SRNT MOHINI SUD Vs. BIMLA DEVI

JUDGEMENT

(1.) The above second appeal has been filed by the defendant, in case No. 129/1 of 1983, 33/1 of 1985, who lost before both the Courts below challenging the judgment and decree passed by the learned District. Judge, Shimla, dated 29.10.1992 in C.A. No. 5-S 13 of. 1986, whereunder the learned first appellate Judge has chosen to confirm the judgment and decree passed by the learned trial Judge in decreeing the suit filed by the respondent-plaintiff that the sale deed dated 4.7.1978 registered on 31.7.1980 is null and void and not binding on the plaintiff and also for permanent prohibitory injunction restraining the defendant from collecting any rent or profit covered under the sale-deed.

(2.) The case of the plaintiff was that she was the owner in possession of 1/2 undivided share in the property, comprised in Khasra No. 80, Bazar Ward, Bara Shimla, measuring 396 sq. ft., bearing Municipal No. 35. The Mall, Shimla, and that she had through her husband Shri Sansar Chand, who was acting as special attorney of the plaintiff signed a sale-deed on 4.7.1978 for sale of the suit property for Rs. 26,000/- in favour of the defendant-appellant and that the sale consideration was to be paid by the defendant to the husband of the plaintiff before the Sub-Register, Shimla, at the time of registration of the sale- deed. It appears that the defendant had also obtained an affidavit from the husband of the plaintiff for facilitating the change of mutation of the suit property on the registration of the sale-deed and when the parties went to the office of the" Sub- Registrar to get the sale-deed, registered on 4.7.19781, the Sub-Registrar was not available and the parties were asked to come the next day. The further plea on behalf of the plaintiff was that the sale-deed and the affidavit were kept by the, defendant herself and on 5.7.1978 when the husband of the plaintiff went to the office of the Sub-Registrar, he found that the sale-deed and affidavit had been tampered with the unauthorised overwriting and cutting were found, which were without the consent and knowledge of the plaintiff, and therefore, the husband of the plaintiff refused to present the said documents before the Sub- Registrar and left Shimla, without executing the same and getting it registered. Asserting and reiterating the claim that no consideration actually was paid to the husband of the plaintiff and that was the reason for non-registration of the deed also. It is further stated that the defendant moved an application on 5.10.1978 under Sections 32, 71 and 73 of the Indian Registration Act for compulsory registration before the Sub-Registrar and ultimately, the document came to be registered under the orders of the Sub-Registrar on 31.7.1980 in the absence of the plaintiff and her special power of attorney, which necessitated the filing of the, above suit for the relief, noticed supra.

(3.) The defendant contested the suit claim by contending that the plaintiff's special attorney had signed and executed the sale-deed on 4.7,1978 and also signed and executed the affidavit by which the receipt of consideration has been admitted and the parties appeared before the Sub-Registrar for registration of the above documents, when it could not be registered actually on 4.7.1978 and the parties were asked to come to the office next day. According to the defendant, since the special attorney of the plaintiff was in a hurry to go back and, therefore, he was paid the amount of consideration, he delivered the sale-deed and other connected papers, namely, letters addressed to the tenants and to the Taxation Department and an affidavit of having received the amount of consideration, with an assurance that he will come to the office the next morning. According to the defendant, the special attorney did not turn up on 5.7.1978 despite long waiting and an application for compulsory registration was made before the Sub- Registrar and the special attorney attended the office on 5.12.1978 when though he admitted the execution of the documents, but denied the receipt of consideration, which was said to be a dishonest and an illegal act and the allegation made by the plaintiff of tampering with the sale-deed and making unauthorised overwriting and cuttings was said to be a false claim. The alterations were said to have been made with the consent of the plaintiff's attorney by the scribe, who was said to have typed the sale-deed. The plaintiff's suit was said to be time-barred as the sale-deed related back to the date of execution, namely, 4.7.1978 and the defendant contended that the plaintiff is not entitled for the relief, whatsoever, in the suit.