Sushila vs Ram Singh (Through L.Rs.) & Ors.
2010 Latest Caselaw 3903 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on: 10.08.2010
                       Judgment Delivered on: 20.08.2010

+                           R.S.A.No. 41/2000 &
                       C.M.Appl.Nos.634/2000 & 25/2003

       SUSHILA                                    ...........Appellant
                             Through:   Mr.K.C.Dubey, Advocate.

                       Versus

1.     RAM SINGH (through L.Rs.)
2.     PREM WATI
3.     SURAJ
       Through the substituted Transferee:-
4.     SWARAN KANTA
                                                   ..........Respondents
                             Through:   Mr.Satish Sahai, Advocate for
                                        Respondent no.4/Swaran Kanta

+                           R.S.A.No. 42/2000 &
                       C.M.Appl.Nos.636/2000 & 26/2003

       RAMESH CHANDER                             ...........Appellant
                   Through:             Mr.K.C.Dubey, Advocate

                       Versus

1.     RAM SINGH (through L.Rs.)
2.     PREM WATI
3.     SURAJ
       Through the substituted Transferee:-
4.     SWARAN KANTA
                                                   ..........Respondents
                             Through:   Mr.Satish Sahai, Advocate for
                                        Respondent no.4/Swaran Kanta

+                           R.S.A.No. 40/2000 &
                       C.M.Appl.Nos.632/2000 & 27/2003

       RAJENDER PERSHAD                           ...........Appellant
                    Through:            Mr.N.S.Saxena, Advocate

                       Versus

1.     RAM SINGH (through L.Rs.)
2.     PREM WATI
3.     SURAJ
       Through the substituted Transferee:-
4.     SWARAN KANTA
                                                   ..........Respondents
                             Through:   Mr.Satish Sahai, Advocate for
                                        Respondent no.4/Swaran Kanta

R.S.A.Nos.40-42/2000                                        Page 1 of 14
 CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                 Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. By this judgment, I shall dispose of R.S.A.Nos.40/2000,

41/2000 and 42/2000 filed by three appellants namely Rajender

Pershad, Sushila and Ramesh Chander. The impugned judgment

dated 7.2.2000 was passed by the first appeal court (a common

judgment assailed by the three appellants herein) endorsing the

finding of the Civil Judge dated 30.11.1990 whereby the suit of the

plaintiff/respondent had been decreed in his favour.

2. Briefly stated the facts of the case are as follows:

(i) The respondent/plaintiff Ram Singh had filed a suit for

possession against the defendants/appellants. The property

in dispute was

(i) plot no.13 measuring 100 sq.yds,

(ii) plot no.2 measuirng 140 sq.yds. and

(iii) plot no.14 measuring 2 bighas 17 biswas

falling in khasra no.275 situated in Village Chandrawal area,

Shahdara, Delhi. Plaintiffs claimed to be the owner of

cultivatory possession and marusi rights in the said property.

As per the averment in the plaint, vide general power of

attorney dated 12.3.1975 (Ex.PW-1/1) the plaintiff Ram Singh

and Girwar Singh had given possession of this land to Roshan

Lal Vohra who was authorized to cut the disputed land into

plots for residential purposes and to sell the same to

prospective purchasers. On 29/30.11.1979 defendants

illegally took unauthorized possession of the aforenoted suit

property which became known to the plaintiff on 1.12.1979.

Police report was lodged. Defendants being in unauthorized

possession of the suit property are liable to be evicted. Suit

for possession with a decree for mandatory injunction that

the defendants be directed to demolish the super-structure

raised has been prayed for.

(ii) Defendants contested the suit. It was submitted that

the power of attorney Ex.PW-1/1 dated 12.3.1975 had come

to an end on the death of the co-plaintiff Girwar Singh who

had died on 23.8.1975. Suit filed thereafter on this power of

attorney was a nullity. Ex.PW-1/1 was void; it had

transferred rights in the suit land which are not transferable

in view of the bar of Section 20 (2) of the Agra Tenancy Act

(hereinafter referred to as „the said Act‟). Further the

plaintiffs have relinquished their share in favour of Durga

Devi on 13.3.1975 as per the pleadings in a previous suit

between the parties which was held to be a void transfer in

terms of the judgment dated 3.8.1979 Ex.DX which has since

attained a finality. Further defence was that the defendants

are in possession of the suit property even as per the plaintiff

since 29/30.11.1979 and are in legal possession in view of

documents of transfer executed in their favour on 26.12.1979

by the owner Shiv Narain i.e. a power of attorney and an

agreement to sell.

(iii) Trial judge had framed six issues. After the scrutiny of

the three witness who had been examined on behalf of the

plaintiff and two witnesses who had deposed on behalf of the

defendant, the trial judge had recorded all findings in favour

of the plaintiff. It was held that the plaintiffs had marusi and

possessory rights qua the property in dispute. Roshan Lal

Vohra was the valid power of attorney holder of the plaintiff;

death of Girwar Singh did not affect its validity i.e. Ex.PW-1/1

dated 12.3.1975.The agreements to sell Ex.DW-1/B and

Ex.DW-2/A dated 29.11.1979 and 26.12.1979 purported to

have been executed in favour of the defendants on the basis

of which the defendants have staked their claim to the suit

property are not documents of title and being unregistered

could not in any manner transfer interest in immovable

property in favour of the defendants.

(iv) Suit of the plaintiff seeking possession of the suit

property was decreed with a direction to the defendants to

remove the illegal and unauthorized structure from the suit

land.

(v) The first appellate court vide judgment dated 7.2.2000

endorsed the finding of the trial court. Appeals were

dismissed.

3. This is a second appeal. On 19.11.2007, following three

substantial questions of law were formulated:

1. Whether the irrevocable power of attorney Ex.PW-1/1 dated March 12, 1975 is void and illegal?

2. Whether the general power of attorney Ex.PW-1/1 stood terminated on the death of co-tenant Shri Girwar Singh in the year 1975?

3. Whether the jurisdiction of the civil court is barred in view of the allegations that the occupancy tenant was illegally dispossessed?"

4. On 9.8.2010, another additional substantial question of law

has been formulated which reads as under:

"What is the effect of the judgment Ex.D-X dated 3.8.1979 on the rights of the parties?"

5. Learned counsel for the appellant is not pressing any

arguments qua question no.3 i.e. on the jurisdiction of the civil

court to entertain the suit. It is submitted that the findings of the

two courts below on this question is not challenged. Attempt has

been made by the learned counsel to bring to the notice of this

court that there was a close connected nexus between the plaintiffs

Ram Singh and Girwar Singh on the one hand with Roshan Lal

Vohra and Durga Devi to malafidely oust the legal possession of the

appellants/defendants. Roshan Lal Vohra is the son-in-law of

Durga Devi and the husband of Swarn Kanta who is respondent

no.4 in the present appeal. Smt.Swarn Kanta had been permitted

to be impleaded in these proceedings pursuant to the order of this

court dated 18.11.2002.

6. It is submitted that the power of attorney Ex.PW-1/1 dated

12.3.1975 had terminated on the death of Girwar Singh who had

died on 23.8.1979. The decree passed in this suit filed in the year

1980 based on a power of attorney where admittedly even the

second executor of this power of attorney i.e. Ram Singh had not

come into the witness box is a nullity. Further this power of

attorney was executed by Ram Singh and Girwar Singh on

12.3.1975 in favour of Roshan Lal Vohra whereby possession of the

suit land had been given to him permitting him to cut plots and sell

the same. On the following day i.e. on 13.3.1975 Ram Singh and

Girwar Singh had entered into an agreement to sell with Durga

Devi, mother-in-law of Roshan Lal Vohra and possession of the

same had also been parted in her favour on 13.3.1975. Plaintiffs

not being the owners of the suit land were not authorized to

transfer the suit land; they themselves had cultivatory/marusi

rights only. Section 20 (2) of the said Act creates a statutory bar on

such a transfer. The judgment dated 3.8.1979 Ex.DX also

conclusively held that Ex.D1 which was an agreement to sell

entered into between Ram Singh/Girwar Singh on 13.3.1975 with

Durga Devi was a void document. These findings have since

attained a finality and have not been challenged. Further in the

year 2000, by concealing all the aforenoted facts Durga Devi had

obtained an ex-parte decree in a suit for specific against Ram

Singh and Girwar Singh (filed after 21 years of 13.3.1975) whereby

a sale deed of the suit land had been executed in her favour. Swarn

Kanta who has now got herself impleaded in the present

proceedings is no other person but the daughter of Durga Devi.

The entire exercise is an active collusion between Roshan Lal

Vohra/Durga Devi, Swarn Kanta all members of one family with

Ram Singh and Girwar Singh who themselves have no legal title in

the suit property. Attention has been drawn to the testimony of

DW-2 Shanti Narain, the owner of the suit land. As per his

deposition he had executed Ex.DW-1/B and Ex.DW-2/A in favour of

the appellants. It is submitted that the findings rejecting these

documents is an erroneous finding. Ram Singh and Girwar Singh

were admittedly not the owners of the suit land as such they could

not pass a better title than what they themselves possessed. In

these circumstances, there is no question of Durga Devi and Swarn

Kanta (her successor-in-interest and claiming through her) having

any legal title to the suit property.

7. Reliance has also been placed upon AIR 2005 SC 439 Janki

Vashdeo Bojwani and Anr. vs. Indusind Bank Ltd & Ors. to support

a submission that a power of attorney holder cannot depose in

place of the principal. In this case Ram Singh and Girwar Singh

who were the executors of this power of attorney had never come

into the witness box; testimony of Roshan Lal by himself was not

sufficient to prove this document. The learned counsel for the

appellants has also placed reliance upon a judgment reported in

1994 RLR (SC) 102 S.P.Chengalvaraya (D) vs. Jaganath (D) to

support a submission that if a party withholds vital document to

deceive and cheat to secure an unfair gain or advantage, it

amounts to fraud on the Court and the resultant judgment and

decree obtained is a nullity. It is submitted that the decree for

possession passed by the trial judge is a nullity as vital facts as

aforenoted had been concealed before the trial judge; such a

decree is void.

8. Arguments have been countered by learned counsel for the

respondent. It is stated that the judgment of the two fact finding

courts below call for no interference. This court is sitting in second

appeal and has to confine itself only to the substantial questions of

law as formulated by it. Arguments propounded before this court

have gone far beyond the aforesaid propositions; fact findings even

if wrong cannot be interfered with. It is only on substantial

questions of law that this court can interfere.

9. The trial court as also first appellate court has in depth and

detail examined the power of attorney. The proposition urged

before this court is that the power of attorney Ex.PW-1/1 had

terminated on the death of co-tenant Girwar Singh in the year

1979.

10. The said power of attorney dated 12.3.1975 Ex.PW-1/1 reads

as under:

"This irrevocable General Power of Attorney is made at Delhi on this 12th day of March, 1975 by Ram Singh (2), Girwar Singh sons of Shri Sondhu residents of 75, Gali Jain Mandir, Shahdara, Delhi-32 hereinafter called the executants in favour of Roshan Lal Vohra son of Diwen Chand Vohra resident of 181, Ansari Road, Darya Ganj, Delhi, hereinafter called the General Attorney.

Whereas the executants are the owners of cultivatory possession and Marusi rights of a piece of land of an area of 2 bighas 17 biswas of Khasra No.275 situated in the area of village Chandrawli alias Shahdara, Delhi-32.

For performance of certain duties and formalities we do hereby nominate, constitute and appoint the said General Attorney to do the acts and things in our name and on our behalf.

To cut the piece of land into plots.

To make the construction on the said piece of land.

To apply for house tax to the proper authority.

To apply for water and electric connection to the property authority.

To apply for no objection certificate to the property authority.

To appoint the arbitrator for the said piece of land.

To give the above piece of land for Patta etc. and to give the said piece of land on rent and to collect the rent from the tenants and to deal with such tenants in all stages.

To sell the above said property, to receive earnest money, execute receipts and agreement with respect to the property.

To execute the sale deed or deeds, present them for registration before the Sub Registrar concerned, admit the execution, receive the consideration, deliver the possession and get them duly registered.

To sell, mortgage, gift the above said property and execute the deeds for the same and present them before the Sub Registrar concerned for registration.

To receive the compensation from the proper authorities, to receive the dues and outstanding relating to the above said property.

To file all kinds of applications, affidavits, petitions, suits, revisions, reviews, appeal and take all miscellaneous proceedings in the courts and the departments concerned, Civil 2and Criminal, Revenue, etc. for the

original jurisdiction to the appellate jurisdiction with the matters relating to the above said properties.

To appoint further attorney or attorneys, vakils, barristers, with the matters relating to the above said property.

I do hereby ratify and confirm that the above acts, deeds and things done by the said attorney shall be binding on me in all respects.

In witness whereof the Executant has set his hands to this deed on the day, month and year above mentioned.

Witnesses:

            1. Jugal Kishore Singh              sd/- Ram Singh
            s/o Sh.P.N.Sodhi

r/o 1/14, Krishan Nagar, Delhi. sd/- Girwar Singh

2. Illegible."

11. This document was jointly executed by Ram Singh and

Girwar Singh in favour of Roshan Lal Vohra on 12.3.1975. Girwar

Singh had expired on 23.8.1979. The present suit had been filed in

the year 1980 on which date admittedly Girwar Singh was not

alive. Both the courts below had returned a concurrent finding

that the death of Girwar Singh had not taken away the life of this

document. One co-executant Ram Singh was still alive and the suit

filed by him was maintainable. This issue has been discussed in

detail while disposing of issue no.2. The trial court had relied upon

a judgment of the Nagpur Bench reported as Agarwal Jorawarmal

& Anr. vs. Kasan & Anr. AIR 1937 Nagpur 314; a judgment of the

Calcutta Bench reported as Mohindra Lal Chatterjee vs. Hari Pada

Oase & Ors. AIR 1936 Calcutta 650; the judgment of the Punjab

Bench reported as Gopal Singh vs. Mehnge Singh 1968 Vol.70 PLR

515 as also another judgment of the Full Bench of Punjab and

Haryana reported as Ajmer Singh (deceased by LRs) vs. Shamsher

Singh & Ors. reported in AIR 1984 Punjab & Haryana 58 to draw a

finding that a power of attorney executed by the surviving

executant did not terminate on the death of the other; Ex.PW-1/1

dated 12.3.1975 was thus a valid and alive document. This finding

was endorsed by the first appellate court relevant extract of which

is contained in para 11 and reads as under:

"After perusing the said judgments and the facts of the present case and the relief claimed in particular by the respondent-plaintiff, I am of the considered opinion that even a co-tenant is competent to file a suit for possession against the trespassers, because it will not offend interest of the co-tenant even if he is not a party to that. The co-owner and co-tenant stands on equal footing, because the interest of both is the same as in the instant case Ram Singh and Girvar Singh the principals and were occupancy co-tenants in respect of the suit land. Any one of them could have sued the trespassers without impleading the other."

12. A power of attorney is based on the principle of agency. By

virtue of such a document an authority is given by a formal

instrument i.e. by the principal to his agent to act on his behalf. It

may be a general or a special attorney with a limited or an

unlimited authority. The revocation of an authority has been

contemplated under Section 201 of the Indian Contract Act, 1872.

It specifies that an agency is limited by the principal revoking his

authority; or by either the principal or the agent dying. However,

where the authority is given by one or more principals; it is a

matter of a construction of the document itself whether on the

death of one such principal, the power comes to an end or whether

it is continued even thereafter. The intention of the parties to the

contract, terms as contained therein and the surrounding

circumstances are the deciding factors. Ex.PW-1/1 had been

construed in the light of these observations and both the fact

finding courts had rightly held that death of Girwar Singh did not

affect the validity of Ex.PW-1/1; admittedly both Ram Singh and

Girwar Singh had a common and joint interest in the property in

respect of which this power of attorney had been executed. The

judgment reported in JankiVashdeo Bojwani (supra) is inapplicable;

contents of Ex.PW-1/1 are not under challenge; only contention is

that on the death of one executant, the document dies.

13. The substantial question of law no.2 is accordingly answered

in the affirmative holding therein that the power of attorney

Ex.PW-1/1 even on the death of Girwar Singh remained alive.

14. Substantial questions of law no.1 and the additional question

as formulated on 9.8.2010 are inter related; the effect of one upon

the other would be relevant in coming to a finding on these

substantial questions of law.

15. Admittedly, the plaintiffs Ram Singh and Girwar Singh were

not the owners of the suit property. They had cultivatory/marusi

rights only. Section 20 (2) of the said Act reads as under:

"20 (2). The interest of an ex-proprietory tenant, an occupancy tenant, or a non-occupancy tenant, other than a thekedar, is, subject to the provisions of this Act, heritable, but is not transferable in execution of a decree of a Civil or Revenue Court or otherwise than by voluntary transfer between person in favour of whom as co-sharers in the tenancy such right originally arose, or who have been become by succession co-sharers therein."

16. Under this provision of law the cultivatory rights of an

occupancy or a non-occupancy tenant cannot be transferred. Vide

Ex.PW-1/1 Ram Singh and Girwar Singh had transferred their

cultivatory/marusi rights in favour of Roshan Lal Vohra to cut plots

and to sell the land.

17. Ex.DX the judgment dated 3.8.1979 of Sh.S.P.Chaudhary,

ADJ was rendered in an appeal endorsing the judgment of the trial

court dated 28.10.1977 in suit proceedings between Ram Singh

and Shiv Narain. Shiv Narain was admittedly the owner of the suit

property. He had filed a suit for injunction against Ram Singh and

Girwar Singh restraining them from selling or transferring the suit

property. This judgment had held that Ex.D-1 dated 13.3.1975 vide

which the suit property rights had been transferred by Ram Singh

and Girwar Singh to Durga Devi was a void document. The suit was

decreed in favour of the owner Shiv Narain restraining Ram Singh

and Girwar Singh from creating any third party interest in the suit

property. This judgment dated 3.8.1979 has attained a finality;

neither party filed any appeal against the said judgment.

18. As a necessary consequence what emerges is that both under

the statute as also in terms of Ex.DX Ram Singh and Girwar Singh

were restrained from creating any third party interest in the suit

property. As such the transfer of possessory rights on 12.3.1975 to

Roshan Lal Vohra was illegal and void. The transfer of the suit land

to Durga Devi on 13.3.1975 was also void.

19. The plaintiff in para 4 of his plaint has stated that on

29/30.11.1979 defendants had illegally taken possession of the suit

property. This is a pleading of the plaintiff himself. Defendants

have relied upon Ex.DW-1/B and Ex.DW-2/A which are dated

29.11.1979 and 26.12.1979 to establish his claim to the suit

property; these are a power of attorney and an agreement

executed by Shiv Narain, the owner of the suit property along with

his other co-owners agreeing to sell the disputed property to the

defendants for a sum of Rs.2500/-. Contention of defendant is that

he is adequately protected by the provisions of Section 53 (A) of

the Transfer of Property Act.

20. Section 53 (A) of the Transfer of Property Act reads as

follows:

"This doctrine of part performance is available as a defence to the defendant to debar the transferor or any person claiming under him from enforcing against the transferee any right in respect of the disputed property"

21. DW-2 Shanti Narain had come into the witness box to

substantiate that the aforenoted documents i.e. Ex.DW-1/B and

Ex.DW-2/A had been executed by him in favour of the defendants.

These documents had not been relied upon by the courts below

only for the reason that they were not registered documents and in

the absence of which they could transfer title in immovable

property; documents had not been assailed on any other ground.

22. Admittedly, as per the case of the plaintiff himself defendants

were in possession of the suit property on 29/30.11.1979. DW-1/B

and Ex.DW-2/A give adequate protection to such a defendant who

is already admittedly in physical possession of the suit property; by

virtue of the aforenoted documents the possession of such a

transferee stands protected.

23. In (1996) 7 SCC 690 Patel Natwarlal Rupji vs. Kondh Group

Kheti Vishayak and Anr. it has been held as follows:

"Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English law, Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. Section 53-A confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title on the defendant in possession nor can he maintain a suit on title. The benefit of Section 53- A can be availed of as a shield to retain possession."

24. Accordingly the substantial question of law no.1 and the

additional question are answered as follows:

(i) Power of attorney Ex.PW-1/1 dated 12.3.1975 is void and

illegal; it could not have transferred possession or given right of

sale of the suit property to Roshal Lal Vohra in view of the

admitted statutory bar contained in Section 20 (2) of the said Act.

(ii) Ex.DX dated 3.8.1979 had rejected Ex.D-1 in terms of which

transfer of suit land by Ram Singh and Girwar Singh on 13.3.1975

in favour of Durga Devi was void.

25. In a judgment reported in AIR 1993 SC 398 Shri Bhagwan

Sharma Vs. Smt. Bani Ghosh while considering the scope of the

powers of the second appellate court, the Supreme Court had held

that High Court must hear fully with reference to the entire

evidence on record relevant to the issue in question; conclusion

cannot be pre-judged. In this context the Supreme Court had made

the following observations which are relevant and are extracted

herein below:

"The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature."

26. Result of aforestated discussion is that the findings in the

impugned judgment dated 7.2.2000 decreeing the suit of the

plaintiff being vitiated are set aside. Plaintiff Ram Singh could not

seek possession from the defendant who was adequately protected

under Section 53 (A) of the Transfer of Property Act. Appeals are

allowed. Pending applications are also disposed of accordingly.

INDERMEET KAUR, J.

AUGUST 20, 2010 rb