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Himachal Pradesh High Court · body

2016 DIGILAW 2137 (HP)

Om Parkash v. Jaswant Singh

2016-10-03

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present Regular Second Appeal is maintained by the appellants against the judgment and decree passed by learned Addl. Sessions Judge, Fast Track Court, Una, District Una, H.P, in Civil Appeal No.157 of 1998, whereby the judgment and decree passed by learned Civil Judge (Senior Division), Court No.1, Amb, District Una, was set aside and suit was decreed. 2. Briefly stating facts giving rise to the present appeal are that respondent/plaintiff (hereinafter referred to as ‘the plaintiff’) filed a suit for Specific Performance of Contract before the learned trial Court against the appellant/defendants (hereinafter referred to as ‘the defendant’). As per the plaintiff, defendant No.1 was owner in possession of the land measuring 0-09-42 hects. in Khewat No.232 min, Khatauni No.614 old Khasra No.774 and new Khasra Nos.1181, 1621, situated in village Up Mahal Beh Joh, Tehsil Amb, District Una, H.P (hereinafter referred to as the ‘suit land’). On 17.3.1989, defendant No.1 entered into an agreement to sell the aforesaid suit land to the plaintiff against sale consideration of `12,600/-, which was paid by the plaintiff to defendant No.1 at the time of agreement in question and the plaintiff was put into physical possession of the suit land by defendant No.1. Defendant No.1 had promised to execute the sale deed of the suit land after the completion of settlement proceedings in the Village. Thereafter, the plaintiff constructed a ‘pucca’ house on the foundation raised by defendant No.1 in the suit land and plaintiff is residing in that house alongwith his family members. The plaintiff requested defendant No.1 so many times to execute the Sale Deed in his favour, but defendant No.1 put off the matter on one pretext or the other. On 22.2.1992, defendant No.1 was present and plaintiff asked him to execute the Sale Deed, but the same could not be executed, as the necessary papers required to be produced before the Registrar concerned were not ready with the parties and defendant No.2, who was the power of Attorney holder of defendant No.1 was not available. So on 22.2.1992, defendant No.1 executed the renewed agreement to sell in favour of the plaintiff and orally instructed defendant No.2 to execute the Sale Deed in favour of the plaintiff at the earliest. So on 22.2.1992, defendant No.1 executed the renewed agreement to sell in favour of the plaintiff and orally instructed defendant No.2 to execute the Sale Deed in favour of the plaintiff at the earliest. The plaintiff approached time and again to defendant No.2 and asked him to execute the Sale Deed in his favour, but defendant No.2 instead of executing the Sale Deed gave false assurance to do the needful. Later on 10.12.1994, defendant No.2 instead of executing the Sale Deed threatened the plaintiff to forcibly dispossess him from the suit land. The plaintiff visited Patwari Halqua for obtaining revenue papers and came to know that defendant No.2 had already executed a Sale Deed No.1589 dated 21.11.1994 in favour of defendant No.3, who is his wife. The Sale Deed dated 21.11.1994 is illegal, null and void without any consideration and the same is not binding on the right, title or interest of the plaintiff in the suit land, because he had already paid the entire sale consideration of the suit land to defendant No.1. The Sale Deed, in question, is a sham transaction being without any consideration and result of collusion between defendant No.2 and defendant No.3 who had knowledge of the previous agreement to sell dated 17.3.1989 and 22.2.1992 between the plaintiff and defendant No.1. Defendant No.3 cannot be said to be bona fide purchaser for valuable consideration and without notice of the original contract, as her husband was given Power of Attorney by defendant No.1 only for the purpose of execution of the Sale Deed in favour of the plaintiff. The plaintiff always ready and willing to perform his part of the agreement and asked several times to defendant No.1 and 2 to execute the Sale Deed in his favour, but they failed to perform their part of agreement. Defendants No.2 and 3 are threatening to interfere in the possession of the plaintiff over the suit land and to take forcible possession of it. Defendants No.2 and 3 are threatening to interfere in the possession of the plaintiff over the suit land and to take forcible possession of it. The plaintiff asked them to refrain from their illegal act, but it appears that they are adamant, hence the plaintiff filed suit for a decree for Specific Performance of Contract directing defendant No.1 to execute the Sale Deed of the suit land in his favour on the basis of agreement to sell dated 17.3.1989, renewed on 22.2.1992 and to declare that the Sale Deed dated 21.11.1994, executed by defendant No.2, in favour of his wife defendant No.3, is wrong, illegal, null and void and without any consideration and the same is not binding on the rights of the plaintiff. 3. Conversely, defendant No.1 by filing written statement has admitted that he had entered into an agreement to sell with the plaintiff and had handed over the possession of the suit land to him, as per agreement in question. As per him, he could not execute the Sale Deed in favour of the plaintiff on the basis of sale agreement in question because he is serving in Maharashtra. He never authorized defendant No.2 to execute the Sale Deed in favour of his wife and whenever he came to know that defendant No.2 has misused the General Power of Attorney executed in his favour by defendant No.1. Defendant No.1 cancelled the same and issued a notice thereof to defendant No.2. He has also deposed that he has received the sale consideration from the plaintiff as per agreement in question and has put him into the possession of the suit land. 4. Defendants No.2 and 3 have also contested their claim that they have no knowledge of any such agreement to sell executed by defendant No.1 in favour of the plaintiff. The sale agreement in question is false and fabricated documents which are the result of connivance of plaintiff and defendant No.1. On 16.5.1989, defendant No.1 had executed a valid Power of Attorney in favour of defendant No.2 at Amb and the said Power of Attorney was written by a Document Writer at the instance of defendant No.1 and after writing the same was handed over to defendant No.1 who had signed the same after admitting its genuineness in the presence of marginal witnesses. Thereafter, on the basis of said Power of Attorney, defendant No.2 executed a valid Sale Deed dated 21.11.1994 in favour of defendant No.3 who became owner in possession of the suit land after the execution of the Sale Deed in her favour. It is further alleged that defendant No.3 is a bona fide purchaser for value and after purchase defendant No.2 constructed a ‘pucca’ house over the suit land. 5. The learned trial Court framed following issues on 27.6.1997 : “1. Whether defendant No.1 entered into an agreement to sell dated 17.3.1989 in respect of suit land in favour of plaintiff, as alleged ? OPP. 2. If Issue No.1 is proved in affirmative, whether sale deed executed by defendant No.2 being General Power of Attorney of defendant No.1, in favour of defendant No.3 is illegal, null and void, as alleged ? OPD. 3. Whether suit is not maintainable, as alleged ? OPD 2 & 3. 4. Whether plaintiff is estopped from filing the suit, as alleged ? OPD 2 & 3. 5. Relief.” 6. The learned trial Court has decided Issue Nos.1 to 4 against the plaintiff dismissed the suit. Thereafter, the appeal was maintained before learned Addl. Sessions Judge, Fast Track Court, Una and the same was allowed. Hence, the present regular second appeal, which was admitted on the following substantial question of law : “Whether the findings of the learned trial Court as well as first Appellate Court are result of complete misreading and misinterpretation of the evidence and material on record and against the settled position of law?” 7. Learned Senior Counsel appearing on behalf of the plaintiff has argued that the learned Appellate Court has not appreciated the evidence to its true prospective and the law is not correctly applied. He has further argued that the learned Appellate Court has reversed the findings of the learned trial Court without their being evidence on record. 8. On the other hand, learned Senior Counsel appearing on behalf of defendant No.1 has vehemently argued that the findings recorded by the learned Court below are just reasoned and there is no question of law involved in the appeal, therefore, the appeal deserves dismissal. 9. In rebuttal, learned Senior Counsel appearing on behalf of the plaintiff has argued that the learned Appellate Court has failed to appreciate the documents Ex.DW1/A and Ex.PW3/A and the findings are perverse. 10. 9. In rebuttal, learned Senior Counsel appearing on behalf of the plaintiff has argued that the learned Appellate Court has failed to appreciate the documents Ex.DW1/A and Ex.PW3/A and the findings are perverse. 10. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail. 11. The documents Ex.PW3/A and Ex.PW3/B, which are agreements to sell dated 17.3.1989 and 22.2.1992. The original agreement dated 17.3.1989 in Ex.PW3/A, vide which defendant No.1 had agreed to sell the suit land to the plaintiff for a sale consideration of `12,600/-. To prove its execution, the plaintiff has examined PW-2 Karam Chand and PW-3 Mehar Chand, who are the marginal witnesses of these agreements. They both have supported the case of the plaintiff in this regard. Defendant No.1 himself has also admitted the execution of both these documents in his written statement as well as in the statement made by him. So, the execution of these documents is proved. The execution or genuineness of these documents/agreements have not been challenged by the person, who executed these documents. Defendant No.2 General Power of Attorney has now been cancelled vide cancellation deed Ex.DA and defendant No.3 is the wife of defendant No.2. It is alleged by the defendants No.2 and 3 that these agreements are the result of connivance of plaintiff and defendant No.1. Defendant No.1 and marginal witnesses of agreements have not led any evidence on record to prove this fact, as the onus to prove the same was upon them. They could not examine any witness from the Village to prove that they had purchased the suit land from defendant No.1. Both these documents are unregistered, written on judicial paper and they have not been scribed by a Petition Writer or some professional and they came into picture only in the year 1995 and no such document can be prepared at any time. Though, it is true that these documents are unregistered and not scribed by any professional Deed Writer etc; but simply because of these facts their genuineness cannot be disputed. While deciding the rights of parties qua immovable property the Court has to consider the entire circumstances. There is ample evidence on record to show that the possession of the suit land is with the plaintiff. While deciding the rights of parties qua immovable property the Court has to consider the entire circumstances. There is ample evidence on record to show that the possession of the suit land is with the plaintiff. There is absolutely nothing on record to show that the plaintiff took forcible possession of the suit land at any point of time. The agreement Ex.PW3/A vide which the plaintiff was put into possession of the suit land by defendant No.1 at the time of execution of the agreement on 17.3.1989. This fact has also been admitted by defendant No.1 in his statement. In the written statement defendants No.2 and 3 have stated that defendant No.2 has constructed ‘pucca’ house over the suit land. They never made any complaint to the Police or Panchayat or any other authority that the plaintiff took forcible possession of the suit property from them. They never filed any suit against the plaintiff to recover the possession of the suit land. Moreover, the sale deed by defendant No.2 in favour of defendant No.3 was executed only on 21.11.1994, vide which they are claiming to have become owners of the suit land. They were dispossessed, as per their admission on the first week of January, 1995, which shows that they remained in possession of the suit land only for a period of less than two months. It appears totally doubtful that in this short period of less than two months they were able to construct a spacious house, as shown in site plan Ex.PW1/A and further that they will not protest against taking of forcible possession of house from them. The Sale Deed dated 21.11.1994, there was a Power of Attorney in favour of defendant No.2 executed by defendant No.1, but it is nobody’s case that the defendant No.2 has purchased the land from defendant No.1 or that the defendant No.1 had allowed the defendant No.2 to construct a house in the suit land. The suit property was constructed only by the plaintiff after he was put into possession of the suit land by defendant No.1. Ex.P-1 is the copy of Misalk Hakiyat Bandobast 1989-90, in which the nature of the suit land is shown as Barani and Banjar. Ex.P-2 is copy of Khasra Girdwari in which entry of Abadi has come for the first time in Kharif, 1991. Ex.P-1 is the copy of Misalk Hakiyat Bandobast 1989-90, in which the nature of the suit land is shown as Barani and Banjar. Ex.P-2 is copy of Khasra Girdwari in which entry of Abadi has come for the first time in Kharif, 1991. Though, in column of possession Krishan Chand has been shown in possession, but he is not claiming that this Abadi belongs to him. Rather, he has deposed that he had given the possession of the suit land to the plaintiff on 17.3.1989. No presumption of truth is attached to the entries incorporated in Khasra Girdwari, but the entries in it are also relevant piece of evidence because the same are prepared by Revenue Official while discharging their official duties and being so they could not be ignored. It is to be seen that he was in possession of the suit land and he had constructed the house on it and this fact was very much within the knowledge of defendants No.2 and 3, because they are the residents of the same Village and moreover defendant No.2 was the General Power of Attorney of defendant No.1 qua the suit land. Plaintiff asked defendant No.1 on 22.2.1992, to execute the Sale Deed in his favour, but the same could not be executed because necessary papers required for the registration were not ready nor the General Power of Attorney was present on that day. Rather the circumstances shows that the Sale Deed in favour of the plaintiff could not be executed because the intention of defendant No.2 was bad and he wanted to grab the suit land that is why he did not execute the Sale Deed in favour of the plaintiff despite being asked by defendant No.1. It is admitted tact that defendant No.1 is serving in Maharashtra and residing there. He is also not a resident of Up-Mahal Beh Joh, Tehsil Amb, where the suit land is situated and being so, it was difficult for him to look after the suit land and he wanted to dispose it of and in fact he had disposed of the same in favour of the plaintiff, but due to bad luck of plaintiff the sale deed in his favour could not be executed for one reason or the other. Defendant No.1 had executed the General Power of Attorney dated 16.5.1989 Ex.DW2/A in favour of defendant No.2 qua the suit land only for the purpose of execution of Sale Deed in favour of the plaintiff. Though, it is not mentioned specifically in Ex.DW2/A that it was executed for the purpose of execution of Sale Deed in favour of the plaintiff, but it s mentioned in it that the purpose behind it was to sell the suit land, as he was not in a position to look after the same. Defendant No.1 had not sold the land in question to defendant No.2 nor is it the case of defendants No.2 and 3, as they have not pleaded any such fact in their written statement. Moreover, had the defendant No.2 purchased the same then he would have got the Sale Deed executed directly in his favour or in favour of his wife and for that purpose there was no need to execute the General Power of Attorney in his favour. There is nothing on record to show that defendant No.2 had paid any amount to defendant No.1, as sale consideration at any point of time. If defendant No.2 had purchased the land himself then why he waited till 1994 to execute the Sale Deed in favour of his wife. Defendant No.1 has clearly stated that he never authorized defendant No.2 to sell the suit land in favour of his wife nor he received any money from him and had asked the defendant No.1 to execute the Sale Deed in favour of the plaintiff. Defendant No.1 had executed General of Power of Attorney in favour of defendant No.2 only for the purpose of execution of Sale Deed in favour of the plaintiff, but defendant No.2 committed breach of trust and misused the same by executing the Sale Deed in favour of his wife. The amount claimed by the defendant, as sale consideration was never paid to the original owner by the Power of Attorney to the seller, who was husband of the purchaser, Ex.DW1/A is rightly interpreted by the learned Court below. 12. Learned Senior Counsel appearing on behalf of the appellant has relied upon the judgment of Life Insurance Corporation of India and another vs. Dharam Vir Anand reported in (1998) 7 Supreme Court Cases, 348, wherein it has been held as under : “6. 12. Learned Senior Counsel appearing on behalf of the appellant has relied upon the judgment of Life Insurance Corporation of India and another vs. Dharam Vir Anand reported in (1998) 7 Supreme Court Cases, 348, wherein it has been held as under : “6. Having examined the rival submissions and having examined the policy of insurance which is nothing but a contract between parties and having considered the expressions used in Clause 4-B of the terms of the policy, we are persuaded to accept the submissions made by Mr. Salve, the learned Senior Counsel appearing for the appellant. In construing a particular Clause of the Contract, it is only reasonable to construe that the word and the terms used therein must be given effect to. In other words, one part of the Contract cannot be made otiose by giving a meaning to the policy of the contract. Then again, when the same Clause of a contract uses two different expressions, ordinarily those different expressions convey different meanings and both the expressions cannot be held to be conveying one and the same meaning. Bearing in mind the aforesaid principle of construction, if Clause 4-B of the terms of policy is scrutinized, it become crystal clear that the date on which the risk under the policy has commenced is different from the date of the policy. In the case in hand, undoubtedly the date on which the risk under the policy has commenced is 10.5.1989 but the date of the policy is 31st of March, 1990 on which date the policy had been issued. Even though the Insurer had given the option to the Insured to indicate as to whether the policy is to be dated back and the insured indicated that the policy should be dated back to10.5.1989 and did pay the premium for that period, thereby the risk under the policy can be said to have commenced with effect from 10.5.1989 but the date of the policy still remains the date on which the policy was issued, i.e. 31st of March, 1990. The death of the life assured having occurred as a result of suicide committed by the assured before the expiry of three years from the date of the policy, the terms contained in Clause 4-B of the policy would be attracted and, therefore, the liability of the Corporation would be limited to the sum equal to the total amount of premium paid under the policy without interest and not the entire sum equal to the total amount of premium paid under the policy without interest and not the entire sum for which the life had been insured. The Forums under the Consumer Protection Act committed gross error in construing Clause 4-B of the policy and giving the same meaning to the two expressions in the aforesaid Clause 4-B namely "the date on which the risk under the policy has commenced" and “ the date of the policy". The construction given by us to the provisions contained in Clause 4-B get support, if the proviso to Clause 4-B is looked into. Under the proviso if the life assured commits suicide before expiry of one year reckoned from the date of the policy, then the provisions of the Clause under the heading "suicide" printed on the back of the policy would apply. In a case therefore a policy is dated back for one year prior to the date of the issue of the policy, the proviso contained in Clause 4-B cannot be operated at all. When the parties had agreed to the terms of the contract, it is impermissible to hold that a particular term was never intended to be acted upon. The proviso to Clause 4-B will have its full play if the expression "the date of the policy" is interpreted to mean the date on which the policy was issued and not the date on which the risk under the policy has commenced. In the aforesaid premises, we are of the considered opinion that under Clause 4-B of the policy the date of the policy is the date on which the policy had been issued and not the date on which the risk under the policy had commenced by way of allowing it to be dated back. In the aforesaid premises, we are of the considered opinion that under Clause 4-B of the policy the date of the policy is the date on which the policy had been issued and not the date on which the risk under the policy had commenced by way of allowing it to be dated back. In view of our aforesaid construction to Clause 4- B, in the case in hand, the respondent in law would be entitled to only the sum equal to the total amount of premium paid under the policy without any interest inasmuch as the death of the life assured has occurred before the expiry of three years from the date of the policy, i.e. 31.3.1990. Even though we have construed the provisions of Clause 4-B as aforesaid but so far the amount of compensation payable to the respondent is concerned we find from the letter of the Corporation dated 2.2.1995 that the Claims Review Committee has examined the facts of the case and had decided to pay a sum of Rupees two lacs on ex-gratia basis and we see no reason why the respondent should not be entitled to receive the said amount together with the interest thereon. The said offer of the Corporation having been made on 2nd of February, 1995 and more than three and half year having been elapsed since then, we think that the appellant-corporation should pay a total sum of three lacs to the respondent-claimant in full satisfaction of the claim of the respondent and this amount should be paid within eight weeks from today. This appeal is disposed of accordingly.” However, the aforesaid judgment is not applicable in the present case, as the facts of this case are different, as sale consideration, which the appellant has realized by sale of the suit land to his wife by General Power of Attorney to the original owner, has not passed to the original owner. He has also relied upon in Syed Abdul Khader vs. Rami Reddy and others, AIR 1979 Supreme Court 553, wherein it has been held as under : “17. He has also relied upon in Syed Abdul Khader vs. Rami Reddy and others, AIR 1979 Supreme Court 553, wherein it has been held as under : “17. The next contention is that even if the Court were to accept that the authority conferred by the Power of Attorney encompasses the authority to sell land, the power to sell land was hedged in with a pre condition or with a pre-requisite that the land could be sold either for Financing litigation or if for that purpose a loan was borrowed, to repay the loan. Sustenance is sought to be drawn for this submission from the following few lines in Ext. P-1: "... and purchase or sell (sic) of lands and that he is authorised to appoint any pleader or special Muktar when occasioned (sic) and to stop or to take or file any copies in any suit or to the any suit or file any written statements with his own signature to fetch any loan for our business or lands or to pay the debts from out of the income of the estate or to purchase or sell the lands and to execute the sale deeds and get registered under his signature and to obtain money or to enter into a compromise in any suit or get it settled through arbitration or to withdraw any suit etc." In Ext. P-2 the supplemental Power of Attorney, it is stated that the power for sale and registration of documents was conferred on the agent. The construction suggested is not warranted by the language used in Ext. P-l. The power to purchase or sell land was not hedged in by any pre-requisite or pre-condition. Each recital constitutes a separate power, namely, (i) power to purchase or sell land, (ii) power to appoint a pleader or Mukhtar, (iii) power to file suit or appear and file written statement (iv) power to borrow money or to enter into any compromise in any suit or get it settled through arbitration and withdraw any suit. Each was an independent power. There is nothing in Ext. P-1 which would even remotely indicate that the land could be sold only for financing the litigation or if for that purpose a loan was borrowed, to repay the loan. Each was an independent power. There is nothing in Ext. P-1 which would even remotely indicate that the land could be sold only for financing the litigation or if for that purpose a loan was borrowed, to repay the loan. Such power of wide amplitude conferring such wide authority cannot by construction be narrowed down to deny an authority which the donors expressly granted. The ordinary authority given in one part of the instrument will not be cut down because there are ambiguous and uncertain expressions elsewhere but the document will be considered as a whole for interpretation of particular words or directions (see Halsbury's Laws of England, 4th Edn., Volume I, Para 733). The contention, therefore, must be negatived. However, the judgment is not applicable to the facts of the present case, as the circumstance shows that the wife of General Power of Attorney holder was not a bona fide purchaser and especially when the land was sold by the original owner to the present plaintiff. 13. The net result of the above discussion is that the findings recorded by the learned First Appellate Court are just reasoned after reading the evidence correctly. There is no infirmity in the judgment and decree passed by the learned First Appellate Court, so substantial question of law is answered accordingly holding that the findings recorded by the learned First Appellate after appreciating the documents, which has come on record to its true perspective and the law has been correctly applied. In these circumstances, the appeal of the appellant is without merit and deserves dismissal, hence the same is dismissed. However, in the peculiar facts and circumstances of this case, parties are left to bear their own costs. Pending applications, if any shall also stands disposed of.