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High Court Of Himachal Pradesh
KAMLESH SHARMA
DALUMBI DEVI - Appellant
Versus
S.B.RAGHU RAJ - Respondent
Regular Second Appeal No. 400 of 1998
Decided On : 12/13/2001
charge holder - Property Dispute - Section 100 C.P.C. - Section 100 of the Transfer of the Property Act - Power of Attorney - Charges - Mortgage - Registered Document - Intention of Parties - Possession of Land - Reimbursement of Expenses
Fact of the Case:
The case involved a property dispute where the original plaintiff claimed possession of the land in dispute as a charge holder and sought reimbursement for expenses incurred on the land's improvement and the maintenance of the original defendant and her parents. The original defendant and her legal representatives contested the claim, denying the existence of the alleged agreements and the plaintiff's right to possession.
Finding of the Court:
The trial court decided against the plaintiff on several issues but found him in possession of the land. The District Judge affirmed these findings. The appellate court admitted the appeal on substantial questions of law related to the creation of a charge on the property, the admissibility of the power of attorney as a charge, and the sustainability of the lower court's findings.
Issues: The issues included the plaintiff's possession, charge/lien over the property, entitlement to injunction, validity of the agreements, cause of action, proper valuation of the suit, and the defendant's possession and entitlement to relief.
Ratio Decidendi: The court held that the power of attorney did not create a charge on the property, as there was no clear intention to do so, and the document was registered as a general power of attorney. The court also emphasized the distinction between charges and mortgages, requiring a registered instrument for charges over Rs. 100. The court rejected the plaintiff's claim for an irrevocable agency interest and upheld the lower court's findings on possession and charge creation.
Final Decision: The court found no merit in the appeal and rejected it, affirming the lower court's decision.
2. The suit filed by the original plaintiff Puran Chand was for declaration that he was in possession of the land in dispute as charge holder and he could not be dispossessed therefrom until the amount spent by him on the improvement thereof and the maintenance of original defendant No.2 Smt. Chandoo and her parents, was reimbursed to him. He had also prayed for decree for permanent prohibitory injunction restraining the defendants from interfering in his possession till the money spent by him on aforesaid two counts was paid to him. The basis of claim of Puran Chand was Power of Attorney Ext. PW3/A dated 26.10.1974 and agreement dated Ext.PW3/B dated 28.10.1974, which were allegedly executed by Smt. Chandoo in his favour. According to him, he has spent a amount of Rs. l lac on the maintenance of Smt. Chandoo and her parents and another sum of Rs.50,000/- on the improvement of the land in dispute, which was charge on it, as such, she could not have sold the land in dispute in favour of Raghu Raj for a sum of Rs.70,000/- vide registered sale deed dated 29.12.1988, which was done surreptitiously.
3. The suit was contested by the defendants by filing common written statement. As per them, by taking undue advantage of the illiteracy and simplicity of Smt. Chandoo, Puran Chand got executed Power of Attorney in his favour for the management of the suit property, but the execution of the agreement in respect of maintenance of Smt. Chandoo and her parents or for improvement of the land in dispute by Puran Chand, was denied. In the alternative it was alleged that the said agreement being not registered was inadmissible in evidence and was of no avail. It was specifically denied that Puran Chand had in fact maintained Smt. Chandoo and her parents and made improvement over the land in dispute. As per them, possession of the land in dispute was handed over to defendant No.l by Smt. Chandoo at the time of its sale in December, 1988. In the alternative, if it was found that Puran chand was in possession of the land in dispute, decree for possession was prayed by the defendants by filing counter claim.
4. In the written statement to the counter claim, Puran Chand had reiterated that he was in possession of the land in dispute and defendant No. 1 was not entitled to the relief of possession.
5. On the pleadings of the parties, following issues were framed:
1. Whether the plaintiff is in exclusive possession of the suit land, as prayed? OPP .
2. Whether the plaintiff has charge/lien over the suit property as alleged? If so, to what effect? OPP.
3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? OPP.
4. Whether the agreement dated 28.10.74, has been procured by misrepresentation and was against the interest of defendant, as alleged? OPD.
5. Whether there is no cause of action? OPD
6. Whether the suit is not properly valued? OPD.
7. Whether the defendant No.l, is in exclusive possession of the suit property, as prayed? OPD.
8. If issue No.7 is not proved in affirmative, whether defendant No. 1, is entitled for the relief of mandatory injunction, as prayed? OPD.
9. Relief.
6. On the basis of
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