Budh Ram v. Sukhram & Ors.

HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. L. S. Sandhu, Advocate for the appellant. L.N. MITTAL, J (ORAL) Budh Ram-plaintiff No.2 has filed the instant second appeal, having failed in both the Courts below. Suit was filed by Dulla Ram-plaintiff NO.1 (since deceased and represented by proforma respondent Nos.5 to 8 as his legal representatives) and by plaintiff No.2-Budh Ram-appellant against respondent-defendant No.1-Sukh Ram and defendant No.2-Raghuvir Ram (since deceased and represented by respondent Nos.2 to 4 as his legal representatives). The plaintiffs and defendant No.2 were real brothers. The plaintiffs appointed defendant No.2 as their attorney vide power of attorney dated 16.01.1987. Case of the plaintiffs is that they cancelled the aforesaid power of attorney vide registered cancellation deed dated 24.02.2003 and issued RSA No.792 of 2011 (O & M) - 2 – notice of the cancellation deed to defendant No.2, but inspite thereof, defendant No.2 as attorney of the plaintiffs sold the plaintiffs’ suit land measuring 12 kanals to defendant No.1 vide registered sale deed dated

20.03.2003. The plaintiffs in the suit challenged the said sale deed being illegal, null and void and not binding on the plaintiffs. It was pleaded that in view of cancellation deed, defendant No.2 had no right to sell the suit land on behalf of the plaintiffs. The plaintiffs claimed themselves to be owners in possession of the suit land and also sought correction of revenue record accordingly. Relief of permanent injunction was also claimed. Defendants contested the suit by filing separate written statements. Defendant No.1 admitted that defendant No.2 was attorney of the plaintiffs vide power of attorney dated 16.01.1987 and accordingly defendant No.2 as attorney of the plaintiffs sold the suit land to defendant No.1 vide sale deed dated 20.03.2003 and, therefore, defendant No.1 is owner in possession of the suit land and is also bona fide purchaser thereof for valuable consideration. Cancellation of power of attorney vide cancellation deed dated 24.02.2003 was denied. No notice thereof was given to defendant No.2. It was also alleged that no public notice of the cancellation deed was given by the plaintiffs and consequently defendant No.1 was not aware of the alleged cancellation. It was also pleaded that defendant No.2 was away to Bikaner upto second week of March, 2003 and, therefore, he also did not receive any such notice. In the absence of requisite notice, the alleged cancellation deed did not take effect in view of Section 208 of the Indian Contract Act. It was also alleged that plaintiffs and defendant No.2 are acting in collusion. RSA No.792 of 2011 (O & M) - 3 – Defendant No.2 also broadly repudiated the plaint allegations. It was pleaded that he had no knowledge of cancellation of power of attorney till July, 2003. He learnt of the same in July, 2003, when he was arrested by the police. He never received notice of the cancellation deed. Sale deed executed by him as attorney of the plaintiffs in favour of defendant No.1 is not result of fraud, misrepresentation etc. as alleged by the plaintiffs. Defendant No.2 also pleaded that he delivered possession of the suit land to defendant No.1 at the time of sale deed which was executed with consent of the plaintiffs. Various other pleas were also raised. Learned Civil Judge (Junior Division), Sirsa vide judgment and decree dated 26.02.2010 dismissed the plaintiffs’ suit. First appeal preferred by plaintiff No.2 only has been dismissed by learned Additional District Judge, Sirsa vide judgment and decree dated 11.11.2010. Feeling aggrieved, plaintiff No.2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that notice of cancellation deed was served on defendant No.2 by registered post and, therefore, execution of impugned sale deed thereafter by defendant No.2 as attorney of plaintiffs in favour of defendant No.1 is null and void and not binding on the plaintiffs. The contention cannot be accepted. Plaintiffs have failed to prove service of notice of cancellation deed on defendant No.2. To prove the same, the plaintiffs examined Mr. Ravi Monga, Advocate PW-1. He stated that he had sent the notice of RSA No.792 of 2011 (O & M) - 4 – cancellation deed to defendant No.2 by registered post. Postal receipt was also produced. He also stated that the said notice was not received back by him. From this statement, inference could be drawn that the notice had been served on defendant No.2. However, the plaintiffs in their replications pleaded that defendant No.2 had refused to accept the aforesaid notice by registered post. It would depict that the said notice had been received back by the plaintiffs or their counsel. However, Mr. Ravi Monga, Advocate, PW-1 stated that the notice was not received back by him. Said statement of this witness is contradictory to the plea of the plaintiffs in the replications. Consequently, it cannot be said that the notice had been served on defendant No.2. In addition to it, the notice which was allegedly refused by defendant No.2 has not been produced in evidence, giving rise to adverse inference against the plaintiffs. Furthermore, plaintiffs had summoned concerned postman as witness, but did not examine him. For this reason, also adverse inference arises against the plaintiffs. It has, therefore, been rightly held by the lower appellate Court that service of notice of cancellation deed on defendant No.2 is not proved. Consequenlty, in view of Section 208 of the Indian Contract Act, the cancellation did not take effect insofar as the attorney defendant No.2 is concerned, because he had no notice of the cancellation deed, when he executed the impugned sale deed as attorney of the plaintiffs. In addition to the aforesaid, the alleged cancellation of power of attorney did not take effect insofar as defendant No.1 vendee is concerned, because admittedly no notice of the cancellation of power of attorney was given to defendant No.1 or to general public. Section 208 of the Indian Contract Act lays down that termination of authority of an agent RSA No.792 of 2011 (O & M) - 5 – does not so far as regards the agent take effect before it becomes known to him or so far as regards third persons, before it becomes known to them. Defendant No.1 being third person, cancellation of the power of attorney did not take effect qua him as it never became known to him before the filing of the instant suit. In other words, cancellation of the power of attorney was neither known to the agent defendant No.2 nor it was known to the vendee defendant No.1 when the sale deed was executed. Consequently, the cancellation of power of attorney had not taken effect insofar as both the defendants are concerned. The impugned sale deed is, therefore, legal and valid. Defendant No.1 is also proved to be bonafide purchaser of the suit land for valuable consideration in view of the aforesaid circumstances. Defendant No.2 was none else, but real brother of the plaintiffs and was acting as their attorney for more than 16 years prior to the execution of impugned sale deed. In this view of the matter, defendant No.1 at the time of purchasing the suit land had no reason to doubt the authority of defendant No.2 to execute the sale deed as attorney of the plaintiffs. Evidence of defendant No.1 that he is bonafide purchaser of the suit land for valuable consideration stands unrebutted and is cogent and reliable. Defendant No.2 in his written statement has also supported the claim of defendant No.1 by asserting that defendant No.2 had no notice of the cancellation of power of attorney till July, 2003. In other words, he had no notice of the cancellation deed at the time of execution of the impugned sale deed dated 20.03.2003. Defendant No.2 could not be examined as witness either by the plaintiffs or by defendant No.1 because he had since died. RSA No.792 of 2011 (O & M) - 6 – For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the Courts below against the plaintiffs does not suffer from any illegality or perversity nor it is based on misreading or misappreciation of evidence so as to call for interference in exercise of second appellate jurisdiction. The said finding is fully justified by the evidence on record and is supported by various reasons recorded by the Courts below, particularly by the lower appellate Court. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine.

08.04.2011 A.kaundal (L. N. MITTAL) JUDGE