Ram Rattan vs Sushil Chand and others

J.V. Gupta, J.—This judgment will dispose of Regular Second Appeal Nos. 1530, 1527 and 1666 of )976, as all the three appeals arise out of the one judgment of the Additional District Judge, Jind. at Gurgaon, dated May 27, 1976.

Banni Lal was the original owner of the suit property. He mortgaged the same on January 21, 1922 with Puran Lal and Sohan Lal sons of Ram Saran Dass for a sum of Rs. 4,500/- vide mortgage deed, Exhibit D.W-7/1 The mortgagees further sub-mortgaged the same on March 14, 1939, with Bhola Mal and Raghu Nath, Defendants. Lateron Sushil Chand purchased the equity of redemption from Smt. Ashrafi, the widow of Banni Lal, who was his successor-in-interest, vide sale deed dated August 24, 1963, for a sum of Rs. 6,500/-. The said sale deed was executed by one Nanak Chand as the attorney for Smt. Ashrafi. In December, 1971, Sushil Chand filed the suit for possession by way of redemption whereas Smt. Ashrafi filed a separate suit for declaration challenging the sale deed executed by her attorney, Nanak Chand, in favour of Sushil Chand. Both the suits were consolidated and disposed of by one judgment of the trial Court. The trial Court dismissed the suit filed by Smt. Ashrafi (now deceased) whereas it decreed the suit filed by Sushil Chand. According to the allegations made in the plaint by Smt Ashrafi, the power of attorney executed by her in favour of Nanak Chand dated August 24, 1963, was not a genuine document as it was got executed from her by practising fraud and misrepresentation. Nothing was paid to her as the sale price of the suit property. Surprisingly enough, the said Nanak Chand was not impleaded as a Defendant in the suit filed by Smt. Ashrafi and when summoned to produce the alleged power of attorney executed by her in his favour, was never examined as a witness by her. The trial Court found that the evidence of Smt. Ashrafi did not create even suspicion of fraud much less proved the same. In view of this finding, as observed earlier, her suit was dismissed. Dissatisfied with the judgment and decree of the trial Court, four appeals were filed in the Court of the District Judge. Out of them, two were filed on behalf of Smt. Ashrafi and the other two by the tenants who were inducted by the mortgagees, against Sushil Chand and others. The learned lower appellate Court affirmed the findings of the trial Court and, thus, maintained the decree passed by it in favour of Sushil Chand. Dissatisfied with the same Regular Second Appeals Nos. 1530 and 1666 of 1976 have been filed on behalf of Smt. Ashrafi whereas Regular Second Appeal No. 1527 of 1976 has been filed on behalf of the tenant inducted by the mortgagees.

The Learned Counsel for the Appellant in Regular Second Appeals Nos. 1530 and 1666 of 1976, contended that from the evidence on the record, it had been clearly proved that no amount of Rs. 5,000/- was paid to Smt. Ashrafi at the time of the execution of the power of attorney in favour of Nanak Chand, nor there was any such occasion because no power of attorney is executed on payment. According to the Learned Counsel from the evidence, it was quite evident that Smt. Ashrafi being an old and illiterate lady was duped by Nanak Chand and others and, thus, she was deprived of her property. in any case, argued the Learned Counsel, even if suspicion was created about the fraud having been practised upon her, the burden shifted on the Defendants to prove that the power of attorney in favour of Nanak Chand was a valid document. Reliance in support of this contention was placed on Debi Prasad and Another Vs. Chhotey Lal and Another, .

After hearing the Learned Counsel for the Appellant, I do not find any merit in these appeals.

On the appreciation of the entire evidence, it has been concurrently found that no case of fraud had been made out by Smt. Ashrafi. It has been observed by the lower appellate Court that rather the arguments addressed at the bar by the Learned Counsel for the Appellant only indicate that some suspicious circumstances about the execution of the power of attorney by Ashrafi in favour of Nanak Chand exist to some extent, but the settled rule is that however sus-picious may be the circumstances, however strange the coincidences and however grave the doubts, suspicion alone cannot take the place of proof. In support of this contention, reliance was placed on Union of India v. M/s Chaturbhai M. Patel & Co 1976 Cur. L.J. (Civil)166. As observed earlier Nanak Chand, was never impleaded as a party to the suit filed by Smt. Ashrafi and when summoned to produce the alleged power of attorney executed by her in his favour, was never examined as a witness by her. Thus, I do not find any infirmity or illegality in the concurrent findings of the Courts below to be interfered with in second appeals.

In Regular Second Appeal No 1527 of 1976, filed on behalf of the tenant under the mortgagees, it was contended that the creation of the tenancy was an act of prudeace and, therefore, they were not liable to be ejected in execution of the decree for redemption of the suit property. I do not find any force in this contention either. No such plea was taken in any of the Courts below, nor there is any finding to the said effect. Admittedly, the tenants were inducted by the mortgagees after the execution of the mortgage deed in their favour. Therefore, they are liable to be ejected on the basis of the decree for possession by way of redemption of the suit property.

Consequently, all the appeals fail and are dismissed with costs.