorsements, i.e., the endorsement of presentation and that of admitting the contents of the documents and the receipt of the consideration by her. In order to rebut this it was necessary for the defendant No.2 to have produced the Sub Registrar. She did not produce him in the witness box. Therefore, the presumption of correctness shall become conclusive." (Emphasis supplied).
12. In the present case as noticed earlier, there is endorsement of the Sub Registrar to the 3effect that the contents were read over and explained to the vendor-plaintiff Mania Devi and, therefore, the presumption is that Sub-Registrar (DW3) himself is categorical in his evidence that the contents of the sale deed were read over to Maina Devi. He duly proved the endorsements. Therefore, in the circumstances, learned first appellate Court was not right while reversing the findings of the trial Court on the grounds that the contents of the sale deed were not read over or explained to the plaintiff."
25. In view of the detailed discussion made herein above, this Court sees no force in the argument of learned counsel representing the plaintiff that ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP
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courts below have not read the evidence in its right perspective while determining the controversy at hand, rather this Court is of the view that courts below have dealt with each and every aspect of the matter meticulously and .
as such, there is no scope of interference whatsoever by this Court. Substantial questions of law are answered accordingly.
26. At this stage, Mr. Neeraj Gupta, Advocate, representing the defendants contended that this court has very limited jurisdiction to re- appreciate the evidence in the instant proceedings, especially in view of the concurrent findings recorded by the courts below. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by the Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264, relevant para whereof reads as under:-
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
27. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned courts below cannot be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by the learned courts below, rather same are ::: Downloaded on - 28/03/2018 23:31:07 :::HCHP
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based upon correct appreciation of evidence and as such, same deserves to be upheld.
28. In the facts and circumstances discussed above, this Court is of .
the view that findings returned by the trial Court below, which were further upheld by the first appellate Court, do not warrant any interference of this Court as findings given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appear to be based on correct appreciation of oral as well as documentary evidence. Hence, the appeal fails and dismissed accordingly. There shall be no order as to costs.
23rd March, 2018
r (Sandeep Sharma),
manjit Judge.
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