Punjab-Haryana High Court
Sarwan Kumar And Others vs Shingari And Ors on 6 May, 2024
Neutral Citation No:=2024:PHHC:062643
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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RSA-1792-1991
Reserved on: 26.04.2024
Pronounced on: 06.05.2024
2024:PHHC: 062643
SARWAN KUMAR AND OTHERS
. . . . APPELLANTS
Vs.
SMT. SHINGARI THROUGH LRs.
. . . . RESPONDENT
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Argued By:- Mr. P.K. Ganga, Advocate, for the appellants.
Respondent already ex parte.
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DEEPAK GUPTA, J.
1.1 Defendants of the suit are before this Court in this Regular
Second Appeal, against the judgment of first appellate court.
1.2 Civil Suit No.245-C-1984, filed by sole plaintiff Smt. Shingari
(now respondent through her LRs) seeking decree of declaration regarding
suit property against defendants Sarwan Kumar and others (now appellants)
was dismissed by the trial Court vide judgment dated 29.10.1988. However,
appeal (CA N: 39-CA of 1989) filed by said plaintiff - Smt. Shingari was
allowed by the First Appellate Court of ld. Additional District Judge, Sirsa
vide judgment and decree dated 09.08.1989, thus decreeing the suit.
2. Trial Court record has been called and perused. In order to avoid
confusion, parties shall be referred as per their status before the trial Court.
3.1 Plaintiff - Smt. Shingari had executed a registered General
Power of Attorney dated 29.10.1979 (Ex.P3 / Ex.DW3/A) in favour of
defendant No.6 - Giana Ram. As per plaintiff, by way of the said GPA, she
had only authorized Giana Ram to pursue the mutation proceedings and the
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pending litigation. Said Giana Ram was not authorized to sell or transfer the
suit land owned and possessed by the plaintiff. However, based upon the GPA
dated 29.10.1979, said Giana Ram suffered a decree dated 28.03.1984 in
favour of his sons-defendants No.1 to 5 (now appellants) in Civil Suit No.215
of 1984 on the basis of purported family settlement. It was further pleaded by
the plaintiff that GPA dated 29.10.1979 had been canceled by her by way of a
cancellation deed dated 21.04.1984 (Ex.P4) and besides, she had appointed
her husband Birbal to be her GPA. She prayed for a decree of declaration that
she is the owner in possession of the suit land and that judgment and decree
dated 28.03.1984 passed by ld. Sub Judge Ist. Class, Sirsa in Civil Suit
No.215/1984 titled as 'Sarwan Kumar and others Vs. Smt. Shingari through
her attorney Giana Ram', was wrong illegal & void and not binding upon her
rights, being result of fraud and misrepresentation besides the collusion
between defendants No.1 to 5 of this case on the one hand and defendant
No.6-Giana Ram on the other hand.
3.2 The stand taken by the defendants No.1 & 2 in their written
statement was that a legal and valid decree dated 28.03.1984 has been passed
in their favour on the basis of the family settlement and that decree dated
28.03.1984 in their favour had already been passed prior to the cancellation
deed dated 21.04.1984.
3.3 Defendant No.6-Giana Ram in his separate written statement,
also controverted the stand of the plaintiff, denied any fraud and pleaded that
he was holding a valid power of attorney given by the plaintiff regarding the
suit land.
3.4 Following issues were framed for adjudication: -
1. Whether the judgment and decree dated 28.3.84 passed by Sh. B.K.
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Gupta, Senior Sub Judge, Sirsa based on fraud and misrepresentation,
malafide and liable to be set aside as alleged? OPP.
2. Whether the suit has been not properly valued? OPD
3. Whether the suit has been not signed or verified by the plaintiff as
alleged? OPD.
4. Whether the plaintiff has no locus-standi to file the present suit?
OPD.
5. Whether the plaintiff is estopped by her own act and conduct? OPD
6. Whether the suit of the plaintiff is barred by order 23 Rule 3 and 3(A)
of CPC? OPD.
7. Whether the suit is barred by limitation? OPD
8. Whether the alleged decree cannot be repudiated price as alleged?
OPD
9. Whether the suit of the plaintiff is not maintainable in the present
form? OPD(Minor defendant)
10 . Whether the plaintiff has no cause of action to file the present suit?
OPD (Minor defendant).
3.5 Trial Court decided issue No.1 against the plaintiff by holding
that impugned judgment and decree dated 28.03.1984 was valid and devoid of
any fraud or misrepresentation. Issues No.2, 3 & 7 were disposed of as not
pressed for. Issues No.4 & 6 were decided in favour of the defendants. The
finding on issue No.8 was returned in favour of the defendants on account of
finding on issues No.1, 4, 5 & 6. On issue No.9, the suit was held to be not
maintainable. On issue No.10, plaintiff was found to have no cause of action.
Consequent to all these findings, suit was dismissed on 29.10.1988.
3.6 In the appeal filed by the plaintiff, although the First
Appellate Court held that a valid GPA dated 29.10.1979 was executed by the
plaintiff-Smt. Shingari in favour of defendant No.6-Giana Ram and that the
same was cancelled on 21.04.1984, whereas judgment and decree in favour of
defendants No.1 to 5 had already been suffered by Giana Ram on 28.03.1984
in Civil Suit No.215 of 1984, but at the same time, held that by way of the
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GPA dated 29.10.1979 (Ex.P3), Giana Ram was not given the authority to
transfer the land in favour of his sons or anybody else by suffering a decree.
With this finding on the main controversy, the judgment and decree of the trial
Court was set aside. Suit was decreed. Plaintiff was held to be owner in
possession of the suit land.
4. Assailing the aforesaid judgment and decree passed by the First
Appellate Court, it is contended by ld. counsel before this court that plaintiff
Smt. Shingari closely related to defendant No.6-Giana Ram, executed GPA in
his favour and that during the subsistence of that power of attorney, Giana
Ram had entered into many transactions on behalf of plaintiff-Smt. Shingari
and incurred expenses and liabilities and therefore, there was nothing
unnatural or illegal in case, said Giana Ram suffered decree on behalf of
plaintiff Smt. Shingari in favour of his sons i.e. the appellants. Ld. counsel
contends that finding of the First Appellate Court to the effect that Smt.
Shingari had not authorized Giana Ram to suffer the decree, is based on
surmises and conjectures and not warranted under law. Prayer is made to set
aside the judgment and decree of the First Appellate Court and to restore that
of the trial Court and to dismiss the suit of plaintiff, by accepting this appeal.
5. During pendency of this appeal, as respondent No.2-Giana Ram
expired and his LRs were already on file, so, his name was deleted vide order
dated 16.03.2023. LRs of respondent N:1-plaintiff were also brought on
record.
6. Ld. counsel appearing for the respondent-plaintiff has drawn
attention of this Court towards registered power of attorney dated 29.10.1979
(Ex.P3) so as to contend that Giana Ram was never authorized by the plaintiff
to transfer her property in favour of anybody by suffering a decree. His further
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contention is that for the sake of arguments, even if it is assumed that general
powers had been given to Giana Ram to deal with the suit land belonging the
plaintiff, the land belonging to plaintiff-Smt. Shingari being herself occupied
property in her hands, no right or title could be created in favour of the
defendants-appellants, without registration. Prayer is made for dismissal of
the appeal.
7. I have considered submissions of both the sides and have
appraised the record.
8. Execution of GPA dated 29.10.1979 (Ex.P3) by plaintiff-Smt.
Shingari in favour of defendant No.6-Giana Ram is not in dispute. Although
later on, Smt. Shingari canceled this deed by way of a registered cancellation
deed dated 21.04.1984 (Ex.P4), but the impugned judgment and decree dated
28.03.1984 in Civil Suit No.215/1984 had already been passed, as suffered by
Giana Ram on behalf of Smt. Shingari-plaintiff in favour of his sons-
defendants No.1 to 5/appellants and as such, the cancellation deed Ex.P4 will
not in itself have any effect upon the decree dated 28.03.1984.
9. However, the question is as to whether Giana Ram was
authorized to transfer the suit property belonging to Smt. Shingari by suffering
the decree in favour of his sons by way of GPA dated 29.10.1979.
10. A perusal of the GPA dated 29.10.1979 (Ex.P3) would reveal
that Smt. Shingari was in litigation regarding her property with her paternal
uncle-Devi Lal. She had appointed Giana Ram to be her General Attorney so
as to deal with the mutation proceedings pertaining to the partition of the joint
land, to move necessary application in this regard, get the mutation attested, to
sell or to get the land cultivated, to pay the land revenue or to do necessary
pairavi of the litigation and to appoint lawyers etc.
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11. No doubt that the words 'bay' i.e. to sell is specifically
mentioned in the GPA (Ex.P3), which means that Giana Ram was authorized
even to sell the suit land belonging to Smt. Shingari, but by suffering the
decree dated 28.03.1984 (Ex.P1 & P2), Giana Ram did not sell the land and
rather, he transferred the suit land in favour of his sons by admitting some
purported family settlement. The word 'sale' is defined under Section 54 of
the Transfer of Property Act, 1882 to mean transfer of ownership in exchange
for a price paid or promised or part paid and part promised. Besides, such
transfer in case of tangible immoveable property of the value of `100 and
upwards can be made only by registered instrument.
12. In the present case, by suffering the decree dated 28.03.1984 in
favour of his sons, on the basis of purported family settlement on behalf of
Smt. Shingari, Giana Ram transferred the property but did not sell it because,
suffering of the said decree, did not amount to sale. Had it been a sale, there
must have been some sale consideration, which is not so. The contention of ld.
counsel for the appellants to the effect that Giana Ram had to bear expenses
and liabilities, while dealing with the money transactions on behalf of Smt.
Shingari, is not based on any cogent evidence.
13. Apart from above, the suit property, in the hands of plaintiff-
Smt. Shingari, being a female, was non-ancestral in her hands, in which
defendants No.1 to 5-appellants i.e. sons of Giana Ram did not have any
antecedent right or title. As such, no transfer/alienation, by whatever mode,
could be made, without getting the transaction registered in accordance with
law.
14. Consequent to the aforesaid discussion, it is held that ld. First
Appellate Court did not commit any error in holding that judgment and decree
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dated 28.03.1984 passed in Civil Suit No.215 of 1984, as suffered by Giana
Ram, acting as GPA of Smt. Shingari, in favour of defendants No.1 to 5-
appellants, is null and void and not binding on the rights of the
plaintiff/respondent-Smt. Shingari. Ld. First Appellate Court has rightly
decreed the suit. This Court does not find any illegality in the said well
reasoned judgment passed by the First Appellate Court so as to call for any
interference.
As such, present appeal is hereby dismissed with costs.
(DEEPAK GUPTA)
06.05.2024 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether reportable? No
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