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Madhya Pradesh High Court · body

2013 DIGILAW 1257 (MP)

Raghunath Singh v. Bhogiram

2013-10-18

M.K.MUDGAL

body2013
JUDGMENT The appellant/plaintiff has filed this appeal under Section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 6.3.2000 passed by the Court of I Additional District Judge to the Court of District Judge, Morena in Civil Suit No. 34A of 1996 whereby, the suit filed by the plaintiff Raghunath Singh pertaining to the land bearing Survey No. 3743/234 area one and half Bigha situated in Mauza Thara Tehsil Ambah District Morena for declaration of title and permanent injunction was dismissed. In this appeal, the appellant is referred to as 'plaintiff' and respondents as 'defendants'. 2. The admitted facts in the case are that the land bearing Survey No. 3743/234 area one and half Bigha Mauza Thara Tehsil Ambah District Morena which is called 'disputed land' in this case. The disputed land was owned by the defendant No. 6 Jandel Singh. 3. The facts, in brief, of the plaint are that the plaintiff purchased the disputed land from the defendant no. 6 vide registered sale deed dated 3.4.95 (Ex-P/1). After paying the consideration to the defendant No. 6 the plaintiff obtained the possession of the disputed land. On 20.8.95 when the plaintiff went to the field for cultivating the same the defendant No. 1 and 2 restrained him and started quarreling with him on the pretext that the land is recorded in the name of their wives Shanti, Munnidevi and Urmila I.e. defendants no. 3, 4 and 5 on the basis of sale deed executed on 8.9.94 (Ex-P/24) by defendants no. 1 and 2 in the garb of some so called Power of Attorney executed by the defendant no. 6 Jandel Singh on 30.7.1994 (Ex-P/26) in their favour. On being asked from defendant No. 6 he told him that he had executed the power of attorney in favour of defendants No. 1 and 2 only for defending the suit bearing No. 139A/92 pending before the court of Civil Judge Class II Ambah filed by his brother defendant No. 9 Balaster Singh but he did not authorize the defendants No. 1 and 2 to sell the disputed property and by playing fraud the power of attorney was got doctored to get themselves authorized to sell the disputed land. On this, the plaintiff obtained certified copy on 26.8.95 of the sale deed executed by the so called Power of Attorney holders in favour of their wives from the Registrar Office. The plaintiff further alleged that the defendants have no right in the disputed property on the basis of the sale deed (Ex-P/24). 4. The defendants no. 1 to 5 submitting joint written statement have denied the facts stated in the plaint except execution on power of attorney Ex-P/26 and sale deed dated 15.9.92 (Ex-P/4). It was further stated that the plaintiff has no right of Bhumuswami in the disputed land on the basis of sale deed dt. 3.4.95 (Ex-P/1) as the defendant No. 6 Jandel Singh had no right to sell the disputed land to the plaintiff because his ownership right had already been sold by holder of power of attorney vide sale deed Ex-P/24 on 8.9.94 to the defendants No. 3 to 5. The power of attorney was not canceled by the defendant No. 6 before execution of the sale deed Ex-P/24. The defendants have further pleaded that the suit was filed by the plaintiff only for declaration of title and permanent injunction against the defendants without seeking the relief for cancellation of registered sale deed dated 8.9.94 (Ex-P/24). Unless the said deed is canceled by a competent court the plaintiff cannot be declared Bhumiswami of the disputed land. The defendants have further pleaded that the defendants No. 3 to 5 are in possession therefore the plaintiff having no title to the disputed property as well as its possession, so the suit filed by him be dismissed. 5. The learned trial Court framed the seven issues and the findings recorded by the trial court are mentioned as under – Issues Findings 1. Whether the plaintiff is owner of the disputed land and in possession? No 2. Whether the defendants have challenged the ownership of the plaintiff and interfered in his peaceful possession? No 3. Whether the plaintiff is entitled for permanent injunction in respect of the disputed land along with well electric motor pump? No 4. Whether the defendant No. 6 and defendant No. 9 have executed a sale deed in favour of the plaintiff of the disputed land? Yes, without consideration 5. No 3. Whether the plaintiff is entitled for permanent injunction in respect of the disputed land along with well electric motor pump? No 4. Whether the defendant No. 6 and defendant No. 9 have executed a sale deed in favour of the plaintiff of the disputed land? Yes, without consideration 5. Whether power of attorney dated 30-7-1994 executed by the defendant No. 6 the non est in the eye of law and consequent sale deed 8-9-1994 is also ineffective due to that? No. 6. Whether the plaintiff has valued the sult properly and paid the proper Court fee? No 7. Relief and Cost. Yes As per para 21 of the judgment. 6. After framing the seven issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit filed by the plaintiff vide impugned judgment dated 6.3.2000 for declaration and permanent injunction holding that the plaintiff has failed to prove that the Power of Attorney dated 30.7.1994 was got executed by playing fraud on the defendant No. 6 and sale deed dated 8.9.1994 is the bogus document. 7. The following issues that arise for consideration in this appeal are that: (i). Whether, the document of power of attorney dated 30.7.1994 Ex. P/26 was got executed by the defendant no. 1 and 2 by playing fraud on the defendant no. 6 Jandel Singh? (ii). Whether, the sale deed dated 8.9.1994 Ex. P/24 executed by the defendant no. 1 and 2 in favour of the defendant no. 3, 4 and 5 is unlawful and null and void? 8. The learned counsel for the appellant/plaintiff submitted that the defendant no. 6 is an illiterate person so he was deceived by the defendant No. 1 and 2 for getting the power of attorney Ex. P-26 executed in their favour. Moreover, the said document was not read over to the defendant no. 6. It was got executed from the defendant No. 6 under the impression that the power of attorney was given to the defendant no. 1 and 2 for defending the pending case on behalf of the defendant no. 6. Apart from this, the defendants have not got the statements of the attesting witnesses examined for proving the contents of the Ex. P-26. The counsel further pleaded that no consideration was given to the defendant no. 6 for executing the sale deed Ex. 1 and 2 for defending the pending case on behalf of the defendant no. 6. Apart from this, the defendants have not got the statements of the attesting witnesses examined for proving the contents of the Ex. P-26. The counsel further pleaded that no consideration was given to the defendant no. 6 for executing the sale deed Ex. P-24 in favour of defendant No. 3, 4 and 5 by their husbands defendants no. 1 and 2. The counsel further put forth that the sale deed Ex. P-24 is a sham and bogus transaction. Besides, violating the order of temporary injunction restraining the sale of the property the defendant No. 1 and 2 executed the sale deed Ex. P-24 which being illegal does not confer the right of ownership on the defendants no. 3, 4 and 5. The counsel further urged that the findings of the trial court being not based on proper appreciation of the recorded evidence deserves to be set-aside and the suit filed by the plaintiff be decreed. To bolster his submissions, the learned counsel has relied upon the judgments: Vinod Agrawal and Others Vs. Bharat Kumar Lathi and Others, ILR 2012 Vol. 3 SN 84 and Parmanand Vs. Dadanlal MPWN 1998 Part 1 Note 146; 9. On behalf of the respondents, the learned Senior counsel Shri Bhardwaj submitted that the plaintiff has no right to challenge the legality and propriety of the power of attorney Ex. P-26 as the plaintiff is a third party to the said document. As per allegations of the plaint, the alleged fraud was committed on the defendant no. 6 who never filed a suit for canceling the document Ex. P-26. Since the fraud is not played on the plaintiff, the suit filed by him is irrelevant and baseless. The learned counsel further argued that the plaintiff being third party for the sale deed Ex. P-24 cannot challenge the consideration as he does not have the right for the same. The counsel further pleaded that there was no injunction order in existence when the document of sale deed Ex. P-24 was executed in favour of the defendant no. 3, 4 and 5. The counsel further submitted that the defendant no. 6 had already bestowed the right upon the defendant no. 1 and 2 for selling the disputed property and exercising the said powers. The defendant no. P-24 was executed in favour of the defendant no. 3, 4 and 5. The counsel further submitted that the defendant no. 6 had already bestowed the right upon the defendant no. 1 and 2 for selling the disputed property and exercising the said powers. The defendant no. 1 and 2 entered into the transaction of the sale deed in favour of the defendants no. 3, 4 and 5. The counsel further drew the attention of the court to the fact in para 11 to 15 of the impugned judgment that the findings of the learned trial court regarding the said issues are based on proper appreciation of the recorded evidence and critical examination of the facts and circumstances of the case. Therefore, no interference is required in the impugned judgment and decree. Learned counsel placed reliance on the following judgments: (i). Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman Vs. Panniamman Educational Trust represented by its Chairperson/Managing Trustee, (2012) 8 SCC 706 ; (ii). Rasid Khan and Another Vs. State of M.P. And Others, 2011(3) MPLJ 575 ; and (iii). Mohd. Jameel Khan and Others Vs. Mitthu Lal and Others, 1999 (2) JLJ 218 ; 10. Heard the arguments of both the parties and perused the record. 11. Indisputably, the execution of the document of power of attorney Ex. P-26 is admitted by the defendant no. 6 (PW-2) in his statement. He has deposed in para 2 of his statement that he had executed the power of attorney Ex. P-26 in favour of the Bhogiram defendant no. 1 and Nathu Singh defendant no. 2 but he does not remember what rights were given to them in the said document. The witness has further admitted that he went to Sub Registrar's office for getting the Ex. P-26 executed and gave the power of attorney. Although the witness (PW-2) has tried to say that he has not conferred the power on the defendant no. 1 and 2 for execution of the sale deed yet, the witness has admitted that he did not file a suit for cancellation of the power of attorney on the basis of which, the fraud was played on him by the defendant no. 1 and 2. However, the defendant no. 6 (PW-2) canceling the power of attorney Ex. P-26 executed the document on 27.03.1995 Ex. 1 and 2. However, the defendant no. 6 (PW-2) canceling the power of attorney Ex. P-26 executed the document on 27.03.1995 Ex. P-27 but the said document has no substance as the sale deed dated 08.09.1994 Ex. P-24 was already executed by the holder of Power of Attorney the defendants no. 1 and 2. When the rights of the ownership were already transferred to the defendant no. 3, 4 and 5 on the basis of Power of Attorney, the document Ex. P-27 executed subsequently does not affect the rights of the purchaser. Moreover, the defendant no. 6 neither canceled the Power of Attorney Ex. P-26 nor got the sale deed Ex. P-24 canceled from any competent court. 12. In case of any fraud was played on defendant no. 6, it was only he who could have challenged the legality and propriety of the Power of attorney Ex. P/26 and the sale deed Ex. P/24 but he did not do so. The contract based on fraud, coercion, undue influence and misrepresentation is a voidable contract under Section 19A of the Contract Act. It is only party to the contract who has the right to get the contract declared voidable and by no one else. The mere fact that the defendant no. 6 as alleged by him that he was illiterate, does not by itself would make the court to infer that the transaction in question is vitiated because, the initial burden lies on the plaintiff to prove all these facts. Even assuming that the relation between the parties were friendly or close, on that basis, it cannot be readily inferred that the defendants were in a position or they were exerting any undue influence or work trying to take advantage of the defendant from this position and thus, wanted to practice fraud upon him (defendant no. 6). 13. The plaintiff who has filed the suit challenging the power of attorney Ex. P/26 and consequently executed the sale deed Ex. P/24 is totally a third party for the said documents because of which, he does not hold any right for challenging the validity of the said document. Besides, the plaintiff did not seek any relief for cancellation of the document Ex. P/24 and Ex. P/26 and without this, no relief sought by the plaintiff in the suit can be granted to him. 14. Besides, the plaintiff did not seek any relief for cancellation of the document Ex. P/24 and Ex. P/26 and without this, no relief sought by the plaintiff in the suit can be granted to him. 14. The contention of the appellant/plaintiff that because the attesting witnesses were not got examined by the defendants, it should not be inferred that the power of attorney was executed by the defendant no. 6 voluntarily in favour of the defendant no. 1 and 2 for conferring on them the right for sale is not admissible as the plaintiff has filed the suit for challenging the validity of the said document owing to which, the burden of proof falls upon him for proving that the power of attorney was got executed fraudulently by the defendant no. 1 and 2 from the defendant no. 6. However, the plaintiff has utterly failed to have proved this. 15. Contention of the appellant's counsel that the sale deed Ex. P/24 could not have been executed by the defendant no. 1 and 2 as the effect of the order dated 15.9.1992 Ex. P/4 and dated 25.9.1992 Ex. P/5 was in force because of which, the sale deed Ex. P/24 executed in favour of the defendant no. 3, 4 and 5 is invalid and hence, does not confer any right for the same, is not justified as on perusal of the record order sheets Ex. P/6 to P/23 it becomes clear that the temporary injunction order regarding the maintenance of the status quo was not continued after 25.9.1992 Ex. P/5. It further comes to light that when the Ex. P.24 was executed in favour of defendant no. 3, 4 and 5, there was no injunction order in force on record. So the validity of the sale deed Ex. P/24 remains effective. Considering the sale deed Ex. P/1 dated 3.4.1995 executed by the defendant no. 6 Jandel Singh in favour of the plaintiff does not confer any right of ownership to the disputed property. 16. The plaintiff has no right to challenge the legality of the sale deed Ex. P/24 on the ground of inadequacy of the consideration. In this regard, it is clear here that the plaintiff is a third party to the sale deed Ex. P/24 so he cannot question the consideration of the sale deed Ex. P/24. Only the defendant no. 16. The plaintiff has no right to challenge the legality of the sale deed Ex. P/24 on the ground of inadequacy of the consideration. In this regard, it is clear here that the plaintiff is a third party to the sale deed Ex. P/24 so he cannot question the consideration of the sale deed Ex. P/24. Only the defendant no. 6 has a right to challenge the propriety of consideration of the sale deed Ex. P/24 but he did not do so by filing any suit. Therefore, the sale deed Ex. P/24 cannot be deemed to be invalid on the basis of insufficient consideration. 17. Having taken into account the recorded evidence, it is concluded that the findings rendered by learned trial court are based on proper reasonings. No flaw has been found to interfere in the said finding. The learned trial court has not committed any error in dismissing the suit filed by the plaintiff. Therefore, the appeal filed by the plaintiff having no substance and merit is hereby dismissed. 18. The cost of the appeal shall be borne by the appellant to the respondent. 19. Let the decree be drawn up accordingly.