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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, J.
Shri Teja Singh – Appellant
Vs.
Shri Daulat Ram and others – Respondents
RSA No. 105 of 2002
Decided On : 30.5.2014
REGULAR SECOND APPEAL - [KEYWORD] - SALE DEED - [SUBJECT] - SECTION 100 OF THE CODE OF PROCEDURE - [ACT SECTION LIST] - THIS REGULAR SECOND APPEAL, UNDER SECTION 100 OF THE CODE OF PROCEDURE, HAS BEEN PREFERRED BY THE DEFENDANT NO.3 -APPELLANT AGAINST JUDGMENT AND DECREE DATED 1.12.2001 PASSED BY LEARNED DISTRICT JUDGE, KULLU IN CIVIL APPEAL NO.26/2000, WHEREBY HE AFFIRMED THE JUDGMENT AND DECREE DATED 31.12.1999 PASSED BY LEARNED SENIOR SUB JUDGE, KULLU IN CIVIL SUIT NO.198 OF 1992. [SUMMARY]
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement to sell the suit property in his favour and to declare the sale deed executed in favour of defendant No.3 and subsequent sale deed executed by defendant No.3 in favour of defendants No.5 to 10 as null and void. The defendant No.3 resisted the suit by filing a written statement and claiming that he was a bonafide purchaser for consideration and without notice of the alleged agreement to sell. The defendants No.5 to 10 also filed a written statement and claimed that they were bonafide purchasers for consideration and without notice of the alleged agreement to sell.
Finding of the Court:
The trial court decreed the suit of the plaintiff and directed defendants No.1 or 2 to execute a registered sale deed in his favour on receipt of the balance sale consideration, and declared the sale deed executed in favour of defendant No.3 and subsequent sale deed executed by defendant No.3 in favour of defendants No.5 to 10 as null and void. The lower appellate court affirmed the judgment and decree passed by the trial court. Aggrieved by the judgment and decree passed by the lower appellate court, the defendant No.3 preferred an appeal before the High Court.
Issues: 1. Whether the defendant No.1 executed a valid general power of attorney dated 3.4.1991 in favour of the defendant No.2, Kamal Singh, as alleged? 2. Whether defendant No.1 through his attorney defendant No.2 Kamal Singh executed agreement dated 19.4.1992 to sell the suit property in favour of the plaintiff for consideration of Rs.40,000/-, as alleged? 3. Whether the defendant No.1 through his attorney defendant No.2 Kamal Singh received earnest money of Rs.25,000/- at the time of execution of the agreement dated 19.4.1992? 4. Whether the defendant No.1 executed a valid general power of attorney dated 25.5.1992 in favour of defendant No.4 Gurdial Singh? 5. Whether the sale deed dated 26.5.1992 by defendant No.4 Gurdial Singh as attorney of Bhup Singh defendant No.1 in favour of defendant No.3, Shri Teja Singh is null and void, as alleged? 6. Whether the subsequent sale deed dated 14.7.1992 by defendant No.3, Teja Singh in favour of defendants No.5 to 10 is null and void, as alleged? 7. Whether the defendant No.3 Teja Singh was not competent to sell the specific portion of the suit land in favour of the defendants No.5 to 10? 8. Whether the defendants No.5 to 10 are bonafide purchasers for consideration without notice? If so, to what effect? 9. Whether the defendant No.3 Teja Singh is bonafide purchaser for consideration without notice? If so, its effect?
Ratio Decidendi: The High Court held that the presumption of truth to a registered document under Section 60 of the Registration Act was rebuttable and had to be evaluated in light of the overall facts and circumstances and evidence led by the parties. The court found that the defendant No.3 had not placed anything on record to prove that he was a bonafide purchaser and purchased the property of an ostensible owner. The court also found that the defendants No.5 to 10 had not even questioned the judgment and decree passed by the trial court, which had attained finality against them. The court dismissed the appeal and affirmed the judgments and decrees passed by the courts below.
Final Decision: The appeal was dismissed and the judgments and decrees passed by the courts below were affirmed.
Tarlok Singh Chauhan, J.
This Regular Second Appeal, under Section 100 of the Code of Procedure, has been preferred by the defendant No.3 -appellant against judgment and decree dated 1.12.2001 passed by learned District Judge, Kullu in Civil Appeal No.26/2000, whereby he affirmed the judgment and decree dated 31.12.1999 passed by learned Senior Sub Judge, Kullu in Civil Suit No.198 of 1992.
2. Briefly stated the case of the plaintiff is that defendant No.1 Shri Bhup Singh alias Bhupal Singh was the owner in possession of the suit land/property as per detail given below:-
i) Land measuring 0-6-0 bigha, being 3/35 share of land measuring 3-14-0 bighas comprised in khasra No.13 and 18 of khata/khatauni No.91/107.
ii) Land measuring 0-1-0 bigha being 5/42 share of land measuring 0-8-0 bigha comprised in khasra No.146 of khasta khatauni No.92/108
iii) Land measuring 3-2-0 bighas being 1/7 share of land measuring 21-12-0 bighas comprised in khasra No.l9, 19, 30, 33, 187, 109, 191, 205 and 223 numbering 9, khata/khatauni No.93/109
iv) Land measuring 0-3-0 bigha being 2/45 share comprised in khasra No.115, 116, 119, 121, 122, 118, 120 numbering 8 measuring 3-18-0 bighas of khata khatauni No.94/110 and 111.
v) Land measuring 0-2-0 bigha being 1/15 share of land measuring 1-16-0 bighas comprised in khasra No.198, khata/khatauni No.95/112. Incorporated in jamabandi for the year 1987-88 of Phati Ratwah, Kothi Manglore, Tehsil Banjar, District Kullu.
vi) 1/7 share in 2½ storeyed slate roofed residential house measuring 50 ‘x31’ standing on khasra No.190 of khata khatauni No.93/109 known as ailada shown in annexure ‘A’ attached with the plaint by letters A B C D with threshing floor appurtenant thereto shown by letters HIJK.
vii) 1/7 share of 1½ storeyed slate roofed/padaghha (Agricultural house standing on khasra No.190 which is shown by letters E F G H in the site plan Annexure ‘A’
viii) 1/7 share of 2½ storeyed slate roofed residential house standing on khasra No.33 of khata/khatauni No.93/109 supra alongwith threshing floor appurtenant to the aforesaid house, which house is shown by letters A B C D in the site plan Annexure ‘B’ and threshing floor is shown by letters E F G H in annexure ‘B’
3. The plaintiff is also joint owner in possession of the suit property/land. It was averred that defendant No.1 Shri Bhup Singh alias Bhupal Singh had appointed defendant No.2 Shri Kamal Singh as his general attorney to look after and manage his all property, including suit land vide registered General Power of Attorney dated 3.4.1981, whereunder said general attorney was competent and authorised to sell the suit/property. In his capacity as general attorney, defendant No.2 was managing and looking after the property of defendant No.1.
4. It was further averred that defendant No.1 Shri Bhup Singh alias Bhupal Singh, through his general attorney, defendant No.2 entered into an agreement to sell the suit property in favour of the plaintiff for a sale consideration of Rs.40,000/- vide agreement to sell dated 19.4.1992. At that time, a sum of Rs.25,000/- was paid to defendant No.1 through his general attorney towards part satisfaction of the sale consideration as earnest money and vide the aforesaid agreement to sell, defendant No.1 had agreed to transfer the suit property in favour of the plaintiff by way of sale deed to be executed on or before 25.6.1992 on receipt of balance sale consideration of Rs.15,000/- after deduction of the subsisting amount of mortgage with respect to the suit land comprising in khata No.94. He was through-out ready and willing to perform his part of contract and is still ready to perform his party of contract. On 24.6.1992, he approached Kamal Singh, defendant No.2 and asked him to execute the aforesaid sale deed as per agreement and at that time, he had told that he would come for execution and registration of the required sale deed on 25.6.1992. On his such representation/assurance, plaintiff went to the office of the Sub Regi
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