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2007 DIGILAW 1963 (PNJ)

Arjan Singh Budhiraja v. V. K. Sharma

2007-11-12

HEMANT GUPTA

body2007
JUDGMENT Hemant Gupta, J. - Defendant No. 1 is in revision petition aggrieved against the order passed by the learned first Appellate Court, whereby the defendants were restrained from dispossessing the plaintiff from the property in dispute except in due course of law and further restrained from alienating the suit property to any other person. 2. The plaintiff-respondent filed the present suit for specific performance on 31.1.2000 of an agreement of sale dated 4.10.1996. It was alleged that one Bawa Singh was appointed by defendant No. 1 as an attorney through registered General Power of Attorney dated 31.1.1990. Bawa Singh was authorized to sell the property in dispute and was given all rights to pay instalments to the Punjab Urban Development Authority. The plaintiff paid a sum of Rs. 50,000/- as earnest money and the sale deed was to be executed within four months from the date of agreement. Bawa Singh, attorney of defendant No. 1 had received another sum of Rs. 1.00 lac on 6.12.1996. Another sum of Rs. 1,60,000/- was also received by him on 27.12.1996. On receipt of the said amount, the possession was delivered to the plaintiff on 27.12.1996. The balance sale consideration was Rs. 20,000/-, which was to be paid at the time of execution of the sale-deed. It is pointed out by the plaintiff that after the possession was delivered, he has got installed the electric connection and also got his ration card prepared at the given address and that he has deposited the monthly instalments with the Punjab Urban Development Authority. 3. Bawa Singh, the power of attorney of defendant No. 1 died and his legal heirs were impleaded as defendant Nos. 2 to 4. The said defendant Nos. 2 to 4 filed written statement admitting the claim of the plaintiff. However, defendant No. 1 denied the execution of the agreement dated 4.10.1996 in favour of the plaintiff by Bawa Singh and that Bawa Singh was not having any right to execute the agreement. The suit was alleged to be time barred as well. It was also stated that defendant No. 1 has not received any consideration either directly or indirectly and the agreement is the result of fraud, misrepresentation and without any consideration and that Bawa Singh was a close relative of a dreaded terrorist, namely, Professor Dhaliwal and he was a close associate of other leaders of terrorist organisations. It was also stated that defendant No. 1 has not received any consideration either directly or indirectly and the agreement is the result of fraud, misrepresentation and without any consideration and that Bawa Singh was a close relative of a dreaded terrorist, namely, Professor Dhaliwal and he was a close associate of other leaders of terrorist organisations. Defendant No. 1 was forced to execute a power of attorney. His signatures were obtained on a blank paper during 1980-90, when the terrorism was at its peak. Later on the power of attorney was cancelled in the year 1998. It was also averred that the plaintiff along with defendant Nos. 2 to 4 have forcibly locked the premises and they have no other status except that of trespassers. 4. After considering the stand of the parties, the learned trial Court dismissed the application seeking ad interim injunction against the defendants but permitted defendant No. 1 to sell the property provided he takes prior permission of the Court after making application to bring on record the proposed vendees in order to bind them specifically to the decree that may be passed. The Court found that admission of the defendant that plaintiff is in possession as a trespasser does not entitle the plaintiff to claim relief of ad interim injunction nor the admission of signatures on the deed of general power of attorney will confer any right. Still further, there is no recital in the agreement of sale dated 4.10.1996 regarding delivery of possession to the plaintiff. Therefore, the subsequent endorsement dated 27.12.1996 i.e. Bawa Singh delivered possession to the plaintiff is without any iota of proof to prima facie establish the delivery of possession. With the said findings, the application was dismissed. 5. However, the learned first Appellate Court found that the agreement of sale was executed after considerable time of the execution of the General Power of Attorney. The said agreement is attested by Gian Sagar and Subhash Chand. Vide endorsement dated 6.12.1996, a sum of Rs. 1.00 lac has been received in cash and another sum of Rs. 1,60,000/- on 27.12.1996. The Court found that Bawa Singh was authorised to execute agreement to sell and to receive the consideration and prima facie there was no evidence to show that such agreement is forged and fabricated. Vide endorsement dated 6.12.1996, a sum of Rs. 1.00 lac has been received in cash and another sum of Rs. 1,60,000/- on 27.12.1996. The Court found that Bawa Singh was authorised to execute agreement to sell and to receive the consideration and prima facie there was no evidence to show that such agreement is forged and fabricated. Still further the plaintiff has got installed electric connection in the premises in dispute and also paid instalments to defendant No. 5 i.e. Punjab Urban and Development Authority. It was found that attorney of defendant No. 1 has received substantial amount of the consideration out of the total sale consideration of the property in dispute. On the basis of endorsement of agreement to sell, it was found that the possession was delivered to the plaintiff and thus, the finding recorded by the learned trial Court that the plaintiff is a trespasser is not correct and the possession of the plaintiff is required to be protected. In view of the said fact, the appeal was allowed and defendant were restrained to dispossess the plaintiff and to manage the property. 6. In the present revision petition, learned counsel for the petitioner has vehemently argued that the suit is time barred having been filed on 31.10.2000 in respect of an agreement to sell dated 4.10.1996. Still further, the transaction in favour of defendant No. 1 was on hire-purchase basis and, therefore, there was no right to sell the same on the basis of power of attorney. Still further, the power of attorney is forged document having been obtained under threat by fraud and misrepresentation during the terrorism days. It is more so when the attorney is alleged to be a close relation of dreaded terrorist. Thus, there is no prima facie case in favour of the plaintiff and the findings recorded by the learned first Appellate Court suffer from patent illegality and irregularity. Reliance is placed on Krishnamoorthy Koundar v. Paramasiva Koundar, AIR 1981 Madras 310; Jiwan Dass Rawal v. Narain Dass and others, AIR 1981 Delhi 291; Ramesh Mohan and another v. Raj Krishan and others, 1984 PLR 211 and Smt. Sunita Jain and other v. Chander Kanta and others, 1996(1) PLR 293. 7. Reliance is placed on Krishnamoorthy Koundar v. Paramasiva Koundar, AIR 1981 Madras 310; Jiwan Dass Rawal v. Narain Dass and others, AIR 1981 Delhi 291; Ramesh Mohan and another v. Raj Krishan and others, 1984 PLR 211 and Smt. Sunita Jain and other v. Chander Kanta and others, 1996(1) PLR 293. 7. To rebut the arguments raised by the learned counsel for the petitioner, the learned counsel for the plaintiff-respondent submitted that the reasons given by the first Appellate Court are just and reasonable. He also stated that while admitting the present revision petition on 14.1.2003, the status quo regarding possession was ordered to be maintained. It was pointed out that the plaintiff is now leading his evidence and that he has no objection if the status quo order passed by the Courts below is ordered to be maintained during the pendency of the suit. However, the learned counsel for the petitioner has vehemently argued that the order passed by the learned first Appellate Court is patently unjustified and therefore, this Court in revisional jurisdiction should set aside the same. 8. Having heard learned counsel for the parties at some length, I do not find any patent illegality or irregularity in the order passed by the learned first Appellate Court. The agreement in favour of the plaintiff was executed on 4.10.1996 by Bawa Singh on the basis of registered General Power of Attorney in his favour. Bawa Singh has received a sum of Rs. 3,10,000/- on different dates and on 27.12.1996, the possession of the property has been handed over to the plaintiff as per the endorsement made on the agreement itself. There is no dispute regarding the execution of the agreement dated 4.10.1996 and the subsequent endorsements. What is disputed is the execution of General Power of Attorney dated 31.1.1990 on behalf of the petitioner in favour of Bawa Singh. Even in respect of the said attorney, the petitioner is admitting his signatures, but it is alleged that the same were obtained by fraud, misrepresentation and threat. Such aspect is matter of evidence. Without evidence, no finding can be returned in favour of the defendant-petitioner. The agreement of sale has been executed almost six years later than the execution of the power of attorney. The power of attorney was got cancelled after the agreement of sale was executed. Such aspect is matter of evidence. Without evidence, no finding can be returned in favour of the defendant-petitioner. The agreement of sale has been executed almost six years later than the execution of the power of attorney. The power of attorney was got cancelled after the agreement of sale was executed. Therefore, prima facie, the finding recorded by the learned first Appellate Court in respect of agreement of sale is a possible finding which does not warrant any interference in revisional jurisdiction. 9. It may be noticed that the defendant-petitioner has admitted the possession of the plaintiff but asserted it as that of a trespasser. On the other hand, it is the case of the plaintiff that he got into possession on the basis of agreement. Whether the possession of the plaintiff is in pursuance of an agreement or as a trespasser, would be again a question of evidence. While considering the application for ad interim application (injunction ?), prima facie, it cannot be said that the possession delivered to the plaintiff is that of a trespasser when soon after the possession was delivered, he has got the electric connection installed, obtained ration card and has produced the receipts in respect of payment of the instalments from the year 1996 to the year 2000. 10. The argument that the suit is time barred in terms of the conditions of allotment is again the argument which is required to be appreciated by the learned trial Court on the basis of evidence. The possession of the plaintiff being admitted, the plaintiff is entitled to protect his possession, he can be dispossess only by an established process of law. 11. The principles enunciated in the judgments referred by the learned counsel for the petitioner, are not subject matter of debate. However, in the facts of the case, the possession of the plaintiff being admitted and the fact that the question that the power of attorney is a result of fraud, misrepresentation or threat is a question of evidence, therefore, at the ad interim stage, the plaintiff is entitled to injunction and has been rightly granted the same by the first Appellate Court. Consequently, I do not find any illegality or irregularity in the impugned order, which may warrant interference by this Court, in exercise of its revisional jurisdiction. Hence, the present petition is dismissed. Petition dismissed.