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2011 DIGILAW 531 (PNJ)

Sun Raj Software Pvt. Ltd. v. Shri Ram Saran

2011-02-10

L.N.MITTAL

body2011
JUDGMENT Mr. L.N. Mittal, J. (Oral): - CM No. 1957.C of 2011 Deficiency in court fee has since been made good. The application is, therefore, allowed subject to all just exceptions. CM No. 1958.C of 2011 For reasons mentioned in the application which is accompanied by affidavit, delay of one day in filing the appeal is condoned. RSA No. 724 of 2011 Defendant no. 2 Sun Raj Software Private Limited has filed the instant second appeal after the defendants i.e. appellant and defendant no. 1 Jaswant Saini respondent no. 2 failed in both the courts below. 2. Suit was filed by respondent no. 1 plaintiff Ram Saran against respondent no. 2 and appellant alleging that plaintiff is co-owner in joint possession of agricultural land measuring 2639 kanals 6 marlas out of which the plaintiff’s share is to the extent of 827½ marlas. Defendant no. 1 Jaswant Saini alleging himself to be attorney of the plaintiff executed sale deed on behalf of plaintiff for 840 marlas in favour of defendant no. 2. However, the plaintiff never appointed defendant no. 1 as his attorney. The alleged power of attorney dated 24.1.1996 was never executed by the plaintiff. Consequently, sale deed dated 3.5.2000 executed by defendant no. 1 in favour of defendant no. 2 and consequent mutation no. 1212 dated 8.6.2000 are also illegal and null and void and not binding on the plaintiff. The plaintiff is still owner in joint possession of his share in the joint land. It was also alleged that sale deed was registered at Mumbai but it could not be legally or validly registered there as the suit land is situated in village Ghata Tehsil Sohna, District Gurgaon and therefore, the sale deed could be registered only by Sub Registrar, Sohna. Accordingly, the plaintiff sought declaration that he is owner in joint possession of his share measuring 827½ marlas in 2639 kanals 6 marlas joint land and alleged sale deed dated 3.5.2000 and mutation no. 1212 on the basis of the said sale deed are liable to be ignored and are not binding on the plaintiff and the revenue record is liable to be corrected accordingly in favour of the plaintiff. Permanent injunction restraining defendant no. 2 from further alienating the suit land and from interfering in possession of the plaintiff thereof was also prayed. 3. Defendants broadly denied the plaint allegations. Permanent injunction restraining defendant no. 2 from further alienating the suit land and from interfering in possession of the plaintiff thereof was also prayed. 3. Defendants broadly denied the plaint allegations. Defendant alleged that plaintiff vide agreement dated 24.1.1996 agreed to sell the suit land to defendant no. 2 and Lunar Finance Company @ Rs.2,90,000/- per acre and received the entire sale consideration of Rs.14,24,000/- from time to time from the said vendees and also delivered possession of the suit land to them at the time of execution of the agreement in part performance thereof and since then they are in possession of the suit land. It was pleaded that the plaintiff had also executed special power of attorney on 24.1.1996 in favour of defendant no. 1 who accordingly executed sale deed dated 3.5.2000 of the suit land in favour of defendant no. 2. The said sale deed is also legal and valid. The sale deed could not be registered in Sohna because of some politicians and influential persons who got some restrictions on the registering authority and managed unlawful notification from the Government that sale deed cannot be registered outside the sub district where the property is situated. Various other pleas were also raised. 4. Defendants also filed counter claim seeking declaration that defendant no. 2 and Lunar Finance Company are in possession of the suit land in part performance of the agreement dated 24.1.1996 on payment of entire sale consideration to the plaintiff and that the plaintiff has no right, title or interest in the suit land. In the alternative, defendants sought decree for specific performance of the agreement dated 24.1.1996 directing the plaintiff to execute fresh sale deed of the suit land in favour of defendant no. 2. 5. Plaintiff filed replication to controvert the stand of the defendants including counter-claim and to reiterate the plaint allegations. 6. Learned Civil Judge (Junior Division), Gurgaon vide judgment and decree dated 16.3.2010 decreed the plaintiff’s suit. First appeal preferred by both the defendants has been dismissed by learned Additional District Judge, Gurgaon vide judgment and decree dated 6.9.2010. Feeling aggrieved, defendant no. 2 only has preferred the instant second appeal. 7. I have heard learned counsel for the appellant and perused the case file. 8. The plaintiff stepped into witness box and stated according to his version. Feeling aggrieved, defendant no. 2 only has preferred the instant second appeal. 7. I have heard learned counsel for the appellant and perused the case file. 8. The plaintiff stepped into witness box and stated according to his version. He has categorically stated that he has not executed power of attorney in favour of defendant no. 1. Defendants have miserably failed to prove that any such power of attorney dated 24.1.1996 was ever executed by the plaintiff in favour of defendant no. 1. The alleged power of attorney has not seen the light of the day. On the other hand, only its photostat copy Mark-A was produced. However, the same has not been proved. Similarly agreement to sell dated 24.1.1996 allegedly executed by the plaintiff himself has not been produced and only photostat copy thereof Mark-B has been produced but the same has also not been proved. In the absence of power of attorney, defendant no. 1 had no authority to execute the sale deed of suit land on behalf of the plaintiff in favour of defendant no. 2. Consequently, said sale deed is illegal, null and void and not binding on the plaintiff. 9. According to section 28 of the Registration Act, sale deed can be presented for registration in the office of Sub Registrar within whose sub district the whole or some of the property to which the document relates is situate. In the instant case, the suit land is situated in Tehsil Sohna i.e. sub district of Sub Registrar Sohna, District Gurgaon. However, impugned sale deed has been got registered at Mumbai. It is, thus, manifest that the registration of the sale deed is also illegal and against the mandatory provisions of section 28 of the Registration Act and therefore, the sale deed is null and void for this added reason as well. The defendants could not bypass the law on the alleged pretext that some politicians or influential persons were interfering thereby restraining registration at Sohna. On the contrary, registration of the sale deed at Mumbai would also lead to the conclusion that there was some foul play. 10. Payment of sale consideration by defendant no. 2 and Lunar Finance company to the plaintiff has also not been proved. This circumstance again goes against the defendants. 11. On the contrary, registration of the sale deed at Mumbai would also lead to the conclusion that there was some foul play. 10. Payment of sale consideration by defendant no. 2 and Lunar Finance company to the plaintiff has also not been proved. This circumstance again goes against the defendants. 11. Thus examined from any angle, it is manifest that the suit of the plaintiff has been rightly decreed by the courts below. There is no illegality much less perversity warranting interference in second appeal. Concurrent finding recorded by the courts below is based on proper appreciation of evidence and is supported by cogent reasons. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. -----------0.K.B.0------------