Meena Kumari and Others vs Duglu and Others

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree dated 31.7.2013 rendered by Additional District Judge, Mandi in Civil Appeal No. 100 of 2012.

"Key facts" necessary for the adjudication of this Regular Second Appeal are that appellants-plaintiffs (hereinafter referred to as the "plaintiffs" for convenience sake) filed a suit against the respondents-defendants (hereinafter referred to as the "defendants" for convenience sake) for declaration, possession and consequential relief of injunction. According to the plaintiffs, subject matter of the suit land is comprised in Khata No. 240/23, Khatauni No. 366, Khasra No. 1173/837 area measuring 0-1-0 bighas situated in Mauja Takoli/510, Sub Tehsil Aut, District Mandi. According to the plaintiffs, suit land was recorded in the name of Jagdish Kumar, husband of plaintiff No. 1. The property was given by Jagdish Kumar to the plaintiffs in lieu of compromise in an application under section 125 of the Code of Criminal Procedure. The compromise was effected on 10.1.1994 in case No. 12-IV/93 in the court of learned Chief Judicial Magistrate, Mandi. They had presented the compromise order before the Halqua Patwari for attestation of mutation. The order of learned Chief Judicial Magistrate has not been implemented by the Patwari. The plaintiffs had also filed an application before the Deputy Commissioner, Mandi. It was marked to Naib Tehsildar, Aut. Naib Tehsildar has illegally registered sale deed No. 77 dated 8.4.2004 on the basis of alleged power of attorney. After the execution of the sale deed, they came to know that power of attorney was obtained from Jagdish Kumar by playing fraud upon him. The plaintiffs had also instituted similar suit on the same cause of action, but due to some technical defects, they had to withdraw the same with liberty to file fresh suit. Cause of action accrued to them on 6.4.2004.

The suit was contested by defendants No. 1 to 3. According to defendants No. 2 and 3, they were bona fide purchasers. They had verified the title of Jagdish Kumar and purchased the suit property after due verification and the area of Khasra No. 1173/837 was 0-15-1 bighas. They have also pointed out the variance in the measurement of the area they have purchased. They have denied that the land was given to the plaintiffs in lieu of compromise in application under section 125 of the Code of Criminal Procedure. It is also denied that plaintiffs have constructed two shops after taking possession of the suit land. It is also denied that plaintiffs have become owner of the suit land. It is also denied that general power of attorney executed by Jagdish Kumar in favour of defendant No. 1 was the result of fraud and misrepresentation.

Learned Civil Judge (Senior Division) framed issues on 12.9.2006. He dismissed the suit on 26.9.2012. Plaintiffs filed an appeal before the learned Additional District Judge. He dismissed the same on 31.7.2013. Hence, the present Regular Second Appeal.

The record was called for on 26.3.2014. Mr. G.R. Palsra, on the basis of substantial questions of law, framed has vehemently argued that both the courts below have misread the statements of PWs and have also misread order dated 10.1.1994, including copy of judgments Ex. DW-3/B and Ex. DW-3/C. He has also argued that his clients were entitled to protection under section 39 of the Transfer of Property Act. He has lastly contended that his clients have become owner of Khasra No. 1173/837 measuring 0-1-0 bighas on the basis of compromise dated 10.1.1994.

Plaintiff No. 1 has appeared as PW-1. According to her, there were two shops over Khasra No. 1173/837. This Khasra number was given to her alongwith shop by her husband in lieu of maintenance. She has proved Ex. P-1. It was effected in the year 1994. She had placed compromise before the Halqua Patwari to make an entry in the revenue record. She had also raised objection before the Deputy Commissioner and on the instructions of the Deputy Commissioner, she appeared before the Naib Tehsildar, Aut. Naib Tehsildar, Aut directed her to produce her husband Jagdish Kumar. She has admitted that she had not annexed the application which was allegedly moved by her to Halqua Patwari for entry on the basis of compromise Ex. P-1. She has also admitted that her husband Jagdish Kumar appeared before Naib Tehsildar alongwith her. He has executed general power of attorney and sale deed. She has admitted that disputed shops are not entered in the name of plaintiffs. She has also admitted that when she alongwith her husband appeared before Naib Tehsildar, Aut, at that time, her husband was not under the influence of alcohol. She has also admitted that no release deed was ever executed by her husband in view of compromise in the maintenance petition.

PW-2 Smt. Anil Lata has deposed that plaintiff Meena Kumari was running a Dhaba. She has opened a recurring deposit account with her. She has admitted that her husband was habitual drunkard. The Dhaba was closed in the month of April, 2004. She has admitted that she has also appeared as a witness in civil suit No. 31/2004, which was filed by Jagdish Kumar, husband of plaintiff No. 1. She has also admitted that defendants No. 2 and 3 are running a Dhaba in the disputed shop.

Defendant Mine Ram has appeared as DW-3. According to him, he has purchased the disputed shop from Jagdish Kumar. Jagdish Kumar has received the entire amount in the presence of Sub-Registrar, Bali Chowki. He executed general power of attorney in favour of defendant No. 1.

DW-4 Kuram Dutt is marginal witness of general power of attorney Ex. PW-4/A. Statements of other witnesses are formal in nature.

Plaintiffs have also led evidence in rebuttal and examined Nokh Singh. According to him, Jagdish Kumar was known to him in the year 1994. There was a dispute between plaintiff No. 1 and Jagdish Kumar. The same was compromised and the disputed shops were given to the plaintiffs.

The alleged compromise is Ex. P-1. Order dated 10.1.1994 reads as under:

"In view of the statement of the parties, the petition is dismissed as compromised and the compromise Ex. PA, Jamabandi Ex. PB, tatima Ex. PC and ford articles Ex. PD shall form part of this order which shall be binding between the parties. File after completion be consigned to record room."

It is evident from para 2 of the compromise that the possession of the shops were never given by Jagdish Kumar to the plaintiffs. There is only reference to one shop in Khasra No. 1173/837.

Now, as far as applicability of section 39 of the Transfer of Property Act, 1882 is concerned, the same is not applicable in the present case. A person is required to prove that the transferee was having notice of maintenance awarded in favour of the plaintiffs. The husband of plaintiff No. 1, Jagdish Kumar had also filed a Civil Suit No. 31/2004. It was dismissed by the Civil Judge on 15.12.2008 vide Ex. DW-3/B. He had also challenged the sale deed No. 77 dated 8.4.2004 on the ground of fraud and mis-representation. Specific issue was struck to this effect. Defendants were held bona fide purchaser vide judgment dated 15.12.2008. Jagdish Kumar had also filed Civil Appeal No. 22/2009. It was dismissed by the District Judge on 14.9.2009 vide judgment Ex. DW-3/C. The property in the present suit and Civil Suit No. 31/2004 is the same. The grounds which have been taken by the plaintiffs in the present case had been taken by the husband of plaintiff No. 1 by filing Civil Suit No. 31/2004 and the present Civil Suit No. 102/09/06 has been filed through Sh. D.R. Sharma, Advocate. Both the courts below have rightly come to the conclusion that the present suit was collusive. Jagdish Kuamr was arrayed as defendant in Civil Suit No. 102/09/06. However, his name was struck off from the array of defendants subsequently. General power of attorney executed by Jagdish Kumar in favour of defendant No. 1 has been conclusively proved. Husband of plaintiff No. 1 has taken a specific plea that he had given the land to his wife plaintiff No. 1. This plea was not accepted by the civil court while deciding Civil Suit No. 31/2004 vide judgment dated 15.12.2008. Judgment dated 15.12.2008, as noticed above, has been upheld by the first appellate court in Civil Appeal No. 22/2009 on 14.9.2009. Moreover, one of the witnesses, cited in this suit, i.e. PW-2 Anil Lata, had also appeared in Civil Suit No. 31/2004.

Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments of both the courts below.

Accordingly, in view of the analysis and discussion made hereinabove, no question of law much less to say substantial of law is involved in the Regular Second Appeal and the same is dismissed. Pending application, if any, also stands disposed of. No costs.