Shri Dharamvir & Ors. vs Shri Ved Singh (Deceased) Through ...
2011 Latest Caselaw 2904 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 30.05.2011

+                        RSA No.20/2009

SHRI DHARAMVIR & ORS.      ...........Appellants
             Through: None

                   Versus

SHRI VED SINGH (DECEASED) THROUGH LRS & ANR.
                            ..........Respondent
              Through: None

       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. (Oral)

1. None has appeared for the appellants. Matter has been

remained on board. Court notice has been issued and served

upon the counsel for the appellants but even then he has chosen

not to appear.

2. This appeal had impugned the judgment and decree dated

31.10.2008 which has endorsed the finding of the trial judge

dated 13.2.2006 whereby the suit filed by the plaintiffs seeking a

declaration to the effect that the sale deed and mutation order

passed on the basis of the sale deed be declared null and void had

been dismissed.

3. Plaintiff was stated to be the recorded co-bhumidar of the

residential plot No.275, Lal Dora Abadi of Village Mundaka, Delhi.

Contention was that defendant no.2 has forged a general power of

attorney (GPA) dated 12.8.1983 purported to have been executed

by them in his favour; on the basis of this GPA he had got a sale

deed executed in favour of defendant no1; defendant no.1 on the

strength of this sale deed had got mutation of this property

effected in his favour. It was contended that on the date of the

execution of this GPA i.e. on 12.8.1983 plaintiff no.1 was only 13

years of age; plaintiff no.2 was 11 years of age; they were minors

and not in a position to executed the aforenoted power of

attorney. Defendant no.1 has got mutation sanctioned in his

favour on 08.11.1995 in collusion with the Tehsildar. Plaintiffs

learnt about this only when they obtained a copy of the

proceedings from Halka Patwari and inspected the file on

10.4.1996; defendant no.1 is now trying to dispossess the

plaintiffs from the suit land on the strength of the sale deed dated

30.10.1995; present suit for declaration, cancellation and

permanent injunction had accordingly been filed.

4. Defence was that the suit was not maintainable being

barred by limitation; it was denied that the defendant no.2 had

forged any power of attorney; it was stated that the sale deed and

the mutation effected by defendant no.2 in favour of defendant

no.1 was based on legal documents.

5. From the pleadings of the parties the following six issues

were framed:

1. Whether the plaintiffs were the recorded co-bhimidhars

of the residential plot NO.257 (1-9) situated within the

Lal Dora Abadi of Village Mundaka, Delhi ( in short called

as suit property)? OPP

2. Whether defendant No.2 had got fabricated General

Power of Attorney dt. 12.9.1993 on behalf of the plaintiffs

and whether on the basis of the same, the defendants got

a sale deed executed and registered in their favour

pertaining to the shares of the plaintiffs in plot NO.257 as

alleged in Para 4 of the plaint? OPP

3. Whether the plaintiffs are entitled to the relief asked

for? OPP

5. Whether the plaintiffs have not approached this court

with clean hands?

6. Whether the plaintiffs have not properly valued the

suit property the purposes of court fees and jurisdiction?

OPD

7.Relief.

6. Oral and documentary evidence was led. Issue no.1 was

decided in favour of the plaintiff. He was held to be co-bhumidhar

in the land. While dealing with issue no.2 the court was of the

view that the relief sought for by the plaintiff was only to declare

the sale deed and the mutation in favour of defendant no.1 as null

and void; the GPA purportedly executed by the plaintiffs in favour

of defendants no.2 had not been sought to be cancelled; court was

of the view that without seeking declaration declaring that the

GPA is null and void on the strength of which the sale deed and

the mutation had been effected; relief sought for in the plaint was

not permissible; suit was dismissed.

7. This finding was endorsed by the first appellate court.

8. This is a second appeal. It has been admitted and on

17.9.2009 the following substantial question of law was

formulated:

1.Whether the courts below were right while dismissing the suit of the appellant seeking declaration and cancellation of Sale Deed dated 30.10.1995 because the appellant did not seek the relief of cancellation of General Power of Attorney dated 12.08.1983 which according to the appellant is a forged and fabricated document?

2.Whether respondent No.2 could execute the Sale Deed in

favour of respondent No.1 for and on behalf of the minors to the detriment of their interest, being not their legal guardian?

9. These are two concurrent fact findings of the two courts

below; they do not call for any interference. Appellant has not

appeared. Appeal is dismissed in default as also for non

prosecution. Merits of the case also stand considered.

10. Appeal is disposed of.

INDERMEET KAUR, J.

MAY 30, 2011 ns