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2019 Supreme(SC) 1027
SUPREME COURT OF INDIA
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, AJAY RASTOGI, JJ.
Ali Hussain(D) Through Lrs. – Appellant
Versus
Rabiya & Ors. – Respondents
CIVIL APPEAL NO(S). 7137 OF 2010
Decided On : 17-09-2019
For the Appellant(s) : Mr. V. K. Sidharthan, AOR
For the Respondent(s): Mr. P. N. Gupta, AOR Mr. R.R. Rajesh, Adv. Mr. Kedar Nath Tripathy, AOR
IMPORTANT POINT
It is not proper, in second appeal, to reverse the concurrent findings of the two courts below.
Headnote:
Code of Civil Procedure, 1908 - Section 100 - High Court, in second appeal, reversing concurrent findings of the two courts below - Not proper. (Para 15)
Facts of the case:
The first respondent-plaintiff filed a suit against the defendant-appellant for cancellation of sale deed dated 10th May, 1995 registered on 22nd May, 1995. According to the plaint, the plaintiff-first respondent Smt. Rabiya inherited the property shown in the schedule of property indicated at the foot of the plaint, from her father late Sri Ahamad and is the owner and in possession of the suit property in question. It was further averred that the impleaded defendants in the suit (defendant nos.1 and 3, Ali Hussain and Abdul Hassan) are the sons of her great grandfather and impleaded defendant no. 2 Smt. Raquiba, is the wife of Ali Hussain (impleaded defendant no. 1).
The impleaded defendant no.1 (appellant) in order to grab the suit property of the plaintiff-respondent, got prepared a forged registered power of attorney, in the name of the plaintiff-first respondent on 25th April, 1995 and on the basis of the forged power of attorney, sold the suit property by a registered sale deed for a consideration of Rs. 1,50,000/- on 10th May, 1995 in favour of defendant nos. 2 and 3 (Smt. Raquiba and Abdul Hassan). According to the plaintiff-first respondent, the sale price of the suit property could not be less than Rs. 3,00,000/-. It is also alleged in the plaint that there is no recital as to who had actually received the sale consideration and she is in actual possession of the suit property and the forged sale deed was never acted upon. It was prayed for the decree for cancellation of power of attorney and the sale deed obtained by playing fraud.
The trial Judge, after hearing the parties and considering the evidence on record, dismissed the suit filed by the plaintiff-first respondent vide judgment and decree dated 19th January, 2001 which was further assailed at the instance of the plaintiff-first respondent in first appeal which was dismissed.
The High Court, in second appeal, remitted the matter back to the trial Judge to decide the suit afresh.
Finding of the Court:
High Court should not have reversed concurrent findings of the two courts below.
Result: Appeal allowed.
JUDGMENT :
Rastogi, J.
1. This appeal is directed against the judgment and decree dated 18th August, 2008 passed by the High Court of Uttarakhand in Second Appeal No. 1341 of 2001.
2. The facts in brief are that the first respondent-plaintiff filed a suit against the defendant-appellant for cancellation of sale deed dated 10th May, 1995 registered in Sub-Registrar Office, Jagadari, Roorkee on 22nd May, 1995. According to the plaint, the plaintiff-first respondent Smt. Rabiya inherited the property shown in the schedule of property indicated at the foot of the plaint, from her father late Sri Ahamad and is the owner and in possession of the suit property in question. It was further averred that the impleaded defendants in the suit (defendant nos.1 and 3, Ali Hussain and Abdul Hassan) are the sons of her great grandfather and impleaded defendant no. 2 Smt. Raquiba, is the wife of Ali Hussain (impleaded defendant no. 1).
3. It was averred in the plaint that the impleaded defendant no.1 (appellant) in order to grab the suit property of the plaintiff-respondent, got prepared a forged registered power of attorney, in the name of the plaintiff-first respondent on 25th April, 1995 and on the basis of the forged power of attorney, sold the suit property by a registered sale deed for a consideration of Rs. 1,50,000/- on 10th May, 1995 in favour of defendant nos. 2 and 3 (Smt. Raquiba and Abdul Hassan). According to the plaintiff-first respondent, the sale price of the suit property could not be less than Rs. 3,00,000/-. It is also alleged in the plaint that there is no recital as to who had actually received the sale consideration and she is in actual possession of the suit property and the forged sale deed was never acted upon. It was prayed for the decree for cancellation of power of attorney and the sale deed obtained by playing fraud.
4. Before the trial Court, on the basis of pleadings of the parties, following issues were framed:
1. Whether the sale deed dated 10.05.1995 executed by defendant no. 1 in favour of defendant nos. 2 and 3 is liable to be cancelled on the grounds set in the plaint?
2. Whether the alleged power of attorney dated 25.04.1995 executed by plaintiff in favour of defendant no. 1 is forged document and the plaintiff did not execute the same? If so, its effect?
3. Whether the plaintiff received the sale consideration in respect of sale deed from defendant no. 1 in favour of defendant nos. 2 & 3.
4. Whether the plaintiff is owner and in possession of the property in dispute?
5. Whether the plaintiff is entitled for any relief?
6. Whether after selling the property in dispute to Mohammad Mateen by the plaintiff, the suit rendered infructuous?
7. Whether the suit is barred by principle of estoppel and acquiescence?
8. Whether the suit rendered infructuous in view of the contention raised in para no. 13A of the written statement?
5. Both the parties adduced their oral as well as documentary evidence in support of their defence. The trial Judge, after hearing the parties and considering the evidence on record, dismissed the suit filed by the plaintiff-first respondent vide judgment and decree dated 19th January, 2001 which was further assailed at the instance of the plaintiff-first respondent in first appeal which was dismissed vide judgment and decree dated 27th August, 2001, further assailed in second appeal before the High Court of Uttarakhand.
6. It may be relevant to note that at the time of admission of second appeal, the High Court admitted the appeal on the following substantial questions of law:-
1. As to whether both the courts below were justified placing burden of proof on the plaintiff/appellant to prove negative fact that power of attorney is not executed by her?
2. Whether burden/onus of proof lies on the transferee when transferor totally denies execution of the deed by himself? If so, its effect?
7. The High Court after hearing the parties proceeded on the premise that the plaintiff-first respondent was the pardanashe
