BANTI DEVI Vs. DALIP CHAND

JUDGEMENT

(1.) HEARD and gone through the record. Late Sh. Bhagtu, now represented by his daughter, appellant in the appeal, filed a suit for declaration that he was owner in possession of certain property described in the plaint and that the sale of the said land made by respondent Dalip Chand, acting as his general attorney in favour of his (Dalip Chand's) wife Harbanso Devi respondent and further sale by respondent Harbanso Devi in favour of her son Gurbanchan Singh, also a respondent, were illegal, void and not binding upon him. Further declaration was sought that compromise dated 28th September, 1995, arrived at, in an earlier suit filed by the said Bhagtu, against these very persons, in which too, the aforesaid sales were challenged, was also illegal and void, as fraud had been played upon him (said Bhagtu) in making him agree to that compromise. By way of further relief, prayer for permanent prohibitory injunction restraining the respondents from causing any interference in the possession of the plaintiff was made and in the alternative, prayer was made for passing a decree of possession of the suit land.

(2.) IT was alleged that Bhagtu plaintiff was the owner in possession of the suit land. He had some litigation with one Amru. Bhagtu himself being unable to pursue that litigation wanted to appoint Dalip Chand, who was his neighbour, as his attorney for the purpose of pursuing that matter. Dalip Chand, however, got the instrument of power of attorney prepared so as to authorize him to transfer his property. Bhagtu was unaware of this authority when he signed the instrument. Later on he came to know that on the strength of the said instrument Dalip Chand had transferred his entire landed property in favour of his wife by means of a sale deed and his wife had further transferred it to her son also through a sale deed. The wife and the son of Dalip Chand, are respondents herein. Bhagtu then filed a suit seeking declaration that the sale of his property by Dalip Chand and then by his wife Harbanso, was illegal, void and of no consequence upon his right, as the instrument of power of attorney had been executed by him under the belief that it was only for pursuing the case in the court and the clause authorizing said Dalip Chand to alienate the property had been incorporated surreptitiously. During the pendency of the suit filed by deceased plaintiff Bhagtu, Dalip Chand, allegedly approached him with an offer that he would pay him rupees two lacs in case the suit was withdrawn. Some respectable residents of the village intervened. Plaintiff agreed for the withdrawal of the suit on being assured that he will be paid rupees two lacs. He was paid only rupees ten thousand and the remaining amount was agreed to be paid within two months. Bhagtu then appeared in the court and made a statement abandoning the claim and also withdrawing the suit. One writing purporting to be a compromise deed, which simply stated that there had been a compromise between the parties and in terms of that compromise, the suit was to be withdrawn, was filed in the court. Statement of Bhagtu was also recorded. That suit was then dismissed as withdrawn.

(3.) DEFENDANTS contested the suit. They denied that instrument of power of attorney had been procured by playing fraud upon Bhagtu. It was also denied that there was an agreement for the payment of rupees two lacs to the plaintiff and it was because of such agreement that the earlier suit was withdrawn. The suit was alleged to be barred by principle of res judicata and was also alleged to be hit by the provision of Order 23, Rule 1(4) of CPC.