RANJIT SINGH Vs. JAIMAL SINGH

JUDGEMENT

(1.) This is defendants' appeal. One Mst. Gaindi was the owner of 1/8th share in an agricultural land measuring 6028 kanals and 12 marlas situated within the revenue estate of Rajaund, District karnal. Mst. Gaindi on 5.11.64 executed a registered Power of Attorney in favour of Piara Singh. On 20th June, 1965 Mst. Gaindi entered into an agreement for sale of land measuring 68 kanals 11 marlas in favour of plaintiffs-respondents for a sum of Rs. 10,000/ -. It is alleged that the plaintiffs - respondents paid the entire consideration on the same date vide receipt dated 20. 6.65 (Exh. P-3). It is also alleged by the plaintiffs-respondents that mst. Gaindi died on 18.3.66 and before her death the Power of Attorney holder on 12.3.66 executed sale deed in favour of plaintiffs-respondents, which was interred on 15.3.66. It is further alleged that plaintiffs-respondents were put in possession over the said plot of land and they are in continuous possession of the said land. Subsequently, the plaintiffs-respondents filed a suit for declaration of title in respect of the land covered by the agreement dated 20. 6.65 based on the sale deed dated 12.3.66 and registered on 15.3.66. A written statement was filed by the defendants-appellants wherein they denied the date of death of Mst. Gaindion 18.3.1966. In the written statement it was stated that Mst. Gaindi died on 12.3.66. The trial court held that Mst. Gaindi died on 12.3.66. Consequently, the power of Attorney holder could not have executed the sale deed on the said date in favour of the plaintiffs-respondents. In view of the finding, the suit was dismissed. The first appeal filed against the said decision, was also dismissed. However, in the second appeal, the High Court was of the view that even if Mst. Gaindi died on 12.3.66, the sale deed could be executed on the said date and subsequently, registered. In view of that matter, the High Court allowed the appeal and decreed the suit of the defendants-appellants. It is against the said decision the defendants are in appeal before us.

(2.) We lave heard Counsel for the parties and find that the case of the plaintiffs-respondents before the trial court was that Mst. Gaindi died on 18.3.66, and the Power of Attorney holder executed sale deed on 12.3.1966. It was disputed by the defendants-appellants. The defendants' case was that Mst. Gaindi died on 12.3.1966. Under such circumstances burden of proof was on the plaintiffs-respondents to establish that the Power of attorney holder executed the sale deed when Mst. Gaindi was alive. On this aspect of the matter there is no evidence on record to show that the Power of Attorney holder executed the sale deed when Mst. Gaindi was alive. In the absence of such an evidence the suit could not have been decreed. Moreover, both the courts have recorded a concurrent finding of fact the Mst. Gaindi died on 12.3.66 and, therefore, the High Court fell in error in interfering with the said finding of fact under Section 100 of Code of Civil procedure.

(3.) Learned Counsel for the plaintiffs-respondents then urged that since the agreement for sale is in favour of respondents who are in possession over the land since 20. 6.65 and they have also paid the entire consideration money, therefore, they may be granted relief of declaration as regards their possession by virtue of Section 53a of the Transfer of Property Act. According to us this plea is not available to the plaintiffs-respondents in this proceeding. However, it may be available to them in any other proceeding when they are sought to be ejected.