BASANT KUMAR GAUR Vs. SUGGAMAL

JUDGEMENT

(1.) This first appeal has been preferred by defendant/ appellant against judgment and decree dated 25-9-2001 passed by the Court of V Additional District Judge, Gwalior, in Civil Suit No. 59-A/1984.

(2.) Plaintiff/respondent No. 1 instituted a suit with allegations, inter alia, that the suit property belonged to Mahila Akhtar Begum, who being Pardanasheen, had appointed her husband, namely, Irtiza Hussain as her power of attorney. She through her power of attorney entered into a written agreement to sell the suit property to the plaintiff on 12-10-1979 for a consideration of Rs. 14,000/-. According to agreement, Rs. 10,000/- were to be paid at the time of sale-deed. Plaintiff paid Rs. 4,000/- vide bank-draft dated 6-11-1979. Balance money Rs. 10,000/- were paid on 6-3-1980 at the time of obtaining permission from Urban Land Ceiling Department. All the aforesaid facts were known/within knowledge of defendant/appellant. Pursuant to the aforesaid sale agreement, Mahila Akhtar Begum through her power of attorney executed registered sale-deed dated 09-3-1981 in favour of plaintiff in respect of the suit property. Thus, the plaintiff is the sole owner of the suit property and is in its possession as owner from the date of registered sale-deed dated 9-3-1981. Plaintiff issued a notice dated 19-4-1981 for demand of rent to defendant No. 1 who asserted his ownership. Defendant No. 2 who was in occupation in the suit property asserted his possession as tenant of defendant No. 1. Defendant/appellant in his reply dated 8-6-1991 in response to plaintiff's notice stated for the first time that he had obtained an ex parte decree for specific performance against Mahila Akhtar Begum on the basis of an alleged sale agreement and its execution was pending. On collecting information, plaintiff came to know that defendant No. 1 had prepared a fake and forged sale agreement dated 11-3-1980 which bears forged signatures of Mahila Akhtar Begum. Ex parte decree dated 2-8-1980 was obtained by defendant No. 1 without due service of summons on her. Civil Suit No. 59-A/1980 instituted by defendant No. 1 against Mahila Akhtar Begum was conducted keeping in mind the various dates when Mahila Akhtar Begum was present at Gwalior for execution of various sale-deeds in respect of different pieces of her property. It is pleaded that agreement of sale in favour of plaintiff on 12-10-1979 and registered sale-deed pursuant thereto was duly executed on 9-3-1981. However, the alleged sale-agreement and registered sale-deed in favour of defendant/appellant were subsequent to the sale agreement dated 12-10-1979 in favour of the plaintiff. This being so, defendant/appellant has not acquired any right or title in the suit property. Since the sale agreement and registered sale-deed in favour of the plaintiff were within the knowledge of the defendant/appellant right from the beginning, he is bound to execute a deed of conveyance in favour of plaintiff.

(3.) Defendant Akhtar Begum submitted written statement in favour of the plaintiff. She, inter alia, contended that she being Pardanasheen had appointed her husband, namely, Irtiza Hussain as her power of attorney. She admitted the agreement of sale dated 12-10-1979 as well as registered sale-deed dated 9-3-1981 in favour of the plaintiff. She admitted receipt of consideration and proceedings for permission from Urban Land Ceiling Department initiated on her behalf. She also stated that all the aforesaid facts were well within the knowledge of defendant/appellant right from the beginning. She denied that any agreement was executed in favour of defendant/appellant. She further stated that summon in the civil suit instituted by defendant/appellant against her was not served upon her. She, for the first time, came to know about the earlier suit after service of summons of the present suit along with copy of plaint. Till then, she was not, at all, aware of earlier suit allegedly instituted by defendant/appellant for specific performance. Alleged agreement in favour of defendant/appellant has been disputed by her as a forged document. She stated that ex parte decree was obtained by the defendant/appellant against her by procuring wrong endorsement. On coming to know about the said ex parte decree, application for setting aside the same was submitted by her on 17-4-1980, which is still pending.