Allahabad High Court
Smt. Chamela vs Mahrajdin & Others. on 2 September, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 21 AFR Case :- SECOND APPEAL No. - 447 of 1981 Appellant :- Smt. Chamela Respondent :- Mahrajdin & Others. Counsel for Appellant :- Arif Khan,Anurag Narian Srivastava,Mohiuddin Khan Counsel for Respondent :- Anurag Narain,Anurag Narain Srivastava,D.C. Mukerjee,Gauri Shanker Maurya,Mukesh Sharma,S.P. Maurya Hon'ble Attau Rahman Masoodi,J.
Heard Sri Mohd. Arif Khan, learned Senior Counsel, assisted by Sri Mohd. Aslam Khan, learned counsel for the appellant and Sri Anurag Narain who has put in appearance on behalf of the respondents.
This second appeal has arisen against the judgement and decree dated 10.4.1981 rendered in Civil Appeal No. 167/79 reversing the judgement and decree rendered by the trial court on 7.5.1979 in Regular Suit No. 173/78. The appeal was admitted by order dated 29.5.1981, however, substantial questions of law came to be framed when the appeal was heard on 9.5.2019. The substantial questions of law framed by this Court read as under:
"1. Whether the lower appellate court has rightly construed the principle of Pardaneshin lady while setting aside the trial court judgment?
2. Whether the burden of proof of non-execution of impugned Mukhtarnama dated 29.7.1976 lay on the plaintiffs and as to whether the sale-deed was hit by the statutory bar as mentioned in para 6 of the plaint and the courts below have rightly dealt with the same."
Briefly stated, the facts of the case are that one Smt. Chamela brought about a suit for cancellation of registered power of attorney allegedly obtained by impersonation on 29.7.1976 as well as for cancellation of the sale deed dated 4.8.1976 through such attorney impleading the purchasers of the property as defendants no. 1, 2 and 3 as well as the attorney holder as defendant no. 4. After exchange of pleadings, the trial court proceeded to frame two issues. The first issue was framed to the effect "as to whether the power of attorney as well as the sale deed, in view of what was stated in paragraph 6 of the plaint, was liable to be cancelled" and the second issue was "as to whether, in view of what was stated in paragraph 6-A of the plaint, the sale deed and the power of attorney were liable to be cancelled".
The trial court considered issues no. 1 and 2 jointly for the purpose of adjudication. The trial court having regard to the evidence on record proceeded to construe the benefit of Pardanashin lady in favour of the plaintiff, treating her to be a villager, rustic and uneducated lady. It was also observed by the trial court that insofar as the payment of sale consideration is concerned, an inconsistent stand was taken by the defendants, therefore, once the execution of power of attorney having been denied by the plaintiff stood disproved, the sale deed executed on her behalf was consequently bad in the eye of law. The suit was accordingly decreed in favour of the appellant-plaintiff who is survived by the legal representatives substituted during pendency of this appeal.
The judgement and decree rendered by the trial court on 7.5.1999 in Regular Suit No. 173/78 came to be questioned in Civil Appeal No. 167/79. The appellate court below on the aspect of validity of power of attorney framed the point of determination and went into the correctness of the appreciation of evidence by the trial court and by re-appreciating the evidence, has recorded findings reversing the findings recorded by the trial court, to the contrary.
The first appellate court below, insofar as the extension of principle of Pardanashin lady to late Smt. Chamela is concerned, has observed that such a principle was not applicable in the facts and circumstances of the present case for the reason that Smt. Chamela in the present case had denied the execution of power of attorney and had rather pleaded that the same was impersonate. Once a case of this description was pleaded in the plaint, there was no admission of any physical act of which consciousness or unconsciousness was to be proved treating her to be a Pardanashin lady. The first appellate court also proceeded to observe that Smt. Chamela who had previously executed the registered power of attorney on 11.1.1967 in favour of one Faiya Singh and Bam Bahadur Singh for pairvi of cases but such a fact was not disclosed in the plaint. The later power of attorney in favour of Faiya Singh alone was also registered which included the power of sale.
The first appellate court below, insofar as the power of attorney executed on 29.7.1976 inclusive of power to sell is concerned, has observed that once the execution of such a power of attorney was admitted by the executant in paragraph 9, 12 and 13 of the examination-in-chief, no question to doubt the veracity of such a power of attorney for shifting the burden of proof upon the defendants would arise and in fact, the evidence available on record proved beyond doubt that she herself had executed the registered power of attorney executed on 29.7.1976. This finding being a question of fact, has been recorded by the first appellate court below on the basis of evidence.
Having heard the arguments at length on the aspect of Pardanashin lady, extending the same benefit to the appellant-plaintiff treating her illiterate and uneducated village lady, the disapproval by the first appellate court, in my humble opinion, has correctly been opined by the appellate court below and the view taken by the trial court being erroneous has rightly been set right.
Insofar as payment of sale consideration to late Smt. Chamela is concerned, the first appellate court below has merely supported the legitimate sale consideration which the attorney, Faiya Singh, out of his free will, had set out to the disadvantage of appellant-plaintiff. It was the appellant-plaintiff's authority to sell the property which was misused by the attorney and the resultant cause, if any, would arise against the attorney alone. The attorney as per his own statement has admitted the receipt of sale consideration to the tune of Rs. 5000/- although the real price of the property in dispute might have been Rs. 40,000/- as quantified.
Learned counsel for the appellant has not placed any judgement or law on the point as to how a registered sale deed for a definite consideration though mentioned contrary to the market value of property, can be understood to be a nullity within the ambit of law.
Once the authority to transfer was duly held by power of attorney and his authority to transfer did not lack legitimacy, the judgement rendered by the first appellate court below on the premise of evidence of the contesting witness (plaintiff) as well as the attorney, in my humble opinion, does not leave any scope for interference within the scope of Section 100 CPC.
Learned counsel for the appellant has also taken this Court through the aspect of fragmentation of the plots being hit by Section 168-A of U.P. Zamindari Abolition and Land Reforms Act affecting the sale transaction as well as for the lack of permission under Section 5-c(ii) of U.P. Consolidation of Holdings Act, the sale deed was attempted to be established as void.
Having closely scrutinuzed the judgement rendered by the first appellate court below, the categorical finding recorded by the appellate court is to the effect that the plots transferred through the impugned sale deed were neither fragmented nor at the relevant point of time, any consolidation operations were going on. The first appellate court below has recorded that the village in question was denotified on 14.11.1970 and the sale deed in question was executed much subsequent to the said date. No evidence was brought to the notice of this Court establishing any fragmentation of the land transferred through the impugned sale deed or the requirement of prior permission being necessary for any consolidation proceedings being in progress at the relevant point of time.
Lastly, the learned Senior Counsel argued that the mandate of Order XLI Rule 31 CPC was not adhered to by the first appellate court. On this aspect of the matter, this Court is not convinced with the submissions put forth, rather, the first appellate court has thrashed out the relevant points of determination and in my humble consideration, the appellate court judgement does not fall on the strength of the argument advanced by learned counsel.
The exhaustive submissions made by learned Senior Counsel on behalf of the appellant are thus unconvincing and both the substantial questions of law framed above are answered in negative and against the appellant-plaintiff.
The second appeal thus fails and the same is hereby dismissed.
Order Date :- 2.9.2019 Fahim/-