Suppression of material facts can disentitle a party to discretionary relief.

DARSHAN SINGH, J.

CM No. 12676-C of 2014

This application has been filed under Section 151 of the Code of Civil Procedure, 1908, for condonation of delay of 39 days in refiling the appeal.

Heard.

In view of the reasons mentioned in the application, the application stands allowed and the delay of 39 days in re-filing the present appeal is hereby condoned.

RSA No. 5362 of 2014(O&M)

The present appeal has been preferred against the judgment and decree dated 05.03.2014 passed by learned Additional District Judge, Gurdaspur, whereby the appeal filed by the appellant-plaintiff against the judgment and decree dated 16.12.2010 passed by the learned Additional Civil Judge (Sr. Division), Gurdaspur, has been dismissed.

2. For the sake of convenience, the status of the parties is being mentioned as in the original suit.

3. The appellant-plaintiff has filed the suit for declaration to the effect that he is co-owner in joint possession to the extent of 1/ 3rd share in the suit land measuring 132 Kanals 2 Marlas as detailed and described in the head note of the plaint situated in the revenue estate of village Rania, Tehsil and District Gurdaspur and the sale deed dated 09.03.1998 alleged to have been executed by defendant no.1 on behalf of the plaintiff in favour of his grandsons (defendants no.2 to 5) is illegal, null and void, without any consideration and is a result of fraud and misrepresentation, which is not binding on the rights of the plaintiff and the power of attorney dated 20.10.1997 alleged to have been executed by the plaintiff in favour of defendant no.1 is the result of fraud and misrepresentation.

4. As per averments in the plaint, the plaintiff and his brother-defendant no.1 and defendants no. 6 to 12 are co-owners in the suit land to the extent of 1/ 3rd share each. The plaintiff also owns the land in village Aghapur, Tehsil and District Bharatpur (Rajasthan) along with defendant no.1, which they have purchased in the year 1971. The plaintiff was residing in village Aghapur (Rajasthan) and was not residing in village Rania, therefore he authorized his brother-defendant no.1 to look after his land. On 20.10.1997, he agreed to execute the special power of attorney in favour of defendant no.1, but he dishonestly and fraudulently got executed the general power of attorney in collusion with scribe and attesting witnesses. It is further pleaded that defendant no.1 with fraudulent intention executed the sale deed on 09.04.1998 of the share of the plaintiff in favour of defendants no.2 to 5 on the basis of said power of attorney for a nominal sale price of Rs.2,18,000/-, whereas the value of the land was more than Rs.5 lacs per acre. Hence this suit.

5. Defendants no.1 to 5 contested the suit on the grounds inter alia that the plaintiff and defendant no.1 were co-sharers in the land at village Aghapur (Rajasthan). The said land was in possession of the plaintiff and the land situated at village Rania was in possession of defendant no.1. With a mutual consent they agreed to exchange their land. The suit land was given to defendant no.1. He left his share in the land situated at village Aghapur (Rajasthan) in favour of the plaintiff. Defendant no.1 also agreed to pay Rs. 7 lacs to the plaintiff. Rs. 2000/- were paid on the same day. Subsequently, the remaining amount was also paid. The plaintiff has also executed an agreement to sell in favour of the defendant dated 20.10.1997. So, he was left with no right, title or interest in the suit land. Therefore, amended power of attorney and sale deed are the legal documents.

6. Appellant-plaintiff filed the replication to the written statement of defendants. From the pleadings of the parties, the following issues were framed by the learned trial Court vide order dated 25.09.2004:-

1. Whether the plaintiff is entitled to declaration with consequential relief of injunction as prayed for? OPP

2. Whether the plaintiff has no locus standi to file the present suit? OPD

3. Whether the suit is not mai