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Madhya Pradesh High Court · body

2005 DIGILAW 1175 (MP)

GURBUX SINGH DHANOHA v. RATAN SINGH DHANOHA

2005-11-22

ARUN MISHRA, S.S.DWIVEDI

body2005
Judgment ( 1. ) ARUN Mishra, J. This First Appeal has been preferred by the plaintiffs aggrieved by judgment and decree dated. 19-7-2004 passed by the 6th Additional District judge, Jabalpur, in Civil Suit No. 23-A/2004. ( 2. ) PLAINTIFFS/appellants filed a suit for declaration, partition and possession. It was prayed that the sale-deed executed by Smt. Harjinder Kaur chukkal in favour of Shri Harendrajeet Singh Babbu; defendant No. 2 on 3-10-1998 be declared to be null and void to the extent of 2/3rd share of the plaintiffs. Partition has also been prayed. Further Prayer has been made to handover the peaceful and vacant possession of respective share of the suit property. Permanent injunction has been sought against the defendant No. 2 not to sell, alienate the suit property or raise any construction. ( 3. ) THE plaintiffs have averred in the plaint that they are the owner of the land and house situated at village Maheshpur, N. B. No. 662, Ward No. 30, Madan Mahal, Jabalpur, Plot No. 93, admeasuring 37. 05 feet x95 feet, total 3562 sq. ft. The aforesaid plot was purchased on 28-3-1969 by them for consideration of Rs. 8966. 25. Since then they are in possession of the suit property as owner. Their names were mutated in the Government record. A house was constructed after obtaining sanction from the Municipal Corporation, Jabalpur on part of the land. House was numbered as 1270-A, Madan Mahal Ward, jabalpur. The house and open land perinent to it is owned by the plaintiffs and defendant No. 1 in equal share i. e. , l/3rd each. Defendant No. 1, Ratan Singh dhanoha had given a power of attorney to his sister-in-law namely; Smt. Harjinder Kaur Chukkal on his behalf. On the basis of that power of attorney, smt. Harjinder Kaur Chukkal has sold the house to the defendant No. 2; Shri harendrajeet Singh Babbu. Plaintiffs were not present at the time of purchase and execution of sale-deed at Jabalpur in India. They are residents of Canada. They are in Canada. Some impostors were put instead of plaintiffs. They have not signed and executed the sale-deed which has been executed by Smt. Harjinder Kaur Chukkal. She was not empowered to sell the suit house on behalf of the plaintiff. Smt. Harjinder Kaur Chukkal is the sister-in- law of the plaintiffs brother and very-well knows the plaintiffs. They are in Canada. Some impostors were put instead of plaintiffs. They have not signed and executed the sale-deed which has been executed by Smt. Harjinder Kaur Chukkal. She was not empowered to sell the suit house on behalf of the plaintiff. Smt. Harjinder Kaur Chukkal is the sister-in- law of the plaintiffs brother and very-well knows the plaintiffs. Serious kind of fraud has been played while executing the sale-deed in favour of defendant No. 2. SAle-deed is null and void as the plaintiffs have never executed the sale-deed. Smt. Harjinder kaur Chukkal. She was not competent to execute the sale-deed of entire house. She could only sell undivided share of Shri Ratan Singh Dhanoha; defendant no. 1 i. e. , the l/3rd share. Both the defendants have colluded and executed the sale-deed in connivance to usurp the property of the plaintiffs. ( 4. ) IT is further averred that the plaintiffs are permanently residing at Toreanto (Canada) and plaintiff No. 1 had not visited the India from 1975 to may, 2000. Plaintiff No. 2 to India between 17-5-1998 to 27-5-1998. Both of them were not present in India on 3-10-1998. They were in Canada. They were having passport and visa and entries are made in the said passport when they arrive in India and wherever they go. The aforesaid documents were filed alongwith the plaint. Plaintiffs came to know of the fraud played on 5-2-2001 when the plaintiff No. 1 came to India. Hence, the suit has been filed. ( 5. ) IN the written statement filed by the defendant No. 1, the purchase of property on 28-3-1969 was denied for want of knowledge. Factum of mutation and raising of construction by plaintiffs was also denied for want of knowledge. ( 6. ) DEFENDANT No. 1 has further contended in the reply that the defendant No. 1 had executed the power of attorney in favour of Smt. Harjinder kaur Chukkal on 25-3-1977. She has sold the share of Shri Ratan Singh dhanoha; Defendant No. 1 to Shri Harendrajeet Singh Babbu; defendant No. 2 on 3-10-1998. She has signed the sale-deed on his behalf. She has alienated his share only, not of the plaintiffs. It has been denied that she has made forged signatures of the plaintiffs on the sale-deed. She has not committed any fraud. Other facts were also denied for want of knowledge. She has signed the sale-deed on his behalf. She has alienated his share only, not of the plaintiffs. It has been denied that she has made forged signatures of the plaintiffs on the sale-deed. She has not committed any fraud. Other facts were also denied for want of knowledge. It was denied that impostors have got executed the sale-deed on behalf of the plaintiff. The suit is barred by limitation. Indrapal Singh was not added as party, who has signed the sale-deed as witness. ( 7. ) IN the written statement filed by defendant No. 2, Harendrajeet singh Babbu, it is contended that the sale-deed was duly executed. It is denied that the plaintiffs were not present and have not signed the sale-deed. Smt. Harjinder Kaur Chukkal is a near relative and has duly identified the plaintiffs at the time of execution of the sale-deed, as clear from the sale-deed itself. Answering defendant No. 2 was interested to settle down at Jabalpur. His friend and Advocate, Shri Bittu came in contact with Smt. Harjinder Kaur Chukkal, who was interested to sell the suit property. Plaintiffs and defendant No. 1 executed the sale- deed in favour of the defendant No. 2. Defendant No. 2 was not knowing Smt. Harjinder Kaur Chukkal or the plaintiffs. He was not present at the time of execution of sale-deed. He is in peaceful possession. He has no plan to sell the property. He has invested his hard earned money in purchase of the suit property. ( 8. ) IN the course of trial, the plaintiffs examined himself and filed various documents, passport, sale-deed executed in the year 1969 in their favour, general power of attorney (Ex. P-3), report of hand-writing expert (P-4), certified copy of the sale-deed dated. 3-10-1998 (P-5 ). ( 9. ) THE defendants have examined Smt. Harjinder Kaur Chukkal (D. W. 1), Shri Harendrajeet Singh Babbu (D. W. 2) and Indrapal Singh (D. W. 3 ). Indrapal Singh is an attesting witness on the sale- deed (Ex. P-5 ). Original sale-deed was taken away from the Court with the permission of the court by the defendant No. 2, Shri Harendrajeet Singh Babbu. It was thereafter not filed by the defendant No. 2. ( 10. Indrapal Singh is an attesting witness on the sale- deed (Ex. P-5 ). Original sale-deed was taken away from the Court with the permission of the court by the defendant No. 2, Shri Harendrajeet Singh Babbu. It was thereafter not filed by the defendant No. 2. ( 10. ) THE learned Trial Court has found that the plaintiffs and defendant No. 1 are the owner in equal share on the strength of the sale-deed (P-l)executed in their favour way back in the year 1969. The learned Trial Court has further found that section 41 of the TP Act is not attracted. Defendant No. 2 appears to be a bonafide purchaser. Plaintiffs have not been able to prove that the sale-deed was not executed by them, as such the suit filed by them has been dismissed. ( 11. ) SHRI Bai Mukund Dwivedi, learned Counsel appearing on behalf of the plaintiffs/appellants has submitted that the learned Trial Court has totally mis-directed itself. The evidence on record has not been appreciated properly. The statements of defendants witnesses have been ignored and overlooked. The witnesses on behalf of the defendants have not stated that any of the plaintiff was present personally at the time of execution of sale-deed. On the one hand the Trial Court has found that the plea of purchase of ostensible owner is not available to the defendant No. 2, at the same time finding has been given that the defendant No. 2 is the bonafide purchaser of the property. Thus, the findings are irreconcilable. He further submitted that the findings recorded are perverse, based on not applying the mind. Parties have adduced evidence. Entire evidence was required to be assessed by the learned Trial Judge. Plaintiffs have discharged the burden. Passports have been filed to show that the plaintiffs were not in India on the date of execution of sale- deed. Defendant No. 1, Smt. Harjinder Kaur Chukkal was not the power of attorney holder on behalf of the plaintiffs, she had no right to execute the sale-deed on behalf of the plaintiffs. Consideration was also not paid to any of the plaintiff, in the sale-deed it has been mentioned that the amount has been paid by cheque and thereafter the purchaser himself admitted that he received back the cheque from Smt. Harjinder Kaur Chukkal and paid sale consideration in cash. Consideration was also not paid to any of the plaintiff, in the sale-deed it has been mentioned that the amount has been paid by cheque and thereafter the purchaser himself admitted that he received back the cheque from Smt. Harjinder Kaur Chukkal and paid sale consideration in cash. She was not authorized for execution of sale-deed and to receive any sale consideration with respect to transaction. She held the power of attorney only on behalf of Shri Ratan Singh dhanoha. Thus, the sale-deed is null and void vis-a-vis to the plaintiffs. He has further submitted that the defendant No. 2 being the purchaser of undivided 1/3rd share cannot retain the possession in view of the decision of the Full Bench in Ramdayal Vs. Manaklal, 1973 JLJ 764 . It is a case where criminal prosecution is pending as against the defendants. Execution of sale-deed by the plaintiffs has not been established at all by the defendants. Even the original sale-deed is withheld by the defendant No. 2. It was not produced after it was taken from the Court. ( 12. ) SHRI Girish Shrivastava, learned counsel appearing with Shri Vijay raghav Singh, on behalf of the purchaser, Respondent No. 2; Shri Harendrajeet singh Babbu has submitted that burden of proof is upon the plaintiffs to establish that the sale-deed has not been executed by them, though expert report was obtained and filed, expert has not been examined to prove the report. Passports have also not been proved. Thus, the plaintiffs have failed to prove that they were not in India on the date of execution of sale-deed. The extract of the register of the office of the sub-Registrar, Registration, Jabalpur. Ex. P-6 has also not been proved by the plaintiffs. The findings of fact have been arrived at in accordance with law by rightly placing the burden of proof on the plaintiffs, as such case for interference is not made out in this First Appeal. ( 13. ) SHRI Sachin Verma, learned Counsel appearing on behalf of the respondent No. 1 has stated that as averred in the written statement; Smt. Harjinder Kaur Chukkal had executed the sale-deed only on behalf of defendant No. 1 to the extent of his share i. e. , l/3rd, she did not even know the plaintiffs. ( 13. ) SHRI Sachin Verma, learned Counsel appearing on behalf of the respondent No. 1 has stated that as averred in the written statement; Smt. Harjinder Kaur Chukkal had executed the sale-deed only on behalf of defendant No. 1 to the extent of his share i. e. , l/3rd, she did not even know the plaintiffs. Thus, no case for interference is made out to the extent of l/3rd share sold by Smt. Harjinder Kaur Chukkal to defendant No. 2; Shri Harendrajeet singh Babbu. Rest of the dispute of 2/3rd share is in between the plaintiffs and the defendant No. 2. ( 14. ) IT has not been disputed by the Counsel for the parties that both the plaintiffs and defendant No. 1 are the owner to the extent of 1/3rd share each as property was purchased as per the sale-deed (P-l), obviously the plaintiffs and the defendant No. 1 are the owner to the extent of l/3rd share each in the disputed property which finding we affirm. ( 15. ) THE first question for consideration is whether the plaintiffs were in India as on the date on which the sale-deed (Ex. P-5) dated. 3-10-1998 was executed in favour of the defendant No. 2; Shri Harendrajeet Singh Babbu? We find for the various reasons to be mentioned hereinafter that they were not in india and their presence has not been established in India on the date on which the sale-deed was signed or registered by any of the witnesses. Sale-deed was signed on 29-9-1998 registered on 3-10-1998. Plaintiff, Gurubux Singh Dhanoha (P. W. 1) has stated that he is the power of attorney holder of his brother; Shri jeet Singh Dhanoha; Plaintiff No. 2 and has stated in paragraph No 3 of deposition that at the time of execution of sale-deed, they were not in Jabalpur, they were in Canada, in spite of that the defendants No. 1 and 2 have got the sale-deed executed by putting some impostors. Indrapal Singh and Ramkumar have signed the sale- deed as witnesses. They have wrongly identified the plaintiffs. He has filed the Canadian passport (P-2), in which there is entry of coining to India, which is the photocopy of passport. He has brought his original passport. Original passport of his brother could not be produced as the passport is not transferable document. They have wrongly identified the plaintiffs. He has filed the Canadian passport (P-2), in which there is entry of coining to India, which is the photocopy of passport. He has brought his original passport. Original passport of his brother could not be produced as the passport is not transferable document. He has obtained the report (P-4) of Shri S. K. Kelkar; Hand-writing and Finger Print Expert, which shows that none of the plaintiff has signed the sale-deed (P-5) dated. 3-10-1998. On the basis of the power of attorney of defendant No. 1; Smt. Harjinder Kaur Chukkal could sell only l/3rd share belonging to defendant No. 1, entire house could not be sold by her, thus, they are entitled for possession and partition to the extent of their share. He has further stated that when he came to know of the fraud played, he had lodged Police report and had also filed a complaint in the Court after 3-4 months as he had apprehended that the Police may not take any action against shri Harendrajeet Singh Babbu as he is an influential person. He came to know of execution of sale-deed in end of 2000, he came to Jabalpur in December, 2000. He has stated that Smt. Harjinder Kaur Chukkal knew them. He has not proposed to sell the house to anybody. One of the plot which was purchased in the name of Shri Ratan Singh, was also sold in the year 1998, as plot was not purchased in the name of plaintiffs, but, in the name of Shri Ratan Singh only, he has not objected to. He has further stated in paragraph No. 14 that Smt. Harjinder Kaur Chukkal knew the family members very well and she used to look after the property. Said property at Shahpur was also sold by Smt. Harjinder kaur Chukkal which has not been objected to by him. ( 16. ) IT is clear from statement of the plaintiff; Shri Gurubux Singh dhanoha (P. W. 1) that none of the plaintiff was present in India. He has produced photocopy of the passport and has brought the original passport to the Court. ( 16. ) IT is clear from statement of the plaintiff; Shri Gurubux Singh dhanoha (P. W. 1) that none of the plaintiff was present in India. He has produced photocopy of the passport and has brought the original passport to the Court. We find that when he has brought the original passport to the Court, it was the duty of the defendants to cross-examine him with respect; to the date on which he came to India, as the plaintiffs have denied that they were not in india on that date the statement was having the support of original passport. It was the duty of defendant to cross-examine in case they wanted to challenge the aforesaid statement of Gurubux Singh Dhanoha (P. W. 1), but, no such cross-examination has been made, only it was suggested in paragraph No. 15 that the photocopy of passport/visa (P-2) is forged. No cross-examination has been made with respect to entries made in the original passport of his travel to India. Thus, we find that the statement of plaintiff No. 1 is reliable that he was not in india on the date of execution of sale-deed, and that is supported by passport. ( 17. ) NOW, we come to the depositions of the defendant and the witnesses examined by them : We find it writ large that the presence of the plaintiffs has not been even asserted by any of witness as Smt. Harjinder Kaur chukkal (D. W. 1), power of attorney of defendant No. 1 nowhere stated in her entire deposition that any of the plaintiffs were present on the date on which the sale-deed was executed in India and in the office of Sub-Registrar, Registration, Jabalpur. She simply stated that she was authorized by Shri Ratan Singh dhanoha (Defendant No. 1) to sell l/3rd share on his behalf and she had sold l/3rd share on his behalf to the defendant No. 2; Shri Harendrajeet Singh babbu. She has clearly stated that she signed only on behalf of the defendant no. 1. It is not even the case of defendant No. 2 that she had signed on behalf of the plaintiffs. She has stated that the marriage of her sister was performed with Shri Ratan Singh Dhanoha in the year 1967-68. She formally knew the plaintiffs since then. 1. It is not even the case of defendant No. 2 that she had signed on behalf of the plaintiffs. She has stated that the marriage of her sister was performed with Shri Ratan Singh Dhanoha in the year 1967-68. She formally knew the plaintiffs since then. The father of Plaintiffs and defendant No. 1 had given power of attorney to her for looking after the property. She has signed other sale-deed also on the date in which disputed sale-deed (Ex. P-5) was executed. She was not aware whether the plaintiffs have signed the sale-deed as seller or not. As to consideration she has stated that consideration was received by cheque. It was not paid in cash. She has also stated that consideration was not paid by the cheque, she received in cash only part of consideration. Criminal case was pending, which was filed by the plaintiffs as against her. She was unable to state who has prepared the draft of the sale-deed (Ex. P-5), which she had executed on behalf of defendant No. 1. She has produced the power of attorney before the Registrar. She knew Inderpal Singh, one of the attesting witness, but, was not knowing Shri Ram Kumar Soni, the other attesting witness of the sale-deed (Ex. P-5 ). She was unable to state in paragraph No. 11 of deposition, who had produced the sale-deed before the Sub-Registrar, Registration and who had taken the original from the office. She has stated that the defendant no. 2 was not present at the time of execution of sale-deed in the office of sub-Registrar, Registration, Jabalpur. She could not say, who was present on behalf of defendant No. 2. She was unable to state the entry of the receipt of consideration of Rs. 2,75,000/- was relating to whom. She has received only an amount of Rs. 91,366/ -. She could not say who has received the remaining part of the consideration out of Rs, 2,75,000/ -. In paragraph No. 12 she has stated that at the time of registration in the office of Sub-Registrar, she was in the vehicle, which was parked out of the office, when on behalf of Shri Ratan Singh dhanoha, defendant No. 1, she was called she went inside only to sign the sale-deed. She had signed in presence of Sub-Registrar, Registration, Jabalpur. She was not aware who has signed on behalf of the plaintiffs. She had signed in presence of Sub-Registrar, Registration, Jabalpur. She was not aware who has signed on behalf of the plaintiffs. She was not aware whether the plaintiffs signed the sale-deed. She denied the suggestion that the plaintiffs have signed in her presence. She has clearly stated that none of other sellers signed in her presence. She had not identified any of the seller before the Sub-Registrar, Registration, Jabalpur. She has admitted that the plaintiffs are residing in Canada. She was unable to state in paragraph No. 14 that whether the plaintiffs were in Jabalpur or not at the time and date of execution of sale-deed. She knew that without obtaining the Visa, no person residing in foreign country can come to India. She did not consider it necessary to find out whether the plaintiffs were in Jabalpur or not as he was not having talking terms with the plaintiffs. Thus, it is crystal clear from her deposition that Smt. Harjinder Kaur Chukkal (D. W. 1) is totally evasive and could not even dare to utter a single word that the plaintiffs were present at the time of execution of sale-deed, which buttresses the statement of the plaintiffs. ( 18. ) WHEN we consider the deposition of Shri Harendrajeet Singh babbu minutely, he was also unable to state even a single word that the plaintiffs were present at the time of execution of sale-deed or that they were in India. He has tried to save his own skin by stating that he had not gone to the office of Registrar to get the sale-deed executed in his favour. He did not know the plaintiffs. It was only through the property broker, the sale-deed was got executed. His examination-in-chief is quite interesting to note, he has stated in paragraph No. 1 that Shri Pussy, the property broker had shown him the plot and stated that the seller resides in Canada. He then asked how the sale-deed would be executed, Pussy had informed him that Smt. Harjinder Kaur Chukkal was having the power of attorney on their behalf and power of attorney would come from Canada. Smt. Harjinder Kaur Chukkal had received a sum of Rs. 2,75,000/ -. Out of that a sum of Rs. 50,000/- was paid to Punjab Jewelers, the tenant, who was occupying the certain portion of the property. Remaining amount was taken by Smt. Harjinder Kaur Chukkal. Smt. Harjinder Kaur Chukkal had received a sum of Rs. 2,75,000/ -. Out of that a sum of Rs. 50,000/- was paid to Punjab Jewelers, the tenant, who was occupying the certain portion of the property. Remaining amount was taken by Smt. Harjinder Kaur Chukkal. Smt. Harjinder Kaur chukkal had owned the responsibility for passing the valid title. He had asked boby, son of Smt. Harjinder Kaur Chukkal, whether they could obtain the power of attorney from Canada. He was informed that the power of attorney of sellers had come, and the sale-deed would be executed. It was their responsibility to execute the sale-deed. He had thereafter given the entire money to smt. Harjinder Kaur Chukkal and her son Boby. Indrapal Singh @ Pussy, the property broker was also present. He has further submitted that the registered sale-deed was handedover to him in his house in the year 1998. He did not go to the office of the Sub-Registrar, Registration, Jabalpur at the time of execution of sale-deed. He had not purchased the stamps. Indrapal Singh @ Pussy and Smt. Harjinder Kaur Chukkal got the sale-deed registered. He does not know the plaintiffs. He has further admitted in paragraph No. 4 on his cross-examination that Smt. Harjinder Kaur Chukkal was having the power of attorney on behalf of Shri Ratan Singh Dhanoha. Shri Ratan Singh Dhanoha was having 1/3rd share in suit property. He has not seen the power of attorney, on the basis of which the sale-deed was executed. Thus, he had purchased the property relying upon the statement of Smt. Harjinder Kaur Chukkal and Indrapal Singh @ Pussy. Smt. Harjinder Kaur Chukkal has not mentioned in the sale-deed; that she was selling l/3rd property. She was selling share of all the three persons, as such it was not considered necessary to make a mention about the sale of share of Shri Ratan Singh Dhanoha by her. As Smt. Harjinder Kaur Chukkal had executed the sale-deed, the entire consideration was paid to her. She was paid a sum of Rs. 2,25,000/ -. He has stated that in the sale-deed, it was mentioned that the payment was made by cheque. But the cheque was given back to him by Smt. Harjinder Kaur Chukkal and then he had paid a sum of Rs. 2,25,000/-in cash to Smt. Harjinder Kaur Chukkal. She was paid a sum of Rs. 2,25,000/ -. He has stated that in the sale-deed, it was mentioned that the payment was made by cheque. But the cheque was given back to him by Smt. Harjinder Kaur Chukkal and then he had paid a sum of Rs. 2,25,000/-in cash to Smt. Harjinder Kaur Chukkal. In paragraph No. 1, he has stated that he was not aware and did not try to find out who had identified the signature of the plaintiffs. In paragraph No. 10 when it was put to him that the plaintiffs signature were obtained by playing fraud and some impostors were produced in place of the plaintiffs, he denied the suggestion, stating that he was not aware of such a fact. He has not raised any substantial construction over the property as stated in paragraph 13. ( 19. ) WHEN we come to the statement of Indrapal Singh (D. W. 2), his statement causes serious dent to the case of the defendants. He has stated in examination-in-chief that Smt. Harjinder Kaur Chukkal and two others, six gentlemen had informed him that they were the owner. Smt. Harjinder Kaur chukkal was having the power of attorney on behalf of one of the brother. She was looking after the property. Other brothers were residing in Canada. He did not know Shri Gurubux Singh Dhanoha and Shri Jeet Singh Dhanoha, both the plaintiffs. He knew only Smt. Harjinder Kaur Chukkal. Consideration of the sale-deed was paid to Shri Harendrajeet Singh Babbu to Smt. Harjinder Kaur chukkal and her son Boby. Sum of Rs. 2,25,000/- was paid to her. Remaining amount of Rs. 50,000/- was paid to the tenant. He has stated in paragraph No. 3 of his deposition that he has never seen the plaintiffs. He was not aware whether Shri Ram Kumar Soni an attesting witness of sale-deed was present or not at the time of execution of sale-deed. He was not aware who had identified the plaintiffs and who had signed on behalf of the plaintiffs, Sum and substances of the statement is that did not made even a whisper that both the plaintiffs were present at the time of execution of sale-deed. His statement falls short of proving the presence of the plaintiffs in India and also execution of sale- deed by them. ( 20. His statement falls short of proving the presence of the plaintiffs in India and also execution of sale- deed by them. ( 20. ) WHEN we consider the statement of defendant No. 2; Shri harendrajeet Singh Babbu (D. W. 2), he has stated that the power of attorney was to be called from Canada, obviously as plaintiffs were not in India. There was no such power of attorney sent in favour of Smt. Harjinder Kaur Chukkal on behalf of the plaintiffs. It is not even the case set up in the written statement that she was power of attorney holder of plaintiffs, Smt. Harjinder Kaur Chukkal has stated that she was holding the power of attorney only on behalf of the defendant No. 1. Defendant No. 2; Shri Harendrajeet Singh Babbu and Smt. Harjinder Kaur Chukkal very well knew that the property was owned by the plaintiffs also, still the sale-deed was got executed without the plaintiffs being present in India. It is a serious kind of case, in which we find that none of the plaintiff was present in India. Smt. Harjinder Kaur Chukkal and Indrapal Singh; defendant No. 3 and deliberately omitted to say that the plaintiffs were present. They have tried to be evasive as to the presence of the plaintiffs, they have not stated anywhere that the plaintiffs were present. It passes comprehensive how the document like sale- deed could have been executed when the power of attorney of defendant No. 1 had stated that she was not aware whether the plaintiffs were present or not. Purchaser was also unable to say that the plaintiffs were present. Same is the statement of Indrapal Singh (D. W. 3 ). Fraud is writ large, which had been played by the defendants. In our considered opinion, man may lie, but, circumstances not, is the cardinal principle of law. We find that none of the plaintiffs were present in India on the date on which the sale-deed was executed. Some impostors were put in their place and the sale-deed was got executed by playing fraud. We find that the learned Trial Judge has totally misdirected himself while appreciating the evidence. We are not at all happy in the method and manner the learned Trial Judge has appreciated the evidence and has ignored and overlooked the material aspects of the case. We find that the learned Trial Judge has totally misdirected himself while appreciating the evidence. We are not at all happy in the method and manner the learned Trial Judge has appreciated the evidence and has ignored and overlooked the material aspects of the case. It passes comprehension how the finding that defendant No. 2 is the bonafide purchaser could have been arrived at. Bonafide purchaser has to exercise the reasonable care and due diligence. It is apparent from the statement of defendant No. 2 that no such care and diligence was exercised by him. No power of attorney was obtained from the plaintiffs by Smt. Harjinder Kaur Chukkal, she was not having any authority to execute the sale-deed. The defendant No. 2 cannot be said to be a bonafide purchaser for good consideration. ( 21. ) YET there is another aspect which disturbs us, that is about the payment of consideration. In sale-deed (Ex. P-5), it has been mentioned that the cheque of Rs. 2 lac was handedover and in cash a sum of Rs. 75,000/-was given. It is apparent from the statement of Smt. Harjinder Kaur Chukkal; D. W. 1 and Shri Harendrajeet Singh Babbu (D. W. 2) that no consideration whatso-ever was paid to any of the plaintiff, that is not the case set up by either of the aforesaid two witnesses. On the contrary D. W. 1; Smt. Harjinder Kaur Chukkal has stated that she has received only a sum of Rs. 91,666/-, not the remaining amount. Then she stated in paragraph No. 11 that she was unable to state to whom the remaining part of consideration was paid out of Rs. 2,75,000/-mentioned in the sale-deed (Ex. P-5 ). She has further admitted in paragraph no. 6 that no consideration was in fact received by cheque. Cheque which was given, was taken back by defendant No. 2. Thus, passing of the consideration itself is doubtful. It was not at all passed to any of the plaintiff, is writ large which gives to support that they did not execute the sale-deed. Shri Harendrajeet singh Babbu (D. W. 2) has also stated in paragraph No. 6 of his deposition that he has taken back the cheque, which has been mentioned as consideration paid on the back of the sale- deed and had paid in cash a sum of Rs. 2,25,000/- to smt. Harjinder Kaur Chukkal. Shri Harendrajeet singh Babbu (D. W. 2) has also stated in paragraph No. 6 of his deposition that he has taken back the cheque, which has been mentioned as consideration paid on the back of the sale- deed and had paid in cash a sum of Rs. 2,25,000/- to smt. Harjinder Kaur Chukkal. He has not stated that any consideration was paid by him to the plaintiffs. Other attesting witness of the sale-deed; Shri Ram kumar Soni has not been produced. Property broker; Indrapal Singh @ Pussy was unable to state that any of the plaintiffs have signed in his presence. Thus, the execution of the sale-deed by the plaintiffs has not been established. On the other hand, it is established by the statement of plaintiff, which is supported by original passport which he has brought to the Court that he was not in India. He has stated about his another brother also that he was not in India. Thus, we have no hesitation to set aside the judgment and decree passed by the learned trial Judge. ( 22. ) IT is also interesting to note that the original sale-deed was taken back by Shri Harendrajeet Singh Babbu (D. W. 2) from the Court. Later on this sale-deed was not produced by him during the course of evidence. It was the duty of the defendant No. 2 to produce it at the stage of evidence and also to confront it to the plaintiff as to his alleged signature on the original sale-deed. ( 23. ) THE Apex Court in Gopal Krishna Kelkar Vs. Mohamed Haji Latif and others, AIR 1968 SC 1413 has laid down that a party in possession of best evidence which would throw light on the issue in controversy is withholding it, the Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. Party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. Sale-deed was the main document which ought to have been produced by the defendant No. 2 and ought to have been confronted to the plaintiff. ( 24. Party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. Sale-deed was the main document which ought to have been produced by the defendant No. 2 and ought to have been confronted to the plaintiff. ( 24. ) COMING to the question of relief to be given to the plaintiffs: As the plaintiffs are owner to the extent of 2/3rd share, declaration is given in their favour that they are owner of 2/3rd share in the disputed property, sale-deed is null and void to the extent of their share. ( 25. ) COMING to the question of possession and partition: We direct the possession of the property be handedover to plaintiffs as property has not been partitioned, purchaser having purchased validly undivided l/3rd share, he cannot disturb possession of plaintiffs, he can obtain possession of l/3rd share after the partition is made. He has no right to retain the possession of entire property as that is more than the share of defendant No. 1, which could be sold by defendant No. 1. Thus, we direct, on the strength of Full Bench decision in ramdayal Vs. Manaklal, 1973 JLJ 764 , wherein it has been held that a coparcener may sell, mortgage or otherwise alienate for value his undivided interest and if the property in possession of the purchaser from a coparcener is not in excess of the share of the coparcener. He can be allowed to retain possession in other case, it would be an inequitable direction :- "5. Under the circumstances, we are of the opinion that the direction of staying the execution proceedings for a certain period enabling the purchaser from a coparcener to file a partition suit and, if the suit is filed within the period, to stay the execution till the decree in the partition suit, can be legally given where the property in possession of the purchaser from a coparcener is not in excess of the share of the coparcener. In other cases, such a direction may be said to be inequitable. In other cases, such a direction may be said to be inequitable. " Same principle holds good for the joint property held by the plaintiffs and defendants, stranger cannot disturb possession of co-owner nor can be placed in joint possession and has no right in 2/3rd share as sale-deed is found to be void to that extent, as such we direct possession be handedover till l/3rd share is partitioned in accordance with the declaration given. ( 26. ) RESULTANTLY, the appeal is allowed, impugned judgment and decree is set aside. Plaintiffs suit is decreed in the aforesaid terms. Costs of the suit is quantified at Rs. 10,000/ -. Costs to be borne in equal share by the defendants. Counsel fee Rs. 1,000/-, if certified. First Appeal allowed.