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2021 DIGILAW 184 (HP)

Pankaj Sharma v. Dinesh Kumar

2021-03-26

TARLOK SINGH CHAUHAN

body2021
JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the judgments and decrees passed by the learned Courts below, the plaintiffs-appellants have filed the instant regular second appeal. 2. The parties shall be referred to as the ‘plaintiffs’ and ‘defendants’. 3. Original plaintiff Shri Devi Dyal (now deceased), predecessor-in-interest of the plaintiffs and father of defendant No.1 and husband of proforma defendant No.5, filed a suit through next friend Shri Pankaj Sharma, plaintiff No.1, against the defendants for declaration with consequential relief of injunction. It was averred that Devi Dyal was a person of unsound mind and also deaf and dumb and insane. He was owner in possession of land measuring 1-05-00 bighas, comprised in Khasra No. 2746/712, Khata Khatauni No. 794min/1095min, situated in Phati Dhalpur Kothi Maharaja, Tehsil and District Kullu (hereinafter to be referred as the suit land). Devi Dyal was married to proforma defendant No.5 and out of the said wedlock two sons, namely, Dinesh Kumar, defendant No.1 and one Kalu and one daughter, namely Sucheta Sharma were born. Kalu died unmarried and issueless in the year 1990. Sucheta was married to one Shri Nain Sukh, resident of Dhalpur, Kullu and out of the said wedlock, the plaintiffs were born. It was the specific case of deceased-Devi Dyal that defendant No.1 was a clever person and without the knowledge of anybody procured general power of attorney dated 10.03.1998 by exercising fraud and misrepresentation and got it registered in the Office of Sub Registrar, Hamirpur as he never executed the said power of attorney due to disability. It was further averred that the power of attorney was procured by defendant No.1 after conniving with Sub-Registrar, Hamirpur and defendant No.1 fabricated the document away from the place of deceased-Devi Dyal, so no one from his family could know about the aforesaid forged document. It was also averred that defendant No.1 and Sub Registrar, Hamirpur, being related and in connivance with each other and also knowing the fact that Devi Dyal was of unsound mind and was not capable to understand the nature of the document got the same executed and on the strength of said power of attorney executed a sale deed No. 215 dated 09.02.2005 in respect of land measuring 0-09-00 bighas being 9/25 share out of the suit land in favour of defendant No.2 Ses Ram for a consideration of Rs.2,70,000/-. Defendant No.1 also executed another sale deed No. 214 dated 09.02.2005 in favour of defendant No.3 Hari Chand for a consideration of Rs. 1,50,000/- in respect of land measuring 0-05-00 bighas being 5/25 share out of the suit land. Defendant No.1 further sold 0-05-00 bighas being 5/25 share out of the suit land in favour of defendant No.4 Amar Chand for a consideration of Rs.1,50,000/-. The plaintiffs averred that the aforesaid sale deeds were illegal, bogus, null and void as deceased Devi Dyal never appointed defendant No.1 as his power of attorney. The plaintiffs prayed that a decree for declaration to the effect that sale deeds in favour of defendants No. 2 to 4 executed by defendant No.1 in the capacity of general power of attorney of deceased Devi Dyal be declared illegal, null and void and further the general power of attorney dated 10.03.1998 registered in the office of the Sub Registrar, Hamirpur be also declared null and void and defendant No.1 be restrained from acting on the basis of the aforesaid attorney and further defendants No.2 to 4 be restrained from claiming any right, title and interest over the suit land. 4. The defendants resisted and contested the suit. Defendants No. 1 and 5 filed separate written statement by taking preliminary objections regarding cause of action, locus-standi, concealment of material facts, limitation and they prayed for dismissal of the suit with special costs under Section 35-A CPC. On merits, the defendants denied that Devi Dyal was deaf and dumb and was of unsound mind. It was averred that Devi Dyal was hale and hearty and of a sound mind and the plaintiffs filed the suit only to harass the defendants. Devi Dyal used to reside with defendants No.1 and 5 being father of defendant No.1 and husband of defendant No.5 and he had executed a valid power of attorney in favour defendant No.1 which was binding upon the parties. It was further averred that Devi Dyal had executed a Will in favour of defendant No.1 and after his death, defendant No.1 has become owner of the property left behind by Devi Dyal and the sale deeds executed by defendant No.1 in favour of defendants No. 2 to 4 were correct and legal. 5. Defendants No. 2 to 4 filed separate written statement and besides raising preliminary objection qua cause of action also denied the averments in the plaint. 5. Defendants No. 2 to 4 filed separate written statement and besides raising preliminary objection qua cause of action also denied the averments in the plaint. On merits, defendants No.2 to 4 denied that power of attorney in favour of defendant No.1 was null and void. It was averred that legal and valid sale deeds were executed by defendant No.1 in their favour and they had paid reasonable amount to Devi Dyal through power of attorney and prayed for dismissal of the suit. 6. During the pendency of the suit before the learned trial Court, Devi Dyal died and the appellants were ordered to be brought on record as legal representatives of Devi Dyal. 7. From the pleadings of the parties, the learned trial Court framed the following issues. “1. Whether the General Power of Attorney dated 10.03.1998 executed by Sh. Devi Dyal in favour of the defendant No.1 is wrong and illegal as alleged? OPP. 2. Whether the sale deeds dated 9.2.2005 are wrong and illegal as alleged? OPP. 3. Whether the plaintiff is the owner in possession of the suit land as claimed? OPP. 4. Whether the plaintiff is entitled to the prohibitory injunction prayed for? OPP. 5. Whether the plaintiff has a cause of action? OPP. 6. Whether the plaintiff has the locus standi to sue? OPP. 7. Whether the plaintiff has concealed the true and material facts from the Court as alleged. If so, its effect? OPD. 8. Whether the suit is not maintainable in the present form? OPD. 9. Whether the suit is time barred? OPD. 10. Whether the defendants are entitled to special costs under Section 35-A CPC. If so, their quantum? OPD. 11. Whether the suit land has not been properly valued for the purpose of court fee and jurisdiction? OPD. 12. Whether the defendants No.2 to 4 are the bonafide purchasers for consideration as alleged. If so, its effect? OPD. 13. Relief.” 8. After recording evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiffs on 23.05.2007 and the appeal filed by them against the judgment and decree passed by the learned trial Court before the learned first appellate Court also came to be dismissed on 30.09.2008. 9. On 29.04.2010, this appeal came to be admitted on the following substantial question of law : “1. Whether Ext. 9. On 29.04.2010, this appeal came to be admitted on the following substantial question of law : “1. Whether Ext. DW-3/A could be allegedly executed by late Shri Devi Dyal being deaf and dumb,insane and a person of unsound mind? 2. Whether Ext. PW-4/B, Ex. PW-4/C coupled with Ext. PW-1/A, Ex. P-2 and Ex. P-3 and Ext. PW-2/A which are duly proved on record are not sufficient to hold that late Shri Devi Dyal was deaf and dumb, insane and person of unsound mind? 3. Whether the learned Courts below have misinterpreted, misconstrued Ex. PW-4/B and rightly discarded the same on the ground that it was not signed by Devi Dyal? 4. Whether the learned Court below has misled, misinterpreted Ext. PW-2/A medical certificate by holding that since it was issued on 2004 only, as such, Devi Dyal could not be held to be deaf and dumb, insane and person of unsound mind in 1998 simple because Ex. PW-2/A was issued in 2004?” 10. Even though, the appeal has been admitted on the aforesaid substantial questions of law, however, I find that these questions are only academic in nature even then the appeal filed by the plaintiffs itself is bound to be dismissed for the reasons that even if these questions are answered in favour of the plaintiffs, the same will make no difference. Why I observe so because the plaintiffs have only questioned the sale deed(s) executed by Devi Dyal on various grounds taken in the plaint including the ground that he was deaf and dumb. 11. In the written statement filed by the defendants, they have set up a registered Will having been executed by Devi Dyal in favour of defendant No.1 on 10.03.1998 on the basis of which defendant No.1 claimed to have inherited the property left behind by Devi Dyal and claimed to be its absolute owner. This is clearly evident from para-5 of the written statement which reads as under : “5. Para No.5 of the plaint is also incorrect, hence denied. The deceased Devi Dyal during his life time when he was of sound mind had executed the General power of Attorney in favour of the defendant No.1 which is binding upon the parties. This is clearly evident from para-5 of the written statement which reads as under : “5. Para No.5 of the plaint is also incorrect, hence denied. The deceased Devi Dyal during his life time when he was of sound mind had executed the General power of Attorney in favour of the defendant No.1 which is binding upon the parties. Not only this, the deceased on the same day had also executed a registered Will in favour of the defendant No.1 and after death the defendant No.1 on the basis of last will dated 10-3-1998 has inherited the property left by the deceased Devi Dyal and at present is as absolute owner and the plaintiffs have got no right, title with the property left by deceased Devi Dyal.” 12. It is not in dispute that the plaintiffs despite the specific defence of the defendants as aforesaid did not question or choose to assail the Will executed in favour of defendant No.1 and since the original plaintiff Devi Dyal died after the institution of the suit, defendant No.1 has become an absolute owner of the entire property left by Devi Dyal on the basis of the Will Ext. DW-3/A. 13. Therefore, in the given circumstances, taking the case of the plaintiffs Pankaj Sharma and Ankit Sharma at its best, they continued with the suit on behalf of Devi Dyal only on the basis of the so-called general power of attorney, but cannot succeed to his estate in view of the Will executed in favour of defendant No.1, which Will as stated above, has not been challenged by them till date. 14. In this view of the matter, nothing survives for adjudication in this appeal and the substantial questions of law, as framed, have been rendered academic and, therefore, are not required to be answered. 15. Accordingly, the instant appeal is dismissed, so also the pending application, if any, leaving the parties to bear their own costs.