Punjab-Haryana High Court
Gajjan Singh vs Virsa Singh And Ors. on 28 March, 2007
Equivalent citations: (2007)147PLR634, AIR 2007 (NOC) 1593 (P. & H.), 2007 (5) AKAR (NOC) 708 (P. & H.)
JUDGMENT Vinod K. Sharma, J.
1. This is an appeal against the judgment passed by the learned Additional District Judge, Amritsar vide which the judgment and decree passed by the learned trial Court was set aside and case remanded back to the trial Court to record a finding on issue Nos. 2 to 6, 9 and 10.
2. The plaintiff respondent filed a suit for joint possession of 4/15th share i.e. 26 kanals 13 marlas out of land measuring 100 kanals 2 marlas as described in the head note of the plaintiff and according to the jamabandi for the year 1992-93 situated at village Amrik. The plaintiff claimed to be owner of 4/15 th share of suit land and claimed that defendant No. 1 was owner of 1/5 th share out of the suit land and defendant Nos. 2 and 3 are the owners of 4/6 th share each out of the suit land and further defendants have no concern or interest in the suit land. It was claimed that the plaintiff had gone abroad to Iraq and remained there for 5-6 years. The plaintiff claimed that he came to know about mutation No. 1074 regarding the sale by the plaintiff in favour of Tara Singh son of Dula Singh to the extent of half share and Sajjan Singh son of Inder Singh remaining half share. The mutation was claimed to be illegal, null and void on the plea that the plaintiff had not executed any sale-deed in favour of Tara Singh and Sajjan Singh. It was further pleaded that Virsa Singh plaintiff had not executed any power of attorney dated 8.6.1983 in favour of Chanan Singh son of Meghar Singh defendant No. 1 because the plaintiff was not in India and the power of attorney is the result of impersonation. The plaintiff claimed that he has not thumb marked on any power of attorney and therefore claimed that the sale-deed dated 20.6.1983 is illegal, null and void. It was further the case of the plaintiff that as the defendants had failed to admit the claim of the plaintiff the suit was being filed.
3. The suit was contested by the appellant-defendant, whereas defendant No. 1 attorney of the plaintiff who is the father of the plaintiff chose not to appear and was proceeded exparte. The contesting defendant claimed that he was bona fide purchaser for consideration and therefore, protected under Section 41 of the Transfer of Property Act. It was further claimed that defendant No. 4 has become owner by way of adverse possession and further that the plaintiff was estopped by his own act and conduct from filing the present suit which was not within limitation. The description of the defendants qua their names was also challenged. On merit it was claimed that Sakkattar Singh sold the land measuring 18 Kanals in favour of Gajjan Singh for a consideration of Rs. 27,000/-vide registered sale-deed dated 17.12.1981 and Gurbhej Singh also sold the land measuring 6 Kanals in favour of Gajjan Singh defendant for a consideration of Rs. 9,000/-vide registered sale-deed dated 24.1.1983. The plaintiff Virsa Singh sold land measuring 26 Kanals 13 Marlas through his general power of attorney Chanan Singh in favour of Gajjan Singh and Tara Singh son of Dula Singh for a consideration of Rs. 32,000/- vide registered sale-deed dated 20.6.1983 and Tara Singh further sold the land measuring 6 kanals 12 marlas to Lakhbir Singh, Sukhbir Singh son of Gajjan Singh for Rs. 33,500/-vide registered sale deed dated 1.7.1991. Sakattar Singh, Gajjan Singh sold land measuring 5 kanals 5 marlas through their father as attorney for a consideration of Rs. 6,000/-vide registered sale-deed dated 31.7.1986 and therefore, defendants claimed to be bona fide purchasers for consideration. The other averments made in the plaint were also denied.
4. Defendant Nos. 4, 10 and 11 also took similar pleas. Similarly defendant No. 16 also filed separate written statement claiming on the same lines.
5. Replication was filed. On the pleadings of the parties, the following issues were framed:
1. Whether the plaintiff is co-sharer in the suit land and is entitled to joint possession of the suit property. If so, its effect? OPP
2. Whether the suit is bad for non-joinder of necessary parties? OPD
3. Whether defendant No. 2 has sold land measuring 18 Kanals in favour of Gajjan Singh vide registered sale-deed for a sum of Rs. 27,000/-. If so its effect? OPD
4. If issue No. 3 is proved whether Gajjan Singh is a bona fide purchaser in good faith is protected under Section 41 of Transfer of Property Act? OPD
5. Whether defendant No. 3 sold land measuring 6 kanals in favour of Gajjan Singh defendant for a consideration of Rs. 9,000/- vide registered sale-deed dated 24.1.1983. If so its effect? OPD
6. If issue No. 5 is proved, whether Gajjan Singh is a bona fide purchaser in good faith and is protected under Section 41 of Transfer of Property Act? OPD
7. Whether Virsa Singh plaintiff sold land measuring 26 kanal 13 marlas through his General Attorney in favour of Gajjan Singh and Tara Singh for a sum of Rs. 32,000/- vide registered sale-deed dated 20.6.1983.
8. If issue No. 2 is proved, whether Gajjan Singh and Tara Singh are bona fide purchasers in good faith and protected under Section 41 of Transfer of Property Act? OPD
9. Whether defendant Nos. 2 and 3 sold land measuring 5 Kanals 5 Marlas through their attorney in favour of Gajjan Singh for a consideration of Rs. 6,000/- vide registered sale-deed dated 3.7.1986. If so its effect? OPD
10. If issue No. 9 is proved, whether Gajjan Singh is bona fide purchaser for value without notice and protected under Section 41 of Transfer of Property Act? OPD
11. Whether plaintiff is estopped by his own act and conduct from filing the present suit? OPD
12. Whether the suit is within time? OPD
13. Relief.
6. Issue Nos. 2 to 6, 9 and 10 were not pressed. The plaintiff also took a stand that there is no dispute regarding the above said issues and accordingly the above said issues and accordingly all these issues were decided against the plaintiff. Issue Nos. 7 and 8 were taken up together. On appreciation of evidence and also keeping in view the fact that the plaintiff had failed to place on record any document showing his presence in Iraq during the year 1983 came to the conclusion that power of attorney cannot be said to be a forged document or was a result of impersonation as claimed by the plaintiff. Learned trial Court, therefore, came to the conclusion that the sale-deed dated 20.6.1983 was legal and valid and further that Gajjan Singh and Tara Singh vendee were bona fide purchasers in good faith and therefore, were protected under Section 41 of the Transfer of Property Act. In view of the findings records on issue Nos. 7 and 8 it was held that the plaintiff was not entitled to joint possession of the suit property as he had already sold his share through power of attorney to Gajjan Singh and Tara Singh defendants. Issue No. 11 was also decided against the plaintiff. On issue No. 12 it was held that the suit was barred by limitation. This finding was recorded on the ground that the sale-deed was dated 28.6.1983 and the suit to challenge the said sale-deed could be filed within 3 years whereas the present suit was filed on 5.12.1994 and therefore, it was held to be time barred. As a result thereof suit was dismissed. Respondent Virsa Singh filed an appeal against the said order. Even though there was no challenge to the finding on issue Nos. 2 to 6,9 and 10 in appeal and even before the trial Court there was no contest to the said issues, the learned lower appellate Court on the basis of presumption came to the conclusion that finding on these issues were required to be given and thereby remanded the case Jo the trial Court by setting aside the decree. This part of the impugned order is patently wrong. Once the parties were not at issue with regard to issue Nos. 2 to 6, 9 and 10 there was no occasion for the lower appellate Court to have remanded the case back on this ground. However, the learned lower appellate Court further came to the conclusion that power of attorney issued in favour of Chanan Singh was not proved on records as the defendants had failed to produce any witness to prove the same. This finding of the learned lower appellate Court is also not sustainable in view of the law laid down by this Court in the case of Santokh Singh v. Bishan Singh (1994-1)106 P.L.R. 353 of the Evidence Act that a registered power of Attorney is a public document and its copy is per se admissible in evidence. Learned lower appellate Court reversed the finding on issue No. 12 by relying upon the judgment of this Court in the case of Malkiat Singh v. Surjit Kaur and Ors. 1999(3) Civil Court Cases 512. Para 8 of the said judgment reads as under:
Mr. Sarin then contended that the learned District Judge has erroneously held that the suit filed by the plaintiffs is not barred by time. It is contended that in the grab of seeking decree for joint possession, what is being sought is decree declaring decree dated 25.4.1981 as void. According to the counsel, this could have been done only within three years from the date when right to sue first accrued. It is contended that Shiam Kaur suffered decree on 25.4.1981 whereas suit has been filed on 10.4.1989, which on the face of its is barred by time. In this regard, counsel referred to Article 58 of the Limitation Act, 1963. This contention is also without any merit. Under Article 58, Limitation period of 3 years to obtain any declaration commences from the date when right to sue first accrues. The suit in question is not a simpliciter suit for seeking declaration but is based on title. In such a suit. Article 65 of the Limitation Act would apply and Article 58 would have no application Article 58 applies only to cases where declaration simpliciter is sought i.e. without any further relief. Moreover, where a person enters into possession under a void transfer, a suit for possession on the basis of title against the transferee will not be barred.
The finding of the learned lower appellate Court also cannot be sustained as the facts of that case has no application. It may be noticed here that this Court in case of Jagan Nath and Ors. v. Tara Chand and Ors. (1997-2)116 P.L.R. 519 has been pleased to lay down that the suit for declaration with regard to the forgery on an instrument issued or registered can be challenged within 3 years from the date of knowledge. Again in the case of Pat Ram and Ors. v. Gram Sabha Digrota and Ors. 1986 P.L.J. 679 this Court has been pleased to lay down as under:
11. Learned Counsel for the respondents argued that as the order was based on fraud practised by Jaimal Singh, Sarpanch, upon the Deputy Commissioner, the suit could have been filed within 12 years as relief of possession has been prayed for. 1 do not agree with this contention either. The plaintiffs have also prayed for a declaratory decree declaring the impugned order of the Deputy Commissioner as based upon fraud etc. That declaration is necessary before the relief of possession can be granted.
12. I am of the opinion that in the instant case, considering the relief claimed for, the Article applicable is Article 58 which is the residuary Article for suits filed for declaration. It reads as follows:
Article 58:
To obtain any other declaration. Three years. When the right to sue first accrues.
The right to sue accrued to the plaintiffs when the impugned order was passed. The suit had been filed well within three years from the date of the said order. It is, therefore, held that the suit was within limitation.
7. Learned lower appellate court also failed to notice that the limitation for challenging the power of attorney and the sale-deed was to be from the date of registration of the said document, especially when, in the present case the possession was also handed over to the defendant-respondents in pursuance to the sale-deed and mutation was also duly sanctioned. This view find support from the judgment of Hon'ble Supreme Court in the case of Janardhanam Prasad v. Ramdas , para No. 14 of that judgment reads as under:
14. The 1st Defendant was a friend of the 2nd Defendant. Admittedly, the usual stipulations were knowingly not made in the agreement of sale dated 11.1.1983. The 1st Defendant may or may not be aware about the agreement entered by and between the respondent herein. But he cannot raise a plea of absence of notice of the deed of sale dated 4.9.1985, which was a registered document. Possession of the suit land by the appellant also stands admitted. Registration of a document as well as possession would constitute notice, as is evident from Section 3 of the Transfer of Property Act, 1882, which is in the following terms:
"a person is said to have notice" of a fact when he actually knows that fact, or when, but for willful absentation from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I: Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under Sub-section (2) of Section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of property, which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act.
Explanation II: Any person acquiring any immovable property or any share or interest in notice of the title, if any, or any person who is for the time being in actual possession thereof.
Explanation III: A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud It may also be noticed that the learned lower appellate court failed to notice that the learned trial court had also taken note of the fact that the plaintiff had failed to produce any document on record to show his absence from India in the year 1993.
In view of the findings recorded above, this appeal is accepted. The order passed by the learned lower Appellate Court is set aside and the case is remanded back to the learned lower appellate Court for passing a final order in appeal. Appeal allowed.