KISHAN LAL BARWA Vs. SHARDA SAHARAN AND ORS.

JUDGEMENT

(1.) THE present writ petition is directed against the orders passed by Civil Judge (Senior Division), Gautam Buddh Nagar, dated 26.2.2014, rejecting objection under Section 47 CPC, as well as the order dated 29.5.2014, rejecting the revision filed against it. The question falling for consideration of this Court, in the instant petition, is as to whether the executing Court is justified in refusing to examine plea of fraud, setup in objection under Section 47 CPC, on the basis of a subsequent report of public servant, for the reason that such defence setup before Civil Court was not substantiated, resulting in passing of the decree itself?. Facts as it emerges from record are that Noida (New Okhala Industries Development Authority) executed a lease deed of a residential plot No. 39, Block -C, Sector -XV, measuring 202.50 sq. meters, in favour of Ashok Kumar, on 23.5.1981. The defendant -petitioner asserts that a registered agreement to sell was executed by the lessee Ashok Kumar in favour of the defendant -petitioner on 7.8.1984, pursuant to which, the defendant -petitioner was put in actual possession and that a five story -building was constructed by him, which exists on the spot. It further appears that in respect of the same plot, the plaintiff -respondent asserts that a power of attorney was executed by the lessee Ashok Kumar in favour of respondent No. 2 Ripudman Kumar Saharan on 25.10.1984, on the basis of which, a sale -deed of the plot was executed on 25.2.1986 in favour of his wife Smt. Sharda Saharan, who is plaintiff -respondent No. 1 in the present petition.

(2.) SMT . Sharda Saharan, thereafter, filed a civil suit No. 842 of 1986 for permanent prohibitory injunction, in respect of the plot in question, against the defendant -petitioner with the allegation that the plaintiff -respondent has obtained a sale -deed of the plot in question on 25.2.1986, which was executed by the power of attorney holder of the lessee Ashok Kumar. It was further asserted that the plaintiff -respondent has also got a map sanctioned for raising of construction upon the plot on 8.4.1986 and a temporary construction of a store was raised upon it. The suit was filed against the defendant -petitioner saying that he had no right over the suit property, yet, he is hellbent upon forcibly entering into possession, and therefore, the defendant -petitioner be restrained from interfering with the right of the plaintiff -respondent over the suit property. The suit was contested by the defendant -petitioner asserting that no power of attorney was ever executed by Ashok Kumar in favour of Ripudman Kumar Saharan, and the alleged power of attorney dated 25.10.1984 was a forged document. It was also stated that no right accrues to the plaintiff -respondent over the suit property on the basis of sale -deed, as the power of attorney itself was a fraudulent document. The plaintiff -respondent No. 1 Smt. Sharda Saharan was the sole plaintiff and defendant -petitioner Kishan Lal Barwa was the sole defendant. An affidavit in the suit was filed by Ashok Kumar, claiming to be lessee of the suit property, stating that he has not executed any power of attorney in favour of Ripudman Kumar Saharan and the said document contains signatures of someone other than him. It was further stated in the affidavit that the property has been agreed to be sold to the defendant -petitioner and he has been put in possession of the property. The suit was tried by the Civil Court and five issues were framed, first of which, was whether the plaintiff -respondent is the owner in possession of the disputed plot? The Civil Court noticed the contention of the defendant -petitioner that only certified copies of the power of attorney as well as the sale -deed pursuant thereto have been brought on record and that its originals have not been produced. The challenge to the power of attorney, on the ground that it is a fraudulent document, was not considered by the Civil Court, on the ground that the person, who has executed the power of attorney, had not disputed its execution by appearing before the Civil Court. It was, therefore, held that so long as the sale -deed continues to exist in favour of the plaintiff -respondent, she would be treated to be the owner of the property. The Civil Court also found that the plaintiff -respondent is in possession of the suit property. The suit was ultimately decreed on 27.4.1991 in favour of the plaintiff -respondent. This judgment and decree was put to challenge in civil appeal No. 74 of 1991 and the same was dismissed on 23.1.1992. A second appeal, being S.A. No. 448 of 1992, filed against it, was also rejected by this Court on 18.2.2002. The decree passed by the Civil Court, granting prohibitory injunction to the plaintiff -respondent, against defendant -petitioner thus attained finality.

(3.) IT further appears from the record that pursuant to an application made before the Chief Judicial Magistrate under Section 156(3) Cr.P.C., a criminal case No. 499 of 2002 under Section 420, 468, 467, 471 IPC was registered at the instance of the defendant -petitioner against Ripudman Kumar Saharan and Smt. Sharda Saharan. During investigation, the fingerprints of Ashok Kumar, as it appeared on lease deed executed by Noida in his favour were got tallied with the fingerprints appearing on the agreement to sell executed in favour of the defendant -petitioner and also upon the alleged power of attorney executed in favour of Ripudman Kumar Saharan on 25.10.1984. A fingerprint report was submitted by the office of Directorate, Fingerprint Experts, State of U.P., Lucknow on 30.5.2003 to the Chief Judicial Magistrate, Gautam Buddh Nagar, wherein experts of the directorate found that the fingerprints of Ashok Kumar, as appearing on the lease deed executed by Noida in his favour, do not match with the fingerprints on the power of attorney, whereas fingerprints of Ashok Kumar do match with his fingerprints on the agreement to sell executed in favour of the defendant -petitioner.