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Himachal Pradesh High Court · body

2000 DIGILAW 286 (HP)

RAMESH KUMAR GARG v. RAM AVTAR SHARMA

2000-11-07

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J:- The plaintiff has filed the present suit for possession of the land measuring 12 bighas 19 biswas, as detailed in the jamabandi for the year 1987-88 of Mauza and Pargana Dharampur, Tehsil Nalagarh, District Solan, and hereinafter referred to as the land in dispute, by cancellation of the sale deed dated 16.3.1992. In the alternative, the plaintiff has prayed for a decree for a sum of Rs 13, 00,000/- alongwith interest at the rate of 18% per annum. 2. Briefly stated, the facts of the case as set out in the plaint are these. The plaintiff is the owner of the land in dispute in which he is alleged to have planted 200/300 eucalyptus trees. The land in dispute is located just adjacent to the industrial area of Nalagarh and is contiguous to the main road. The plaintiff in 1983 was interested in setting up a company under the name and style of Messrs Atul Polymers Limited and for the purpose of management of the land in dispute he had executed a general power of attorney in favour of defendant No. 1, Shri Ram Avtar Sharma. Such power of attorney also conferred the power to transfer, mortgage and sell the land in dispute. The power of attorney was executed and registered at Kalka (Haryana) on 17.1.1983. The plaintiff on 5.3.1992 cancelled the power of attorney given by him in favour of defendant No. 1 vide notice sent to the defendants No.l, 7 and 8 under certificate of posting. 3. The defendant No.l by ignoring the revocation of the power of attorney and in connivance with defendants No.2 to 7 disposed of the land in dispute in favour of defendants 2 to 6 for a paltry sum of Rs. 1,95,000/-, the land in dispute was ostensibly valued at Rs.2,59,000/-. The market value of the land in dispute was about Rs.80, 000/- per bigha at the relevant time. 4. The plaintiff on 7.4.1992, was informed about the interference being caused by some persons with the trees standing in the land in dispute, whereupon he served a notice upon defendants 2 to 6 calling upon them to desist from interfering with the land in dispute. The defendants 2 to 6 in reply pleaded that they had purchased the land in dispute. The defendants 2 to 6 in reply pleaded that they had purchased the land in dispute. Upon inquiries made from the office of defendant No.7, the plaintiff came to know about the sale of the land in dispute by defendant No.l in favour of defendants 2 to 6. The present suit was accordingly filed for possession of the land in dispute by cancellation of sale deed dated 16.3.1992 and in the alternative for the recovery of Rs. 13, 00,000/- on the grounds that the defendant No.l had no authority to sell the land in dispute and that the sale was as a result of the fraudulent act of the defendants. No inquiry was made by the defendants 2 to 6 regarding the authority of defendant No. 1 to make the sale. 5. The suit is being resisted and contested by defendants 2 to 6. Two sets of written statements have been filed, that is, one by defendant No. 1 and the other by defendants 2 to 6. 6. The case set up by the defendants is that the power of attorney in favour of defendant No. 1 was never revoked and cancelled. Defendant No. 1 was having the authority and the land in dispute was validly sold by defendant No.l in favour of defendants 2 to 6 for a valuable consideration. Connivance and fraud was denied. 7. On the pleadings of the parties, following issues were framed on 29.6.1993:- 1. Whether the plaintiff cancelled power of attorney given by him in favour of defendant No.l regarding suit land, if so, when it was cancelled? OPP 2. If issue No. 1 is proved in affirmative whether defendants had notice of cancellation of power of attorney before the execution and registration of sale deed in question by defendant No. 1 in favour of defendants 2 to 6? OPP 3. Whether the sale deed in question executed by defendant No. 1 in favour of defendants 2 to 6 is the result of connivance between defendant No. 1 and defendants 2 to 7 and is a sham transaction? OPP 4. Whether the sale deed was registered in violation of H.P. Town & Country Planing Act, 1977, if so, its effect? OPP 5. Whether defendants 7,8 acted for personal gain and motive, without care and caution, in grave derelication of duty in registering the sale deed in question? OPP 6. OPP 4. Whether the sale deed was registered in violation of H.P. Town & Country Planing Act, 1977, if so, its effect? OPP 5. Whether defendants 7,8 acted for personal gain and motive, without care and caution, in grave derelication of duty in registering the sale deed in question? OPP 6. Whether plaintiff is entitled to alternative relief by way of decree of Rs.l3, 00,000/-? OPP 7. To what rate of interest, if any, and since when and on what amount, the plaintiff is entitled to? OPP 8. Whether defendants 2 to 6 are bonafide purchaser of the suit land with consideration? OPD 2 to 9. Whether plaintiff is estopped from filing the suit as alleged? OPD2 to 6. 10. Whether the suit is bad for want of Section 80 CPC notice? OPD 11. Relief. 8. I have heard the learned counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under: Issue No.1. 9. Admittedly, a power of attorney, copy of which is Ex.PW 1/1 was executed by the plaintiff in favour of the defendants 1 on 17.1.1983 at Kalka (Haryana). This general power of attorney was registered in the office of the Sub-Registrar, Kalka, on the same day. There is no denying that vide this power of attorney power to sell the land in dispute was given to the defendant No. I vide clause 10 thereof. 10. The case of the plaintiff is that the power of attorney Ex. PW 1/1 was cancelled and revoked by him vide notice dated 5.3.1992. Ex. PW 6/A is the copy of the notice/letter dated 5.3.1992 alleged to have been sent by the plaintiff to the defendant No .l cancelling and revoking the power of attorney. A copy of this notice/letter is shown to have been endorsed and sent to the Registrars Ambala and solan as also to the Sub-Registrars Kalka and Nalagarh and to the Naib Tehsildar, Nalagarh vi-de Ex. PW 6/B under certificates of posting, Ex. PW 6/C and PW 6/D. 11. A copy of this notice/letter is shown to have been endorsed and sent to the Registrars Ambala and solan as also to the Sub-Registrars Kalka and Nalagarh and to the Naib Tehsildar, Nalagarh vi-de Ex. PW 6/B under certificates of posting, Ex. PW 6/C and PW 6/D. 11. The learned counsel for the plaintiff has contended that although the presumption under section 27, General Clauses Act, 1897 is available only when notice/letter is sent by registered post, a presumption may arise under section 14, Evidence Act, 1872, when notice/letter is sent by post irrespective of whether it is sent by ordinary post or under certificate of posting. In support reliance was placed on the ratio laid down by the Calcutta High Court in Sukumar Guha v. Naresh Chandra Ghos & Anr. AIR 1968 Calcutta 49 and in Jitendra Nath Das v. Bijoy Lal Das AIR 1976 Calcutta 478. 12. Ex. PW 6/A letter/notice dated 5.3.1992 alleged to have been sent by the plaintiff to defendant No.l reads:- "My dear Sharma Ji, May this will find you in the best of your health and happiness alongwith your family. If you remember I had appointed you as my attorney with respect to my land at village Billan Wali (Labana) tehsil Nalagarh, Distt. Solan H.P. per registered deed and presently the prices of land in the area are rising and the purpose for which the Power of Atorney was executed in 1983 has come to an end and I am not interested now in disposing off my above said property to any person for any purpose and you are hereby requested to treat this said Power of Attorney as cancelled for all intents and purposes. You are further requested to come to Parwanu at the address given below for taking necessary steps for cancellation and revokation of the said deed which I have already cancelled by this letter. Please bring the original document while coming to Parwanu and please do come on 11.3.92 by 11.00 A.M. positively for further necessary action. Yours Sincerely, SdA (R.K. Garg)" 13. It is well settled that before a presumption about service/receipt of notice/letter can be raised, it must be proved that a notice/letter was in fact posted on the (sic) address of the addressee. 14. The letter vide Ex. PW 6/c is shown to have been posted at village Panwa in District Sirmaur. Yours Sincerely, SdA (R.K. Garg)" 13. It is well settled that before a presumption about service/receipt of notice/letter can be raised, it must be proved that a notice/letter was in fact posted on the (sic) address of the addressee. 14. The letter vide Ex. PW 6/c is shown to have been posted at village Panwa in District Sirmaur. The plaintiff is residing and works for gain at Parwanoo in District Solan. While appearing as PW 6, the plaintiff has stated regarding the posting of notices/letters Ex. PW 6/A and PW6/B in the following terms in his examination - in - chief:- "Notices Ext. PW6/A and PW 6/B were prepared by me. They were posted at Panwa. I received a message about the illness of my mother on the morning of 6.3.1992 and on my way to Sarahan I have posted them at Panwa." 15. During the course of cross-examination, the plaintiff has stated: “Notices Ex. PW 6/A and Ex. PW 6/B were typed by me in my office. NO legal opinion was obtained by me before preparing the notices. Sarahan is about 70 Kms. from Parwanoo. It is correct that a number of post offices fall on the way from Parwanoo to Sarahan. Since notices were prepared by me only in the evening of 5.3.1992, the same could not be posted on that day. I am maintaining staff for managing my business. It is correct that entire correspondence pertaining to my business is being looked after by my staff. I did not seek the help of my staff in Posting the notices since my office closes at 5 P.M......I do not know the Postal clerk to whom the letter was handed over by me at Panwa. Panwa is about 10/15 Kilometres before Sarahan. It is wrong to suggest that no notice was issued by me on 6.3.1992 and that I am deposing falsely. It is wrong to suggest that the certificates of posting have been procured subsequently....Notices were posted by me while going to Sarahan. There is a Post Office at Sarahan." 16. Vide Ex. PW 6/C and PW 6/D six letters are shown to have been posted on 6.3.1992 at Panwa under certificate of posting PW 5 Shri P.D. Kainth is the manager of the plaintiff. He claims to have accompanied the plaintiff from Parwanoo to Sarahan on 6.3.1992. There is a Post Office at Sarahan." 16. Vide Ex. PW 6/C and PW 6/D six letters are shown to have been posted on 6.3.1992 at Panwa under certificate of posting PW 5 Shri P.D. Kainth is the manager of the plaintiff. He claims to have accompanied the plaintiff from Parwanoo to Sarahan on 6.3.1992. He has stated: "Two envelops alleged to be containing some notices were posted by the plaintiff in my presence at Panwa." 17. PW 5 has not deposed as to whom these two envelops were addressed. Besides, he contradicts the plaintiff with regard to the posting of six letters at Panwa vide Ex.PW 6/C and PW 6/D. It is in the statment of PW 5 that Panwa is a small village. The plaintiff has also admitted that a number of Post Offices fall on the way from Parwanoo to Sarahan. 18. Nothing has come on the record as to why the notice Ex. PW 6/C and PW 6/B could not be posted at Parwanoo before the plaintiff started his journey for Sarahan or at Sarahan to which place the plaintiff had gone and he actually belongs. Why out of the number of post offices falling on the way, he picked up the post office at Panwa, a small village just 10/15 Kms before Sarahan. Absence of such explanation give rise to the presumption that the postal clerk at Panwa might be an acquaintance of the plaintiff and the certificates of posting Ex.PW 6/C and PW 6/D might have been procured by the plaintiff subsequently. 19. A Division Bench of the Patna High Court in Baidyanath Prasad Sinha v. State 1961 (1) Cri. L.J. 544 has held that it is not at all difficult to obtian postal seal marks with wrong dates. 20. The fact that letters/notices Ex. PW 6/C and PW 6/B donot appear to have been posted and that the postal certificates Ex .PW 6/C and PW 6/D appear to have been manipulated, finds support from the following circumstance coming in the evidence of the plaintiff himself. 21. As stated above, the power of attorney Ex .PW 1/1 was executed on 18.1.1983. The plaintiff as PW 6 in his cross-examination has stated:- "I never thought of cancellation of power of attoreny in favour of defendant No.l before March 1992. Defendant No.l was residing in Delhi. 21. As stated above, the power of attorney Ex .PW 1/1 was executed on 18.1.1983. The plaintiff as PW 6 in his cross-examination has stated:- "I never thought of cancellation of power of attoreny in favour of defendant No.l before March 1992. Defendant No.l was residing in Delhi. I have no idea if he has any residence at Nalagarh. I never had any talk with defendant No. 1 with regard to the power of attorney after execution of power of attorney in his favour.....It just struck to me in March, 1992 that the power of attorney in favour of defendant No.l should be cancelled. I never doubted about the power of attorney having been misused by defendant No. 1. Defendant No. 1 never met me after 1982-83.1 never tried to find out regarding the whereabouts of defendant No.l after 1982-83. I did not know that under the power of attorney, defendant No.l could sell the land in dispute....I did not try to meet defendant No. 1 after the posting of notices. No separate deed of cancellation of power of attorney was executed. No application was made by me either before Registrar, Solan or before Registrar Ambala or Sub-Registrar, Kalka or Sub-Registrar Ambala or Sub-Registrar, Kalka or Sub-Registrar, Nalagarh intimating that notices regarding cancellation of power of attorney in favour of defendant No.l had been issued and that no document presented by defendant No.l as my general attorney should be registered since I had never anticipated that defendant No.l would be selling the land. I never came to know about the deal with regard to the proposed sale by defendant No. 1.1 came to know about the sale having been effected only in April, 1992. No public notice regarding cancellation of power of attorney was got published in any local newspaper." 22. The case set up by the plaintiff as PW 6 is that he never doubted that defendant No. 1 would misuse the power of attorney and had never anticipated that the defendant No.l would be selling the land. It is not known then as to why all of a sudden after a gap of more than nine years, he thought of cancelling the power of attorney. Besides the language used in Ex.PW 6/B requesting the addresses therein not to register any deed presented by the general attorney shows that letter Ex. It is not known then as to why all of a sudden after a gap of more than nine years, he thought of cancelling the power of attorney. Besides the language used in Ex.PW 6/B requesting the addresses therein not to register any deed presented by the general attorney shows that letter Ex. PW 6/C and PW 6/B were prepared after 16.3.1992 the date of sale by antedating the same. 23. The evidence coming on record does not prove the posting of the letters. Therefore, no presumption under section 114, Evidence Act, 1872, can be raised. 24. Assuming for the sake of arguments that the plaintiff has been able to prove the posting of the letters Ex.PW6/C and PW 6/B and that a presumption under section 114, Evidence Act, 1872 is available. 25. It is well settled that the presumption as to service of notice available under section 27, General Clauses Act, 1897 as well as under section 114, Evidence Act, 1872, is rebuttable. 26. In the present case, the presumption as to service of notice Ex.PW 6/C and PW 6/B stands rebutted in view of the evidence coming on record. Vide postal certificates Ex.PW 6/C and PW 6/D, notices Ex. PW 6/C and PW 6/C are alleged to have been sent to six persons, namely, defendant No. 1, Registrar Ambala, Registrar Solan, Sub Registrar Kalka and the two Sub Registrars at Nalagarh. 27. DW 1, DW 3, DW 4 and DW 5 are the officials from the offices of Registrar Ambala and solan, and the Sub Registrars at Kalka and Nalagarh. They have categorically stated that no letter/notice like Ex. PW 6/C and PW 6/B was received in their office nor the receipt of such letter is found entered in the receipt register being maintained in their offices. DW 2 is the Sub Registrar, Nalagarh. He has also deposed to the same effect. While DW 1 and DW 3 have not been cross- examined by the plaintiff, nothing has come in the cross-examination of DW 2 and DW 4 and DW 5 to show that they were suppressing the truth. 28. Defendant No. 1 also, while appearing as his own witness, has stated on oath that no letter likes Ex.PW6/A was ever received by him. There is nothing on record to disbelieve defendant No. 1. 28. Defendant No. 1 also, while appearing as his own witness, has stated on oath that no letter likes Ex.PW6/A was ever received by him. There is nothing on record to disbelieve defendant No. 1. Had as many as six letters to six different persons been posted, as claimed by the plaintiff, at least it would have been received by some of them if not all. It cannot be believed that all are telling lie. 29. There is yet another aspect of the case. Section 114, Evidence Act, 1872 only permits the presumption that the letter sent/posted at a correct address must have been received by the addressee. There is nothing under this section as to presumption to be raised with regard to the date of service. Nothing has come on the record to show as to how many days are taken for the letters posted at Panwa, a small village in District Sirmaur, to reach its destination. The onus was on the plaintiff to show that the letters were received by the respective addresses before 16.3.1992, the date of sale. 30. Vide Ex.PW6/A, the plaintiff had requested and called upon the defendant No.l to come to Parwanu at the given address on 11.3.1992 at 11 A.M. positively for taking necessary steps for cancellation and revocation of the power of attorney. Admittedly, the defendant No. I had not responded to such request. No further action was taken by the plaintiff. Admittedly, neither public notice was given nor any attempt was made by the plaintiff to intimate the concerned Registrars and/or Sub Registrars about the cancellation of the general power of attorney in favour of defendant No. 1. Even in the absence of defendant No.l, he could have executed the necessary cancellation deed for which purpose he had called the defendant No. 1 on 11.3.1992. The conduct of the plaintiff himself shows that letters Ex.PW 6/C and PW 6/B were never posted and the same appear to have been manipulated subsequently. 31. I, therefore, hold that the power of attorney in favour of defendant No. 1 was never cancelled by the plaintiff as alleged by him. The issue is decided against the plaintiff. Issue No. 2. 32. The plaintiff while appearing as PW 6 has categorically admitted that no notice regarding the cancellation of power of attorney was given to defendants No. 2 to 6. The issue is decided against the plaintiff. Issue No. 2. 32. The plaintiff while appearing as PW 6 has categorically admitted that no notice regarding the cancellation of power of attorney was given to defendants No. 2 to 6. There is also no evidence to show that these defendants had notice of cancellation of power of attorney. Even otherwise in view of my Findings recorded under issue No. 1 above, the present issue has become redundant; Issue No.5. 33. In view of the findings recorded under issue No. 1 above, it cannot be said that the defendants No. 7 and 8 had acted for personal gain and motive, without care and caution in grave dereliction of duty in registering the sale deed in favour of defendants No. 2 to 6. The issue is decided against the plaintiff. Issue No. 3. 34. No evidence has come on the record to show that the sale deed by defendant No. 1 in favour of defendants 2 to 6 is the result of connivance between the defendants 1 to 7. So much so that the plaintiff himself while appearing as PW 6 is silent on this score. 35. Much reliance has been placed by the learned counsel for the plaintiff on the circumstance that the sale was made at a very low price as compared to the prevailing market value of the land in the area. 36. Assuming that the sale has been made at a very low price, such fact by itself is not sufficient to show that the sale was not bonafide. See: Hiralal Agarwala v. Bhagirathi Gore & Ors. AIR 1975 Calcutta 445. 37. The issue is, therefore, decided against the plaintiff. Issue No. 4. 38. Section 16, H.P. Town and country Planning Act, 1977, prohibits the registration of any deed or document of transfer of any subdivision of land by way of sale, gift, exchange, lease or mortgage with possession unless the sub division of land is duly approved by the Director. The proviso to the section permits the registration of sale deeds where the sale does not involve further division. 39. In the present case, no subdivision or division of land was invoked due to the sale of the land by defendant No. 1 in favour of defendants 2 to 6. The proviso to the section permits the registration of sale deeds where the sale does not involve further division. 39. In the present case, no subdivision or division of land was invoked due to the sale of the land by defendant No. 1 in favour of defendants 2 to 6. Bresides, there is nothing on the record to show that the land in dispute fell within the zone of "freezing of land use". It is, therefore, held that the sale deed was not registered in violation of H.P. Town and Country Planing Act, 1977. The issue is decided against the plaintiff. Issue No.8. 40. In view of the admitted fact that the defendants 2 to 6 had no notice of the alleged cancellation of power of attorney and in the absence of evidence as to connivance amongst the defendants, it is held that the defendants 2 to 6 are bonafide purchasers for value. The issue is decided in favour of the defendants. Issue No. 9. 41. Since the power of attorney was not cancelled and was in force, the plaintiff is bound by the acts of his agent and as such is estopped from filing the present suit. The issue is decided in favour of the defendants. Issue No.6. 42. In view of the findings that the sale in favour of the defendants 2 to 6 is valid having been made for consideration, the plaintiff is not entitled to alternative relief of Rs.13,00,000/-. The issue is decided against the plaintiff. Issue No. 7. 43. This issue has become redundant in view of the findings recorded under issue No.6 above. Issue No. 10. 44. Defendants No. 7 and 8 are public servants. No notice was served upon them under section 80, Code of Civil Procedure. The plaintiff has claimed that they acted in a malafide manner while performing their duties as Sub-Registrars. Therefore, the suit as against them in the absence of notice is bad. The issue is decided against the defendants. Relief. 45. As a result, the present suit fails and is dismissed accordingly, leaving the parties to bear their own costs.