Asra & Ors. v. Aslam & Ors.

CM stands disposed of. CM No.5930-C of 2009 CM is allowed subject to all just exceptions. Delay, if any, in making up the deficiency in Court fee is condoned. RSA No.2006 of 2009 This second appeal is filed by the legal representatives of the plaintiff-Sakina (since deceased) challenging the judgment and decrees of the Courts below dismissing the suit of the plaintiff for declaration to the effect that she was owner in possession of the land in dispute and the GPA dated 12.2.1999 executed by defendant-respondent No.3 impersonating herself as Sakina (plaintiff) in favour of defendant No.2 in respect of the suit land and the sale deed dated 19.2.1999 executed by defendant No.2 in favour of defendant No.1 on the basis of the aforesaid GPA in respect of RSA No.2006 of 2009 (O&M) 2 the suit land, was illegal, null and void and ineffective against the rights of the plaintiff with consequential relief of permanent injunction. As per the brief facts of the case enumerated in the plaint, the plaintiff was owner in possession of the suit land measuring 8 kanals 14 marlas and the defendants or any other person had no right, title or interest in the same. It was further claimed that the plaintiff never executed any General Power of Attorney (GPA) dated 12.2.1999 in favour of defendant No.2 Smt. Gafoori nor she authorized defendant No.2 to sell or transfer the suit land in any manner whatsoever to defendant No.1 or any other person. It was alleged that in collusion with each other, the defendants had fabricated the GPA dated 12.2.1999 in favour of defendant No.2 wherein defendant No.3 impersonated herself to be the plaintiff. It was further stated that plaintiff-Sakina was suffering from acute paralysis since December, 1998 and was confined to bed and therefore, she could not appear in the office of Sub Registrar and on the basis of the aforesaid GPA, defendant No.2 executed and got registered the sale deed dated

19.2.1999 in favour of defendant No.1, her real son. It was stated that both the documents in respect of the suit land were illegal, null and void and were liable to be set aside being fabricated and forged. The plaintiff requested the defendants to treat the documents as nullity but to no avail. Hence, the present suit was filed. Upon notice, the defendants appeared and filed written statement raising various preliminary objections. On merits, it was denied that the plaintiff was owner in possession of the suit land. It was clarified that the plaintiff along with her four sons was owner in possession of the land measuring 17 kanals 9 marlas and the sons of the plaintiff had also executed GPA dated 23.6.1998 in respect of their share in the said land in favour of defendant No.2 who on the basis of GPA dated 23.6.1998 RSA No.2006 of 2009 (O&M) 3 executed the sale deed in favour of defendant No.1 in respect of the said land.

It was stated that subsequently the plaintiff herself executed the GPA in respect of her share in the suit land in favour of defendant No.2 and on the basis of said power of attorney, defendant No.2 executed the sale deed of the suit land in favour of defendant No.1 for a valid sale consideration. It was further stated that the suit land had actually been purchased by the father of defendant No.1 alone but a loan had been taken by the father of defendant No.1 from the plaintiff and for security of that loan amount, the names of the plaintiff and her sons were mentioned as co-sharers in the land. It was stated that, it was agreed that as and when the loan amount was returned, the land shall be transferred in favour of father of defendant No.1. It was also stated that plaintiff and defendant No.3 are real sisters of father of defendant No.1. It was further stated that part payment of the borrowed amount was made to the sons of the plaintiff who executed the GPA for transfer of the land standing in their names and when the entire loan amount was returned, the last GPA was executed by the plaintiff herself and the land in question was got transferred in the real owners and now the plaintiff had become dishonest and wanted to grab the suit land with mala fide intention.

It was further stated that defendant No.1 was in actual physical possession of the suit land and the sale in question was protected under the provisions of Transfer of Property Act. Denying other averments of the plaint, dismissal of the suit was prayed for. Defendants No.2 and 3 did not appear to contest the suit and were proceeded against ex parte. From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the power of attorney dated RSA No.2006 of 2009 (O&M) 4

12.2.1999 executed by the plaintiff in favour of defendant No.2 is fabricated document? If so its effect? OPP

If issue No.1 is proved, then whether the plaintiff is owner in possession of half share of the suit property? OPP

Whether the defendant No.1 is owner in possession of the suit property? OPD

Whether the suit is liable to be dismissed being false and frivolous? OPD

Relief.” On appreciation of evidence on record and contentions raised by both the parties, issues No.1 and 2 were decided against the plaintiff and issues No.3 and 4 were not pressed and ultimately, the suit of the plaintiff was dismissed with costs. Aggrieved from the aforesaid judgment and decree of the trial Court, plaintiff filed an appeal before the Lower Appellate Court. It may be noticed that during the pendency of the appeal before the Lower Appellate Court an application under Order 41 Rule 27 CPC was made for producing the original power of attorney which was lying attached with the criminal complaint and could not be produced due to the negligence of plaintiff's counsel. The aforesaid evidence was material and essential for the purpose of the decision and therefore, the plaintiff sought to produce the additional evidence. While dismissing the application, the Lower Appellate Court held that certified copy of the original power of attorney was already on record as Ex.P8/D1 which also contained the photograph of the executant of the power of attorney and the person in whose favour the RSA No.2006 of 2009 (O&M) 5 said power of attorney was executed and thus, the production of the original power of attorney was not essential.