SATWANT SINGH DOGRA Vs. NARENDRA SINGH

JUDGEMENT

(1.) Along with the Suit for possession, declaration, mandatory injunction and permanent injunction, the plaintiff has fied IA. 7479/2000 under Order XXXIX Rules 1 and 2 read with Section 151, Civil Procedure Code for ad-interim injunction. Ex-parte injunetion Order dated 31/7/2000 was oranted. It was modified to some extent by Order dated 19/10/2000. The defendants 2 and 3 have filed application no.10932/2000 for vacation of ex-parte Order dated 31/7/2000 as modified "by Order dated 19/10/2000. Both the applications were heard together and are being disposed of by this Order.

(2.) Late S.Hazara Singh was the owner of Tree hold plot of land bearind no.27, block-A, measuring 600 sq.yds. in Haua: Khas, New Delhi. By Will dated 24/4/1965 he bequeathed this property in favour of his four sons. The plaintiff, being one of the sons, inherited 1/4th share of the property. After the death of Sardar Hazara Singh there was a family settlement among fout brothers and the property was divided in four shares. The plaintiff got front portion of first floor which was under the tenancy of one Shri N.K.Sharma. The plaintiff is NRI. On 13/11/1991 he executed Power of Attorney in favour of the defendant ho.1 whereby he empowered the defendant no.1 to deal with and look after the properties of the plaintiff in Distt. Hoshiarpur and other parts of India. Authority given included power to sell these properties also. The defendant no.1 on the basis of this Power of Attorney sold the share of the plaintiff to the defendants 2 and 3. In fact, the defendants 2 and 3 purchased the entire property i.e. they purchased other three portions of the property from the other three brothers for which appropriate Sale Deed were executed in favour of the defendants 2 and 3. The Sale Deed was executed in respect of the plaintiff's portion also and duly registered with the Sub-Registrat. It was preceeded by agreement to sell and other connected documents. The total consideration for the share of the plaintiff was Rs. 25.00 lakhs. defendants 2 and 3 got the tenants vacated, took possession of the entire property and thereafter reconstructed the entire property. At this stage, the present suit was filed by plaintiff on the allegations that the defendant no.1 was never authorised to sell the Suit property to any person and the Agreement to Sell dated 24/11/1999 and the subsequent sale Deed are null and void. The plaintiff has also made detailed averments alleging that the defendants colluded with each Other in selling the property of the plaintiff. In fact the defendant no.6 was the counsel for the plaintiff and eviction petition was filed through him against the tenant Sh.N.K.Sharma. The plaintiff has attributed the acts of collusion and fraud to defendant No.6 as well. Thus in this manner, the plaintiff is seeking repossession of his portion of the property. Although as mentioned above, detailed allegations of fraud are made against all the defendants, it may not be necessary to reproduce these allegation and the submission made by the plaintiff on the basis of these allegations. The Court has to see the prima facie case at this stage and to come to conclusion as to whether the plaintiff is entitled to ad-interim injunction as as prayed for at this stage or not. For this purpose some of the salient facts may be noted:

(3.) In view of the aforesaid facts, the plaintiff has prima facie failed to substantiate his theory of fraud being played upon him. The circumstances under which the entire deal of the property in question whereby other three brothers have also sold their respective share to defendant No.3 coupled with overt acts and conduct of the plaintiff himself having knowledge of the receipt of the money and specific instructions as to how the said money is utilised are the circumstances which would militate against the stand taken by the plaintiff and would prima facie show that the plaintiff himself believed that the General Power of Attorney which he has executed in favour of defendant No.1 is proper authority in favour of defendant No.1 to deal with the suit property on behalf of the plaintiff. In fact it is not even the case where acting on the said General Power of Attorney defendant No.1 has entered into some transaction at the back of or without the knowledge of the plaintiff. Once it is held that there was proper authority given by the plaintiff to defendant No.1 to deal with the suit property with further covenant in the said General Power of Attorney that plaintiff would rectify all acts of defendant No.1 even if defendant No.1 had entered into this particular sale transaction without the knowledge of the plaintiff that would have been immaterial. However, in the instant case the facts and circumstances show that the plaintiff was through out informed about the transaction by defendant No.1 on his behalf with defendant No.2 and there is a stamp of approval by him as he not only accepted sale consideration by depositing the same in his account, he even dealt with said money after it was deposited in this account. The deposit of Rs.20 lakhs in Capital Gain Scheme shows that he wanted the money to be deposited in an account so that he is not burdened with capital gain. Therefore, the stand now taken in the plaint alleging collusion and fraud played by the defendants clearly shows that it is an after thought plea raised by the plaintiff after the deal was completed in all aspect which culminated into even execution of sale deed. The conduct of the plaintiff exposes him of double speak.