RAJKUMAR PANDEY Vs. BALMUKUND AGRAWAL

JUDGEMENT

(1.) This is a First Appeal under Section 96 of the Civil Procedure Code by the defendants against the Judgment and decree dated 24.11.2004 passed in Civil Suit No.9-A/2004 passed by Additional District Judge, Satna (Fast Track) decreeing the suit of the plaintiff/ respondent No.1, declaring that the sale deed Nos. 2047, 2048 and 2049 dated 22.2.1997 executed in respect of land bearing Khasra No.238(Kha) area 7500 sq.ft., are null and void and are inoperative against the respondent No.1/plaintiff and further directing the appellants to remove the boundary wall constructed on the said land within a period of one month at their own cost. It is contended by the appellants that a suit was filed by the respondent No.1 against the appellants stating that by practising fraud, by manipulation of power of attorney and by self styling as an authorised person to execute the sale deed, the appellant No.3 has executed the aforesaid three sale deeds in favour of other appellants without proper payment of the sale consideration to the respondent No.1/plaintiff. In the said suit, a declaration was sought to the effect that the sale deed executed in such a manner were not binding on the respondent No.1. It is further contended in the appeal that the trial Court after entertaining the Civil Suit has issued the notices to the appellants and the written statements were filed denying such claims made by the respondent No.1. The trial Court framed issues recorded the evidence, but erroneously not taking into consideration the evidence adduced by the appellants, wrongly appreciating the evidence produced by the respondent No.1/ plaintiff decreed the suit, which otherwise was not maintainable and was liable to be dismissed. Thus, it is contended that the judgment and decree impugned is liable to be set aside.

(2.) Learned Senior counsel appearing for the respondent No.1/plaintiff has supported the Judgment and decree passed by the Court below and has taken this Court to the evidence, both documentary and oral and referring even the statements of some of the witnesses of the appellants, it has been contended that on proper appreciation of the evidence, the Court below has reached to the definite finding and has decreed the suit because the fraud as pleaded was proved. The circumstances on the basis of which it could be established that no such power of attorney was ever executed in favour of the appellant No.3 were properly appreciated by the Court below and definite findings have been given in favour of the respondent No.1 by the Court below. It is contended that the appeal has no force and is liable to be dismissed.

(3.) Facts giving rise to filing of this appeal in nutshell are that the respondent No.1/plaintiff has purchased a plot measuring 7500 sq.ft. at Bhandhavgarh, Colony, Kolgawan, a registered sale deed dated 24.1.1981 from one Shri Surjeet Singh. The said plot was registered in the name of the respondent No.1 in the revenue records and a 'Rin Pustika' was also issued in his favour. It was contended by the respondent No.1/plaintiff that since he was in services as a Physician is posted for a long period in the State of Maharashtra on different places, he was intending to sell out his land at Satna and was intending to purchase a plot at Pune Maharashtra. The appellant No.1 who was a property broker came in contact with the respondent No.1/plaintiff and after some discussions, the respondent No.1/plaintiff agreed to sell his plot in the name of wife of appellant No.1 and executed an agreement. However, the agreement written at that time on stamp paper was not returned in original to the respondent No.1/plaintiff. The fact remains that the respondent No.1 agreed to sell his plot to the wife of the appellant No.1 for a valuable consideration of Rs.8,62,000/-. After the execution of the aforesaid agreement, the talks were going on, but subsequently the appellant No.1 intimated the respondent No.1/ plaintiff that unless there is a power of attorney given in favour of the appellant No.1, he would not be in a position to negotiate with other party for sale of the plot. It was informed that since the appellant No.1 alone was not in a position to pay such amount of sale consideration, it was necessary that such a power of attorney be executed so that he may negotiate with prospective purchaser and finalise the sale. It was contended by the respondent No.1/plaintif that thus, a plain and simple power of attorney was executed by him authorising the appellant No.3 to negotiate in respect of the land in dispute, but he never authorised the said person to execute the sale deed, receive the amount of sale consideration on behalf of the respondent No.1/plaintiff with respect to the suit plot. The amount which was said to be paid on the said date was acknowledged on a receipt, but the said receipt was also tampered and instead of acknowledging the payment of Rs.50,000/-, the same was made to acknowledge the payment of Rs.3,50,000/-. The power of attorney was also tampered and manipulated and on the strength of such power of attorney, the plot divided into different pieces, was sold to the three persons by execution of the sale deed by appellant No.3. When these facts came to the notice of respondent No.1/ plaintiff, the action was immediately taken and suit was filed. It was contended that throughout the respondent No.1/plaintiff was in physical possession of the plot in dispute and only a boundary wall was constructed on the boundary wall of the respondent No.1/ plaintiff by the appellants. Thus, the suit for the aforesaid reliefs was filed.