Mohinder Singh Etc. Petitioners v. Gurdeep Kaur

RAKESH KUMAR GARG, J. (Oral)

Plaintiff-respondent filed the instant suit alleging that she was having a share in the suit property to the extent of 16 Kanals 1 Marla in the joint Khata as fully detailed in the headnote of the plaint. She executed a General Power of Attorney (for short GPA) in favour of her brother Mohinder Singh i.e defendant No. 2 (now appellant No. 1) on 9.7.1997 However said Mohinder Singh started making plans to grab her land on the basis of GPA given to him. When this fact came to the knowledge of the plaintiff, she went to the office of the Sub-Registrar, Sultanpur Lodhi on 5.11.1998 and cancelled the GPA, which was executed in favour of the appellant-Mohinder Singh. Cancellation deed was also registered and plaintiff personally told appellant on 6.11.1998 that GPA in his favour has been cancelled and he should not interfere in her land. She further sent a registered notice on 9.11.1998 in this regard. The plaintiff started residing in Village Raipur Gatti, Tehsil Shahkot, District Jalandhar and as and when she came to village, defendant No. 2 used to give her share of crops of the land. The plaintiff obtained copy of jamabandi of the joint khata to file partition proceedings and then she came to know that defendant No. 2 has executed a sale deed in favour of his son i.e defendant No. 1 (now appellant No. 2), which was null and void, to deprive her from her share in the suit land and further got mutation sanctioned in his favour on the basis of the said sale deed. Plaintiff requested the defendants to get the sale deed cancelled which was false and without consideration. However, they refused to do so. Plaintiff sent a notice to defendant No. 2 directing him to pay a sum of Rs. 4,05,000/- along with interest but to no effect. The cause of action arose in favour of the plaintiff on coming to know about the illegal sale deed executed by defendant No. 2 in favour of defendant No. 1 and when the defendants flatly refused to get the sale deed cancelled and also to pay the amount as per the legal notice. Thus, she sought declaration that she is owner of the land measuring 16 Kanal 1 Marla out of joint khata fully detailed in the headnote of the plaint and the sale deed executed by defendant No. 2 in favour of defendant No. 1 had no effect on her rights and the said sale deed was illegal, null and void and without consideration as also the mutation sanctioned on the basis of such sale deed was also illegal. Plaintiff further prayed for a decree of possession and also in the alternative prayed for mandatory injunction directing defendant No. 2 to pay Rs. 4,05,000/-, the alleged sale price of the suit land along with interest @ 18% per annum. She further sought injunction restraining the defendants from alienating the suit land.

Upon notice, appellants appeared and filed written statement raising preliminary objections. On merits, it was admitted that plaintiff was co-sharer in the joint khata, however, she sold the suit land vide sale deed dated 6.10.1998 for a sum of Rs. 4,05,000/- and got the sale deed executed in favour of defendant No. 1. It was admitted that plaintiff was the sister of defendant No. 2 and she had given GPA on 9.7.1997 in his favour. However, it was denied that Power of Attorney was executed only to manage the property. It was asserted that defendant No. 2 was authorized to sell or alienate the suit land also. Since the plaintiff was in need of money and she agreed to sell the suit land and other land measuring 2 ½ kanals in favour of defendants and received the whole consideration and executed a General Power of Attorney in favour of defendant No. 2 on 9.7.1997 to execute the necessary sale deed as copy of the jamabandi was not available at that time. Thereafter, defendant No. 2 as Attorney had executed sale deed dated 6.10.1998 regarding suit land in favour of defendant No. 1 for a sum of Rs. 4,05,000/- which the plaintiff had already received. She also executed another sale deed on 9.11.1998 regarding 2 kanals 13 marlas i.e remaining land. Later on receiving the notice from the plaintiff, it came to the knowledge of defendant No. 2 that GPA in his favour has got cancelled by the plaintiff at the instance of her brother, who is inimical to the defendants. Defendant No. 2 did not know about the cancellation of the GPA before the receipt of said notice. Plaintiff was residing in her in-law house in village Raipur Gatti, Tehsil Shahkot since her marriage for the last 22-23 years. The story regarding handing over of share of crops was false and concocted. It was denied that the sale deed in favour of defendant No. 1 was illegal, null and void. It was further stated that plaintiff had earlier filed similar suit No. 202 on 1.10.2002 titled as ‘Gurdip Kaur v. Sukha Singh’ regarding 2 kanals 13 marlas of land purchased by defendant No. 1 vide sale deed dated 9.11.1998, in which a compromise dated 16.10.2003 was effected and a sum of Rs. 70,000/- was paid to plaintiff being sister of defendant No. 2. The plaintiff had filed a false suit on the same facts and, thus, dismissal of the suit was prayed.

Plaintiff filed replication reiterating the version of plaintiff and denying the averments made in the written statement.

On the basis of the pleadings of the parties, the following issues were framed:-

“1. Whether the plaintiff is entitled to declaration that he is owner of the land measuring 16k-1m out of suit property.? OPP.

2. Whether the plaintiff is entitled to the declaration that sale deed executed by defendant no. 2 in favour of the defendant no. 1 is result of fraud and has no effect on the title and share of the plaintiff in the joint property and the sale deed is liable to be set aside as the same being without consideration.? OPP.

2A. Whether in alternative the plaintiff is entitled to possession of land measuring 16k-1m out of the suit land? OPP.

2B. Or in the alternative, whether the plaintiff is entitled to mandatory injunction directing the defendants to pay Rs. 405000/- as alleged sale consideration along with interest @18% P.A from the date of the execution of sale deed till the realization of the amount.? OPP

3. Whether the mutation of the land got sanctioned on the basis of this sale deed is also liable to be set aside.? OPP

4. Whether the plaintiff is entitled to permit injunction restraining the defendants from alienating the suit property to any body else during the pendency of the present suit.? OPP

5. Whether the plaintiff has no cause of action to file the present suit.? OPD

6. Whether the suit is within limitation.? OPP

7. Whether the plaintiff is stopped by her own act and conduct to file the present suit.? OPD

8. Whether the suit has been properly valued for the purpose of court fee and jurisdiction.? OPP

8A. Whether suit for mandatory injunction is maintainable in the present from.? OPP

9. Relief.”

After hearing the arguments of the counsel for the parties and on perusal of the record, trial Court decided issue Nos. 1, 2, 2-A, 3 and 4 in favour of the defendants and against the plaintiff whereas issue Nos. 2-B, 5, 6, 7, 8 and 8-A were decided in favour of the plaintiff and against the defendants. The trial Court passed the money decree in favour of the plaintiff for recovery of a sum of Rs. 4,05,000/- along with interest @ 9% per annum and against the defendants vide impugned judgment and decree dated 7.6.2010

Feeling dissatisfied with the judgment and decree of the trial Court, plaintiff preferred an appeal before the First Appellate Court which was dismissed by the Lower Appellate Court vide its judgment and decree dated 9.12.2011 and affirmed the findings of the trial Court.

It may be noticed that defendant-appellants never challenged the judgment and decree of the trial court dated 7.6.2010 by filing an appeal before the First Appellate Court.

However, the appellants have filed the instant appeal challenging the judgment and decrees of the Courts below submitting that the following substantial questions of law arises in this appeal:-

“i. Whether the alternative relief of Rs. 405000/- along with interest @ 9% can be granted to the respondent/plaintiff when it is proved that the transaction was not fraudulent and when the registered sale deed was executed at that time the power of attorney was fully valid?

ii. Whether the ld. Trial Court and the Appellate Court justified the finding on the issue of limitation when it is proved that she had cancelled the power of attorney on 5.11.98 and the suit was filed on 1.11.06 which was time barred?

iii. Whether the findings of the ld. Court below are sustainable when the respondent/plaintiff had not approached the court with clean hands and raised the pleas to mislead the court by stating the fact that the appellant executed the sale deed after cancellation of the power of attorney which was found to be false by the ld. Courts below?

In support of his case, learned counsel for the appellants has vehemently argued that respondent had already received the price of the land and she became more greedy and has filed a frivolous suit after the compromise in the other suit i.e suit No. 202 of 1.10.2002 However, nothing has been pointed out before this Court to substantiate the aforesaid assertion made on behalf of the appellants.

At this stage, it may further be noticed that counsel for the appellants was unable to satisfy this Court as to how the instant appeal is maintainable on behalf of the defendant-appellants challenging the judgment and decrees of both the Courts below keeping in view the fact that the appellants have not filed first appeal before the First Appellate Court to challenge the judgment and decree of the trial Court.

In view of the aforesaid, this Court is of the opinion that no substantial question of law arises in this appeal and the same is dismissed.