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2015 DIGILAW 1175 (HP)

Thakur Dass v. Uma Devi

2015-08-27

RAJIV SHARMA

body2015
Judgment : Justice Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned Additional District Judge, Kullu, H.P. dated 5.6.2014, passed in Civil Appeal No. 6 of 2014 (2013). 2. Key facts, necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff), has instituted a suit for declaration and injunction against the respondents-defendants (hereinafter referred to as the defendants), stating therein that he is owner-in-possession of land measuring 162-47 hectares, being 160/1320 shares out of total land measuring 1340-39 hectares comprised of Kh. No. 999, 1232, 1233, 1234, 1235 and 1238 Khata and Khatoni No. 141/222, situated at Muhal Bhajogi Tehsil Manali, Distt. Kullu, H.P. (hereinafter referred to as the suit property. He raised a loan of rupees eight lacs in order to raise construction in the year 2004 from defendant No. 3 i.e. Bank of India. He also mortgaged the suit property in favour of defendant No. 3 in order to secure the loan. The plaintiff appointed his son, defendant No. 2 as General Power of Attorney to look after the construction work and to deal with the labour, mason, carpenter etc. The General Power of Attorney was executed on 11.4.2005. It is alleged that the plaintiff raised double storyed RCC building on the suit land. It was completed in the month of October, 2005. However, during the subsistence of the General Power of Attorney, defendant No.1 in connivance with defendants No. 2 & 3, including the scribe and marginal witnesses got managed the sale deed No. 330 dated 27.7.2006 of the suit land in her favour and got entered mutation No. 59. According to the plaintiff, the sale deed is wrong, illegal and void and not binding upon the plaintiff and liable to be declared as such. 3. The suit was contested by the defendants by filing separate written statements. According to defendant No. 1, the suit property was recorded in the name of plaintiff prior to the sale. The plaintiff sold the suit property to defendant No. 1 vide registered sale deed No. 330 dated 27.7.2006 through his son, defendant No. 2, the General Power of Attorney for a consideration of Rs. 3,12,500/-. The plaintiff never disclosed that the suit property was mortgaged with defendant No. 3. There was no entry in the revenue record in this behalf. The plaintiff sold the suit property to defendant No. 1 vide registered sale deed No. 330 dated 27.7.2006 through his son, defendant No. 2, the General Power of Attorney for a consideration of Rs. 3,12,500/-. The plaintiff never disclosed that the suit property was mortgaged with defendant No. 3. There was no entry in the revenue record in this behalf. There was only dilapidated structure on the suit land, which was completely reconstructed and renovated by the defendant after purchasing the suit property. She was residing in the same with her family. Defendant No. 2 was proceeded ex-parte on 25.5.2007. Defendant No. 3, has admitted that the plaintiff has raised loan of Rs. 8 lacs for the construction and mortgaged the suit land with the defendant No. 3. 4. The replication was filed by the plaintiff. The learned trial Court framed the issues on 7.11.2011. The suit was dismissed vide judgment dated 18.3.2013. The plaintiff, feeling aggrieved, preferred an appeal against the judgment and decree dated 18.3.2013. The learned Additional District Judge, Kullu, dismissed the appeal on 5.6.2014. Hence, this regular second appeal. 5. Mr. J.L.Bhardwaj, Advocate, for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have misread the documentary as well as the oral evidence placed on record. According to him, sale deed Ext. DW-1/B was the outcome of fraud. He also argued that defendant No. 1 was not given authority to sell the suit property. The findings recorded by the learned Courts below that defendant No. 1 is the bonafide purchaser are wrong. The defendant No. 2 was not authorized to sell the suit land, including the house. On the other hand, Mr. Sunil Mohal Goel and Debinder Ghosh, Advocates for the respective respondents have supported the judgments and decrees passed by the Courts below. 6. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 7. PW-1 Ajeet Sharma, Architect, has proved site plan Ext. PW-1/A. It was prepared by him after visiting the spot. He categorically stated that he did not know if the said house is owned by defendant No. 1 Uma, by further stating that the site plan was prepared by him at the instance of the plaintiff. 8. Sh. Thakur Dass PW-2 plaintiff has tendered his evidence vide Ext. PW-1/A. It was prepared by him after visiting the spot. He categorically stated that he did not know if the said house is owned by defendant No. 1 Uma, by further stating that the site plan was prepared by him at the instance of the plaintiff. 8. Sh. Thakur Dass PW-2 plaintiff has tendered his evidence vide Ext. PW-2/A. It is stated in Ext. PW-2/A that his son has illegally sold the suit property in favour of defendant No. 1, without having any authority to alienate the same and also stated that defendant No. 2 was never authorized to sell the suit property rather he was authorized to construct the house over the portion of the suit land. He came to know about the illegal sale deed in favour of defendant No. 1 and he obtained the documents and asked defendant No. 1 not to interfere over the suit property. He has admitted in his cross-examination that he gave General Power of Attorney to his son qua suit property on 11.4.2005. He also admitted that no entry qua the mortgage of the suit land was got incorporated by him in the revenue record. He also admitted that the sale deed was executed on 27.7.2006 vide sale deed No. 330. He had not disclosed to Uma Devi about the mortgage of the suit land but self stated that his son had disclosed about the same. He has rented out four sets to different tenants, namely, Shiv Shankar, Ravi Kumar, Bablu and Raj Kumar out of the suit house but denied that defendant No. 1 has been making payment of electricity bills, water bills and house tax etc. He also admitted that he has not paid even a single penny of the mortgage amount. 9. Defendant No. 1 has examined herself as DW-1 by tendering her affidavit Ext. DW-1/A. She is in possession of the suit property. The land was sold to her by defendant No. 2. She has proved copies of receipts issued by Nagar Panchayat, qua the payment of taxes, copy of Jamabandi, copy of FIR, copy of judgment vide Ext. DW-1/B to Ext. DW-1/K. She denied the suggestion that the house was completed by plaintiff in the month of October, 2005. 10. Ms. Pinki Sharma DW-2 has also tendered her evidence by filing affidavit Ext. DW-1/B to Ext. DW-1/K. She denied the suggestion that the house was completed by plaintiff in the month of October, 2005. 10. Ms. Pinki Sharma DW-2 has also tendered her evidence by filing affidavit Ext. DW-2/A. She was residing as tenant in the suit house owned by defendant No. 1 since April, 2007. She was paying rent at the rate of Rs. 1200/- per month to defendant No. 1. 11. Sh. Shiv Shankar, DW-3 has tendered his evidence vide Ext. DW- 3/A. The house was rented out to him by defendant No. 1 for rent at the rate of Rs. 2000/-. 12. Ext. P-1 is the copy of Khatauni Bandobast Jadeed. Mark A is the copy of sale deed executed on 26.7.2006 and registered on 27.7.2006. Ext. PW-1/A is the site plan indicating the house existing over the portion of the suit land. Ext. PX is the copy of statement of Smt. Uma Devi recorded in the Court of learned JMIC, Manali, in a criminal case. She has admitted in her statement that she purchased the house for sale consideration of Rs. 20,00,000/-. She also stated that the sale deed was executed in the year 2006. Ext. DW-1/H-1 to Ext. DW-1/H-4 are the receipts issued by Nagar Panchayat Manali qua the payment of house tax by defendant No. 1. Ext. DW-1/J is the copy of notice issued by Secretary Nagar Panchayat Manali to the plaintiff qua the house in dispute. Ext. DW-1/K is the certificate issued by Secretary Nagar Panchayat Manali. Ext. DW-1/B is the copy of general power of attorney which indicates that the plaintiff had also authorized defendant No. 2, his son to alienate the suit property. Ext. DW-1/D is the agreement to sell executed by plaintiff through his son defendant No. 1. Ext. DW-1/D is the copy of Khatauni Bandobast 2004-05 qua the suit property. 13. The General Power of Attorney i.e. Ext. DW-1/B was executed by plaintiff in favour of defendant No. 2. Defendant No. 2 is the son of plaintiff. Ext. DW-1/B is registered document. It was registered by Sub Registrar, Manali. The contents of the same were read over and explained to the executant, who after admitting the contents of the same has signed the same. The relevant para 8 of Ext. Defendant No. 2 is the son of plaintiff. Ext. DW-1/B is registered document. It was registered by Sub Registrar, Manali. The contents of the same were read over and explained to the executant, who after admitting the contents of the same has signed the same. The relevant para 8 of Ext. DW-1/B reads as under: “To enter into any sale deed, agreement of sale, transfer, or conveyance, mortgage, lease, release, or rent, exchange, or any other documents of any of the above party of the land above or total land on my behalf and to sign all the documents and to present the same Sub Registrar on my behalf and for me and to admit the execution of the sale documents on my behalf and for me and also to raise necessary papers for the same and to sign all documents and papers for me and on my behalf. All other acts, deeds and things pertaining to the abovesaid land of any part thereof shall be done by my above general power of attorney shall be acceptable to me in all manner with regard to the sale, conveyance, lease, release, rent exchange, mortgage, or any other disposition of the land or any part thereof.” 14. It is evident from the recital of para 8 that the plaintiff authorized his son defendant No. 2 to execute the sale deed or transfer the suit land, in any manner, whatsoever. The plaintiff has signed the general power of attorney Ext. DW-1/B. It is evident from the record that the general power of attorney of plaintiff, firstly executed agreement to sell Ext. DW-1/D on 10.7.2006 and thereafter sale deed was executed on 26/27.7.2006 by defendant No. 2. 15. The defendant No. 1 has duly proved that she was in possession of the suit property and she has placed reliance on receipts of Nagar Panchayat, Manali. She was paying taxes to the Nagar Panchayat, Manali, though the case of the plaintiff was that he has rented out four sets out of the suit house to his tenants Shiv Shankar, Ravi Kumar, Bablu and Raj Kumar, but he has failed to examine any of them. Defendant No. 1 has examined DW-2 Pinki Sharma and DW-3 Shiv Shankar. She was paying taxes to the Nagar Panchayat, Manali, though the case of the plaintiff was that he has rented out four sets out of the suit house to his tenants Shiv Shankar, Ravi Kumar, Bablu and Raj Kumar, but he has failed to examine any of them. Defendant No. 1 has examined DW-2 Pinki Sharma and DW-3 Shiv Shankar. They have corroborated the statement of DW-1 Smt. Uma Devi that they were engaged as tenants by DW- 1 Uma Devi and were paying rent to defendant No. 1 Uma Devi. The receipts issued by the Nagar Panchayat, Manali Ext. DW-1/H-1 to Ext. DW-1/H-4 also indicate that the house tax etc. was being paid by defendant No. 1. The Courts below have rightly come to the conclusion that defendant No. 1 was bonafide purchaser. Since the plaintiff himself has admitted that she was not informed about the mortgage by him qua the suit property. Even in Ext. P-1, copy of Khatauni Bandobast Jadeed, there is no entry qua the suit land mortgaged by the plaintiff in favour of defendant No. 3. The mutation has also been attested vide mutation No. 59. There is no merit in the contention of Mr. J.L.Bhardwaj, Advocate that the general power of attorney was executed in favour of defendant No. 2 only to supervise the construction work. He was specifically authorized, as noticed hereinabove, to enter into any agreement, sale deed, mortgage or lease etc. as per para 8 of Ext. DW- 1/B. The sale deed on the basis of general power of attorney Ext. DW-1/B is valid. The defendant No. 1 has purchased the suit property. She is bonafide purchaser of the suit property. The learned Courts below have correctly appreciated the oral as well as documentary evidence placed on record. The sale has taken place during the subsistence of the General Power of Attorney Ext. DW-1/B. The substantial questions of law are answered accordingly. 15. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any. The judgments and decrees passed by both the Courts below are affirmed.