High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

Regular Second Appeal No.462 of 2007.

Date of decision: 09.09.2016

Smt.Vidya Devi ….Appellant-Defendant

Versus

Shri Hem Raj ..Respondent-Plaintiff

Coram

The Hon’ble Mr.Justice Sandeep Sharma,Jud ge.

Whether approved for reporting ?

1

Yes.

For the Appellant: Mr.R.L. Chaudhary, Advocate.

For Respondent: Mr.Digvijay Singh, Advocate.

Sandeep Sharma,J.

This appeal has been filed by the appellant -

defendant against the judgment and decree dated

11.11.2004, passed by the learned Presiding Officer, Fast

Track Court, Mandi, District Mandi, H.P., reversing the

judgment and decree dated 25.5.2000, passed by the learned

Sub Judge Ist Class, Court No.1, Mandi, District Mandi,

whereby the suit filed by the respondent-plaintiff has been

dismissed.

2. The brief facts of the case are that the plaintiff-

respondent (herein after referred to as the `plaintiff’), filed a

1

Whether the reporters of Local Papers may be allowed to see the judgement? Yes.

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suit for declaration and injunction against the appellant-

defendant (hereinafter referred to as the `defendant’) stating

therein that he is joint owner in possession alongwith other

co-sharers and having 1/48

th share in the suit land

comprised in Khata Khatauni No.488/803 to 806, Khasra

Nos.220, 227, 276, 278, 281, 279, 280, Kittas 7, measuring

177.88 Sq.Meters, situated in Mauja Bhagwahan/366/4,

Tehsil Sadar, District Mandi, H.P. (hereinafter referred to as

the suit land).

3. It has been averred by the plaintiff that the

defendant, who is government employee and known to him

since long, allured him for securing some bank loan for him

so as to start some business and for that purpose she asked

him to go to Tehsil Office with her for execution of some

documents and under this impression he joined her and

went to Tehsil Office on 20.11.1995, but on the way, she

provided liquor to him and under the influence of liquor she

got signed some documents from him . It has further been

averred by the plaintiff that on the next day i.e. 21.11.1995,

he narrated the whole story to his brother Ramesh, who went

to Tehsil Office with him and made enquiries. The plaintiff

has averred that he came to know from Tehsil Office that the

defendant has got executed power of attorney from him qua

his share in the suit land in favour of her brother Padam

Nabh. The plaintiff has further averred that on 21.11.1995

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itself, he got the power of attorney revoked in the presence of

the defendant and her witnesses. The plaintiff has further

averred that on 27.5.1996, the defendant came to his house

and asked him for delivery of possession of his 1/48

th share

in the suit land and only then he came to know that

mutation qua suit land had been sanctioned in favour of the

defendant qua the suit land on 15.2.1996 as per sale deed

No.358. It is further averred by the plaintiff that he had

neither sold the suit land to the defendant nor had he

received any consideration from her and that he had not

delivered the possession of the suit land to the defendant. It

is also averred by the plaintiff that his share in the suit land

was already mortgaged with one Jagdish against a sum of

Rs.10,000/- and, in view of this also no sale deed of the

share of the plaintiff could have been executed in favour of

the defendant. It is alleged by the plaintiff that neither he

had received any consideration nor he had executed any sale

deed in favour of the plaintiff. Hence, the plaintiff filed a suit

in the trial Court seeking declaration that the sale deed

dated 15.2.1996 and mutation attested in consequence

thereof dated 3.4.1996 are wrong, illegal, null and void and

not binding upon the plaintiff and the revenue entry to the

contrary is also null and void with consequential relief of

restraining the defendant from interfering in the suit land.

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4. Defendant, by way of filing written statement,

raised preliminary objections on the grounds of

maintainability, locus standi, cause of action, estoppel and

valuation for the purpose of court fee and jurisdiction. On

merits, the defendant has averred that the plaintiff has

already sold his entire share from the suit property prior to

filing of the suit and therefore, he is no more owner in

possession of the suit land and it is the defendant who is co-

sharer in the suit land along with other co-sharers and that

Khasra No.227, does not belong to the parties to the suit.

Defendant has further averred that in fact the plaintiff had

agreed to sell his entire share vide an agreement to sell dated

9.12.93 to one Sh.Sohan Lal S/o Sh.Karam Chand for a

consideration of Rs.20,000/- and the brother of the plaintiff

namely; Ramesh, had also agreed to sell his entire share in

the suit land. Defendant has further averred that the

plaintiff vide an agreement to sell dated 9.12.1993 had

agreed to sell his entire share in the suit land to said

Sh.Sohan Lal, for a consideration of Rs.20,000/- in the

presence of the witnesses and both of them delivered the

possession of the suit property to Sohan Lal, who further

sold the share of the plaintiff and his brother in the suit land

in her favour by delivery of possession to her. It has further

been averred by the defendant that out of the total sale

consideration of Rs.30,000/-, an amount of Rs.20,000/- had

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been received by the plaintiff and his brother Ramesh Kumar

from said Sh.Sohan Lal at the time of execution of the

agreement and the remaining amount of Rs.10,000/ - had

been agreed to be received at the time of execution and

registration of sale deed. Defendant has further stated that,

in between, said Sh.Sohan Lal, sold the suit property to her

and she had paid the remaining amount to the plaintiff and

his brother Ramesh Kumar. It has been averred by the

defendant that the plaintiff had demanded Rs.5000/- from

her, which had been paid by her and in lieu of that the

plaintiff had agreed to execute the registered sale deed in her

favour, which could not be registered. But at the same time,

the plaintiff got his general power of attorney executed in

favour of Padam Nabh, and he had got the sale deed qua the

suit land executed in her favour after getting the remaining

balance amount of Rs.5000/-, the possession of the suit land

had also been delivered to the defendant. Defendant has

denied the revocation of general power of attorney of the

plaintiff on 21.11.1995 and stated that the sale deed had

been executed and registered on 24.11.1995 on the basis of

the general power of attorney of the plaintiff and in

consequence thereto the mutation had also been entered and

accepted. It has further been averred by the defendant that

she is now owner in possession of the suit land qua 1/48

th

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share of the plaintiff and prayed for dismissal of the suit filed

by the plaintiff.

5. The plaintiff has not filed any replication to the

written statement.

6. The learned trial Court, on the basis of

pleadings, settled inasmuch as 8 issues and except Issue

No.8, decided all the issues in favour of the defendant and

accordingly dismissed the suit of the plaintiff.

7. Feeling aggrieved and dis-satisfied with the

judgment and decree dated 25.5.2000, the plaintiff filed an

appeal before the learned District Judge, which was allowed

by the learned Presiding Officer, Fast Track Court, Mandi,

District Mandi by holding that the suit of the plaintiff is

decreed and the sale deed No.358 dated 15.3.1996 executed

in favour of the defendant and mutation No.924 dated

3.5.1996 attested in consequence thereof are declared to be

illegal, null, void and not binding upon the plaintiff and

further the entries in the revenue record to the contrary are

also declared to be null and void.

8. This second appeal was admitted on 19.3.2009

on the following substantial question of law:

“(1) Whether the first appellate court has

misread and misinterpreted

documentary as well as oral

evidences led by the defendants?

2. Whether the plaintiff is liable under

law to execute sale deed in favour of

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the defendant in the event if his

General Power of attorney was not

legally empowered to execute the

said deed, in view of the fact that the

plaintiff has received the full

consideration, handed over the

possession and agreed to execute

sale deed?”

9. Perusal of Ex.DC and Ex.PA i.e. copies of

Jamabandi for the year 1991 -92, clearly suggests that

plaintiff was having 1/48

th

share in the suit property.

Similarly, it duly stands proved on record that on the

strength of power of attorney executed by the plaintiff in

favour of P.N. Sharma, P.N. Sharma sold the share o f

plaintiff in the suit property, as mentioned above, to the

defendant and on the basis of same, mutation was also

attested in favour of defendant. Plaintiff by way of suit

sought declaration and injunction restraining the defendant

qua the suit land, description whereof has been given

hereinabove, by stating that suit land was duly owned and

possessed by him alongwith other co -sharers and he is

having 1/48

th

share of that property. He also claimed that

defendant under the influence of liquor got some document

signed by him, which she lateron used for getting the suit

land transferred in her name. Plaintiff further stated that on

21.11.1995, he narrated the whole story to his brother who

alongwith him went to Tehsil Office and on inquiry found

that defendant got power of attorney executed from him qua

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his share in the suit land in favour of her brother P.N.

Sharma. Accordingly, on 21.11.1995 , he got the power of

attorney revoked in the presence of the defendant and her

witnesses. He also claimed that when defendant came to his

house on 27.5.1996 and asked for delivery of the possession

of 1/48

th

share of suit land, only then he came to know that

she has become owner of the suit land in terms of sale deed

dated 15.2.1996. Plaintiff also claimed that neither he sold

the suit to the defendant nor he had received any

consideration from her and he never delivered the possession

of the suit land to the defendant.

10. Careful perusal of evidence led on record clearly

suggests that the plaintiff was unable to prove on record that

power of attorney Ex.PA, executed by him in favour of P.N.

Sharma authorizing him to sell his 1/48

th

share in the suit

property, was a result of fraud upon him by the defendant.

To the contrary defendant , while leading cogent and

convincing evidence, was able to prove on record that power

of attorney dated 11.4.2000 was duly executed by plaintiff,

whereby he had authorized P.N. Sharma i.e. DW-4 to sell his

share in the suit property.

11. Close scrutiny of record of the Courts below

suggests that there is overwhelming evidence adduced on

record by the defendant to prove that power of attorney

Ex.DA and receipt Ex.D1, whereby plaintiff had received total

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consideration, was executed by the plaintiff after fully

understanding the contents of the same. DW -2 has

specifically stated that the plaintiff had agreed to sell his suit

property for Rs.20,000/- and hence for the same she paid an

amount of Rs.20,000/- to the plaintiff on 20.11.1995 and

thereafter plaintiff got scribed power of attorney in Tehsil

Office in the presence of Som Nath, Advocate, Sohan Lal and

Harish Kumar, but fact remains that the same was lateron

registered in favour of P.N. Sharma. Accordingly , on

24.11.995, P.N. Sharma, in terms of power of attorney

Ex.DA, executed sale deed in her favour.

12. Similarly, perusal of DW-3, DW-4 and DW-5

clearly proves on record that plaintiff had executed a power

of attorney in favour of Shri P.N. Sharma in Tehsil Office and

no liquor was served to the plaintiff at the material time and

P.N. Sharma executed the sale deed Ex.DB on the basis of

power of attorney. Hence, this Court, after perusing the

overwhelming evidence adduced on record by the defendant,

sees no reason to interfere in the findings recorded by both

the Courts below that power of attorney Ex.DA was executed

by the plaintiff in favour of P.N. Sharma authorizing him to

sell his share in the suit property in favour of defendant.

Defendant was also able to prove her case by placing on

record receipt Ex.D1, whereby the plaintiff had received an

amount of Rs.20,000/- on account of consideration qua the

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suit land which was sold by P.N.Sharma , being power of

attorney holder of the plaintiff.

13. Similarly, DW-1 i.e. the then Sub Registrar also

supported the case of the defendant that the power of

attorney Ex.DA was executed by the plaintiff in his presence

after fully understanding its contents and same were

admitted by the plaintiff before him at the time of its

registration.

14. Now, question, which remains to be determined

by this Court, at this stage, is, “whether at the time of alleged

execution of sale deed, P.N. Sharma was authorized to effect

the sale, if any, in favour of defendant on the strength of

power of attorney Ex.DA?” Plaintiff also claimed that sale

deed is null and void since he had revoked the power of

attorney allegedly executed by him on 21.11.1995, whereby

he had allegedly authorized P.N. Sharma to effect sale, if any,

of his share in favour of defendant.

15. Plaintiff, while appearing as PW-1, has stated on

oath that he revoked the power of attorney on subsequent

day. He stated that on 20.11.1995 he was taken to Tehsil

Office by defendant under the pretext to prepare some papers

for obtaining bank loan and where he was provided liquor by

the defendant to considerable extent and as such under the

influence of liquor defendant got executed some papers from

him. He also stated that on 21.11.1995, when he came to

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Tehsil Office alongwith his brother, he came to know that

power of attorney has been got registered by the defendant

qua his share in favour of her brother namely P.N. Sharma.

However, close scrutiny of examination-in-chief and cross-

examination conducted on PW-1 nowhere suggests that any

suggestion worth the name was put to him by the defendant

with regard to revocation of power of attorney, if any,

allegedly executed by him in favour of P.N. Sharma. Plaintiff

also placed on record revocation deed Ex.PK, wherein it finds

mention that power of attorney executed by the plaintiff in

favour of P.N. Sharma on 20.11.1995 stands revoked by a

deed of revocation Ex.PK. Candid admission made by DW -1

in his cross-examination fully corroborates the statement

given by PW-1 i.e. plaintiff wherein he stated that he had

revoked power of attorney allegedly executed by him on

21.11.1995 in favour of P.N. Sharma authorizing him to

effect sale of his share in the suit land in favour of defendant.

If cross-examination conducted on these material witnesses

PW-1 and DW-1 is seen, it clearly emerge from their

admission that plaintiff had revoked power of attorney Ex.D2

by executing revocation deed Ex.PK. Hence, this Court finds

considerable force in the findings returned by the Co urt

below that the plaintiff was able to prove on record that

power of attorney Ex.D2, allegedly executed by him in favour

of P.N. Sharma, was revoked by revocation deed, which was

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got registered in the office of Sub Registrar on 21.11.1995.

Perusal of Ex.PK i.e. revocation deed dated 21.11.1995,

clearly suggests that power of attorney executed by the

plaintiff in favour of P.N. Sharma on 20.11.1995 was revoked

by the plaintiff for all intents and purposes and as such P.N.

Sharma had no authority, whatsoever, after 21.11.1995 to

execute the sale deed in favour of defendant on the strength

of power of attorney Ex.D2. It also emerged from the record

that the learned trial Court though was fully convinced with

the evidence led on record by the plaintiff that he had

revoked power of attorney Ex.DB executed in favour of P.N.

Sharma vide revocation deed dated 21.11.1995, but the

same was discarded/rejected solely on the ground that no

notice of revocation of the power of attorney was ever given to

DW-3 P.N. Sharma by the plaintiff prior to execution of the

sale deed and as such sale deed was declared legal. In this

regard learned first appellate Court rightly concluded that

registration of the deed of revocation itself can be safely

deemed to be a notice to the persons subsequently acquiring

the property comprised in the instrument.

16. Careful perusal of revocation deed, which stands

duly proved on record, clearly suggests that after 21.11.1995

P.N. Sharma had no right/authority to sell the property on

behalf of the plaintiff. In the instant case, it also stands

proved on record that sale deed Ex.DB was executed on

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24.11.1995, but undoubtedly on that day P.N. Sharma,

power of attorney holder of plaintiff, had no authority,

whatsoever, to effect sale, if any, in favour of defendant on

the strength of power of attorney Ex.D2 which stood revoked

w.e.f. 21.11.1995. Revocation Deed Ex.PK stands duly

proved on record. Since P.N. Sharma had no authority to

effect sale, if any, after 21.11.1995, on the strength of power

of attorney, sale deed Ex.DB executed by him on 24.11.1995

is not binding upon the plaintiff and as such learned first

appellate Court rightly concluded that the trial Court has

committed grave illegality while holding sale deed Ex.DB to

be legal and binding upon the plaintiff.

17. Now, question which remains to be seen ,

“whether plaintiff is liable to execute sale deed qua his share

in the suit land in favour of defendant on account of sale

consideration, which he allegedly received vide Ex.D1? In

the present case, it is own case of the defendant that sale

deed Ex.DB was executed in favour of defendant by P.N.

Sharma, who was given power of attorney Ex.DA by the

plaintiff. But once it stands proved on record that Ex.DA

was revoked by the plaintiff vide revocation deed Ex.PK, P.N.

Sharma, power of attorney of plaintiff, had no authority to

execute sale deed in favour of defendant after 21.11.1995.

Moreover, defendant has nowhere led any evidence on record

to prove that plaintiff had agreed to execute sale deed, if any,

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in favour of defendant. Rather, plaintiff was able to prove on

record that power of attorney, executed by him in favour of

P.N. Sharma, was revoked on 21.11.1995 i.e. definitely

before execution of sale deed dated 24.11.1995 Ex.DB.

Similarly, perusal of Ex.D1 i.e. receipt allegedly issued by the

plaintiff to the defendant, while selling his share in the suit

land i.e. Khata Khatauni Nos.481/803,803, 806 , nowhere

suggests that plaintiff had received an amount of

Rs.20,000/- in terms of sale deed Ex.DB, which came to be

registered on 15.2.1996. Rather, perusal of aforesaid receipt

suggests that on 20.11.1995 plaintiff sold land, as described

above, for a consideration of Rs.20,000/- to the defendant,

possession whereof was also delivered on the same day and

more interestingly, there is no mentioning, if any, with regard

to execution of sale deed i.e. Ex.D1, from where it can be

inferred that pursuant to receipt of consideration, as referred

in Ex.D1, plaintiff had undertaken before defendant to get

the sale deed executed in her favour through his power of

attorney, P.N. Sharma.

18. Perusal of Ex.D3 reveals that present plaintiff

alongwith his brother; namely; Ramesh had already sold

land, which is subject matter of the present suit, to one Shri

Sohan Lal vide agreement to sell dated 9.12.2003, but

defendant, while leading cogent evidence on record, neither

by leading convincing evidence on record nor by putting

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specific suggestion to the plaintiff, was able to prove on

record that he had not sold suit land to Sohan La l on

9.12.1993. Leaving everything aside, as has been discussed

in detail, it stands duly proved on record that power of

attorney Ex.DB, executed by the plaintiff in favour of P.N.

Sharma, stood revoked vide revocation deed dated

21.11.1995 i.e. Ex.PK and as such power of attorney holder

Mr.P.N. Sharma had no authority to effect sale, if any, in

favour of defendant on the strength of power of attorney

Ex.DB allegedly executed by the plaintiff on 20.11.1995.

Moreover, careful perusal of written statement filed by

defendant itself suggests that at first instance vide agreement

to sell dated 9.12.1993, plaintiff sold suit land to one Shri

Sohan Lal for a consideration of Rs.20,000/ - and the

possession of said property to the extent of his share was

delivered to said Shri Sohan Lal and lateron said Shri Sohan

Lal sold this property vide agreement to sell dated

19.10.1995 to the defendant and was also delivered the

possession of the property. As per plaintiff, on 9.12.1993

plaintiff and his brother had agreed to sell entire property to

Shri Sohan Lal for a total consideration of Rs.40,000/-, out

of which Rs.30,000/- were received by the plaintiff and his

brother Ramesh Kumar from said Shri Sohan Lal, at the time

of execution of agreement and remaining amount o f

Rs.10,000/- was agreed to be received at the time of

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execution and registration of sale deed. Defendant ha s

specifically stated that said Shri Sohan Lal sold this property

to her and she paid remaining amount to the plaintiff and his

brother Ramesh Kumar, accordingly, on 20.11.1995, she

requested the plaintiff to execute the registered sale deed qua

her share.

19. Close scrutiny of written statement, especially

para-2, itself suggests that it is admitted case of defendant

that she had purchased suit land from Shri Sohan Lal in

whose favour plaintiff had already effected agreement to sell

as stated by him in the plaint as well as in deposition made

before the Court. Plaintiff has specifically stated in his

statement that since he had already sold his share in the

suit land in favour of Shri Sohan Lal, there was no occasion

for him to effect sale, if any, qua the similar piece of land in

favour of defendant. Aforesaid assertion made by the

plaintiff in plaint stands duly corroborated by the reply given

by the defendant in para-2 of the written statement, where

she admitted that she purchased suit land from Shri Sohan

Lal and paid remaining amount to the plaintiff and his

brother Ramesh Kumar. It clearly emerge from aforesaid

admission made by the defendant in written statement that

amount of consideration, if any, qua the suit land was paid

to Shri Sohan Lal. Though defendant has stated that

remaining amount was paid to the plaintiff, but while making

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deposition before the Court below while contesting the suit,

defendant made an whole hearted attempt to prove on record

that entire consideration was paid to the plaintiff.

20. Hence, in view of above, specifically when it

stands duly proved on record that Shri P.N. Sharma had no

authority after 21.11.1995 to execute sale deed, if any, in

favour of defendant on the strength of power of attorney

Ex.DA allegedly executed in his favour by the plaintiff, this

Court sees no illegality and infirmity in the judgment passed

by the first appellate Court, wherein it decreed the suit of the

plaintiff declaring sale deed No.358 dated 15.3.1996 and

mutation No.924 dated 3.4.1996 null and void and not

binding upon the plaintiff. Substantial question of law is

answered, accordingly.

21. Since this Court, while exploring answer to

aforesaid question of law perused the entire evidence led on

record by the parties, it cannot be said by any stretch of

imagination that learned first appellate Court below misread,

misinterpreted and mis-appreciated the documentary as well

as oral evidence led by the defendant. Rather, first appellate

Court, while deciding actual controversy involved in the

matter, dealt with each and every aspect of the matter very

meticulously and this Court sees no reason to interfere in the

same. Hence, s ubstantial question No.2 is answered

accordingly.

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22. In view of the detailed discussion made

hereinabove, this appeal is dismissed. The judgment passed

by the learned first appellate Court below is upheld and that

of the learned trial Court is set aside and the suit filed by the

plaintiff is decreed. There shall be no order as to costs.

22. Interim order, if any, is vacated. All

miscellaneous applications are disposed of.

September 9, 2016 (Sandeep Sharma)

(aks) Judge.

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