Ashok Kumar Jain and Another vs Bharosilal (since dead) through L.Rs. and Others

Rohit Arya, J.—This second appeal by defendants u/s 100 of CPC is directed against the judgment and decree dated 17th March, 2004 passed by 2nd Additional District Judge, Shivpuri in Civil Appeal No. 19-A/2002 confirming the judgment and decree dated 30/1/2002 passed by 3rd Civil Judge, Class-II, Shivpuri in Civil Suit No. 12-A/2001. Plaintiffs'' suit for declaration and permanent injunction has been decreed by the learned trial Court by the impugned judgment and decree.

Facts necessary for disposal of this appeal are to the effect that there is a house of plaintiffs'' ownership and possession in Indira Colony, Shivpuri, Ward No. 25. Plaintiffs had purchased the suit house by a registered sale deed dated 3/1/1984 from one Narayan Singh and since then they are exclusive owner and possession holder of the suit house. The house was purchased in the name of plaintiffs No. 2 and 3 who were minors at that time by their father plaintiff No. 1-Bharosilal. Bharosilal since was a simple person, therefore, taking advantage of his simplicity, defendant No. 2- Ashok Kumar Jain involved him in a partnership business of oil mill and it appears to be purportedly agreed between two that machinery of oil mill were to be installed by Bharosilal and capital that of by Ashok Kumar Jain, and therefore, to secure the capital, defendant No. 2 got a power of attorney of Bharosilal executed in favour of defendant No. 1. Defendants No. 1 and 2 are closed friends. This power of attorney was executed on 30/11/1992 giving complete rights to defendant No. 1 to deal with the suit house including power to transfer the title thereof defendant No. 1, despite the fact that there was no need or circumstance for selling of the suit house, get a sale deed executed as late as on 13/1/1997 in favour of defendant No. 2. Plaintiffs No. 2 and 3 upon attaining majority in the year 1996, served a notice by post on 13/1/1997 to defendant No. 1 for cancellation of power of attorney and also orally communicated the same thing to defendant No. 2. The defendants No. 1 and 2 despite having the knowledge of cancellation of the power of attorney and there being no need or circumstance of selling the suit house, the defendant No. 2 in collusion with defendant No. 1 got a sale deed executed on 24/1/1997 on the strength of cancelled power of attorney. No prior consent of Bharosilal or plaintiffs who had attained majority, had been taken by the defendant No. 2 while executing the sale deed in respect of the suit house. Hence, the suit was filed for declaration that the alleged sale deed is null and void in relation to the plaintiffs'' suit house with consequently reliefs.

Defendants filed written statement denying the plaint allegations. It is inter alia submitted that plaintiffs are not the owner and in possession of the suit house. It is denied that the power of attorney executed on 30/11/1992 was cancelled or any notice of its cancellation was served to defendant No. 1. Defendant No. 2 has acquired title and possession over the suit land by virtue of sale deed dated 24/1/1997. It is further denied that the power of attorney was cancelled on 13/1/1997. It is submitted that defendants have acquired title over the suit house by virtue of sale deed dated 27/1/1997 upon payment of entire consideration amount of Rs. 1,50,000/-. In fact initially also on 30/11/1992 an agreement was executed in between plaintiffs and defendant No. 2 in relation to suit house for a consideration of Rs. 1,90,000/- and plaintiff No. 1 has also received Rs. 1,75,000/-. Thereafter, this agreement was got renewed on 28/4/1994. Thereafter, vide another sale deed dated 9/8/1996, a portion of the suit house was sold by plaintiffs by execution of a registered sale on a consideration of Rs. 50,500/- in favour of defendant No. 2 and pursuant thereto possession was also delivered. The remaining amount of Rs. 15,000/- was paid at the time of execution of sale deed on 24/1/1997. Hence, it was prayed that suit be dismissed.

Based upon the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. The trial Court has recorded the finding to the effect that the registered power of attorney dated 30/11/1992 was cancelled on 13/1/1997; hence, no right, title or interest has accrued in favour of defendant No. 1 by virtue of alleged sale deed dated 24/1/1997 executed by defendant No. 2 as power of attorney at the relevant time was null and void and accordingly it is held that plaintiffs are entitled for bringing injunction against defendants not to interfere with their possession.

On appeal, the first appellate Court has re-appreciated the entire evidence on record and it is found that though it is not established that defendant No. 2 was noticed at the time of cancellation of power of attorney dated 30/11/1992 on 13/1/1997; however, they (defendants) were having the knowledge that plaintiffs No. 2 and 3 have already attained majority in year 1996. In view of the aforesaid facts and circumstances it has been held that once defendants No. 1 and 2 had the knowledge that plaintiffs No. 2 and 3 have already attained majority in the year 1996, impugned sale deed dated 24/1/1997 could not have been effected by the power of attorney holder defendant No. 1, which was executed by plaintiff No. 1 while the plaintiffs No. 2 and 3 were minors. Hence, the impugned sale deed dated 24/1/1997 has been found to be null and void. Secondly; plaintiffs were held entitled for protection of mandatory injunction against the defendants not to interfere in their rights to suit house. With the aforesaid findings, the first appellate Court has confirmed the judgment and decree passed by trial Court.

On appeal before this Court, the contentions advanced by the learned counsel for the respondents/plaintiffs are to the effect that due to non-communication of cancellation of power of attorney, the power of attorney cannot be said to have been revoked and therefore, the sale deed executed on 24/1/1997 on the strength of aforesaid power of attorney was good in law can not be countenanced as is evident from record that father of plaintiffs No. 2 and 3 had purchased the suit house in the name of plaintiffs No. 2 and 3 (who were minors at that time) vide registered sale deed dated 3/1/1984. Defendants No. 1 and 2 are found to be close friends. Defendant No. 2 Ashok Kumar Jain asserted himself with Bharosilal (plaintiff No. 1) in a business of oil mill. Bharosilal was required to contribute in terms of machinery etc whereas defendant No. 2 was required to contribute in terms of capital. Since, Bharosilal was a simple person, defendant No. 2 with an oblique motive managed a power of attorney executed by Bharosilal in favour of defendant No. 2 in respect of suit house to deal with it. This was done purportedly under the garb of seeking security of the capital invested by defendant No. 2 in the joint business. Defendants No. 1 and 2 had knowledge that plaintiffs No. 2 and 3 have attained majority in year 1996 and therefore, a sale deed was got executed by them in respect of part of the suit house independently. In view of the aforesaid, the fact that the power of attorney which was executed in favour of defendant No. 1 while the plaintiffs No. 1 and 2 were minor, could not have been used to execute the sale deed on 24/1/1997 in favour of defendant No. 1 as regards part of the suit house. Therefore, even assuming that notice as regards cancellation of power of attorney was not found to have been given to defendants No. 1 and 2 which in fact was cancelled on 13/1/1997, this by itself cannot justify sustenance of the power of attorney dated 30/11/1992 to be used by defendant No. 2 in collusion with defendant No. 1 to the grave prejudice of plaintiffs No. 2 and 3 by executing the alleged sale deed in favour of defendant No. 2 in respect of suit house.

In view of the aforesaid, no question of law much less substantial question of law arises in this appeal warranting interference in the judgments impugned passed by Courts below. Entire gamut of the matter is in the realm of facts. Both the Courts below have recorded pure findings of facts based on oral and documentary evidence on record. Appeal sans merits is hereby dismissed. However, it is held that defendants are always free to take course of law for refund of amount, alleged to paid for execution of sale deed dated 24/1/1997.