AMAR NATH Vs. GIAN CHAND

JUDGEMENT

(1.) By the impugned judgment the High Court in a second appeal has reversed the concurrent findings rendered in a suit filed by the first respondent and the appellant who is the second defendant in the suit has filed the present appeal. The second respondent who is the second defendant in the suit though served has chosen not to appear. The parties shall be referred to by their status in the Trial Court.

(2.) The plaint schedule property hereinafter referred to as the 'property ' consists of 2 Kanals, 10 Marlas and odd land belonged to the plaintiff and was in his possession. He was serving as a junior engineer. He entered into an oral agreement for the sale of the property for a consideration of Rs. 55,000.00 . It is the plaintiff 's case that when the plaintiff came on leave, the first defendant could not arrange the money and asked for further time. The plaintiff bonafide executed a special power of attorney in favour of the IInd defendant for selling the property for the amount of Rs. 55,000.00 . As the negotiation fell through in view of the first defendant not being able to arrange the money, the second defendant to whom the power of attorney was executed, surrendered the original to the plaintiff, and the plaintiff told the first defendant that the same stood cancelled. The second defendant is alleged to be a deed writer and a clever person. He applied for the copy of the power of attorney, and fraudulently in collusion with the first defendant, executed the sale deed on 28.04.1987 for Rs. 30,000/. The second defendant, according to the plaintiff, could not execute the sale deed in the absence of the original power of attorney, and the sub registrar was supposed to verify the aspect from the second defendant under Sections 32, 33 and 34 of the Registration Act. The sale deed was without authority. The second defendant 'was not competent to transfer the possession '. The special power of attorney is deemed to have been cancelled in the eye of law since it was handed over to the plaintiff. When the plaintiff came from his service and enquired with the officials of the revenue staff or the consolidation authority, and got the copies, then he came to know about the sale and that the mutation has been sanctioned. It is on this case that the plaintiff filed a suit for declaration by way of permanent injunction that he is the owner in possession of that property and the mutation showing the sale in favour of the first defendant, by the second defendant, was null and void, and that the second defendant was not having any authority to sell the land owned by the plaintiff, and hence the defendant be restrained from interfering with the ownership and possession of the plaintiff. It was further prayed that in case it was proved that the second defendant was an agent of plaintiff then in that case, the suit for rendition of accounts be decreed.

(3.) The first defendant (appellant) in his written statement inter alia pleaded that he while admitting that the plaintiff is a junior engineer, his actual place of posting was not known to him. It is also admitted that the first defendant entered into an agreement orally to get the property purchased for Rs.30,000.00 and not Rs.55,000.00 . It is denied that the first defendant could not arrange for the money. The plaintiff received Rs.10,000.00 as part price. The remaining Rs.20,000.00 was paid at the time of registration. The negotiation of the sale did not fall through. Second defendant never surrendered the original power of attorney. The plaintiff got the power of attorney after the sale deed was executed by the second defendant. The sum of Rs.20,000.00 was given in the presence of the sub registrar. The first defendant was a bonafide purchaser. The sale deed was effected in a legal manner and after verification by the sub registrar. The second defendant was competent to execute the sale deed.