MOHAN SINGH Vs. PIARA SINGH

JUDGEMENT

(1.) Both the appeals relate to same subject matter and they are at the instance of same plaintiff. In RSA No.454 of 2010, the suit has been instituted at the instance of Dalip Singh for possession of the agricultural land measuring 11 kanals 8 marlas situate in village Nimnabad against Mohan Singh. In RSA No.1056 of 2011 also, the suit has been instituted by the same plaintiff Dalip Singh for the relief of declaration that the saledeed executed by the 1st defendant Mohan Singh in favour of Baljinder Singh on 05.05.2003 is null and void and not binding upon the plaintiff. The plaintiff's claim for recovery of possession is sought on a plea that the defendant who was originally setting up some right over the property purporting to have secured a decree in his favour through a suit filed by him in Civil Suit No.280 of 1984. The plaintiff would contend that the decree obtained was brought by impersonation and he had filed his own suit in Civil Suit No.575 of 1984 to declare that the decree obtained in Civil Suit No.280 of 1984 was illegal and null and void. The defendant had filed his own suit in Civil Suit No.340 of 1988 that he shall not be dispossessed except by due process and the Court had allowed for the defendant to continue in possession till he was dispossessed in accordance with law. The plaintiff, therefore, has instituted the present suit in Civil Suit No.27 of 1998 for recovery of possession. The suit had been originally dismissed and the appeal filed by him secured a reversal of judgment and secured to him a decree for recovery of possession of property. It is against this judgment that the second appeal in RSA No.454 of 2010 had been filed.

(2.) When the defendant had secured a decree by filing Civil Suit No.280 of 1984, the defendant had also secured a mutation of revenue entries in relation to the property in his name on the basis of such a decree. Although the decree was set aside in Civil Suit No.575 of 1984, the mutation had not been corrected as the defendant had purported to have created a mortgage in relation to the property treating himself to be owner for raising of loan of Rs. 63,000/-. He subsequently sold the property also in favour of the defendant on 05.05.2003. The sale hadbeen brought during the pendency of the appeal, which the plaintiff had preferred in the other suit which he had already filed for recovery of possession. Since he apprehended that the subsequent purchaser could create again a problem at the time of delivery of possession, the plaintiff had filed a suit by for declaring that the sale by the 1st defendant in favour of the 2nd defendant was not valid. The subsequent purchaser took the contest on the ground that the plaintiff had never been a resident of the village and he had gone away to Uttar Pradesh. The suit has been instituted through a power of attorney Piara Singh and the contention also was that the power of attorney was not valid. The defendant contended in the same suit that the plaintiff had already filed another suit in Civil Suit No.20 of 2002 against Mohan Singh for permanent injunction in relation to the same property and it had been held in the said decision that the 2nd defendant and his sons had been in possession of the property and the suit for injunction was dismissed. During the pendency of the suit, Dalip Singh died on 27.10.2006 and the power of attorney Piara Singh sought for continuation of the suit on the ground that Dalip Singh had executed a Will in his favour. Piara Singh, who was the power of attorney initially at the time of institution of the suit and who claimed a Will from Dalip Singh sought to prove the Will by examining PW2 and PW4. The trial Court had reasoned that Sant Singh, one of the witnesses had given evidence that all the expenses of the Will were borne by Piara Singh which according to the trial Court created a suspicion. PW4 Sant Singh himself had admitted in the cross-examination that he had lost his eye sight since nine years and the Court, therefore, found that it was not possible to believe that he could have seen theexecutant sign the document. In the appeal filed by Piara Singh, it was contended by him that Dalip Singh himself had filed a suit for injunction against sale in respect of property against Mohan Singh but the sale had been executed by Mohan Singh during the pendency of the suit when there was an order of injunction in operation. The dismissal of the suit for injunction was of no consequence for limited purpose of grant of injunction against sale since the sale had already been effected. The present suit had been filed for declaration that the sale was not valid. There was no relevance for deciding the validity or otherwise of the Will since the suit was not a claim in relation to heirship of Dalip Singh but it must be taken to be at his instance that the sale by Mohan Singh against whom he had already secured a decree was not valid and the suit could always continued by a person who was a representative to the estate of Dalip Singh. The Appellate Court examined the situation of whether the defendant was a bona fide purchaser under Section 51 of the Transfer of Property Act and held that the sale had been made on 05.05.2003 when there was an order of injunction in force. The Court had actually issued an order under Ex.P5 that the parties would maintain the status quo regarding alienation until further orders. The Appellate Court, therefore, reversed the decision and granted a decree in favour of the plaintiff holding that the 2nd defendant's purchase was not valid.

(3.) As regards the appeal in RSA No.454 of 2010, at the time when the appeal was disposed of by the lower Appellate Court on 28.01.2008, Dalip Singh had died and the Court had allowed Piara Singh to prosecute the appeal as his legal representative. There had been also an issue framed in the suit whether Piara Singh had a valid power ofattorney in his favour from Dalip Singh to prosecute the suit and appeal. Power of attorney filed by Piara Singh was a registered instrument. The original had been filed by Piara Singh in civil revision which is pending before this Court in Civil Revision No.408 of 1993. The defendant Mohan Singh was himself a party in the said revision. The lower Appellate Court found that there was a justification for non production of original power of attorney and the witness in the power of attorney had been examined and there was a presumption of validity of the power of attorney through registered instrument and that the title to the property as having been already decided in favour of the plaintiff in a previously instituted suit when the decree obtained originally by the defendant had been set aside as incompetent, the appeal was bound to be allowed. At the time when the appeal has been taken up on the notice that the appeal filed before this Court was against the judgment dated 28.01.2008, the said appeal had been allowed setting the respondent Mohan Singh ex parte. An application appears to have been filed for rehearing the appeal which has been dismissed on 29.07.2009. There had been a revision filed against the said order and that was dismissed as withdrawn during the pendency of the second appeal. The Court had directed therefore the appellant to explain the maintainability of such an appeal.