RABIYA Vs. ALI HUSSAIN

JUDGEMENT

(1.) THIS appeal, under Section 100 of the C. P. C. has been preferred against the judgment and decree dated 27 -8 -2001 passed by Civil Judge (S. D.) Roorke thereby dismissing First Appeal No. 5/2001, Smt. Rabiya v. Ali Hussain and others, thereby confirming the judgment and decree dated 19 -1 -2001 passed by Civil Judge (J.D.) dismissing Suit No. 155/96, Smt. Rabiya v. Ali Hussain and others.

(2.) BRIEF facts of the case are that plaintiff/appellant filed a suit against the defendants/respondents for cancellation of sale deed dated 10 -5 -1995, registered in Sub Registrar Office, Jagadari, Roorkee, at Bahi No. 1, Zild 02, 25 on 22 -5 -1995. According to the plaint case the plaintiff Smt. Rabiya inherited the property, shown in the Schedule of property given at the foot of the plaint, from her father late Sri Ahamad and now she is owner in possession of the said land. The defendant Nos. 1 and 3, Ali Hassan and Abdul Hassan, respectively are the sons of her great grand father and Smt. Raqiba, defendant No. 2, is the wife of Ali Hassan (defendant No. 1). The defendant No. 1, in order to grab the property of the plaintiff, got prepared forged power of attorney, in the name of the plaintiff on 25 -4 -1995. Thereafter, the defendant No. 1, Ali Hassan, on the basis of forged power of attorney, also got prepared forged sale deed with regard to the property belonging to the plaintiff for a consideration of Rs. 1,50,000/ - on 10 -5 -1995 in favour of defendant Nos. 2 and 3 and also got it registered. According to the plaintiff the sale price of the disputed land in any manner could not be less than Rs. 3,00,000/ -. In the sale deed the witness Tosheef is the man of the defendants and scribe is the Clerk Advocate Asif Ali. It is also alleged in the plaint that there is no recital that who had actually received the sale consideration of Rs. 1,50,000/ -. The further assertion of the plaintiff is that she is in actual possession of the disputed land and the forged sale deed was never acted upon. She also alleged that Roorkee Tehsil is nearer to her village and there was no occasion for her to prepare power of attorney instead of registering the sale deed directly. Therefore, the plaintiff sought a decree for cancellation of sale deed allegedly obtained by playing fraud.

(3.) THE defendants/respondents Nos. 2 and 3 also contested the suit by filing their written statement and denied the averments of the plaint. They have made specific assertion that the power of attorney was got registered by the plaintiff in favour of defendant No. 1 on 25 -4 -1995 in Tehsil Jagadari Registrar Office and on the basis of the powers given to defendant No. 1 in the power of attorney, they have purchased the disputed land on 15 -5 -1995 for a price of Rs. 1,50,000/ -. According to them the cost of the land, i.e. Rs. 1,50,000/ - was handed over to defendant No. 1. Therefore, they are owner in possession of the disputed land since 15 -5 -1995 and no one else has any concern with that land.