Harjatinderjit Singh Dhillon vs Daljit Kaur and Others

Sat Pal, J.—By this judgment, I am disposing of two,appeals, R.S.A. Nos. 152 of 1997 and 153 of 1997, as both the appeals are directed against the judgment" dated 20th December,, 1994, passed by the learned Sub Judge, Muktsar and the judgment dated 12th December, 1996, passed by the learned Additional District Judge, Faridkot.

Briefly stated, the facts of the case are that Daljit Kaur, Jasveer Singh (minor), Sahij Kaur. (Minor) both through their grandmother Daljit Kaur (respondents Nos.1 to 3 in the present appeal), filed a suit bearing No. ,74 of 1988 for possession, permanent injunction and mesne profits with regard to the land measuring 81 kanals 8 marlas situated in the revenue estate of Village Aspal, Muktsar, District Faridkot against Harjatinderjit Singh-Dhillon (appellant in R.S.A. No,, 152 of 1997), Karanjit Singh (appellant in R.S.A No. 153 of 1997) and Jasbir Kaur, Since no relief was. claimed against Jasbir Kaur, she was made proforma defendant as she was also one of the legal heirs of late Harpreet Singh. It was alleged by the plaintiffs that Harpreet Singh who was the son of plaintiff No.l, namely, Daljit Kaur and father of plaintiffs Nos.2 and 3, namely, Jasveer Singh and Sahij Kaur, was the owner of suit land and he expired on 18th July, 1982. It was further alleged that defendant Har-jatinder Singh Dhillon took the possession, of the suit land on 21st April, 1977 without any right and claimed that Harpreet Singh deceased had entered into an agreement to sell the suit land along with other land for Rs. 4 lacs measuring 179 kanals 11 Marias owned by Adhar Kaur, sister of Harpreet Singh and Prayog Singh (brother of Harpreet Singh).

It is further alleged in the plaint that defendant Harjatinder Singh Dhillon filed civil suit No.22 dated 28.1.1981 against Harpreet Singh, his brother Paryog Singh and Satinder Singh on the basis of agreements dated 9.2.1974 and 8.5.1980 in which the said defendant claimed that he had purchased the suit land on the basis of two sale deeds dated 8.7.1980 and 10.7.1980 from deceased Harpreet Singh.

It was further stated in the plaint that defendant Harjatinder Singh Dhillon executed said sale deeds as General Attorney in favour of his close relative Karanjit Singh (defendant No.2) by making him his nominee and claimed himself to be the owner and in possession of the suit land through his nominee. It was further alleged in the plaint that Harpreet Singh deceased filed a, counter claim in the above mentioned civil suit No.22 of 1981 in which he stated that he never appointed Har-jatinderjit Singh Dhillon his General Attorney and he never authorised him to sell the suit land and as such the aforesaid sale deeds dated 9.7.1980 and 10.7.1980 were void abinitio. Harpreet Singh deceased had also denied the ownership of Harjatinderjit Singh Dhillon and claimed possession from him of the suit land in view of illegal possession of the said defendant, over the said suit land. It was further alleged that the counter claim of the plaintiff and defendant No.3 was decreed in the .said suit but defendant Harjatinderjit Singh filed an appeal in the court of learned District Judge and the appellate Court set aside the said decree dated 19.7.1987 on the ground that the defendant Karanjit Singh was not made a party in the counter claim.

Defendants Nos. 1 and 2 who are appellants in these two appeals, filed joint written statement. In the written statement, it was stated that defendant Harjatinderjit Singh Dhillon had made a payment of Rs.2,42,721/- to Harpreet Singh and his creditor while the sale consideration for the land in dispute was Rs. 1,70,000/- only. It was further stated that deceased Harpreet Singh duly executed the power of attorney in favour of defendant No.l Harjatinderjit Singh Dhillon and the sales were for consideration already received by Harpreet Singh deceased and the remaining amount was paid to his creditors. It may be noted here that defendant No.3 Jasbir Kaur, who is the mother of plaintiffs Nos.2 and 3 and married Col. B.S. Grewal after the death of Harpreet Singh, was proceeded against ex parte by the trial court.

The learned trial court vide its judgment dated 20th December, 1994, held that sale deeds dated 9.7.1980 and 10.7.1980 were illegal and sham transactions and cot sequently, the plaintiffs who were legal representatives of Harpreet Singh were en titled to the possession of the suit land because Harpreet Singh was the original owner of the suit land. Accordingly, the suit of the plaintiffs was decreed for possession of the suit land and for permanent injunction along with the mesne profits at the rate of Rs.4,000/- per acre/per annum with effect from Kharif 1985 to Rabi 1988.

Aggrieved by the judgment dated 20th December, 1994, passed by the learned trial court, defendants Harjatinderjit Singh Dhillon and Karanjit Singh filed a joint appeal which was dismissed by the learned Additional District Judge, Faridkot, Vide his judgment dated 12th December, 1996, the learned Additional District Judge, Faridkot upheld the judgment of the learned trial court. He held that the power of attorney Exhibit D.22 dated 10th August, 1979, alleged to have been executed by Harpreet Singh in favour of Harjatinderjit Singh has not been proved. It was further held by the lower appellate court that Karanjit Singh has been shown as appellant No.2 but his signatures do not exist on the grounds of appeal or power of attorney and as such, it cannot be said that the appeal has been validly instituted by Karanjit Singh. It was further held that since appellant Harjatinderjit Singh Dhillon has not been proved to be validly appointed attorney, accordingly , the sale deeds dated 9.7.1980 and 10.7.1980 cannot be said to be genuine documents executed by Har-jatinderjit Singh Dhillon appellant in favour of his so called nominee, who is appellant No.2. The learned Additional District Judge also held that the plea of appellant Harjatinderjit Singh Dhillon that he is the real owner and appellant Karanjit Singh is his nominee is barred by the provisions of Benami Transactions (Prohibition) Act (hereinafter referred to as the Act). Thus, it is clear that the findings of the learned trial Court holding the sale deeds dated 9.7.1980 and 10.7.1980 not to be genuine documents have been upheld by the learned first appellate court. Against the judgment of the learned trial court and the learned first appellate court, the present appeals have been filed separately by Harjatinderjit Singh Dhillon and Karanjit Singh.

Mr. Mattewal, learned senior counsel appearing on behalf of the appellants, submitted that the findings of the courts below that the general power of attorney dated 10th August, 1979 (Exhibit P.5) by which the. deceased Harpreet Singh had appointed Harjatinderjit Singh Dhillon, as his attorney, was fabricated documents, were not based on evidence on record. He submitted that both the courts below have given this finding relying on the judgment of Sh. N.C. Prashar, Sub Judge Faridkot in the earlier suit No.22 of 1981 filed by appellant Harjatinderjit Singh Dhillon against Harpreet Singh and Ors.. He submitted that these findings were given by Sh. N.C. Prashar, then Sub Judge, Faridkot, as in those proceedings the appellants did not examine the. attesting witnesses of the powers of attorney. He further submitted that the findings of Sh. N.C. Prashar, Sub Judge; with regard to the validity of the sale deeds dated 9.7.1980 and 10.7.1980 were challenged before the appellate Court and the appellate court had set aside the said findings on the ground that the appellant Karanjit Singh was not a party in those proceedings.

The learned counsel further submitted that appellant Harjatinderjit Singh Dhillon had clearly proved before the learned trial Court that he had made the payment of Rs.2,42,721/- to Harpreet Singh deceased and to his creditors while the sale consideration for the land in dispute was Rs. 170,000/- only. He, therefore contended that the learned first appellate court erred in holding that the case of the defendant appellant was hit by Section 4 of the Act. He further submitted that the findings of both the Courts below on the findings given by Shri N.C. Prashar, then Sub Judge. Faridkot, in earlier suit No.22 dated 28.1.1981 but those findings could not be relied upon in the present case as appellant Karanjit Singh was not a party in those proceedings.

The learned counsel also submitted that the learned first appellate court also erred in holding that the; appeal filed by appellant Karanjit Singh was not maintainable as he had neither Signed by grounds of appeal nor he had signed any Vakalatnama in favour of any counsel. He submitted that since the joint appeal was filed by both the appellants, namely Harjitinderjit Singh Dhillon and Karanjit Singh and since one of the appellants, namely Harjatinderjit Singh Dhillon had signed the grounds of appeal, it could not be held that the apppal on behalf of the other appellant was not maintainable. He further submitted that in any case, the appellate Court was required to give an opportunity to the appellant Karanjit Singh to cure this defect. In support of his contentions the learned counsel placed reliance on the following judgments

1) Ashoke Kumar Daw and Another Vs. Gobinda Chandra Dev and Others, ;

2) Nasib Kaur v. Ownan Singh 1984 PLJ 453;

3) Nehru Yuvak Kendra Sangthan Vs. Darshan Singh and Another, .

Mr. Sarin, learned Senior counsel appearing on behalf of the respondents, submitted that the appeal filed on behalf of the Karanjit Singh before the first appellate court was not maintainable inasmuch as neither the ground of appeal were signed by the said appellant nor there was any valid authority in favour of the Advocate, which is the pre-requisite condition under Order 41 Rule 1, CPC. In Support of his submission; the learned counsel placed reliance on the following judgments :

1) Nawab and Ors. v. Charagh AIR 1936 Lah 145.

2) Pat Ram v. Ekam Singh etc. 1971 CLJ 294.

3) Garib Chand v. Municipal Committee, Budlada (1979)81 P.L.R. 527.

The learned counsel further submitted that appellant Harjitinderjit Singh, in his cross-examination, had clearly admitted that the entire amount of consideration was paid by him and no amount was paid by the other appellant Karanjit Singh.He submitted that this was clearly a Benami transaction and defence of Benami is prohibited u/s 4 of the Act. In support of this submission, the learned counsel placed reliance'' on a judgment of the Supreme Court in R. Rajagopal Reddy and Others (deceased by legal representatives) Vs. Padmini Chandrasekharan (deceased by legal representatives),

Lastly, the learned counsel for the respondents submitted that in the present case, there are, concurrent findings of fact and the High court should not entertain second appeal even on the grounds of erroneous findings of fact. In support of this submission, he placed reliance on two judgments of the Supreme Court in Deity Pattabhirama Swamy v. S. Hanymawa and Ors. AIR 19S9 SC 57 and Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, .

I have given my thoughtful consideration to the submission made by the learned counsel for the parties and have perused the records. As stated in the earlier part of the judgment, the respondents had filed the suit for possession/permanent injunction and mesne profits with regard to the land in question, against both the appellants, namely Harjatinderjit Singh Dhillon and Karanjit Singh. Both these appellants had filed a joint written statement before the learned trial Court. In the written statement, it was pleaded that Harjatinderjit Singh Dhillon had made payment of the entire amount of consideration of the land in dispute. In his cross-examination before the learned trial Court, Harjatinderjit Singh had clearly admitted that the entire amount of consideration with regard to the said land was paid by him and no amount whatsoever was paid by the other appellant Karanjit Singh. Admittedly, both the sale deeds dated 9.8.1980 and 10.7.1980 with regard to the suit land have been executed in favour of Karanjit Singh. It may be relevant to note here that no evidence has been led on behalf of Karanjit Singh that any amount of consideration was paid by him. From these facts, it can safely be concluded that even according to the stand taken by the defendants/appellants, the land in question is held Benami in the name of appellant Karanjit Singh on behalf of appellant Harjatinderjit Singh Dhillon and thus it is a "Benami transaction" as defined in Section 2(a) of the Act. Since the transaction is "Benami transaction," the defence of Benami is prohibited u/s 4 of the Act. The view I have taken finds full support from the judgment of the Supreme Court in the case R. Rajagopal Reddy (supra). Both the appeals are liable to be dismissed on this ground alone.

Besides there are concurrent findings by both the courts below that the sale deeds dated 9th July, 1980 and 10th July, 1980 with regard to the suit land were sham transactions. These findings are based on valid and legal evidence on record. .This court in second appeal cannot embark upon re-appreciation of the evidence to come to its own conclusion. The view I have taken finds support from a recent judgment of the Supreme Court in Motilal Daulatram Bora and Others Vs. Murlidhar Ramchandra Bhutabe (Since Deceased) by his Lrs. and Others, .

For the reasons recorded herein above, I do not find any merit in these appeals. Accordingly, both the appeals are dismissed with no order as to costs. Since I have dismissed both the appeals on the grounds mentioned herein above, I do not deem it necessary to adjudicate on the point raised by the counsel for appellant Karanjit Singh that the appeal filed by him before the first appellate court could not have been dismissed, on the ground that he had neither signed the grounds of appeal nor any Vakalatnama signed by him in favour of the Advocate was filed before the lower appellate Court.