Delhi High Court

Balbir Singh vs Ganga Vishan @ Vishan Lal Anand on 8 April, 2015

*                   HIGH COURT OF DELHI AT NEW DELHI

+                                R.S.A. No.13/2014

                                     Decided on : 8th APRIL, 2015

BALBIR SINGH                                        ...... Appellant
                      Through:     Mr.Rajiv K.Garg, Mr.Sanjay Gupta and
                                   Mr.Akshay Gaur, Advs.

                        Versus

GANGA VISHAN @ VISHAN LAL ANAND       ...... Respondent
            Through: Ms.Anju Lal and Ms.Shalu Lal, Advs.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This a regular second appeal bearing No.13/2004 titled Balbir

Singh v. Ganga Vishan @ Vishan Lal Anand. Although the appeal has

been filed in the year 2004, it has been admitted on 12.08.2008 by my

learned predecessor and while admitting the appeal, the following ten

questions have been framed as substantial questions of law involved in

the matter.

(1). Whether the GPA duly executed in favour of the respondent could be held to be cancelled without proof of the deed of cancellation and without proof of the service of alleged notice of cancellation of GPA to the attorney and the appellant/purchaser ?

(2). Whether adverse inference U/s. 114(g) of the Evidence Act ought to be taken against the respondent for not producing himself in the witness box to deny the false allegations in the written statement and to deny his own receipts of money ?

(3). Whether in the circumstances of receiving advance of Rs. 15,000/- himself, the respondent has confirmed and ratified the attorney of Shri S L Malhotra to sell the suit property to the appellant. And hence whether Shri Sardari Lal Malhotra was competent to execute the receipt dated 2.3.1987 and formal agreement to sell dated 6.7.1990, on behalf of the respondent ?

(4). Whether in the circumstances of non proof of copy of GPA dated 28.2.1985 the learned Additional District Judge could see and read an unproved document (photocopy of GPA) and without comparison with original ?

(5). Whether such copy of GPA dated 28.2.1985 could be read by the learned Additional District Judge without giving the parties an opportunity to lead further evidence and cross-examination on this document ?.

(6). Whether this unproved GPA could be used by the learned Courts to contradict, corroborate the evidence of the parties and whether it could be used to fill in the lacuna of the evidence of respondent ?

(7). Whether the learned Additional District Judge could look to this unproved document of photocopy of GPA dated 28.2.1985 to give a finding of fact?

(8). Whether the learned Courts below had jurisdiction to see unproved alleged deed of cancellation to give a finding of fact of cancelling the GPA of Shri S L Malhotra, and that also against the other evidence of the defendant showing that in fact the GPA dated 28.2.1985 was not cancelled ?

(9). Whether therefore the evidence of the parties was to be read or the unproved documents dated 20.1.1988 was to be read to give a finding that in fact the GPA dated 28.2.1985 in favour of Shri S L Malhotra was not cancelled ?

(10). Whether the findings and judgment of learned Court below is perverse, not based on evidence, and based only on surmises and conjectures, causing substantial injustice to the appellant ?

2. I have heard the learned counsel for the appellant as well as the

learned counsel for the respondent.

3. Before dealing with the aforesaid questions, it may be pertinent

here to give a brief background of the case leading to the filing of the

present appeal.

4. The present appellant filed a suit for specific performance of the

agreement to sell dated 06.07.1990 and for permanent injunction. The

case which was set up by the appellant in the plaint was that the

respondent/Sh.Ganga Vishan is the owner of the property bearing

No.27/3, Tihar II, Ashok Nagar, New Delhi having purchased the same

vide sale deed dated 31.07.1965. It was alleged that the

respondent/Sh.Ganga Vishan had appointed one Sh.S.L.Malhotra as his

attorney on 28.02.1985 in respect of the suit property and authorized him

to sell the property in question. The said attorney (since deceased) is

alleged to have entered into an agreement to sell in respect of the suit

property in favour of the appellant for a total sale consideration of

Rs.46,000/-. It was alleged in the plaint that the appellant had made a

payment of Rs.41,000/- in four instalments i.e.Rs.15,000/- on 02.03.1987,

Rs.15,000/- on 26.08.1988, Rs.5,000/- on 10.10.1989 and Rs.6,000/- on

06.07.1990. It is at the time of receiving the final instalment of

Rs.6,000/- on 06.07.1990 that it is alleged by the appellant that the oral

agreement to sell the suit property was reduced into writing and receipts

were also executed for the payment received by Mr.S.L.Malhotra. It was

envisaged in the agreement to sell dated 06.07.1990 that the balance

consideration of Rs.5,000/- shall be paid by the appellant at the time of

registration of the sale deed by the respondent/Sh.Ganga Vishan. The

respondent/Sh.Ganga Vishan, as per the agreement to sell, was required

to obtain sale permission from original defendant Nos.2 & 3 before

execution of the sale deed. It was alleged that the respondent/Sh.Ganga

Vishan through is attorney Mr.S.L.Malhotra had assured the appellant

that the property in question is free from all encumbrances and title of the

suit property was clear and without any blemishes.

5. It was further alleged that the respondent/Sh.Ganga Vishan had

failed to obtain the requisite permission despite the fact that the

appellant/plaintiff had been approaching the respondent/Sh.Ganga Vishan

for acceptance of balance payment of Rs.5,000/- and getting his title

perfected. The respondent/Sh.Ganga Vishan had been avoiding the same

for one reason or the other. It was alleged in the plaint that the appellant

was ready and willing to perform his part of the agreement at all times

and even at the time of filing of the suit and before filing of the suit, even

a notice dated 22.07.1996 was also served on the respondent/Sh.Ganga

Vishan requiring him to perfect the title of the appellant and as he had

failed to do so, the appellant/plaintiff had been constrained to file the suit

for specific performance. The respondent/Sh.Ganga Vishan contested the

suit and took preliminary objection with respect to the maintainability of

the suit on the ground that the appellant had suppressed material facts. It

was alleged by the respondent/Sh.Ganga Vishan that the

appellant/plaintiff had trespassed in the suit property in collusion with

Mr.S.L.Malhotra, the attorney of the respondent/Sh.Ganga Vishan. It

was also stated by the respondent/Sh.Ganga Vishan that the attorney of

Mr. S.L.Malhotra had been revoked on 20.01.1988 by a document which

was duly registered. It was also alleged by the appellant that the

respondent/Sh.Ganga Vishan is the owner of the property and the

appellant has no right, title or interest in the suit property. The suit

property was stated to be in occupation of one Sh.Prithipal Singh as a

tenant at the rate of Rs.7.50 per month at the time when the property was

allotted to respondent/Sh.Ganga Vishan and he was directed to pay rent to

the respondent/Sh.Ganga Vishan. It was alleged that Mr.Prithipal Singh

had sublet the premises in question to Manjeet Singh and Miyan Khan

and had also demolished a portion of the premises.

Respondent/Sh.Ganga Vishan through his attorney Sh.S.L.Malhotra filed

an eviction petition and got an ex parte judgment in his favour on

17.02.1986. Thereafter the execution application for ejectment of the

tenant was also field through the attorney Sh.S.L.Malhtora, but during the

pendency o the proceedings, the GPA in favour of Sh.S.L.Malhotra was

revoked after giving notice dated 19.01.1988 with an instruction to him to

return the original documents relating to the suit property. On 20.01.1988,

revocation deed was registered and a fresh attorney Sh.V.K.Anand was

appointed for pursuing the litigation. In the meanwhile, the

appellant/plaintiff appeared in the court of learned ARC claiming himself

to be in possession of the suit property by virtue of an agreement to sell

etc. The execution proceedings were disposed of vide order dated

16.09.1994 directing the respondent/Sh.Ganga Vishan to file a suit for

possession. It was admitted that Mr.S.L.Malhotra had been appointed as

the attorney on 28.02.1985, but it was stated that he was never authorized

to sell the property in question. It was specifically denied that the

respondent/Sh.Ganga Vishan had received any amount towards

consideration for sale of the property and his signatures on the receipt of

Rs.15,000/- were stated to be forged. It was further stated that in view of

the revocation of power of attorney of Sh.S.L.Malhotra, the agreement to

sell as executed thereafter are null and void and it was prayed that the suit

of the appellant/plaintiff be dismissed.

6. So far as the original defendant Nos.2 & 3 are concerned, they took

a preliminary objection regarding the maintainability of the suit on the

ground of locus and they also contested their being made a party on the

ground that they were neither necessary nor proper parties.

7. The respondent/Sh.Ganga Vishan also filed a suit against the

present appellant/plaintiff being suit for possession which was numbered

as 574/02. Vide order dated 12.02.2001, the evidence was ordered to be

recorded in Suit No.574/02 where the appellant/plaintiff examined

himself as DW-1 and proved various documents. The learned trial court,

heard the arguments, analyzed the evidence and so far as the suit for

specific performance filed by the present appellant/plaintiff is concerned,

the appellant has not been able to prove the agreement to sell dated

06.07.1990 having been validly executed in his favour by the

respondent/Sh.Ganga Vishan through his attorney. For arriving at this

conclusion, the learned trial court has taken note of the fact that the

appellant did not prove that the attorney Sh.S.L.Malhotra had any

authority under the so called power of attorney dated 28.02.1985 to sell

the property and accept the sale consideration for and on behalf of the

respondent/Sh.Ganga Vishan. Therefore, if that was the position and

Sh.S.L.Malhotra was not competent to sell the property, he could not

have created any right, title or interest in favour of the appellant/plaintiff

so as to bind the respondent/Sh.Ganga Vishan. The suit for specific

performance was accordingly dismissed on 24.04.2003 by the learned

trial court.

8. The appellant/plaintiff feeling aggrieved by the said judgment and

decree preferred RCA No.38/2003 which was also dismissed by the first

appellate court holding that Sh.S.L.Malhotra was not authorized under the

general power of attorney dated 28.02.1985 to have executed an

agreement to sell, power of attorney and receipts regarding the sale of the

suit property by respondent/Sh.Ganga Vishan to the appellant/plaintiff

and whatever limited authority under the general power of attorney was

with Sh.S.L.Malhotra, the same had extinguished with the deed of

revocation of power of attorney dated 20.01.1988 and appointment of

Sh.V.K.Anand as a new attorney vide registered deed of GPA on

20.01.1988. Therefore, the documents executed by Sh.S.L.Malhotra in

favour of the appellant/plaintiff cannot bind the respondent/Sh.Ganga

Vishan. Accordingly, the first appeal was also dismissed upholding the

finding returned by the trial court.

9. It is in this background that the aforesaid ten questions have been

framed by my learned predecessor.

10. I have gone through these questions as well as heard the learned

counsel for the parties. In my considered opinion, the questions which

have been framed are not questions of law much less substantial

questions of law except question No.10 which is as follows:

'Whether the findings and judgment of learned court below is perverse, not based on evidence, and based only on surmises and conjectures, causing substantial injustice to the appellant?'

11. I feel that it would be appropriate to deal with each of the questions

and pass observations as have been reflected by the two courts below:

(1). Whether the GPA duly executed in favour of the respondent could be held to be cancelled without proof of the deed of cancellation and without proof of the service of alleged notice of cancellation of GPA to the attorney and the appellant/purchaser ?

(5). Whether such copy of GPA dated 28.2.1985 could be read by the learned Additional District Judge without giving the parties an opportunity to lead further evidence and cross-examination on this document ?.

12. The GPA which is sought to be relied upon by the appellant for

setting up a case of specific performance is dated 28.02.1985. The learned

trial court has observed that under this document, no power had been

conferred on Sh.S.L.Malhotra to transact the property for and on behalf of

the respondent/Sh.Ganga Vishan. This finding has been upheld by the

first appellate court. If this document itself did not confer any power to

the attorney to sell the suit property, everything else become

inconsequential, but the fact of the matter remains that the

respondent/Sh.Ganga Vishan has proved the registered notice dated

19.01.1988 (Ex.PW1/4) and revocation of power of attorney vide

revocation deed executed on 20.01.1988 (ExPW1). The very fact that the

document of revocation of power of attorney in favour of

Sh.S.L.Malhotra is duly registered, that in itself, is deemed to be a notice

to the public at large. Apart from this, there is another aspect of the

matter with regard to the proof of the attorney. The basic principle of

proof is that one who asserts must prove. The appellant/plaintiff had filed

a suit for specific performance claiming that Sh.S.L.Malhotra, attorney,

had executed an agreement to sell dated 06.07.1990 in his favour on the

strength of that attorney. Therefore, it was essentially for the appellant to

prove not only the agreement to sell, but also the attorney. The appellant

has not proved that power of attorney by virtue of this agent had the

power to sell the suit property. Only a photocopy thereof has been

produced by him. So far as the respondent is concerned, he has not

disputed the contents of the photocopy of the attorney produced by the

appellant dated 28.02.1985. In the light of the fact that the content of the

attorney dated 28.02.1985 having not been contested by any of the

parties, therefore, the question framed by my learned predecessor as

question No.5 does not arise at all. The parties are not given an

opportunity to fill up a lacuna in their case after the pronouncement of the

order and, if any party, feels aggrieved, it has to move an application

under Order 41 Rule 27 CPC, which, in the instant case, the

appellant/plaintiff has not done. This answers question Nos.1 & 5.

QUESTION NO.2

13. Assuming that an adverse inference is drawn against a person on

account of having not entered into the witness box under Section 114(g)

of the Indian Evidence Act, 1872, that in itself would not entitle the

appellant/plaintiff to a decree of specific performance. The basic dictum

has been affirmati non neganti incumbit probatio i.e. 'one who asserts

must prove' and the appellant has miserably failed to prove his case on

the issue with regard to the agreement to sell dated 06.07.1990 having

been executed validly in his favour by the attorney Sh.S.L.Malhotra when

the attorney did not have the power to execute the same. Issue No.2 is

accordingly answered in the light of the above and even if an adverse

inference is drawn against the respondent, it does not entitle the appellant

to a decree of specific performance.

QUESTION NO.3

14. A perusal of the issue shows that the respondent/Sh.Ganga Vishan

is alleged to have ratified and confirmed the acts of Sh.S.L.Malhotra by

receiving Rs.15,000/- and whether Sh.S.L.Malhtora was competent to

execute the receipt dated 02.03.1987 and agreement to sell dated

06.07.1990.

15. It is contended by the learned counsel for the appellant that even if

for the sake of argument, it is assumed that Sh.S.L.Malhotra was not

competent to sell the suit property, but the very fact that

respondent/Sh.Ganga Vishan had himself executed the receipt dated

02.03.1987 for a sum of Rs.15,000/- tantamount to confirming and

ratifying all the facts with regard to the sale of the suit property in favour

of the appellant.

16. So far as the aforesaid question is concerned, the answer is to be

found in Dharmarajan & Ors. v. Valliammal & Ors; AIR 2008 SC 850

wherein it has been held that the questions formulated were neither

questions of law nor substantial questions of law and the High Court was

held to be finding out a new case which was not even pleaded and the

high court was entering into appreciation of evidence on the basis of non

existing substantial questions of law and consequently the order of the

High Court was set aside.

17. One of the essential ingredients while deciding a civil case is that

not only a party must plead, but also must prove his case and if there is no

pleading with regard to a particular aspect of the matter, then no amount

of evidence produced or arguments advanced at the stage of final hearing

will be taken cognizance of. In the instant case, the appellant while filing

the suit for specific performance has nowhere pleaded that alternatively

Sh.S.L.Malhotra, even if it is assumed, that he was not competent to

execute the agreement to sell, his actions were ratified by the

respondent/Sh.Ganga Vishan by accepting the amount of Rs.15,000/- and

therefore, there was a validly executed agreement to sell dated

06.07.1990 by Sh.S.L.Malhotra. In the absence of any such pleading, this

argument of the appellant could not be accepted nor could this be treated

as a question of law much less a substantial question of law.

(4). Whether in the circumstances of non proof of a copy of GPA dated 28.2.1985 the learned Additional District Judge could see and read an unproved document (photocopy of GPA) and without comparison with original ?

(7). Whether the learned Additional District Judge could look to this unproved document of photocopy of GPA dated 28.2.1985 to give a finding of fact?

18. These questions have been dealt with while discussing question

Nos.1 & 5. These are all questions of appreciation of evidence and not

questions of law much less substantial questions of law.

19. So far as the last question with respect to the perversity is

concerned, I have been taken by the learned counsel for the parties

through the evidence and I have also satisfied myself with the findings

returned by the two courts below. The case set up of perversity is non-

existent when there is absolutely no evidence in order to return and

support a finding of fact. This answers question No.10 also that there is

no perversity in the finding returned by the first appellate court.

20. In the instant case, it cannot be said that the finding returned by the

two courts below with regard to the factum of Sh.S.L.Malhotra being not