Gursharan Kaur vs Kuldip Kaur and Another

L.N. Mittal, J.

C.M. No. 12385-C of 2010:

Allowed as prayed for.

Main Appeal:

By this common judgment, I am disposing of two appeals i.e. R.S.A. No. 4113 of 2010 titled Gursharan Kaur v. Kuldip Kaur and Anr. and R.S.A. No. 4443 of 2010 titled Sharanjit Singh v. Kuldip Kaur and Anr. because both these appeals have arisen out of a single suit. The suit was filed by Kuldip Kaur - Respondent No. 1 against both the Appellants i.e. Sharanjit Singh as Defendant No. 1 and Gursharan Kaur as Defendant No. 2. Appellants have been unsuccessful in both the courts below.

The Plaintiff alleged that she is owner of the suit property. Defendant No. 2 is sister of Plaintiffs husband. Defendant No. 1 is also brother of brother-in-law of Plaintiffs husband. Defendants, along with Surinder Singh, hatched conspiracy and forged and fabricated the Power of Attorney dated 09.06.2000 on behalf of Plaintiff in favour of Defendant No. 2. On the basis thereof, Defendant No. 2 executed sale deed dated 12.06.2000 registered on 14.06.2000 regarding the suit property in favour of Defendant No. 1. However, the said Power of Attorney was not executed by the Plaintiff. The Plaintiff continues to be owner of the suit property and is entitled to possession thereof. Possession of Defendant No. 1 over the suit property is illegal. Sale deed executed on the basis of forged Power of Attorney is also not binding on the Plaintiff. The alleged Power of Attorney does not bear signature or thumb impression of the Plaintiff. Earlier Surinder Singh was in permissive possession of the suit property. Defendant No. 1 took possession thereof from Surinder Singh without consent of the Plaintiff. First Information Report (FIR) dated 14.12.2000 has also been registered against the Defendants regarding the aforesaid forgery. Accordingly, the Plaintiff sought relief of possession of the suit property and also recovery of Rs. 1,48,000/- as damages for illegal use and occupation of suit property and also sought mesne profits @ Rs. 4,000/- per month from the date of filing of suit till delivery of possession.

Defendants filed separate but similar written statements. They broadly denied plaint allegations. It was pleaded that Plaintiff executed Power of Attorney dated 09.06.2000 in favour of Defendant No. 2, who, on the basis thereof, validly sold the suit property to Defendant No. 1. Relationship between the parties was admitted. Defendant No. 1 claimed to be bona fide purchaser of the suit property for consideration. Defendant No. 1 is in lawful possession of the suit property. Power of Attorney dated 09.06.2000 is legal and valid. Plaintiff herself executed the same and got it registered. Defendant is admittedly brother of Surinder Singh husband of Defendant No. 2. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Jalandhar, vide judgment and decree dated 13.06.2008, decreed the Plaintiffs suit for possession of the suit property and also for mesne profits @ Rs. 1,000/- per month from the date of filing of suit till delivery of possession to the Plaintiff. Both the Defendants preferred separate first appeals against judgment and decree of the trial court. Learned District Judge, Jalandhar, vide common judgment dated 20.08.2010, dismissed both the said appeals. Feeling aggrieved, Defendants have preferred the instant separate two Regular Second Appeals.

I have heard learned Counsel for Appellants of both the appeals and carefully perused the case file.

It is amply established on record that Power of Attorney dated 09.06.2000 was never executed by the Plaintiff. The Plaintiff herself stepped into witness-box and stated so. There is also report of handwriting expert that Power of Attorney does not bear Plaintiffs signatures. There is also report of finger print expert that alleged thumb impressions of the Plaintiff on the Power of Attorney are not her thumb impressions. The Power of Attorney purports to have been signed as well as thumb marked by the Plaintiff, but in fact, neither the signatures nor the thumb impressions existing on the Power of Attorney are of the Plaintiff. Science of finger print comparison is perfect science. Plaintiffs evidence in this regard stands unrebutted. Defendants have not led any evidence whatsoever to prove that the alleged Power of Attorney was actually executed by the Plaintiff. In the absence of any such evidence, even bald statement of Plaintiff that she had not executed the Power of Attorney, would have been sufficient to prove this fact. However, in the instant case, the Plaintiff, in addition to her own testimony, has also led other cogent evidence, particularly report of expert witnesses to prove that Power of Attorney in question was not executed by the Plaintiff. The said evidence is very cogent and reliable and is sufficient to prove Plaintiffs case in this regard. On the other hand, both the Defendants themselves stepped into the witness-box, but did not examine any other witness. Admittedly, the Defendants were not present at the time of execution of Power of Attorney in question. Defendant No. 1 was not even in picture at that stage, whereas Defendant No. 2, who was allegedly appointed as Attorney by the Plaintiff through the said document, has admitted that she was not present at the time of execution of said Power of Attorney. Consequently, statements of defend ants themselves carry no evidentiary value to depict that Power of Attorney was executed by the Plaintiff. Defendants have not examined any witness of the said Power of Attorney to prove the execution thereof by the Plaintiff. Thus, the Plaintiffs evidence, which is very co-gent and reliable, stands practically unrebutted on this aspect. There is concurrent finding recorded by both the courts below that the Power of Attorney was not executed by the Plaintiff. The said finding is fully justified by the evidence on record because the Plaintiff has led ample credible evidence to prove her case in this regard. Consequently, said finding, which is not shown to be perverse or illegal in any manner, does not warrant interference in second appeal. It does not give rise to any question of law, much less substantial question of law, for determination in these second appeals.

Since the alleged Power of Attorney was never executed by the Plaintiff, impugned sale deed executed by Defendant No. 2 as Attorney of the Plaintiff, is also therefore null and void. The Power of Attorney as well as the sale deed, therefore, have no effect on the rights of the Plaintiff in the suit property and the Plaintiff continues to be owner thereof. The aforesaid documents are practically non-existent in so far as rights of the Plaintiff are concerned. Consequently, Plaintiffs suit for possession of the suit property along with mesne profits has been rightly decreed by the courts below.

Learned Counsel for the Appellants vehemently contended that the suit is time barred. It was pointed out that the Power of Attorney is dated 09.06.2000 and sale deed is dated 12.06.2000 registered on 14.06.2000. The said documents also came to the notice of the Plaintiff because she lodged FIR dated 14.12.2000. However, the suit was instituted on 24.07.2004 i.e. after the expiry of limitation period of three years. Reliance in support of this contention has been placed on two judgments of this Court i.e. Jagan Nath and Others Vs. Tara Chand and Others, and Gajjan Singh Vs. Virsa Singh and Others, .

I have carefully considered the aforesaid contention, but find myself unable to accede the same. Plaintiff has filed the instant suit for possession on the basis of title. There is no limitation period for filing suit for possession on the basis of title. Defendants have not claimed acquisition of title by adverse possession nor Defendant No. 1 was in possession of the suit property for 12 years or more prior to filing of the suit. Admittedly, Defendant No. 1 came in possession of the suit property in June 2004 pursuant to sale deed executed in his favour and the suit was filed on 24.07.2004. Consequently, suit cannot be said to be barred by limitation. The Plaintiff was not required to seek declaration regarding the Power of Attorney and sale deed being null and void because practically, Plaintiff is not party to the said documents and therefore, the said documents are nonexistent documents in so far as rights of the Plaintiff in suit property are concerned. The Plaintiff has otherwise made necessary averments in the plaint to depict that the said documents are null and void as against her and she has substantiated the said averments by leading cogent evidence.

In so far as judgment in the case of Jagan Nath (supra) is concerned, in that case, the Plaintiff simply sought declaration regarding the sale deeds in question being illegal and null and void. In this view of the matter, the suit filed more than three years after the execution of documents in question was held to be barred by limitation. In the instant case, however, Plaintiff is seeking possession of the suit property on the basis of title and therefore, judgment in the case of Jagan Nath (supra) is distinguishable on facts. Judgment in the case of Gajjan Singh (supra) of course supports the contention of learned Counsel for the Appellants to some extent. However, in the instant case, I have come to the conclusion that the impugned Power of Attorney and sale deed are practically nonexistent documents in so far as rights of the Plaintiff in the suit property are concerned. On the contrary, the Plaintiff has filed suit for possession of the suit property on the basis of title and therefore, the suit cannot be said to be barred by limitation.

For the reasons aforesaid, I find no merit in the instant second appeals. No question of law, much less substantial question of law, arises for determination in the instant second appeals. Accordingly, both the appeals i.e. R.S.A. No. 4113 of 2010 titled Gursharan Kaur v. Kuldip Kaur and Anr. and R.S.A. No. 4443 of 2010 titled Sharanjit Singh v. Kuldip Kaur and Anr. are dismissed in limine.

R.M.S.

Petition dismissed.