Madhya Pradesh High Court
Rajkumar Pandey & Ors. vs Balmukund Agrawal & Anr on 18 April, 2012
1
HIGH COURT OF MADHYA PRADESH : JABALPUR.
First Appeal No.772/2004
Rajkumar Pandey and others
-Versus-
Balmukund Agrawal and another.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
Smt. Sudha Pandit and Shri O.P. Mishra, learned counsel for
appellants.
Shri Ravish Agrawal, learned Senior counsel assisted by Shri
Mukesh Kumar Agrawal and Shri K.S. Jha, learned counsel for
respondent No.1.
JUDGMENT
(18.4.2012) 1: This is a First Appeal under Section 96 of the Civil Procedure Code by the defendants against the Judgment and decree dated 24.11.2004 passed in Civil Suit No.9-A/2004 passed by Additional District Judge, Satna (Fast Track) decreeing the suit of the plaintiff/ respondent No.1, declaring that the sale deed Nos. 2047, 2048 and 2049 dated 22.2.1997 executed in respect of land bearing Khasra No.238(Kha) area 7500 sq.ft., are null and void and are inoperative against the respondent No.1/plaintiff and further directing the appellants to remove the boundary wall constructed on the said land within a period of one month at their own cost. It is contended by the appellants that a suit was filed by the respondent No.1 against the appellants stating that by practising fraud, by manipulation of power of attorney and by self styling as an authorised person to execute the sale deed, the appellant No.3 2 has executed the aforesaid three sale deeds in favour of other appellants without proper payment of the sale consideration to the respondent No.1/plaintiff. In the said suit, a declaration was sought to the effect that the sale deed executed in such a manner were not binding on the respondent No.1. It is further contended in the appeal that the trial Court after entertaining the Civil Suit has issued the notices to the appellants and the written statements were filed denying such claims made by the respondent No.1. The trial Court framed issues recorded the evidence, but erroneously not taking into consideration the evidence adduced by the appellants, wrongly appreciating the evidence produced by the respondent No.1/ plaintiff decreed the suit, which otherwise was not maintainable and was liable to be dismissed. Thus, it is contended that the judgment and decree impugned is liable to be set aside.
2: Learned Senior counsel appearing for the respondent No.1/plaintiff has supported the Judgment and decree passed by the Court below and has taken this Court to the evidence, both documentary and oral and referring even the statements of some of the witnesses of the appellants, it has been contended that on proper appreciation of the evidence, the Court below has reached to the definite finding and has decreed the suit because the fraud as pleaded was proved. The circumstances on the basis of which it could be established that no such power of attorney was ever executed in favour of the appellant No.3 were properly appreciated by the Court below and definite findings have been given in favour of the respondent No.1 by the Court below. It is contended that the appeal has no force and is liable to be dismissed.
3: Facts giving rise to filing of this appeal in nutshell are that the respondent No.1/plaintiff has purchased a plot measuring 7500 sq.ft. at Bhandhavgarh, Colony, Kolgawan, a registered sale deed dated 24.1.1981 from one Shri Surjeet 3 Singh. The said plot was registered in the name of the respondent No.1 in the revenue records and a 'Rin Pustika' was also issued in his favour. It was contended by the respondent No.1/plaintiff that since he was in services as a Physician is posted for a long period in the State of Maharashtra on different places, he was intending to sell out his land at Satna and was intending to purchase a plot at Pune Maharashtra. The appellant No.1 who was a property broker came in contact with the respondent No.1/plaintiff and after some discussions, the respondent No.1/plaintiff agreed to sell his plot in the name of wife of appellant No.1 and executed an agreement. However, the agreement written at that time on stamp paper was not returned in original to the respondent No.1/plaintiff. The fact remains that the respondent No.1 agreed to sell his plot to the wife of the appellant No.1 for a valuable consideration of Rs.8,62,000/-. After the execution of the aforesaid agreement, the talks were going on, but subsequently the appellant No.1 intimated the respondent No.1/ plaintiff that unless there is a power of attorney given in favour of the appellant No.1, he would not be in a position to negotiate with other party for sale of the plot. It was informed that since the appellant No.1 alone was not in a position to pay such amount of sale consideration, it was necessary that such a power of attorney be executed so that he may negotiate with prospective purchaser and finalise the sale. It was contended by the respondent No.1/plaintif that thus, a plain and simple power of attorney was executed by him authorising the appellant No.3 to negotiate in respect of the land in dispute, but he never authorised the said person to execute the sale deed, receive the amount of sale consideration on behalf of the respondent No.1/plaintiff with respect to the suit plot. The amount which was said to be paid on the said date was acknowledged on a receipt, but the said receipt was also tampered and instead of acknowledging the payment of Rs.50,000/-, the same was made to acknowledge the payment of Rs.3,50,000/-. The power of attorney was also tampered 4 and manipulated and on the strength of such power of attorney, the plot divided into different pieces, was sold to the three persons by execution of the sale deed by appellant No.3. When these facts came to the notice of respondent No.1/ plaintiff, the action was immediately taken and suit was filed. It was contended that throughout the respondent No.1/plaintiff was in physical possession of the plot in dispute and only a boundary wall was constructed on the boundary wall of the respondent No.1/ plaintiff by the appellants. Thus, the suit for the aforesaid reliefs was filed.
4: It was the plea of the appellants before the trial Court that in fact, the power of attorney was executed on receipt of the full sale consideration and thereafter the sale deeds were executed by the power of attorney holder of the respondent No.1/plaintiff. The claim was made that the appellants were in possession of the suit plot and, therefore, without seeking the relief of possession of the plot, a suit simplicitor for declaration was not maintainable. Various other contentions were raised, while the allegations made in the plaint were denied by the appellants.
5: The trail Court framed the issues and recorded the evidence. The respondent No.1/plaintiff produced the documents in proof of his claims, namely, the 'Rin Pustika' in original (Ex.P/1), revenue records (Ex.P/2), the power of attorney (Ex.P/3), the receipt of payment of amount (Ex.P/4) and a photocopy of the said receipt without any manipulation (Ex.P/5). The respondent No.1/plaintiff also exhibited the FIR lodged with respect to commission of offence by the appellants as Ex.P/6, the sale deeds so executed as Ex.P/7, Ex.P/8 and Ex.P/9, a receipt of the photographs (Ex.P/10), photocopy of the agreement of sale executed in between the respondent No.1/plaintiff and the appellant No.1 as Ex.P/11, the orders passed by the revenue Courts for correction of the revenue records as Ex.P/12 and Ex.P/13, photocopy of the 5 cheque of Rs.10,000/- given at the time of execution of the agreement Ex.P/14, the letter of the bank Ex.P/15 and certain photographs and other documents. The respondent No.1/plaintiff examined himself as PW/1, one Dr. Hariram Agrawal as PW/2, Shri Vinod Agrawal an employee of the Allahabad Bank as PW/3.
6: The appellants have produced certain a receipt of photograph and have examined witnesses also such as the appellant No.3, Shrikant Shukla who was examined as DW/1, Nand Kishore Soni (DW/2), Mamta Devi (DW/3), Rajmani Shukla (DW/4), Mahesh Kumar Mishra (DW/5), Kamlesh Prasad Pandey (DW/6) and Devesh Singh (DW/7). After examining the witnesses produced by the appellants and the respondent No.1 considering the material documents placed on record, the learned lower Court, reached to the conclusion that the respondent No.1/plaintiff has proved his case and thus, granted a decree in favour of the respondent No.1/plaintiff.
7: Smt. Sudha Pandit, learned counsel appearing for appellants contended that Section 31 of the Specific Relief Act, 1963, prescribes that a registered document can be cancelled if it is proved that the same is void or voidable. However, if a person has been put in possession pursuance to the execution of the said document/ instrument, unless restoration of possession is claimed, the said document cannot be declared bad in law. Putting reliance in the case of Dambar Lal Vs. B. Chand Mal and others (AIR 1932 Allahabad 485), it is contended that in case the Court finds that plaintiff was not in possession of the suit property, said to be transferred under the instrument, the Court was not required to pass a decree of declaration that such an instrument is void. It is contended that if the law is properly appreciated, the factual aspect is examined, it would be clear that the appellants were put in possession of the disputed property soon after the execution of sale deeds in their favour and this fact was well within the 6 knowledge of the respondent No.1/plaintiff, but possession on the disputed land was not claimed in the suit and, therefore, the relief as claimed could not have been granted to the respondent No.1/plaintiff. Further placing reliance in the case of Ram Saran and another Vs. Smt. Ganga Devi (AIR 1972 SC 2685), learned counsel for the appellants has contended that the very same law has been considered by the Apex Court and in view of the specific provisions made under Section 42 of the Specific Relief Act, the respondent No.1/plaintiff was not entitled to the grant of such a decree as has been granted under the impugned judgment and decree. It is contended that in view of the law laid down by the Apex Court in Prem Singh and others Vs. Birbal and others [(2006) 5 SCC 353] and Ram Niwas (dead) through L.Rs. Vs. Smt. Bano and others (AIR 2000 SC 2921) as also interpretation of the deeds and documents, referred by the Apex Court in the case of B.K. Muniraju Vs. State of Karnataka and others [(2008) 4 SCC 451], the respondent No.1/plaintiff was not entitled to any such decree and the suit itself was liable to be dismissed. These material aspects have not been considered by the Court below and wrongly interpreting the provisions of law, improperly appreciating the evidence available on record, the decree has been granted in favour of the respondent No.1/ plaintiff.
8: Taking this Court to the pleadings in the plaint, learned counsel for the appellants has contended that the respondent No.1/ plaintiff was a well educated qualified Physician and was not a rustic villager, who could be cheated in the manner the allegations have been made in the plaint. It is contended that the respondent No.1/plaintiff on his own agreed for the sale of the plot in dispute, executed the power of attorney, received the amount of sale consideration and then authorised the appellant No.3 to execute the sale deeds on his behalf and by virtue of such power of attorney, the sale deeds were executed by the appellant No.3 in favour of the purchasers and they 7 were put in possession of the plot. Referring the evidence of the witnesses, learned counsel for appellants contended that this fact that the appellants were put in possession of the plot in suit has been proved and, as such, the decree could not have been granted in favour of the respondent No.1/plaintiff. It is contended that the decree is thus liable to be set aside. The other counsel assisting the learned counsel for appellants read out the entire evidence of the respondent No.1/plaintiff and contended that from the statements so recorded it was crystal clear that the respondent No.1/plaintiff was aware of the transaction which was going on and with open eyes, he accepted the consideration for the execution of the sale deeds. Since he was not readily available for the purposes of execution of the sale deeds, he executed a power of attorney and on the strength of such power of attorney, the sale deeds were executed in favour of appellants. It is contended that the evidence indicates that there was no manipulation in the documents as alleged and, therefore, the claim made by the respondent No.1/plaintiff was not to be found proved. Taking this Court to the findings recorded by the learned lower Court, it is contended that all such material evidence which the appellants have produced on record was ignored and was not taken deliberately into consideration, therefore, the findings recorded by the Court below were perverse and were liable to be set aside.
9: In reply to such submission, the learned senior counsel for the respondent No.1/plaintiff had contended that neither it was proved that the appellants were put in possession of the plot in suit on the strength of a validly executed document of sale nor the findings could have been arrived to the effect that the appellants were put in possession of the disputed plot within the knowledge of the respondent No.1/plaintiff. On the contrary, the findings are otherwise which are well supported by the appreciation of evidence. Learned senior counsel for respondent No.1 has pointed out that the documents are 8 required to be examined minutely so as to reach to the finding whether any sale deed could have been executed in favour of the appellants by the appellant No.3 on the strength of any power of attorney or not. It is pointed out that the registration of documents are required to be done under the provisions of the Registration Act, 1908, in terms of the provisions of Rules made by the State. The said Rules are known as M.P. Registration Rules, 1939. Referring Rule 19(m) of the aforesaid Rules, it is contended that every document required to be registered under the provisions of Clause (a) to (e) of sub-section (1) of Section 17 of the Registration Act pertaining to agricultural land, is required to be presented along with the Bhu Adhikar Avam Rin Pustika as required under Section 114(a) of the M.P. Land Revenue Code, 1959. Learned senior counsel has contended that the original 'Rin Pustika' was ever since in possession of the respondent No.1/plaintiff which has been exhibited as Ex.P/1 in the suit. Had it been a case that on the date when the agreement was executed for sale of the disputed plot by the respondent No.1/ plaintiff in favour of the appellant No.1 or his wife, and the said person was to be put in possession of the land, it was required to deliver him/her the copy of the 'Rin Pustika' also. Since the same was never delivered, there was no intention to deliver the possession of to the prospective purchaser. The other aspect is that agreement for sale Ex.P/11 specifically prescribes that the sale consideration would be Rs.8,62,000/- and on the date when the agreement was executed, a cheque of Rs.10,000/- was given as advance for the sale consideration and the time was fixed for execution of the sale deed by 31.3.1997. The name of the wife of the appellant No.1 was mentioned in the original agreement which was delivered for the purposes of signature of the said lady to the appellant No.1, but only a photocopy of the same without even signature of the said person was returned to the respondent No.1 and there was a manipulation as the name of the lady was scored off and in its place the name of the appellant No.1 was written by hand. This was the 9 first manipulation which was done and in the second page also certain manipulation was done. However, even if it is accepted that this was the agreement for sale, the price of the land was Rs.8,62,000/- on the date when the said agreement was executed i.e. on 19.12.1996. The fact further remains that the cheque was given as payment of advance for the said agreement, which was also exhibited and for the purposes of proving said cheque, a witness was also examined, who has categorically deposed that a cheque book was issued to appellant No.1 and he issued a cheque for Rs.10,000/- to the respondent No.1 which was encashed on 20.12.1996. Thus, in fact, there was the sale agreement executed on 19.12.1996 and there was no question of reducing the price of the land to a paltry sum of Rs.3,50,000/- as was alleged. Learned senior counsel has further pointed out that Ex.P/3 is the general power of attorney and if it is minutely examined, it will be clear that there were manipulations made in the said document. It is pointed out that when the sentence written in Hindi is closed, a full stop is put. There was no question of continuing the sentence by using a word of the nature of continuity. It is further pointed out that there was no question of two paragraphs in one page, but in the second page a manipulation was done inasmuch as the part of the paper which was left blank, was used for the purposes of making a condition that a registry can be executed by the said power of attorney holder on behalf of the respondent No.1/plaintiff and he was further made authorised to receive the amount of sale consideration.
10 : Learned senior counsel has further drawn the attention of this Court to the document Ex.P/4 and has contended that by the naked eyes, it could be ascertained that manipulations in the document were done. The fact remains that only Rs.50,000/- was paid in cash on 7.2.1997 and this amount was acknowledged by the respondent No.1/ plaintiff not only in figures but words. If the said receipt is examined closely, it 10 will be clear that figure '3' was written from a different ink and in the like manner, the words 'Three Lakhs' (Teen Lakh) was also inserted in the said receipt. A photocopy of the same was available with the respondent No.1/plaintiff which has been exhibited as Ex.P/5, which indicates that only an amount of Rs.50,000/- was paid to the respondent No.1/plaintiff. Thus, from this, it is clear that all such actions were taken illegally. To fortify such a stand and to put force on the submission that manipulations in the document were found to be proved by the Court below in appropriate manner, learned senior counsel has taken this Court to the statement of DW/6 Kamlesh Prasad Pandey, who is said to be the scriber of the said receipt. The examination in chief on oath given in the form of affidavit under Order 18 Rule 4 of C.P.C., contains that receipt was written by the said witness. Taking this Court to the cross examination of the said person in paragraphs 1 and 2, learned senior counsel has pointed out that the said person has categorically admitted that word 'Teen Lakh' (Three lacs) was not written by him in his writing. If the scriber of the document examined himself as defence witness, has admitted that such words were not written by him, if the learned Court below has found that there was manipulation done in the document, it is contended by learned senior counsel, that such findings cannot be said to be perverse.
11 : Again learned senior counsel has pointed out that how many factors were taken into consideration by the lower Court while holding that a complete fraud was played. It is pointed out by the learned senior counsel for the respondent No.1/plaintiff that the total sale consideration of the three sale deeds Ex.P/7, Ex.P/8 and Ex.P/9 is Rs.85,000/-. How would it be justified to say that the land which was said to be sold for Rs.8,62,000/- was sold only for Rs.85,000/-. Further, if such a plea is accepted that an amount of Rs.3,50,000/- was agreed to be paid for sale of the aforesaid disputed plot, where was the proof of the balance payment of sale consideration. If this 11 was the situation and if this was the evidence available on record, there was no error committed by the Court below to hold that the respondent No.1/ plaintiff has proved his claim and thus, rightly a decree was granted in favour of the respondent No.1.
12 : Reading the entire evidence available on record, learned senior counsel for the respondent No.1/plaintiff has pointed out that for every aspect it was proved that the respondent No.1/plaintiff was in the possession of the land and the said possession was never parted with or delivered to the appellants. The findings recorded by the Court below are that only the respondent No.1/plaintiff was in possession of the land and illegally some boundary wall was constructed over and above the boundary wall of the respondent No.1/plaintiff by the appellants herein. Thus, it is contended that if such evidence is properly marshalled and appreciated, how could it be said that the findings reached by the Court below were perverse. With respect to specific claim made after the amendment in the plaint and deleting paras 6 and 7 of the original plaint and substituting the same by subsequent pleadings, it is contended by learned senior counsel that admission at any stage can be withdrawn and if rightful action is required to be taken on such change of pleadings, it cannot be said that it was not permissible in view of the law laid down by the Apex Court in the case of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and others (AIR 1960 SC 100). Thus, it is contended that if the entire findings of the Court below are marshalled , in view of the evidence available on record, it would be crystal clear that in fact, a fraud was committed by the appellants, the valuable property of the respondent No.1/plaintiff was sought to be grabbed in such illegal manner and since this has been found proved by the Court below, the decree against the appellants was rightly granted. It is contended that the appeal thus being devoid of any merit, deserves dismissal with exemplary costs.
1213 : After hearing learned counsel for the parties at length, minutely examining the record, the evidence available on record and the findings of the Court below, this Court is of the opinion that this appeal is liable to be dismissed. The Court below has given the cogent findings with respect to each issue after rightly appreciating the evidence available on record. The court has considered the evidenciary value of the statements of witnesses examined by the appellants in their defence. The Court has taken note of each and every statements made by such witnesses and has given the definite findings, which are just and proper. Not only this, the Court below has found that in fact the appellant No.1 was not having any capacity to raise fund to make purchase of the suit plot as per the agreement dated 19.12.1996. The manipulations in the document have been found proved by reading the document in appropriate manner and by considering each and every word used in such document. The findings recorded by the Court below cannot be said to be perverse in any manner. The provisions of the Rules of registration were properly appreciated. The fact that the original 'Rin Pustika' was produced by the respondent No.1/plaintiff in the suit was noted down and it was found that the appellants were not at all put in possession of the land in dispute. There cannot be any other findings except the finding recorded by the Court below, on the basis of the evidence available on record and, as such, the Judgment and decree passed by the Court below is just and proper.
14 : A serious question has come before this Court that whether such property broker who indulges in such type of fraudulent practice should be allowed to go scot free even when the Courts have found that documents were manipulated so as to cheat a property owner. The fact further remains that a First Information Report was lodged against the appellants by the respondent No.1/plaintiff, but most probably the police 13 has not made any investigation only because it was thought that the allegations made were of the Civil nature and no cognizance of the offence was taken. However, the insistence of the appellants indicates that they want to rely on the manipulated document even before this Court. In normal course, a criminal prosecution of the appellants chould have been launched. However, since such a finding is already recorded by the Court below which has been affirmed by this Court, it is left open to the respondent No.1/plaintiff to initiate criminal prosecution of the appellants on the strength of the findings recorded by the Court below.
15 : The appeal fails and is hereby dismissed with costs. The appellants will bear their own costs and will pay the cost of respondent No.1/plaintiff throughout. Counsels fee at Rs.25,000/- (Rupees Twenty Five Thousand), if precertified.
(K.K.Trivedi) Judge /04/2012 14 HIGH COURT OF MADHYA PRADESH : JABALPUR.
First Appeal No.772/2004Rajkumar Pandey and others
-Versus-
Balmukund Agrawal and another.
J U D G M E N T
( .4.2012)
Post it for /4/2012
(K. K.Trivedi)
Judge
/04/2012