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2015 DIGILAW 1571 (HP)

Maya Devi v. Des Raj

2015-10-28

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree, dated 01.04.2005, passed by the learned District Judge, Una, H.P. in Civil Appeal No. 44 of 2003, titled as Des Raj Vs. Smt. Shakuntla Devi. 2. Key facts necessary for the adjudication of this Regular Second Appeal are that the plaintiff/respondent No. 1 (hereinafter referred to as “the plaintiff” for the sake of convenience) had instituted a suit bearing Civil Suit No. 145 of 1991 against Sh. Madan Lal Vashisht, predecessor-in-interest of the defendants/appellants (hereinafter referred to as “the defendants” for the sake of convenience) as well as against Smt. Ram Piari and Sh. Tirath Ram for declaration. The case of the plaintiff was that he was resident of village Ajouli and was owner in possession of suit land measuring 0-14-42 Hcts., as detailed in head note of the plaint. Defendant Madan Lal (since deceased) was also resident of village Ajouli. He was a Medical Practitioner. The plaintiff was an agriculturist and in order to supplement his income by earning and doing work abroad, intended to go abroad during the year 1979 and came in contact with defendant No. 1. He pursuaded the plaintiff to execute a General Power of Attorney in his favour to manage the property of the plaintiff in his absence. The plaintiff executed General Power of Attorney on 29.05.1979 in favour of defendant No. 1 Madan Lal Vashisht. Plaintiff could not go abroad due to lack of money and also informed the defendant No. 1 and asked him not to do any act on the basis of general power of attorney. Defendant No. 1 did not do any act on the basis of power of attorney and the power of attorney remained only a paper transaction. The plaintiff came to know that the defendant No. 1 Madan Lal had sold the land on the basis of General Power of Attorney for consideration of Rs.1,50,000/- in favour of defendant No. 2 vide sale deed, dated 17.11.1989 and mutation has also been sanctioned on 26.03.1990. The suit land was abutting the Ajauli-Nangal road and was highly valuable from the business point of view and the rate of the land was Rs.15,000/- per marla. The actual price of the land was more than Rs.4 lac at that time. The suit land was abutting the Ajauli-Nangal road and was highly valuable from the business point of view and the rate of the land was Rs.15,000/- per marla. The actual price of the land was more than Rs.4 lac at that time. Thereafter, the plaintiff revoked the General Power of Attorney vide registered deed, dated 13.06.1991 and defendant No. 1 was duly notified through registered notice. According to the plaintiff, the sale deed was without his consent and authority. 3. The suit was contested by the defendants. According to the averments made in the written statement filed by the defendant No. 1, the sale was made under plaintiff's authority, Power of Attorney and under his instructions. 4. The defendants No. 2 and 3 also contested the suit. According to them, the suit land was sold by the defendant No. 1 as General Power of Attorney of the plaintiff to the defendant No. 2 vide sale deed, dated 17.11.1989 for a consideration of Rs.1,50,000/-. 5. The replication was filed by the plaintiff. 6. Smt. Ram Piari (defendant No. 2 in Civil Suit No. 145 of 1991), as mentioned hereinabove, also filed a Civil Suit against Des Raj, Shakuntla Devi, Babita, Chander Shekhar and Maya Devi bearing Civil Suit No. 739/95/92. According to the averments made in the plaint, she was owner in possession of the suit land on the basis of a registered sale deed, dated 17.11.1989 executed by Sh. Des Raj through his General Power of Attorney Madan Lal, predecessor-in interest of defendants No. 2 to 5. Sh. Des Raj was threatening to take forcible possession of the land without any right. 7. The suit was contested by Des Raj, defendant No. 1. According to him, the sale deed in favour of Smt. Ram Piari by Madan Lal, predecessor-in-interest of defendants No. 2 to 5 as his General Power of Attorney, was not genuine. The market value of the suit land was Rs.15,000/- per marla. 8. The suit was also contested by defendants No. 2 to 5. According to them, the amount received by Madan Lal has been adjusted against the amount of pronotes executed by defendant No. 1 in favour of Madan Lal. 9. The replication was filed. 10. Learned Senior Sub Judge, Una, District Una, H.P. framed the issues on 10.08.1992 and 04.12.2002. He decreed Civil Suit No. 739/95/92 and dismissed Civil Suit No. 141/91. 11. Sh. 9. The replication was filed. 10. Learned Senior Sub Judge, Una, District Una, H.P. framed the issues on 10.08.1992 and 04.12.2002. He decreed Civil Suit No. 739/95/92 and dismissed Civil Suit No. 141/91. 11. Sh. Des Raj, feeling aggrieved by the the judgment and decree, dated 21.03.2003, filed a Civil Appeal No. 44 of 2003 before the learned District Judge, Una, H.P. Des Raj also filed a Civil Appeal No. 43 of 2003 against the judgment and decree, dated 21.03.2003. 12. These appeals were heard together and were decided on 01.04.2005. The learned District Judge, Una, H.P. partly allowed Civil Appeal No. 44 of 2003 and decreed Civil Suit No. 145/91 against defendant No. 1 Madan Lal through his L.Rs., i.e., defendants 1-A to 1-C for recovery of Rs.1,50,000/- with 6% interest from the date of filing the suit till its realisation with costs. Civil Appeal No. 43 of 2003 was dismissed. The appellant-defendant has now assailed the judgment and decree, dated 01.04.2005, rendered in Civil Appeal No. 44 of 2003. 13. The Regular Second Appeal was admitted on the following substantial questions of law on 13.03.2008: 1. Whether the judgment of the learned District Judge is vitiated being not in accordance with Order 20 Rule 5 C.P.C. and the judgment of this Hon'ble Court in case reported in AIR 2001, H.P. 18 Om Parkash versus State of Himachal Pradesh in as much as it has neither independently considered the evidence nor has given findings and conclusions on each of the issues? 2. Whether the findings of the Court below are perverse, based on misreading of oral and documentary evidence and the pleadings of the parties particularly the basic documents of title of Ext.PW-4/A and Ext. DX? 3. Whether the findings of the courts below in decreeing the suit for Rs. 1.50 lakh with interest is sustainable when it was proved on record that the amount of sale consideration stood adjusted on account of the money borrowed by the plaintiff on account of pronotes executed by the plaintiff? 4. Whether the suit of the plaintiff was maintainable in the present form and particularly when the plaintiff had not asked for the cancellation of the sale deed and the findings are based on wrong assumption not proved from facts on record? 14. Mr. 4. Whether the suit of the plaintiff was maintainable in the present form and particularly when the plaintiff had not asked for the cancellation of the sale deed and the findings are based on wrong assumption not proved from facts on record? 14. Mr. Rajnish K. Lall, learned vice counsel for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that the learned first appellate Court has not correctly appreciated the oral as well as documentary evidence, more particularly, Ex. PW4/A and Ex.-DX. According to him, the sale consideration stood adjusted on account of the money borrowed by the plaintiff on account of pronotes executed by the plaintiff. He lastly contended that the suit was not maintainable. 15. The learned Advocates appearing on behalf of the respondents have supported the judgment and decree, dated 01.04.2005. 16. I have heard the learned counsel for the parties and gone through the pleadings, judgments and the records, carefully. 17. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 18. Plaintiff Des Raj (PW-4) in his cross-examination has admitted that he has executed a General Power of Attorney in favour of defendant No. 1 and document writer read over the same to him and he put his signatures on the said General Power of Attorney in token of its correctness. Copy of the General Power of Attorney is Ex. PW4/A. He also admitted that there was no stipulation in the General Power of Attorney Ex. PW4/A that a notice was required to be given to him before effecting any sale on the basis of the said General Power of Attorney. He further admitted that Madan Lal has sold the suit land on the basis of General Power of Attorney in favour of defendants No. 2 and 3. In fact, the defendant No. 3 has accepted the sale deed on behalf of his wife defendant No. 2 Ram Piari. Des Raj has cancelled the General Power of Attorney vide revocation deed Ex. PW1/A, dated 13.06.1991. The impugned sale deed was executed by defendant No. 1 Madan Lal on 17.11.1989 vide Ex. DX, thus, the General Power of Attorney on the date of sale deed was in existence. 19. It is evident from the examination of Ex. Des Raj has cancelled the General Power of Attorney vide revocation deed Ex. PW1/A, dated 13.06.1991. The impugned sale deed was executed by defendant No. 1 Madan Lal on 17.11.1989 vide Ex. DX, thus, the General Power of Attorney on the date of sale deed was in existence. 19. It is evident from the examination of Ex. PW4/A, General Power of Attorney, that Des Raj Plaintiff appointed Sh. Madan Lal as lawful attorney. It is specifically mentioned in Ex. PW4/A that he has power to even dispose of his property by way of sale, mortgage or exchange. Since the plaintiff has not gone abroad, he could get the General Power of Attorney revoked before the land was sold by Sh. Madan Lal. The Attorney have the legal power to effect the sale deed by using the General Power of Attorney. Tirath Ram (DW-13) as well as Chaman Lal (DW-15) were marginal witnesses of the sale deed Ex. DX. Both these witnesses have categorically deposed that the suit land was sold for consideration of Rs.1,50,000/- by defendant No. 1 Madan Lal on the basis of the General Power of Attorney in favour of defendant No. 2. The defendants have also examined Vipin Kumar (DW-5), who was scribe of General Power of Attorney Ex.PW4/A. 20. Mr. Rajnish K. Lall, learned counsel for the appellant has vehemently argued that the amount of Rs.1,50,000/- was set off as per pronotes. However, the fact of the matter is that defendant Madan Lal Vashisht has not taken specific plea of set off nor there was any mention of the pronotes which have been proved by defendant No. 1 during the course of evidence so as to claim set off qua the amount of the sale consideration mentioned in sale deed Ex.-DX. Rather, in paras 7 and 10 of the written statement filed by defendant No. 1, it has been admitted that the suit land has been sold by the defendant on behalf of the plaintiff under his authority and consent on 17.11.1989 for a sum of Rs.1,50,000/- and the mutation was also sanctioned. There is no mention in any para that the amount mentioned in the pronotes was liable to be set off against the sale consideration of Rs.1,50,000/- mentioned in the sale deed, dated 17.11.1989, Ex. DX. There is no mention in any para that the amount mentioned in the pronotes was liable to be set off against the sale consideration of Rs.1,50,000/- mentioned in the sale deed, dated 17.11.1989, Ex. DX. The amount of set off was not mentioned either in the written statement filed by defendant No. 1 Madan Lal or in other Civil Suit titled as Smt. Ram Piari Vs. Des Raj and others by the successors-in-interest of Madan Lal. The defendants have not disputed the fact of execution of sale deed Ex. DX, dated 17.11.1989 and passing of sale consideration in both the Civil Suits, i.e., Civil Suit No. 739/95/92 and Civil Suit No. 145 of 1991. The first appellate Court has correctly appreciated the oral as well as documentary evidence, including Ex. PW4/A and Ex. DX. All the issues raised by the parties have been properly adjudicated on the basis of the evidence adduced by the parties. The defendants have failed to prove that the amount of sale consideration stood adjusted on account of the money borrowed by the plaintiff on account of pronotes executed by the plaintiff. The suit was maintainable. All the substantial questions of law are answered accordingly. 21. Accordingly, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs. Cross-objections No. 163 of 2008 22. In view of the observations made hereinabove in Regular Second Appeal No. 307 of 2005, there is no merit in Cross-objections. It is reiterated that the sale deed, dated 17.11.1989, Ex. DX was valid. It was made during the subsistence of General Power of Attorney executed by Des Raj in favour of defendant Madan Lal. Consequently, the Cross objections are also dismissed with no order as to costs.