KANTA DEVI AND ORS Vs. MANJU AND ORS

JUDGEMENT

(1.) Instant regular second appeal is directed against the judgment and decree dated 5.7.2007, passed by the learned District Judge, Shimla, in CA No. 40-S/13 of 2006, affirming the judgment and decree dated 8.3.2006, passed by the learned Civil Judge (Junior Division), Court No.3, Shimla, District Shimla, H.P., in CS No. 111/1 of 1999, whereby suit for declaration and permanent prohibitory injunction having been filed by the plaintiffs-appellants (herein after referred to as "the plaintiffs"), came to be dismissed.

(2.) In nutshell facts of the case, as emerge from the record are that plaintiffs filed suit in the Court of learned Civil Judge, claiming that they are owner in possession of the suit land as described in the impugned judgment and decree passed by the court below and defendants who have no right, title and interest of any kind in the suit land, and as such, they may be restrained from alienating, encumbering changing or in any manner deal with the suit land/property.

(3.) Plaintiffs averred in the plaint that they are illiterate and simpleton persons and as such, defendant No.2 namely Gurdyal Singh, resident of village Tundal, Tehsil Kandaghat, District Solan, H.P. taking undue advantage of their illiteracy and innocence, approached them on 8.12.1998 with a proposal for sale of land to the extent of 8-18 bighas out of their share and in this regard, got executed an agreement. Plaintiffs further alleged that no consideration was paid by defendant No. 2 to plaintiffs' No. 2 and 3. Subsequently, defendant No. 2 approached all the plaintiffs with the representation that since suit land is joint between the plaintiffs and one Shri Ramanand S/o Gajya, plaintiffs are required to execute general power of attorney in his favour to facilitate partition of the land inter-se plaintiffs and above named person namely Ramanand. Plaintiffs believing aforesaid representation/version put forth by defendant No.2 to be true, executed general power of attorney(s) in his favour on 5.4.1999 and 3.10.1998, which were subsequently registered in the office of Sub Registrar, Shimla. Plaintiffs claimed that contents of General Power of attorney were never read over or explained to them and defendant No.2 took active interest in execution of General Power of Attorney and he without their knowledge and consent, malafidely got incorporated in the General Power of Attorney that defendant No. 2 shall have the right to sell the land. Plaintiff further claimed that they had never consented to such proposal but defendant No. 2 by misrepresenting the true facts exercised undue influence over them and got the GPA executed. Plaintiffs further claimed that intention of defendant No.2 was only to grab the land of the plaintiffs and accordingly, he got the sale deed executed of the entire share of the plaintiffs on 5.4.1999 in favour of defendant No.1. Plaintiffs also stated that they were taken to the office of Tehsildar, Kandaghat by defendant No. 2 for registration of GPA though they are residents of District Shimla. In nutshell, plaintiffs alleged that defendant No.2 in connivance with defendantNo.1 in order to deprive them from their property, executed the sale deed of the share of the plaintiff to the extent of 17-16 bighas for the meager sale consideration of Rs. 75,000/-, which was also not paid by defendant No. 2 to the plaintiffs.