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2015 Supreme(HP) 959
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Thakur Dass - Appellant.
Versus
Uma Devi & ors. - Respondents
RSA No. 305 of 2014
Decided on : 27.8.2015
Advocate Appeared:
For the appellant :Mr. J.L. Bhardwaj, Advocate.
For the respondents:Mr. Sunil Mohan Goel, Advocate, for respondent No.1.
Mr. Debinder Ghosh, Advocate, for respondent No. 3.
The main legal point established is the interpretation of the authority granted in a General Power of Attorney and its implications on the validity of a sale deed executed during its subsistence.
Headnote:
Fraud - Property Dispute - [Transfer of Property Act, Section 8, Section 53A, Section 54] - The court discussed the validity of a sale deed executed during the subsistence of a General Power of Attorney. It interpreted the authority granted in the General Power of Attorney and determined the bonafide purchase of the property by the defendant. The court affirmed the judgments and decrees passed by both the lower courts.
Fact of the Case:
The plaintiff filed a suit for declaration and injunction against the defendants, claiming ownership of a land and alleging fraud in the sale deed executed by defendant No. 2 during the subsistence of a General Power of Attorney.
Finding of the Court:
The court found that the defendant No. 1 was a bonafide purchaser of the property and that the sale deed executed during the subsistence of the General Power of Attorney was valid.
Issues: The issues revolved around the ownership of the property, the validity of the sale deed, and the authority granted in the General Power of Attorney.
Ratio Decidendi: The court held that the authority granted in the General Power of Attorney allowed the defendant No. 2 to execute the sale deed, making the sale valid. The court also emphasized the lack of disclosure regarding the mortgage of the property by the plaintiff.
Final Decision: The appeal was dismissed, and the judgments and decrees passed by both the lower courts were affirmed.
Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned Additional District Judge, Kullu, H.P. dated 5.6.2014, passed in Civil Appeal No. 6 of 2014 (2013).
2. Key facts, necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff), has instituted a suit for declaration and injunction against the respondents-defendants (hereinafter referred to as the defendants), stating therein that he is owner-in-possession of land measuring 162-47 hectares, being 160/1320 shares out of total land measuring 1340-39 hectares comprised of Kh. No. 999, 1232, 1233, 1234, 1235 and 1238 Khata and Khatoni No. 141/222, situated at Muhal Bhajogi Tehsil Manali, Distt. Kullu, H.P. (hereinafter referred to as the suit property. He raised a loan of rupees eight lacs in order to raise construction in the year 2004 from defendant No. 3 i.e. Bank of India. He also mortgaged the suit property in favour of defendant No. 3 in order to secure the loan. The plaintiff appointed his son, defendant No. 2 as General Power of Attorney to look after the construction work and to deal with the labour, mason, carpenter etc. The General Power of Attorney was executed on 11.4.2005. It is alleged that the plaintiff raised double storyed RCC building on the suit land. It was completed in the month of October, 2005. However, during the subsistence of the General Power of Attorney, defendant No.1 in connivance with defendants No. 2 & 3, including the scribe and marginal witnesses got managed the sale deed No. 330 dated 27.7.2006 of the suit land in her favour and got entered mutation No. 59. According to the plaintiff, the sale deed is wrong, illegal and void and not binding upon the plaintiff and liable to be declared as such.
3. The suit was contested by the defendants by filing separate written statements. According to defendant No. 1, the suit property was recorded in the name of plaintiff prior to the sale. The plaintiff sold the suit property to defendant No. 1 vide registered sale deed No. 330 dated 27.7.2006 through his son, defendant No. 2, the General Power of Attorney for a consideration of Rs. 3,12,500/-. The plaintiff never disclosed that the suit property was mortgaged with defendant No. 3. There was no entry in the revenue record in this behalf. There was only dilapidated structure on the suit land, which was completely reconstructed and renovated by the defendant after purchasing the suit property. She was residing in the same with her family. Defendant No. 2 was proceeded ex-parte on 25.5.2007. Defendant No. 3, has admitted that the plaintiff has raised loan of Rs. 8 lacs for the construction and mortgaged the suit land with the defendant No. 3.
4. The replication was filed by the plaintiff. The learned trial Court framed the issues on 7.11.2011. The suit was dismissed vide judgment dated 18.3.2013. The plaintiff, feeling aggrieved, preferred an appeal against the judgment and decree dated 18.3.2013. The learned Additional District Judge, Kullu, dismissed the appeal on 5.6.2014. Hence, this regular second appeal.
5. Mr. J.L.Bhardwaj, Advocate, for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have misread the documentary as well as the oral evidence placed on record. According to him, sale deed Ext. DW-1/B was the outcome of fraud. He also argued that defendant No. 1 was not given authority to sell the suit property. The findings recorded by the learned Courts below that defendant No. 1 is the bonafide purchaser are wrong. The defendant No. 2 was not authorized to sell the suit land, including the house. On the other hand, Mr. Sunil Mohal Goel and Debinder Ghosh, Advocates for the respective respondents have supported the judgments and decrees passed by the Courts below.
6. I have heard the learned Advocates for the parties and gone through the judg
