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Madhya Pradesh High Court · body

2008 DIGILAW 469 (MP)

BHIVJI v. RAJESH

2008-03-26

K.K.LAHOTI

body2008
Judgment K.K.Lahoti, J. ( 1. ) Plaintiff who was successful before the trial Court but lost before the lower appellate Court has preferred this appeal which was admitted on 5.2.1993 on the following substantial question of law:- "Whether the finding recorded by the learned lower appellate Court that Gendibai, the vendor in relation to the appellant, was not the real owner of the suit-property, is legal and justified in view of the evidence on record ?" ( 2. ) Learned counsel appearing for the appellant submitted:- (a) That the lower appellate Court erred in reversing the judgment and decree passed by the trial Court. The trial Court rightly decreed the suit of appellant. (b) That, on 5.4.1972, Smt.Gendibai (predecessor of the plaintiff) wife of respondent no.2 and mother of respondent no.l sold the property in favour of plaintiff Bhivji. Though defendant Rajesh claimed his title on the basis of sale-deed executed by defendant no.2 Shyam Rao in favour of defendant no.l Rajesh but in fact aforesaid power of attorney was revoked by registered letter Ex.P/5 and in view of the revocation of power of attorney, if any sale-deed was executed by respondent Shyam Rao in favour of respondent Rajesh, it had not conveyed title to defendant Rajesh or affected the right and title of the plaintiff. (c) That the plaintiff is in possession of the land. Plaintiffs possession was proved by the witnesses, including the Patwari and various revenue record produced by the appellant before the Court below. Apart from this, before this Court various khasra entries were produced by the appellant by an application dated 8.3.2007 u/o 41 rule 27 CPC and this Court by order dated 19.7.2007 allowed the aforesaid application and the khasra entries which are certified copies of the public record were admitted in evidence. Respondents no.l and 2 were extended ah opportunity to file any document in rebuttal but the respondents no. 1 and 2 have not filed documents, so in view of the aforesaid documents, possession of the appellant over the disputed land is established and the appellant is entitled for a decree of declaration of title and permanent injunction against the respondents. Respondents no.l and 2 were extended ah opportunity to file any document in rebuttal but the respondents no. 1 and 2 have not filed documents, so in view of the aforesaid documents, possession of the appellant over the disputed land is established and the appellant is entitled for a decree of declaration of title and permanent injunction against the respondents. (d) In the alternate, it was submitted by the plaintiff/appellant that the matter may be remanded to the trial Court to ascertain true nature of the transaction, and also whether the properties were sold to defeat the provisions of M.P. Ceiling on Agriculture Holdings Act, 1960 and if not, then the sale-deed was valid and the plaintiffs suit deserves to be decreed. (e) That, Gendibai who sold the land was having surplus lands. She sold her land not only to the plaintiff but also to other persons, it was not a nominal transaction and the lower appellate Court erred in dismissing the suit of the appellant. ( 3. ) To appreciate the contentions of the appellant, factual position in the case may be seen:- (i) The suit was filed by Bhivji who died during pendency of this appeal and the appellants are legal heirs of late Bhivji. (ii) In the case, it was not in dispute that the land belonged to Gendibai. Gendibai was wife of defendant/respondent no.2 Shyam Rao and respondent no. 1 Rajesh is son of Shyam Rao and Gendibai. The disputed lands were Survey no.305 area 18.56 acres of village Kherwani and Survey no.52/2 and 52/3 area 2.92 acres and 2.92 acres of village Patha, Tehsil Sausar, District Chhindwara. Aforesaid lands were sold by a registered sale-deed dated 5.4.1972 by Smt.Gendibai in favour of plaintiff. The plaintiff filed a suit on the basis of the aforesaid sale-deed that he was Bhumiswami of the lands and he be declared so and a permanent injunction be issued against defendants restraining them to interfere in the possession of the plaintiff. (iii) After filing of written statement, plaintiff amended the plaint raising pleas that the sale-deed was not nominal, plaintiff had not executed power of attorney in favour of defendant Shyam Rao on 25.6.1972 and if any such document is produced then it is a forged document. It was also pleaded by the plaintiff that the defendants are literate and intelligent persons while plaintiff was illiterate and a simple person. It was also pleaded by the plaintiff that the defendants are literate and intelligent persons while plaintiff was illiterate and a simple person. Defendant asked the plaintiff that a signed paper was required from the plaintiff for separation of the lands of the plaintiff, and the plaintiff on the basis of this mis-representation executed the aforesaid document. At that time, plaintiff was not made aware that some power of attorney was got executed by which rights to sell the land were given to the power of attorney. On the basis of the aforesaid illegal power of attorney, sale-deed dated 28.4.1973 was illegal. Defendant no.2 had never obtained permission from the plaintiff for execution of the said sale-deed. On this sale-deed, defendant no. 1 does not get any title in the land. In the alternate plaintiff had pleaded that in case any power of attorney is found in favour of defendant then the said power of attorney was cancelled vide notice dated 18.4.1973. Though the defendant Shyam Rao refused to accept the aforesaid notice but he was aware that the power of attorney dated 25.6.1972 was a bogus document and the plaintiff had cancelled the same. Before 28.4.1973, relationship between plaintiff and defendants were so strained that power of attorney could not have continued. A copy of the registered letter dated 18.4.1973 was also sent to the Collector and the Sub-Registrar (Registration), Multai. (iv) The defendants filed a written statement denying the allegations . of the plaint. The defendants raised a plea that defendant no.2 Shyam Rao was owner of the land and the lands were not belonging to Smt.Gendibai. Her name was nominal in the revenue papers. The plaintiff was servant of defendant no.2 and was well aware that Smt.Gendibai was nominal Bhumiswami of the land. Without any consideration, the lands were transferred in the name of the plaintiff. The plaintiff executed a power of attorney in favour of defendant no.2 which was registered and valid. Defendant no.2 had neither fabricated any document nor the power of attorney was forged. Plaintiff knowing all the facts executed the power of attorney and the sale-deed executed on the basis of power of attorney dated 28.4.1973 was valid. In para 6 of the written statement, it was pleaded that Gendibai was having 75 acres of land in, various villages. Defendant no.2 had neither fabricated any document nor the power of attorney was forged. Plaintiff knowing all the facts executed the power of attorney and the sale-deed executed on the basis of power of attorney dated 28.4.1973 was valid. In para 6 of the written statement, it was pleaded that Gendibai was having 75 acres of land in, various villages. The defendants were apprehending that under the Ceiling Act, land could vest in the State. Plaintiff was servant from his childhood with the defendants. Before five months of the filing of the suit, he was in service of the defendants and because of this, a nominal sale deed was executed in favour of the plaintiff that too without any consideration. Plaintiff was not in a position to purchase the land. Defendants also executed sale-deed in favour of other persons and similar sale-deed was executed in favour of plaintiff and in fact aforesaid sale-deed was nominal. The written statement was amended in which it was stated that the lands of defendant no. 2 were affecting by the Ceiling Act and in the year 1960-61, return was filed before the Assistant Settlement, Gwalior. Against the order of settlement Commissioner, Gwalior, an appeal was preferred before the Board of Revenue and the matter was remanded. The sale-deed was executed on 5.4.1972 and it was a transaction between 1.1.1971 and 7.3.1974 and deserves to be declared as void. It was made to defeat the provisions of the Ceiling Act. The sale-deed was executed during the pendency of proceedings before the Settlement Commissioner, Gwalior and the Civil Court was having no jurisdiction in this regard. That the plaintiff was not a Bhumiswami of the land and the lands are in possession of the defendants. That notice dated 18.4.1973 was never served on the defendant. On the aforesaid grounds, it was prayed that the suit be dismissed. ( 4. ) The trial Court framed the issues and after recording evidence arrived at the findings:- (a) That the sale-deed dated 5.4.1972 was an out right sale in favour of the plaintiff. (b) That on 25.6.1972 a power of attorney was executed in favour of defendant no.2 but sale-deed in favour of defendant no. 1 was not valid. (c) That, since 5.4.1972, plaintiff was in possession of the land of village Kherwani and the defendants tried to dispossess plaintiff from the aforesaid land. (b) That on 25.6.1972 a power of attorney was executed in favour of defendant no.2 but sale-deed in favour of defendant no. 1 was not valid. (c) That, since 5.4.1972, plaintiff was in possession of the land of village Kherwani and the defendants tried to dispossess plaintiff from the aforesaid land. (d) Smt. Gendibai was not ostensible owner of the land and the defendants were estopped to challenge the title of plaintiff or of Mst. Gendibai in the aforesaid land. (e) That, the Civil Court was having jurisdiction to decide the suit and the suit was not barred under the provisions of the M.P. Ceiling on Agricultural Holdings Act, 1960. (f) That, in the return of ceiling, the defendants had accepted that the land was transferred to the plaintiff after receiving consideration and they were estopped to make any contrary statement. (g) That the power of attorney executed by the plaintiff in favour of defendant no.2 was cancelled on 30.4.1973 and the defendant no.2 wilfully refused to accept the notice dated 18.4.1973. Recording aforesaid findings, the trial Court found that the plaintiff was the owner of land of village Kherwani and defendants were restrained to interfere in the possession of the plaintiff in respect of the land of Kherwani. ( 5. ) The judgment and decree passed by the trial Court was assailed before the lower appellate Court. The lower appellate Court after hearing both the parties recorded following findings in the appeal:- (a) That the plaintiff failed to prove the sale-deed dated 5.4.1972 on the basis of which he filed the suit. The sale-deed was not produced. No reliable evidence was produced in the case in respect of execution of the sale-deed or payment of consideration. The evidence in respect of payment of consideration was unreliable as plaintiff had changed the stand at various stages in respect of the consideration. (b) That, in the revenue record, name of Rajesh, respondent no.l was recorded and the plaintiff had not produced any evidence that the land was ever recorded in the name of Gendibai. (c) That the power of attorney executed by the plaintiff in favour of defendant no.2 Shyam Rao was also in dispute. The case of the defendants was that on 25.6.1972, the power of attorney was executed by plaintiff Bhivji in favour of Shyam Rao but the plaintiff failed to controvert the aforesaid fact. (c) That the power of attorney executed by the plaintiff in favour of defendant no.2 Shyam Rao was also in dispute. The case of the defendants was that on 25.6.1972, the power of attorney was executed by plaintiff Bhivji in favour of Shyam Rao but the plaintiff failed to controvert the aforesaid fact. Initially, he showed his ignorance in respect of the power of attorney but when he was confronted during course of evidence, he was unable to explain the power of attorney. The pleading of the plaintiff that power of attorney was executed by playing fraud was also not proved. The trial Court and the appellate Court both found that the power of attorney was executed by the plaintiff in favour of defendant Shyam Rao. (d) That on the basis of power of attorney, the appellate Court in para 14 of the judgment found that the alleged sale-deed dated 5.4.1972 appears to be a sham transaction. (e) The plaintiff had not filed any document showing that he got his name recorded in the revenue papers after 1972. Only in the khasra 1984-85, plaintiffs name was recorded but why his name was not recorded earlier, no explanation has been furnished. (f) As per document Ex.D.5, the Sub-Divisional Officer found that on the basis of power of attorney executed by the plaintiff in favour of Shyam Rao, Shyam Rao executed a sale-deed in faovur of respondent Rajesh on 28.4.1973 which sale-deed was in accordance with law. The Sub-Divisional Officer rightly found that respondent Rajesh was Bhumiswami of the land and the name of the plaintiff was directed to be deleted and name of Rajesh was directed to be entered in the revenue papers: (g) That, sale-deed dated 5.4.1972 was executed between the period dated 1.1.1971 and 7.3.1972 and as per provisions of the M.P. Ceiling on Agricultural Holdings Act, 1960, the aforesaid transaction was void. This fact which was brought on record showed that the transaction was made to defeat the provisions of the Ceiling Act and the plaintiff was not entitled to any title on the land and he was not entitled to remain in possession of the land. This fact which was brought on record showed that the transaction was made to defeat the provisions of the Ceiling Act and the plaintiff was not entitled to any title on the land and he was not entitled to remain in possession of the land. (h) So far as possession of the plaintiff in respect of the land of village Khairwani is concerned, the appellate Court reconsidered the evidence in para 19, 20 and 21 and found that the plaintiff failed to prove his legal possession over the land. (i) In para 22, the appellate Court considered the power of attorney and found that the power of attorney was valid and on the basis of power of attorney, the sale-deed which was executed by defendant no.2 in favour of defendant no. 1 on 28.4.1983 was a legal document. (j) The appellate Court also considered that the plaintiffs possession over the land of village Patha was not a legal possession and he was not entitled for a decree of injunction against the defendants and accordingly allowed the appeal of the respondents and dismissed the suit of the plaintiff/appellant. ( 6. ) The judgment and decree of the Court below are assailed by the appellant in this second appeal. The appeal was admitted on 5.2.1993 on the substantial question of law as indicated in para 1 of this judgment. This appeal was preferred by plaintiff Bhivji who died during pendency of this appeal and the present appellants were brought on record. In this appeal, the appellant filed an application under Order 41 rule 27 of the C.P.C. This application was considered by this Court on 19.7.2007, allowed the application and the documents-certified copies of the revenue record were taken on record. While allowing the aforesaid application, an opportunity was allowed on 19.7.2007 to the respondents to file any document in rebuttal within a period of 15 days. Thereafter, opportunities were allowed to the respondents, but no document was filed and the matter was heard finally. ( 7. ) Learned counsel for the appellants raised the contentions as referred in para 3 of this judgment and the respondents opposed the aforesaid contentions. ( 8. ) In the light of the aforesaid contentions, factual position may be seen. Thereafter, opportunities were allowed to the respondents, but no document was filed and the matter was heard finally. ( 7. ) Learned counsel for the appellants raised the contentions as referred in para 3 of this judgment and the respondents opposed the aforesaid contentions. ( 8. ) In the light of the aforesaid contentions, factual position may be seen. In this case the appellate Court in para 12 of the judgment had disbelieved the sale-deed dated 5.4.1972 on the ground that it was not produced and the plaintiffs evidence in respect of payment of consideration was not reliable. In para 13, the appellate Court found that the plaintiff failed to prove that the land belonged to Gendibai and the sale- deed transaction dated 5.4.1972 was found to be suspicious. ( 9. ) The appellate Court in para 15 of the judgment considered the khasra entries since 1970-71 and onwards and found that at the relevant time, the lands were recorded in the name of Gendibai. In para 1 of the plaint, plaintiff specifically pleaded that the aforesaid lands belonged to Gendibai wife of Shyam Rao. Defendants in para 1 of the written statement had not denied this fact, but stated that Gendibai was an ostensible owner and by amendment it was pleaded that in fact owner of the land was Shyam Rao, husband of Gendibai. In the light of these pleadings, the burden was on the defendants and not on the plaintiff to prove that Gendibai was an ostensible owner and Shyam Rao was real owner of the property. Apart from this, in the sale deed Ex.D .2 executed by Shyam Rao in the capacity of power of attorney holder of plaintiff Bhivji in favour of Rajesh, there is a specific averment that vendor purchased the property of Gendibai by registered sale-deed dt. 7.4.1972. This fact finds place at page 4 of the document Ex.D.2. In the light of these facts, the appellate Court erred in recording a finding that the plaintiff failed to prove that the land was purchased by the plaintiff from Gendibai or Gendibai was the predecessor of plaintiff before purchase by sale-deed dated 5.4.1972. In this regard, the findings of the appellate Court are apparently perverse. Before this Court, appellants have filed various khasra entries which were taken on record by order dated 19.7.2007. In this regard, the findings of the appellate Court are apparently perverse. Before this Court, appellants have filed various khasra entries which were taken on record by order dated 19.7.2007. Being certified copies of the revenue record and public documents, plaintiffs documents may be looked into. In all the khasra entries filed by the appellants, plaintiff Bhivji is recorded as Bhumiswami of Survey no. 411 area 7.511 Hectare of village Kherwani. But in this case, appellants have not stated whether Survey no. 411 of village Kherwani is new number of old survey no.305 which was purchased by the plaintiff from Gendibai. In absence of conversion list, aforesaid document does not help the appellants in respect of the suit land which was survey no.305 of village Kherwani. ( 10. ) Now in the light of aforesaid fact, other findings recorded by the lower appellate Court may be seen. In this case an important document Ex.D. 1, power of attorney, is on record by which plaintiff Bhivji appointed defendant Shyam Rao as general power of attorney holder and also empowered him to execute the sale-deed on his behalf in respect of the agricultural lands. Thereafter, defendant Shyam Rao executed sale- deed in favour of defendant Rajesh on 28.4.1973 and on the strength of power of attorney, aforesaid sale-deed was duly executed by Shyam Rao in favour of Rajesh, though relationship between Shyam Rao and Rajesh is of father and son. The plaintiff in the plaint had not sought any specific relief to set aside the aforesaid sale-deed. Though by amendment in para 2(b), he had pleaded that sale-deed dated 28.4.1973 was illegal and bogus document but in absence of any specific relief to set aside the aforesaid document, plaintiff was not entitled for any relief. Apart from this, no valuation to set aside aforesaid sale-deed was made in the plaint. No court-fee was paid in this regard. The sole contention of the appellants before this Court was that the power of attorney was revoked by notice Ex.P.5. From the perusal of Ex.P.5, it is apparent that the plaintiff by aforesaid notice cancelled the power of attorney in favour of Shyam Rao. This notice was sent on 27.4.1973 which appears from the perusal of Ex.P.3. The sole contention of the appellants before this Court was that the power of attorney was revoked by notice Ex.P.5. From the perusal of Ex.P.5, it is apparent that the plaintiff by aforesaid notice cancelled the power of attorney in favour of Shyam Rao. This notice was sent on 27.4.1973 which appears from the perusal of Ex.P.3. As per endorsement of the postman on Ex.P/1, it appears that the document was refused on 30.4.1973 and the sale-deed was executed on 28.4.1973 meaning thereby before service or tendering of notice, sale was already executed. If sale-deed was executed prior to service of notice, it will not affect the document. ( 11. ) The power of attorney is an instrument empowering a specified person to act for and in the name of the person executing it. It gives authority to the person in whose favour the power of attorney was executed to act in the name of executant. In this case, power of attorney was a registered power of attorney executed by plaintiff in favour of defendant Shyam Rao. It was a registered power of attorney under Section 32(c) of the Registration Act. If the power of attorney executed by a registered document, naturally for cancellation, a registered document was required and the plaintiff ought to have cancelled it by a registered document. But in place of this, plaintiff opted to serve a notice intimating defendant no.2 Shyam Rao for revocation of the attorney. Aforesaid procedure was not a proper one and the plaintiff only after cancellation of the power of attorney by registered document ought to have intimated to the defendants in respect of such cancellation. Apart from this, notice was refused by Shyam Rao on 30.4.1973 when he had already executed the sale-deed on the basis of power of attorney in favour of defendant Rajesh. In these circumstances, the revocation of power of attorney was not of any consequence and the sale-deed executed on the basis of the power of attorney was a valid document. The plaintiff ought to have sought a specific relief of cancellation of the sale-deed, executed on the strength of power of attorney and in absence of this, sale-deed was a valid document. ( 12. ) After execution of the sale-deed Ex.D.2, defendant no. 1 Rajesh acquired title in the property which was sold to him by sale-deed dated 28.4.1973. ( 13. ( 12. ) After execution of the sale-deed Ex.D.2, defendant no. 1 Rajesh acquired title in the property which was sold to him by sale-deed dated 28.4.1973. ( 13. ) Now the last contention of the appellants may be examined that the sale-deed in favour of plaintiff Bhivji was executed to defeat the provisions of the Ceiling Act and was void under section 4 of the C filing Act. This question cannot be examined in this appeal as it is to be examined by the competent authority, after noticing to the holder and other persons effected such proceedings. For ready reference Section 4(1) of the Ceiling Act is quoted herein below:- Section 4. Transfers or partitions made after the publication of the Bill but before the commencement of the Act (1) Notwithstanding anything contained in any law for the time being in force, where after, the 1st January, 1971 but before the appointed day, any holder has transferred any land held by him by way of sale, gift, exchange or otherwise or has effected a partition of his holding or part thereof or the holding held by the holder has been transferred in execution of a decree of any Court, the competent authority may, after notice to the holder and other persons affected by such transfer or partition and after such enquiry as it thinks fit to make, declare the transfer or partition to be void if it finds that the transfer or the partition, as the case may be, was made in anticipation of or to defeat the provisions of this Act." In view of a specific provision of section 4(1) of the Ceiling Act, this Court need not examine the effect of the document which was executed between 1.1.1972 and 7.3.1974. So far as possession over the land in question is concerned, both the Courts below have concurrently held that plaintiff failed to prove his possession over the land. Aforesaid finding is a finding of fact recorded by the Court below in which no interference is needed by this Court. ( 14. ) In the result, judgment and decree passed by the lower appellate Court are hereby confirmed but with different reasoning and the appeal preferred by the plaintiff is hereby dismissed with costs. Appeal dismissed.