Deepa Agrawal W/O Nirmal Kumar Agrawal & Others vs Shailesh Kumar Agarwal & Others

This appeal is by the defendant arising out of the judgment and decree dated 27.07.2017 passed by lower appellate Court in civil appeal No.6A/2015

filed by the plaintiff, civil appeal No.5A/2015 filed by the defendant/appellant and civil appeal No.4A/2015 filed by the co-plaintiff by which the

judgment and decree dated 16.03.2015 passed by the trial Court in civil suit No.8A/2007 was set aside.

The suit was filed by the plaintiff Shailesh Kumar Agarwal seeking declaration that the sale deed bearing registration No.1A/1717 dated 30.09.1997

(Ex.D/3) executed by defendant No.3 in favour of defendant No.1 is not binding on him and he is the owner of the suit property bearing survey

No.492/2 area 1.547 hectares situated in village Pithampur, Tehsil and District Dhar. A declaration has also been sought that the defendants do not

have any right on the suit property and such right is nonest in the right of the plaintiff. The possession of the suit property has also been sought from

the defendants along with mesne profit.

The facts which are not in dispute in the present case is that plaintiff Shailesh Kumar Agrawal was the owner of the suit land. The defendant No.1

Smt.Deepa Agrawal is the wife of defendant No.2 Nirmal Kumar Agrawal. An agreement to sell (Ex.D/2) was executed by Shailesh Kumar

Agrawal on 21.02.1994 in favour of defendant No.1 Smt.Deepa. It is also not in dispute that Shailesh Kumar executed a power of attorney

(Ex.D/1) in favour of Nirmal Kumar on 14.02.1994. It is also not in dispute that defendant No.3 Bahadur Singh on the basis of the authority given

by the power of attorney holder Nirmal Kumar executed a sale deed of the suit property in favour of defendant No.1 Smt.Deepa Agrawal on

30.09.1997 (Ex.D/2 & D/3). The document conferring the said authority by defendant No.2 in favour of defendant No.3 is not available on

record. It is also not in dispute that the power of attorney executed in favour of Nirmal Kumar has been revoked on 13.08.1997 (Ex.P/1) and its

copy was given to the Regstrar (Ex.P/4) on the same date. The defendants No.1 to 3/appellants disputes that after revocation of the power of

attorney its information has not been furnished, therefore, it cannot be acted upon. It is also not in dispute that plaintiff Shailesh Kumar executed

two sale deeds in favour of Prahlad Das and Jayant Kumar. The legal representatives of Prahlad Das is Omprakash and Smt.Preeti. The lower

appellate Court in the impugned judgment observed that the relief sought by the co-plaintiff allowing amendment subsequently regarding possession in

the suit as mentioned herein above cannot be allowed to be incorporated without having any amendment of facts in the pleading to that effect. In the

said sequel of fact it is clear that the suit land belong to Shailesh Kumar, who executed one agreement to sell in the name of defendant No.1

Smt.Deepa on 21.02.1994 i.e prior to it the power of attorney was executed on 14.02.1994 in the name of husband of Smt.Deepa and Bahadur Singh,

who was not having valid authority of power of attorney holder to execute the sale deed of the said plot in the name of Smt.Deepa w/o Nirmal

Kumar. But on the basis of the same the mutation in the name of Smt.Deepa is in the revenue papers and revenue record has been filed. The

plaintiff claimed a declaration that the said sale deed dated 30.09.1997 does not confer any right on the suit land to them and he is the owner thereof.

Learned trial Court in the said sequence of facts dismissed the suit inter alia recording a finding that without asking the relief of possession which

was handed over to Smt.Deepa as per the agreement to sell, the suit itself was not maintainable. In addition referring various documents and other

pleadings it was held that the suit is barred by limitation and the right is well accrued in favour of the defendants. It is also held that the plaintiff has

not disclosed the correct facts regarding execution of sale deed, therefore, in such circumstances the suit filed by the plaintiff cannot be decreed.

Before the lower appellate Court three appeals were filed. Civil Appeal No.6A/15 was filed by the plaintiff/Shailesh Kumar, Civil Appeal No.5A/15

was filed by the defendants/appellants Smt.Deepa, Nirmal Kumar and Bahadur Singh and Civil Appeal No.4A/15 was filed by the legal

representatives of Prahlad Das and Jayant Kumar challenging the judgment and decree of the trial Court assailing the findings on very many

grounds. The lower appellate Court recorded a finding that the execution of agreement to sell dated 21.02.1994 in favour of Smt.Deepa is doubtful

observing that if the power of attorney was executed on 14.02.1994 by the plaintiff Shailesh Kumar in favour of Nirmal Kukar, husband of Smt.Deepa

mentioning the delivery of possession to Nirmal Kumar the delivery of possession by Shailesh Kumar again to Smt.Deepa on 21.02.1994 does not

appear to be justified or correct. In addition, on the agreement to sell the seal of the Sub Registrar office dated 14.02.1994 was affixed then there was

no necessity to execute the said document on 21.02.1994. The Court referring various dates of the documents held that Bahadur singh who

executed the sale deed in favour of Smt.Deepa without any authority of the power of attorney holder Nirmal Kumar, therefore, on the basis of the

said document no right accrues to defendants No.1 & 2 and looking to the aforesaid finding said benefit of the provision of section 34 of the Specific

Relief Act is not available. It has been observed that the defendants cannot invoke the provision of Section 53A without filing a suit for specific

performance of contract. The lower appellate Court analyzing the entire documentary as well as oral evidence reversed the finding of the trial

Court observing that the possession is of the plaintiff which has not been delivered, however, asking a relief of possession in a suit is not necessary,

however, the suit filed by the plaintiff Shailesh Kumar and co-plaintiffs has been decreed acknowledging the sale deed executed by him in favour of

Prahlad Das and Jayant Kumar.

Shri Vinay Saraf, learned Senior Counsel appearing on behalf of defendants No.1 to 3/appellants submits that the lower appellate Court committed

an error of law in reversing the well considered finding of the trial Court without discharging the duties as required to be discharged being lower

appellate Court. In support of the said contention reliance has been placed on a judgment of the Supreme Court in the case of Santosh Hazari vs.

Rurushottam Tiwari (deceased) by LRs reported in (2001) 3 SCC 179. Learned Senior Counsel relying upon the documents Ex.D/1 to D/7 submits

that looking to those documents it is apparent that defendant No.1 is the owner of the suit land on the basis of the sale deed Ex.D/2 & D/3 executed in

her favour by Bahadur Singh, the possession of the suit land has already been delivered as per the agreement to sell dated 21.02.1994 and the power

of attorney dated 14.02.1994. In such circumstances without asking the relief of possession in view of the provisions of Section 34 of the Specific

Relief Act, the suit itself is not maintainable. The further contention of learned counsel for the appellant is that for the purpose of section 53A of the

Transfer of Property Act the filing of the suit for specific performance as observed by the lower appellate Court is not necessary. In support of the

said contention reliance has been placed on the judgment in the case of Shrimant Shamrao Suryawanshi and another vs. Pralhad Bhairoba

Suryawanshi and another reported in 2002 (1) MPLJ 589. The reliance has also been placed on the judgment of the Supreme Court in the case of

Ramesh Chand Ardawatiya vs. Anil Panjwani reported in 2003 (4) MPLJ 439 as also of this Court in the case of Champat Giri vs. Ramdayal and

another reported in 2009 (2) JLJ 348 to contend that dismissal of the suit by the lower appellate Court ignoring the findings of the trial Court is

unsustainable in law. The further contention of the learned counsel for the appellant is that the trial Court dismissed the suit on the ground that the

plaintiff Shailesh Kumar on the date of filing of the suit was not the owner of the suit property as he had already executed a sale deed and without

disclosing the said fact and the fact regarding execution of agreement to sell and power of attorney the relief seeking declaration was denied and

without reversing those findings the lower appellate Court committed error of law to decree the suit. In such circumstances, this appeal involves

substantial questions of law, therefore, it may be admitted for hearing.

Per contra, Shri Amit Agrawal, learned Senior Counsel for the plaintiff/respondents submits that it is a case wherein the plaintiff is undisputedly the

owner of the suit land, therefore, he filed the suit seeking the relief of declaration only as he is having the possession over the suit property.Â

Regarding the documents agreement to sell Ex.D/7 and power of attorney Ex.D/1, he submits that if the power of attorney was executed by the

plaintiff in favour of Nirmal Kumar, the husband of Smt.Deepa on 14.02.1994 delivering possession of the suit land to him, then after a week i.e. on

21.02.1994 there was no necessity again to deliver the possession of the suit property by way of agreement to sell to Smt.Deepa, therefore, the lower

appellate Court has rightly disbelieved those documents being doubtful by elaborately discussing the documentary as well as oral evidence brought

on record by the parties. It is further urged that Bahadur singh who executed the sale deed regarding the suit land belonged to the plaintiff with the

authority of the power of attorney holder Nirmal Kumar but no such document is on record, however, the right which was not accrued to Bahadur

Singh with respect to the land in question cannot be acquired by the defendant No.1 Smt.Deepa. It is further argued that the power of attorney

dated 14.02.1994 executed in favor of Nirmal Kumar was cancelled on 13.08.1997 as per Ex.P/1 and its intimation was given to the Registrar vide

Ex.P/4 on the same date. The sale deed was executed by Bahadur Singh in favour of Smt.Deepa on 30.09.1997 after revocation of the power of

attorney by the plaintiff in favour of Nirmal Kumar. In such circumstances, after revocation of the power of attorney Nirmal Kumar and Bahadur

Singh did not have any right to execute the sale deed in favour of Smt.Deepa. Learned Senior Counsel has further submitted that on considering the

documents Ex.D/1 to D/7 filed by the defendants, it is clear that the possession of suit land was not delivered to the defendants, therefore, there was

no necessity to ask for the relief of possession and the findings recorded by the lower appellate Court is based on proper appreciation of evidence

which do not suffer from any perversity or illegality. Similarly, learned Senior Counsel has submitted that no benefit under section 53 A of the Transfer

of Property Act is available to the defendants. In this connection judgment of the Supreme Court in the case of Vasanthi vs. Venugopal (dead)

through Legal Representatives reported in (2017) 4 SCC 723 is relied upon, wherein the Apex Court has considered the provision of section 53A of

the Transfer of Property Act read with section 16 of the Special Relief Act. In the said case the judgment of Shrimant ShamraoSuryawanshi

(supra) has also been considered and the Court found that in furtherence to the contract until the readiness and willingness to perform his part of

agreement is shown by the defendant the benefit of section 53A of the Transfer of Property Act is not available to the defendant. In view of the

foregoing submissions, it is urged that the lower appellate Court after considering all the facts and circumstances of the case and the evidence

available on record rightly reversed the findings of the trial Court which do not warrant any interference. At last it is urged that the argument

regarding filing of the suit by the plaintiff Shailesh Kumar after execution of the sale deed has also been considered by the trial Court is of no

relevance, therefore, this appeal which does not involve any substantial question of law deserves to be dismissed.

After having heard learned counsel for the parties at length and on perusal of the undisputed facts of the case, it is clear that plaintiff Shailesh

Kumar was the owner of the suit property. He executed a power of attorney on 14.02.1994 in favour of Nirmal Kumar who is the husband of

Smt.Deepa. In the said power of attorney the fact regarding delivery of possession of the suit property was mentioned. After 7 days of the

execution of power of attorney the agreement to sell (Ex.D/7) was executed in favour of Smt.Deepa on 21.02.1994 in which again the fact regarding

delivery of possession by Shailesh Kumar to Smt.Deepa has been mentioned. The said fact indicates the delivery of paper possession and had the

de factopossession. On the said document a seal of the Sub Registrar office dated 14.02.1994 was mentioned though it is not a registered

document. In case by way of power of attorney if the possession was handed over by Shailesh Kumar to the power of attorney holder Nirmal

Kumar then after 7 days while executing the agreement to sell on 21.2.1994 again the delivery of possession to Smt.Deepa in whose favour a sale

deed was executed by Bahadur can not be mentioned. So far as the sale deed by Bahadur Singh in favour of Smt.Deepa is concerned it is on the

basis of the authority given by the power of attorney holder Nirmal Kumar, however, the document of the said authority is not available on record.Â

The power of attorney was revoked on 13.08.1997 by Shailesh Kumar as per Ex.P/1 and its intimation was given to the Registrar by Ex.P/4.

Thereafter, on subsequent date if Bahadur Singh executed a sale deed in favour of Smt.Deepa on 30.09.1997 by Ex.D/2 & D/3 it does not confer any

title in her favour. It is very material that if an agreement to sell was executed by Shailesh Kumar in favour of Smt.Deepa on 21.02.1994 and there

was a power of attorney in favour of her husband on 14.02.1994 then there was no reason to get execute a sale deed through Bahadursingh in her

favour and that too after revocation of the power of attorney in favour of Nirmal Kumar, therefore, the finding as recorded by the lower appellate

Court and for the aforesaid additional reason grant of decree to the suit filed by the plaintiff is justified and it has rightly reversed the judgment of the

trial Court. Undisputedly, plaintiff is the owner of the suit land, therefore, declaration of title as sought in this regard has been rightly granted by

the learned lower appellate Court.

In view of the foregoing factual discussion, when the delivery of possession to Nirmal Kumar or Smt.Seema, defendants No.2 & 1 respectively, is

doubtful the finding of the trial Court regarding maintainability of the suit which was reversed by the lower appellate Court in view of section 34 of the

Specific Relief Act is just and proper. It is clear that as per section 34 of the Specific Relief Act if any person entitled to any legal character, or to

any right as to any property, may institute a suit against any person who is having a right or interest in the property and may ask for declaration to

which he is entitled to. As per the proviso it has been clarified that the said declaration may not be granted in favour of the plaintiff if he is being

able to seek further relief than a mere declaration of title. In the present case as per the analysis of the facts and evidence it is clear that plaintiff

who is the owner and in possession of the suit land may ask for declaration and if such a suit has been maintained by the lower appellate Court

granting a decree in his favour the bar of section 34 does not attract in this case.

Reverting back to the arguments with respect to the finding of the lower appellate Court in the context of section 53A of the Transfer of

Property Act is concerned in this regard it is suffice to observe that when the possession in part performance of the contract has not been found

delivered in favour of the defendants the argument and plea as taken by the appellants is of no help to them and the judgments in the case of Shrimant

Shamrao Suryawanshi, Ramesh Chand Ardawatiya & Champat Giri (supra) do not apply in the facts of the case, therefore, the said judgments are not

required to be dealt with in detail.

In view of the foregoing discussion, in the considered opinion of this Court, the lower appellate Court has rightly reversed the findings of the trial

Court by analyzing the pleadings and documentary as well as oral evidence brought on record, therefore, the requirement as specified in the judgment

of Santosh Hazari (supra) has been observed by the lower appellate Court while passing the impugned judgment, therefore, the arguments in this

regard advanced by the appellants is hereby repelled. In the result, no substantial question of law arises for determination in this appeal.Â

Accordingly, this appeal stands dismissed at admission stage.