Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 276 (PNJ)

Dibban v. Suresh Chand

2000-03-06

R.L.ANAND

body2000
ORDER R.L. Anand, J. (Oral) - By this order, I dispose of two RSAs No. 1029 and 1030, of 2000, as both of them have arisen from judgment and decree dated 15.12.1999, passed by the Addl. Distt. Judge, Faridabad, who dismissed the two appeals of the appellants. 2. Some facts can be noticed in the following manner :- 3. One suit was filed by Suresh Chand for possession by way of specific performance and another suit was filed by Dibban and his brother Heta seeking a declaration that the Power of Attorney dated 12.9.1990 allegedly executed by them in favour of Babloo is null and void and that on the basis of that power of attorney, any transaction conducted by Babloo is null and void and not binding on the rights of the plaintiffs. 4. The case set up by Suresh Chand was that Dibban and Heta, appellants, were owners of land measuring 40 kanals 7 marlas, situated in the revenue estate of village Kanwarka. They appointed Babloo as their general power of attorney vide General Power of Attorney dated 12.9.1990, Ex. PW-4/2 authorising Babloo to alienate the suit land in any manner whatsoever. The said Power of Attorney was got registered with the Sub Registrar, Palwal. Babloo acting as Attorney of the appellants entered into an agreement of sale dated 21.9.1990, Ex. P-1, and vide this agreement the land subject matter of the suit was agreed to be sold for a sum of Rs. 1,20,000/- and Babloo also received Rs. 1 lac as earnest money and the remaining Rs. 20,000/- were to be paid to the vendee before the Sub Registrar on or before the date of sale, which was fixed as 12.10.1990. According to Suresh Chand, he was ready and willing to perform his part of the agreement. He went to the office of Sub Registrar, Hodal, with the balance sale consideration but neither the vendors nor their Attorney turned up and in this manner, the defendants failed to perform their part of the agreement. 5. In the second suit filed by Dibban and Heta it was alleged by them that they never executed the Power of Attorney dated 12.9.1990 in favour of Babloo and the agreement dated 21.9.1990 does not confer any valid right, title or interest in favour of Suresh Chand. 5. In the second suit filed by Dibban and Heta it was alleged by them that they never executed the Power of Attorney dated 12.9.1990 in favour of Babloo and the agreement dated 21.9.1990 does not confer any valid right, title or interest in favour of Suresh Chand. It was also pleaded by them that, in fact, the Power of Attorney dated 12.9.1990 has been cancelled vide document dated 5.10.1990, which is also a registered document. 6. Both the suits were consolidated by the courts below and the following issues were framed :- Issues in Dibbans case :- "1. Whether the general power of attorney dated 12.9.90 is illegal, null and void and is forged document as alleged ? OPP 2. Whether the plaintiffs are entitled to the injunction as prayed for ? OPP 3. Whether the plaintiffs are estopped from filing the suit by their act and conduct ? OPD. 4. Relief." Issues in Suresh Chands case :- "1. Whether the defendants No. 1 and 2 appointed the defendant No. 3 as their general power of attorney ? OPP 2. In case the issue No. 1 is proved, whether the defendants. No. 1 and 2 through their general attorney entered into a contract dated 21.9.90 with the plaintiff to sell the suit land for Rs. 1,20,000/- and received the earnest money of Rs. 1,00,000/- as alleged ? OPP 2A. Whether the plaintiff is still ready to perform his part of contract ? OPP 3. Whether the plaintiff is entitled to the decree of specific performance as alleged ? OPP 4. Whether the suit by the plaintiff is false and frivolous ? OPD. 5. Relief." 7. The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, the trial court came to the conclusion that the Power of Attorney dated 12.9.1990 was duly executed by Dibban and Heta and it was cancelled on 5.10.1990 and since the agreement of sale is dated 21.9.1990, i.e. prior to the date of cancellation, therefore, Dibban and Heta are bound by the agreement entered into by their Attorney Babloo. It was also observed by the courts below that there was no fraud played upon Dibban and Heta. They certainly executed Power of Attorney in favour of Babloo who received the consideration of Rs. It was also observed by the courts below that there was no fraud played upon Dibban and Heta. They certainly executed Power of Attorney in favour of Babloo who received the consideration of Rs. 1 lac vide agreement of sale and, therefore, their suit was dismissed while the suit for specific performance of Suresh Chand was decreed. 8. Aggrieved by the decision of the trial court in both the suits, Dibban and Heta filed two appeals before the first appellate court and both the appeals were dismissed for the reasons given in paras 10 to 13 of the judgment, which read as under :- "10. The first and only question for determination is whether Dibban and Heta had executed power of attorney Ex. PW4/1 in favour of Babloo authorising him to alienate the suit land in any manner whatsoever. This document is a registered instrument registered with the Sub Registrar, Palwal. Section 85 of the Indian Evidence Act provides that the court shall presume that every document purporting to be a power of attorney and to have been executed before, and authenticated by a Notary Public, or any court, Judge, Magistrate, Indian Counsel or Vice Counsel or representative of the Central Government, was so executed and authenticated. Sub Registrar is a court. Thus, presumption of its due execution is attached under section 85. On 5.10.1990 Dibban and Heta had got cancelled the power of Attorney Ex. PW4/1 vide cancellation deed Ex. PW7/1. At the time of cancellation, the due execution of power of attorney Ex. PW4/1 was admitted by them. It is so recited in the document itself. The power of attorney was got cancelled on the plea that their attorney had lost their faith. Admission in the cancellation deed is also a circumstance which proves the due execution of the power of attorney Ex. PW4/1. 11. In the written statement, Dibban and Heta have denied the execution of power of attorney. In their suit, they have pleaded that they never executed power of attorney in favour of Babloo nor they appeared before the Sub Registrar to get the same registered. They also denied their thumb impressions on the document and came with a plea that some persons impersonated them before the Sub Registrar. But when Dibban stepped into the witness box, as DW1, he admitted the execution of Ex. PW4/1. They also denied their thumb impressions on the document and came with a plea that some persons impersonated them before the Sub Registrar. But when Dibban stepped into the witness box, as DW1, he admitted the execution of Ex. PW4/1. He changed his version and came with a plea that they had not authorised Babloo by that power of attorney to alienate the suit land. They have examined one more witness Bharti from their village as DW2. He has stated that one day Dibban and Heta had come to him and told that they had executed power of attorney in favour of Babloo to authorise him to transfer the suit land in the name of their children and not to a stranger. This admission by Dibban, alone, is sufficient to prove the due execution of power of attorney Ex. PW4/1. Under Section 92 of the Indian Evidence Act, where the terms of a contract have been reduced to the form a document, no oral evidence can be led for purpose of contradicting, varying, adding to, or, subtracting from, its terms. Therefore, Dibban and Heta cannot be allowed to lead oral evidence to add or subtract anything from the terms contained in power of attorney Ex. PW4/1. 12. Dibban and Heta have alleged fraud to set aside the power of attorney. It is settled law that fraud like any other charge, whether made in civil or criminal proceedings, must be established beyond reasonable doubt. However suspicious may be the circumstances, however strange the co-incidence and however grave the doubts, suspicion alone can never take the place of prof. In this case, no such evidence has been led by the executors of power of attorney, rather they have admitted its execution. 13. For the reasons recorded above, I concur with the learned trial court that Dibban and Heta had executed the power of attorney Ex. PW4/1 authorising Babloo to alienate the suit land in any manner whatsoever. I, therefore, uphold the finding of the learned trial court recorded under issue No. 1 in Suresh Chands case." 9. In this manner, Dibban and Heta are aggrieved by the judgment and decree of the courts below. I am disposing of the present appeals in limine, after hearing the counsel for the appellants. 10. I, therefore, uphold the finding of the learned trial court recorded under issue No. 1 in Suresh Chands case." 9. In this manner, Dibban and Heta are aggrieved by the judgment and decree of the courts below. I am disposing of the present appeals in limine, after hearing the counsel for the appellants. 10. The first argument which was raised by the counsel for the appellants was that it is not proved on the record that the present appellants ever executed the General Power of Attorney dated 12.9.1990 and, in these circumstances, the agreement of sale dated 21.9.1990 does not give any valid cause of action to Suresh Chand for institution of the suit for possession by way of specific performance. 11. I do not subscribe to the argument of the counsel for the appellants because of the conduct of the appellants themselves. It is their own case that on 5.10.1990 they got cancelled the Power of Attorney dated 12.9.1990 vide cancellation deed, Ex. PW-7/1. The contents of the cancellation deed itself indicate that these appellants executed a General Power of Attorney on 12.9.1990 when the present appellants have admitted in the document, Ex. PW- 7/1, i.e. cancellation deed, about the execution of the earlier General Power of Attorney. Hardly any proof was required on the part of Suresh to establish that Babloo was an authority constituted on behalf of Dibban and Heta. 12. It was, then, submitted by the counsel for the appellants that the land measuring 40 kanals 7 marlas was allegedly agreed to be sold by Babloo for a paltry sum of Rs. 1.20 lacs and it is also not believable that the vendee paid a sum of Rs. 1 lac to the General Attorney. In all probability, had there been a valid transaction, the vendee straightaway would have got the sale deed executed because he, as per the agreement, was only to pay Rs. 20,000/- more and that too on or before 12.10.1990, i.e. just after one month from the date of the agreement of sale. 13. This argument of the counsel for the appellants is also not acceptable to the court. Once the agreement in favour of the plaintiff Suresh Chand is proved, then, the court is not to go behind as to why the sale deed has not been executed on the same date. 13. This argument of the counsel for the appellants is also not acceptable to the court. Once the agreement in favour of the plaintiff Suresh Chand is proved, then, the court is not to go behind as to why the sale deed has not been executed on the same date. There can be a possibility that the possession of the land in question could not be delivered by the vendor or their Attorney on 12.9.1990 and that might be the reason for the delay in the execution of the sale deed. We all know that in this part of the country, the kharif crop, invariably, ripens somewhere in the month of October after Dusshera. It is equally possible that the present appellants might have taken some money under the table from the vendee and in order to back out from their contractual obligation, they might have filed the civil suit seeking a declaration for the cancellation of the Power of Attorney. 14. Faced with this difficulty, the learned counsel for the appellants submitted that the presumption under section 85 of the Evidence Act is of rebuttal and the courts below have not considered the evidence with regard to the alleged due execution of the General Power of Attorney. 15. The argument is not acceptable to the court simply for the reason that it is the case of the appellants themselves that the Power of Attorney dated 12.9.1990 was cancelled by them on 5.10.1990. In this document of cancellation, there is a mention with regard to the execution of the General Power of Attorney dated 12.9.1990 clearly indicating that the present appellants admitted that they had executed the Power of Attorney. It is not the case of the appellants that they never executed the cancellation deed dated 5.10.1990. Rather they are relying upon this document. This shows that there was a document duly executed by the present appellants and this document was ultimately got cancelled by the present appellants on 5.10.1990. As the plaintiff Suresh Chand was ready and willing to perform his part of the agreement, therefore, the suit for possession by way of specific performance has been rightly decreed. 16. Counsel for the appellants cited AIR 1997 Supreme Court 2702. This judgment is not applicable to the facts in hand. There is no illegality or impropriety in the impugned judgments and both the appeals are hereby dismissed. Appeals dismissed.