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2007 DIGILAW 1409 (DEL)

DINESH KUMAR SHARMA v. SUDHIR KUMAR

2007-07-18

J.M.MALIK

body2007
J. M. MALIK, J. ( 1 ) THE application moved by the appellant under Order 39 Rules 1 and 2 of cpc was dismissed by the learned trial court vide its order dated 11th January, 2007. Aggrieved by that order, the present appeal has been preferred by the appellant. The appellant/plaintiff filed a suit for declaration, cancellation of relinquishment deed, general power of attorney, special power of attorney and for permanent injunction. The facts emanating from the plaint and application are these. Smt. Bohti was the owner of 1/3rd share in respect of land measuring 54 bigas 15 biswas situated at Village Ibrahimpur, Delhi, which she had inherited from her forefather. Dinesh Kumar Sharma, plaintiff/appellant is an adopted son of Smt. Bhot. After her death, he became the sole owner of the suit land. The suit land was mutated in his favour after a prolonged litigation by the order of the Financial Commissioner. ( 2 ) THE appellant due to exigency of his service used to remain out of station. He executed general power of attorney and special power of attorney dated 30th September, 2000, in favour of Sudhir Kumar /respondent No. 1, at the instance of Surinder Kumar, Sudhir Kumar's father, on the understanding that when the appellant was to be out of station, any buyer intending to purchase the said land would approach, the deal might be materialised by the Sudhir Kumar/ respondent No. 1, on behalf of the appellant and the sale consideration amount would be reimbursed to the appellant on his arrival. In the month of February, 2005, the appellant came to know that respondent No. 1 wanted to sell some part of the suit land on the basis of some false documents, which were never executed by the appellant. On enquiry the appellant came to know that respondent No. 1 had executed an alleged relinquishment deed with consideration in favour of his father, Surinder Kumar on 15th March, 2001, without the permission of the appellant. No such power was given to the respondent No. 1 by the appellant to execute any relinquishment deed in favour of any person. Again, when the relinquishment deed was executed, at that time, the father of respondent No. 1, surinder Kumar, was in coma and totally bed-ridden. The relinquishment deed was forged. The appellant made inquiry from respondent No. 1, who on the contrary threatened him with dire consequences. Again, when the relinquishment deed was executed, at that time, the father of respondent No. 1, surinder Kumar, was in coma and totally bed-ridden. The relinquishment deed was forged. The appellant made inquiry from respondent No. 1, who on the contrary threatened him with dire consequences. The property in question was also got mutated in the name of Surinder Kumar. ( 3 ) IT is further alleged that defendants in connivance and collusion with their father, Surinder Kumar had got transferred the said land in their favour without any consideration to appellant/plaintiff. However, the consideration amount has been allegedly shown as Rs. 3 lakhs in the said Relinquishment Deed, whereas the value of the said land was much more than Rs. 3 lakhs as per government's own rates. The said relinquishment deed was executed by respondent no. 1 without any knowledge or permission of the appellant and is forged one. Legal notice was sent but it did not ring the bell. Consequently, in the instant application it was prayed that the defendants be restrained from selling, transferring, alienating, creating third party interest or parting with possession of the suit property till the pendency of this case. ( 4 ) THE defence set up by the respondents in their written statement is this. The suit property has already been sold to different persons on different dates. The appellant sold the suit property to respondent No. 1 after taking consideration amount through all the sale documents. e. General Power of attorney, Special Power of Attorney, Will, receipt, etc. ( 5 ) I have heard the learned counsel for the appellant. He admitted that general Power of Attorney, Special Power of Attorney, Will, receipt, agreement to sell and affidavit are signed by the appellant. Counsel for the appellant did not pick up a conflict with General Power of Attorney and Special Power of attorney. He, however, explained that the appellant was tricked to sign receipt, Will and affidavit as the whole of the bunch of documents was lying in front of him when general power of attorney and special power of attorney were put for signatures before him in presence of the Registrar and in that process, the respondents managed to secure appellant's signatures on all these documents. ( 6 ) HIS flimsy argument is pregnable. The trial court has clearly, specifically and unequivocally stated that the plaintiff/appellant is not an illiterate person. ( 6 ) HIS flimsy argument is pregnable. The trial court has clearly, specifically and unequivocally stated that the plaintiff/appellant is not an illiterate person. Counsel for the appellant has failed to show that the above- said observation made by the trial court is incorrect. The appellant being an educated person must be aware of as to on which documents he was affixing his signatures. Further, the Will attested by two persons, namely, Kapil Gaur (respondent No. 2), and P. K. Singh (Advocate) is a registered document. Agreement to sell runs into two full pages and bears the signatures of the appellant at two places besides his left thumb impression. This document is executed in the presence of two attesting witnesses. The affidavit is also signed by the appellant at two places and also affidavit is attested by a notary public. It is rudimentary principle of jurisprudence that the documentary evidence will always get preponderance over the oral evidence because it is well known axiom of law that men may tell lies but the documents cannot. Prima facie it appears that the abovesaid bunch of various documents is clearly an open eyed execution of an agreement. ( 7 ) THIS must be borne in mind that the prices of land have gone sky high from 2000 to 2005. It is well said that the money is the biggest seed of strife in this world. Does consideration in the sum of rupees three lacs portray the actual and real consideration? The appeal is without merit and the same is, therefore, dismissed at admission stage. Any observation touching the merits of this case is tentative only for the purpose of this appeal and shall not be construed as an expression of final opinion in the matter. CM 2502/2007 also stands dismissed. Registry is directed to send back the trial court record along with a copy of this judgment before the next date of hearing fixed before the trial court, that is, 31st July, 2007.