Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 135 (HP)

Basanti Devi v. Parkash Kaur

2015-03-02

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed against the judgment and decree, rendered on 16/05/2001, in Civil Appeal No. 34-NL/13 of 1998 by the learned Additional District Judge, Solan, H.P., whereby, the learned First Appellate Court dismissed the appeal, preferred before it by the defendant No.1/appellant. 2. The subject matter of the present suit is that the land measuring 5-18 bighas of land being 1/3rd share in total land measuring 17 bighas 12 biswas comprised in Khewat/Khatauni No. 51/51 Khasra Nos. 276 to 278 and 282 to 285 situate in village Chandpur, Pargana and Tehsil Nalagarh (hereinafter called the suit land). 3. The facts giving rise to the present case are that the plaintiff has alleged that he is owner in possession of the suit land. According to him as he was not in a position to manage the suit land properly he appointed his nephew, defendant No. 2 as his power of attorney to look after the suit land. It is further alleged that for some time the defendant No. 2 acted in accordance with the instructions of the plaintiff but later on the defendant No. 2 started working against his interest and as such he revoked and cancelled the power of attorney given to defendant No.2 through a registered deed and notice of this revocation was also given by him to the defendant No. 2 orally as well as in writing. The plaintiff further alleges that after revocation of the attorney the defendant No. 2 wrongly and illegally executed sale of the suit land in favour of defendant No.1. He further pleaded that the defendant No. 2 fraudulently acted as his power of attorney and as such the aforesaid sale deed executed by him in favour of defendant No. 1 wrong, illegal, null and void and as such defendant No.2 cannot be held to be a bonafide purchaser. 4. The defendants have contested this suit. The defendant No. 1 has taken up preliminary objections regarding locus standi of the plaintiff to file the present suit. On merits he has pleaded that he is a bonafide purchaser for value consideration. 5. The defendant No. 2 in his written statement has taken the objection regarding the maintainability of the suit. 4. The defendants have contested this suit. The defendant No. 1 has taken up preliminary objections regarding locus standi of the plaintiff to file the present suit. On merits he has pleaded that he is a bonafide purchaser for value consideration. 5. The defendant No. 2 in his written statement has taken the objection regarding the maintainability of the suit. On merits he has pleaded that he had sold the suit land to the defendant No. 1 as per instruction of the plaintiff as his general power of attorney. 6. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the defendant No. 2 has procured fraudulently general power of attorney from the plaintiff, as alleged? OPP. 2. Whether the plaintiff has revoked the said general power of attorney on 19.11.1992, if so its effect? OPP. 3. Whether the sale deed executed on 28.11.1992 registered on 30.11.1992 by defendant No. 2 in favour of defendant No. 1 is illegal and void? OPD 4. Whether the suit is not maintainable? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD. 6. Whether the suit is bad for misjoinder of necessary parties? OPD. 7. Whether the defendant No. 1 is bonafide purchaser of the suit land for a consideration as alleged? OPD-1. 8. Relief. 7. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court had decreed the suit of the plaintiff and the learned Additional District Judge, Solan, affirmed the findings of the learned trial Court. 8. Now the LR of defendant No.1/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for admission on 20.09.2001, this Court, admitted the appeal on, the hereinafter extracted substantial questions of law:- 1. Whether t he duly executed sale deed by attorney of vendor can be set aside merely on the withdrawal of power of attorney by the vendor without any notice of such withdrawal to purchaser or without a public notice of such withdrawal. 2. Whether t he duly executed sale deed by attorney of vendor can be set aside merely on the withdrawal of power of attorney by the vendor without any notice of such withdrawal to purchaser or without a public notice of such withdrawal. 2. Whether the judgement and decree of the courts below is vitiated for non framing of material issue of collusion between plaintiff and defendant No. 2 thus rendering the appraisal and appreciation of the Evidence illegal and defective. 3. Whether the title of a bonafide purchaser can legally be set aside when the purchaser has no notice, knowledge of withdrawal of power of attorney executing the sale deed for and on behalf of vendor particularly when the sale deed is executed also to the knowledge of vendor? 9. The learned counsel appearing for the defendant-appellant has canvassed before this Court that the findings on issue No.2 are infirm inasmuch as the then holder of the general power of attorney duly constituted under Ext.PA by the plaintiff extantly arrayed as defendant No.2, whose authorization to act on behalf of the plaintiff-respondent was revoked/cancelled under Ext.PW-2/A, was apparently not made aware of or had remained un-awakened of the factum of his hitherto authorization under Ext.PA having come to be revoked under Ext.PW-2/A. Consequently, she submits that since the act of execution of sale deed qua the suit land inter se the defendant No.1 and defendant No.2 while purportedly acting as the holder of attorney of the plaintiff was begotten on account of lack of the latters awareness or his having no knowledge qua its rescission arising from want of notice issued to him by the plaintiff, as such, the act of execution of sale deed by defendant No. 2 in favour of defendant No. 1 is not illegitimized. She also proceeds to argue that the testimony of the general power of attorney of the plaintiff is insufficient to prove the averments in the plaint especially in the face of the plaintiff having not stepped into the witness box. She concerts to give succor to her contention by adverting to an averment existing in paragraph 3 of the plaint wherein the plaintiff had averred that notice of revocation of Ext.PA under Ext. PW-2/A was communicated orally as well as in writing to the defendant No.2. She concerts to give succor to her contention by adverting to an averment existing in paragraph 3 of the plaint wherein the plaintiff had averred that notice of revocation of Ext.PA under Ext. PW-2/A was communicated orally as well as in writing to the defendant No.2. The general power of attorney of the plaintiff being unaware of the said factum while falling exclusively within the frontiers of the knowledge of the plaintiff hence, was disempowered to prove the averment aforesaid existing in paragraph 3 of the plaint. She espouses that, hence, the testimony of the general power of attorney necessitates its being discarded. Sequelly she contends that the plaintiff ought to be nonsuited. 10. The arguments addressed by the learned counsel for the parties heard at length. 11. The defendant No.2 executed a sale deed with defendant No.1 qua the suit land under the hitherto general power of attorney constituted in his favour by the plaintiff comprised in Ext.PA. The suit land sold under sale deed executed by defendant No.2 with defendant No.1 is canvassed to be covered with the shroud/mantle of protection contemplated under Section 41 of the Transfer of Property Act inasmuch as the defendant No.1 hence being a bonafide purchaser for value for consideration is as such entitled to be construed to be a legitimate beneficiary under sale deed Ext.DW-2/A. As such, she contends that even in the face of cancellation of Ext.PA by the plaintiff, with the defendant No.2 being unaware of revocation of the general power of attorney qua the suit land while executing the sale deed in favour of defendant No.1, the sale deed Ext.DW-2/A having been as such executed in good faith does not loose its legal efficacy. However, her argument that the sale deed qua the suit land comprised in Ext.DW-2/A has been facilitated by good faith or his being construable to be a bonafide purchaser for value would attain success only in the face of theirs being sufficient and ample evidence existing on record portraying the factum that its execution was preceded by a deep and incisive inquiry on the part of the vendee i.e. the defendant No.1 qua the factum of both the tenability and of the valid existence of authorization by the plaintiff to the defendant No.2 to execute a valid deed of conveyance qua the suit land. A reading of the cross-examination of defendant No.1 unveils an admission qua his son being posted as a Patwari in the Halqa where the suit land is situated, its existence therein when entwined with the existence of an admission in the deposition of PW-1 that intimation qua the revocation of general power of attorney was given to the Halqa Patwari who is the son of defendant No. 1 and which part of the statement existing therein has not been concerted to be shred apart by the defendants by proceeding to examine the Halqa Patwari for eliciting the fact whether he acquired knowledge qua the factum of revocation of the sale deed fillips, hence an apt inference that the Halqa Patwari, who is son of DW-1 conveyed information to DW-1 about its revocation/cancellation. Obviously, then in other words his attaining knowledge qua cancellation of Ext.PA under Ext. PW- 2/A, leads to a natural conclusion that he had conveyed intimation to defendant No.1 qua the said factum. The effect of the above inference is that it erodes the fervor and strength of the submission of the learned counsel for the plaintiff that there was no notice or hence the defendant No.1 had no knowledge qua revocation of his hitherto general power of attorney comprised in Ext.PA. Besides a reading of the deposition of defendant No.1 portrays that he had omitted to carry out any a deep or pervasive inquiry so as to render sale deed Ext.DW-2/A to then acquire the flavor of its being executed in good faith or that hence the defendant No.1 was a bonafide purchaser thereof for consideration. Besides, his admission of his having not visited the suit land as also his having admitted that he did not see the general power of attorney before the execution of the sale deed, moreover his also having admitted that he had not obtained any affidavit about the existence of the power of attorney per-se communicates wanton negligence, as such, concomitantly portrays lack of carrying out of any deep and incisive inquiry by him for disinterring the entitlement of the defendant No.2 to execute a sale deed qua the suit land with defendant No.1. Rather then the conclusion which is to be drawn is that the protection of Section 41 as claimed by the appellant is unavailable to him. Rather then the conclusion which is to be drawn is that the protection of Section 41 as claimed by the appellant is unavailable to him. Even though the counsel for the defendant-appellant also submits that the testimony of the plaintiff is to be discarded in the face of the plaintiff having not by stepping into the witness box proven the averments in the plaint. However, the mere factum of the plaintiff having not stepped into the witness box to prove the averments in the plaint would not result in discarding the testimony on oath of his general power of attorney, especially when the latter is his son-in-law and who is to be presumed, more so when there is no apposite cross-examination, to have been made aware by the plaintiff of the details averred in the plaint. Though there is a specific averment in paragraph 3 of the plaint of the plaintiff having served a notice orally as also in writing to the defendant No.2 about the revocation of general power of attorney comprised in Ext.PA and hence she contends that the said fact falling within the exclusive knowledge of the plaintiff was necessarily enjoined to be proven on oath by the plaintiff alone. However, assuming that the said fact fell within the ambit and knowledge of the plaintiff alone and warranted the stepping into the witness box of the plaintiff to prove it. Nonetheless, the factum of existence of an averment in paragraph 5 of the plaint, of the general power of attorney of the plaintiff having also orally intimated the defendant No. 1 about revocation of Ext.PA qua which a para-materia deposition exists and which has remained un-shattered did hence also render him equally competent to depose as a witness qua the factum of defendant No. 2 having been intimated qua the factum of cancellation of Ext.PA under Ext.PW-2/A. Even otherwise, communication or non communication orally or in writing of the cancellation of Ext.PA under Ext.PW-2/A and it being warranted to be deposed alone by the plaintiff looses its significance, in the face of the aforesaid discussion unfolding the factum that the claim of the defendant No.1 herein of his being bonafide purchaser of the suit land for value hence enjoying the protection of Section 41 of the Transfer of Property Act, suffers erosion for the reasons detailed hereinabove. 12. 12. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment and decree of the both the Courts below are maintained and affirmed. Substantial questions of law are answered accordingly. No costs.