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2012 DIGILAW 368 (UTT)

MUKHTYAR AHMAD v. MANGTA HUSAIN

2012-07-10

B.S.VERMA

body2012
JUDGMENT Hon’ble B.S.Verma, J. Heard Sri Lok Pal Singh, Advocate for the appellant and Sri Pradeep Kumar Chauhan, Advocate for the respondents. 2. This appeal is directed against the judgment and decree dated 25-10-2010, passed by Civil Judge (Sr. Division), Haridwar in origial suit No. 158 of 2006, Mangta Husain and another versus Mukhtyar Ahmad and another, as well as the judgment and decree dated 19-8-2011, passed by District Judge, Haridwar in Civil Appeal No. 64 of 2010, Mukhtyar Ahmad vs. Mangta and others. 3. Briefly stated the facts of the case, giving rise to this appeal, are that original suit No. 158 of 2006, was filed by respondent Nos. 1 and 2 with the averment that their father Rafiq Ahmad was the owner in possession of the land of Khata No. 292, Khasra No. 1303, measuring 0-262 hectare situated in village Ahmadpur Kadachh Pargana Jwalapur, Tehsil and District Haridwar. After the death of Rafiq Ahmad on 22-4-1998, the plaintiffs became the owner of the land and upon intervention by defendant/appellant original suit No. 149 of 2004, Husain versus Mukhtyar and others was filed for permanent injunction, which is pending. In that suit the defendant/appellant filed his written statement alleging that he has acquired this property vide sale-deed dated 15-4-2004, executed by Ranjeet Metra (defendant No.2) in favour of Mukhtyar Ahmad (defendant No.1). The plaintiff’s case is that the said sale-deed is void and ineffective. They have denied the execution of any power of attorney by Rafiq Ahmad in favour of Ranjeet Metra and even if the sale-deed was executed on the basis of such attorney, then it became ineffective on 22-4-1998 after the death of Rafiq Ahmad, and no sale-deed can be executed on behalf of any such power of attorney on 15.4.2004. Therefore, the plaintiffs filed the suit for cancellation of sale-deed dated 15-4-2004 executed by Ranjeet Metra in favour of Mukhtyar Ahmad as power of attorney holder of Rafiq Ahmad after his death. 4. The defendant-appellant resisted the suit by filing his written statement. The defendant alleged that the disputed land previously belongs to the father of plaintiffs, Rafiq Ahmad, who executed power of attorney in favour of Ranjeet Metra on 14-7-90. Ranjeet Metra executed an agreement for sale on 20-6-1996 with defendant No.1/appellant and he was given possession over the land in suit. The defendant-appellant resisted the suit by filing his written statement. The defendant alleged that the disputed land previously belongs to the father of plaintiffs, Rafiq Ahmad, who executed power of attorney in favour of Ranjeet Metra on 14-7-90. Ranjeet Metra executed an agreement for sale on 20-6-1996 with defendant No.1/appellant and he was given possession over the land in suit. Plaintiffs are not in possession of disputed property and defendant No.2 Ranjeet Metra paid whole consideration to Rafiq Ahmad at the time of execution of deed of power of attorney and defendant No.1 paid full consideration to defendant No.2 at the time of sale deed. Plea was raised the the suit is barred by Order 2 Rule-2 C.P.C. by filing subsequent suit. But this fact has not been denied in the written statement that the sale-deed was executed after the death of Rafiq Ahmad. It is admitted case of the parties and finding has also been given by both the courts below that the sale-deed has been executed after the death of Rafiq Ahmad. 5. The trial court after hearing parties decreed the suit for cancellation of sale deed, on the ground that Rafiq Ahmad had died in the year 1998 and the attorney holder had no power to execute the sale-deed after the death of Rafiq Ahamad, as the power of attorney holder had ceased. The first appellate court after reapprisal of evidence endorsed the findings of trial court and dismissed the appeal by a reasoned order. 6. In the second appeal the ground has been taken that earlier plaintiffs had filed O.S. No. 149 of 2004, no relief of cancellation of sale deed was sought in that suit, in which the appellant had filed written statement and has specifically alleged that the attorney holder of Rafiq Ahmad, had executed a registered sale dated 15-4-2004, therefore, the present suit is barred by provisions of Order-2, Rule-2 C.P.C. 7. I have perused the impugned judgment and decree passed by the appellate court. The first appellate court has given its finding issuewise and has applied its mind fully. 8. Learned counsel appearing on behalf of appellant has contended that the learned appellate court has not recorded its finding on issue Nos. 4 and 5, and endorsed the findings of trial court by saying that the view taken by trial court is correct. The first appellate court has given its finding issuewise and has applied its mind fully. 8. Learned counsel appearing on behalf of appellant has contended that the learned appellate court has not recorded its finding on issue Nos. 4 and 5, and endorsed the findings of trial court by saying that the view taken by trial court is correct. He therefore, contended that the appeal has not been decided in accordance with the provisions of Order 41 Rule 31 C.P.C. In support of his contention he has cited before me the case of of H.Siddiqui (dead) By LRs. Versus A. Ramalingam, reported in (2011) 4 Supreme Court Cases 240. 9. I have gone through the judgment passed by the trial court. Issue Nos. 4 and 5. The plea of estoppel was raised before the trial court to this effect that it was within the knowledge of plaintiffs that the defendant is in possession of land and is raising construction therefore, they are estopped by filing the suit. The trial court has given categorical finding that this issue of possession of parties may be decided in the injunction suit and the present suit is for the relief of cancellation of sale deed. Therefore, on the point of estoppel, if the first appellate court has not recorded a detailed finding and has endorsed the finding of trial court, it cannot be held that the first appellate court has not complied with the provisions of Order 31 Rule 41 C.P.C. 10. So far as the application of provision of Order-2 Rule-2 C.P.C. is concerned, the finding of trial court as well as first appellate court is justified. In the case of Sidramappa versus Rajashetty and others, reported in AIR 1970, Supreme Court, 1059, it has been held that subsequent suit is not barred where cause of action in subsequent suit is different. The trial court as well as the first appellate court have recorded a categorical finding that the earlier suit was filed for injunction and relief of cancellation of sale deed was not made in that suit whereas in the present specific relief of cancellation of sale deed dated 15.4.2004, has been claimed, which was executed after the death of Rafiq Ahmad by the attorney holder, and cause of action in the present suit is different to that of earlier suit which is filed for injunction. 11. 11. I do not find any perversity and illegality in the judgment and decree passed by the courts below and no substantial question of law arises in this second appeal for consideration. 12. The second appeal is dismissed in limine.