MAHESHA DEVI Vs. SATYA DEVI

JUDGEMENT

(1.) The defendants are the appellants, who after having lost before both the learned Courts below, have filed this Regular Second Appeal.

(2.) The brief facts of the case are that the plaintiffs filed a suit for declaration claiming themselves to be the owner in possession of the suit land. It was averred that the plaintiffs were locked in litigation with Smt. Ranjan Devi and others in Civil Suit No. 165 of 1990 qua the suit land. During the pendency of the suit, defendant No.1 Smt. Mahesha Devi was approached by plaintiff No.1 Smt. Satya Devi to contest that litigation of Civil Suit No. 165 of 1990 on her behalf. Qua it, an agreement dated 13.07.1990 was entered to the effect that if that suit was decided in favour of the plaintiffs, then they would give 32 kanals of land out of the suit land to defendant No.1. Plaintiffs claimed themselves to be illiterate and simpleton and taking advantage of this position, defendant No.1 obtained two general power of attorneys No.110 dated 17.3.1992 and 204 dated 30.8.1994 on the pretext of contesting the aforesaid litigation. But defendant No.1, fraudulently, in the power of attorney, got inserted the powers to alienate the land, though such power of alienation under the power of attorney was never given to defendant No.1, because the plaintiffs had already agreed to give 32 kanals of land to defendant No.1 in case of decision of the suit in their favour. The said suit subsequently was decided in favour of the plaintiffs. It was averred that defendant No.1 on the basis of general power of attorneys, fraudulently transferred the land measuring 2-34-24 hectares, out of the suit land, to her son Tilak Raj, defendant No.2 vide sale deed No. 365 dated 25.9.1995 and land measuring 0-23-04 hectares to defendant No.3 vide sale deed No. 382 dated 10.10.1995, for a consideration of Rs.1,02,000/- and Rs.19,000/- respectively. It was further averred that the plaintiffs had never authorised defendant No.1 to alienate their property nor she paid any sale consideration amount to them. According to the plaintiffs, they came to know about the fraudulent transactions by defendant No.1 in favour of defendants No.2 and 3, when they commenced interference in their peaceful possession in October, 1995. Thereafter, qua fraudulent alienations, defendant No.1 was contacted, who promised to revoke the transactions. But, subsequently, defendant No.1 issued notice dated 01.11.1995 to plaintiff No.1 for implementation of agreement dated 13.7.1990 for transfer of 32 Kanals of land in her favour. Thereafter, she filed suit No. 1239 of 1995 for possession of 32 kanals of land, which she got dismissed on 10.10.1996 by stating that she had already purchased the suit land from the plaintiffs. Consequently, the plaintiffs claimed that transactions of sale by defendant No.1 made in favour of defendants No.2 and 3 were fraudulent, malafide and claimed that the plaintiffs being co-owners in possession of the suit land and sale deeds affected by defendant No.1 in favour of defendants No.2 and 3 are wrong, void and liable to be set-aside alongwith mutations.

(3.) The defendants contested the lis by claiming that the sale deeds virtually executed and registered by defendant No.1 on the basis of general power of attorneys of the plaintiffs. Defendant No.1 was duly authorised to effect the sale deeds of the property of the plaintiffs and the power of attorneys were never revoked by the plaintiffs till execution of the sale deeds. Defendant No.1 was also authorised to look after the litigation of the plaintiffs and the property was sold after instructions of the plaintiffs. No fraud was committed or played. Objections qua maintainability, locus-standi and estoppel were also raised.