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 con firming 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 pos session of the said land. The defendant Nos. 1 and 3, Ali Hassan and Abdul Hassan, re spectively 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 at torney, also got prepared forged sale deed with regard to the property belonging to the plain tiff 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 con sideration of Rs. 1,50,000/ -. The further as sertion 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 al leged that Roorkee Tehsil is nearer to her village and there was no occasion for her to pre pare 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.) ON the pleadings of parties the learned Civil Judge (S. D.) framed following is sues:- (1) Whether the sale deed dated 10-5-1995 executed by defendant No. 1 in favour of de fendant Nos. 2 and 3 is liable to be cancelled on the grounds set in the plaint? (2) Whether the alleged power of attor ney dated 25-4-1995 executed by plaintiff in favour of defendant No. 1 is forged document and the plaintiff did not execute the same? If so, its effect? (3) Whether the plaintiff received the sale consideration in respect of sale deed from defendant No. 1 in favour of defendant Nos. 2 and 3 ? (4) Whether the plaintiff is owner and in possession of the property in dispute? (5) Whether the plaintiff is entitled for any relief? (6) Whether after selling the property in dispute to Mohammad Mateen by the plaintiff, the suit rendered infructuous? (7) Whether the suit is barred by principle of estoppel and acquiescence? (8) Whether the suit rendered infructuous in view of the contention raised in para No. 13-A of the written statement?