Decided on November 18,2019

SAJJAN RAJ Appellant
Sushil Agarwal Respondents


- (1.) Both these Second Appeals have been preferred against the judgment and decree dated 21/05/2012 passed by the larned Additional District Judge No.1, Jodhpur Metropolitan, Jodhpur (hereinafter referred to as learned 'lower appellate court') in Civil Appeal No.15/2006 (Sushil Agarwal Vs. Sajjanraj and ors) whereby he has set aside the judgment and decree dated 27/02/2006 passed by the learned Additional Civil Judge (Sr. Div.) No.3, Jodhpur (hereinafter referred as learned 'trial court') in Civil Suit No.117/2003 (Shushil Agarwal Vs. Sajjan Raj and ors.) and while reversing the findings of the learned trial court, has decreed the suit preferred by the plaintiff for declaration of the sale deed executed by defendants no.2 and 3 as illegal and without authority with respect to Plot No.44-A near Cheerghar, Shanti Priya Nagar, Jodhpur.
(2.) Brief facts which have come out in the suit proceedings are that on 14/01/1988 the defendant no.2-Balveer Kumar Jain entered into an agreement to sale of Plot No.44-A, Cheer Ghar, Shanti Priya Nagar, Jodhpur for a sum of Rs.25,000/- to the respondent no.1-Sushil Agarwal and the agreement was registered on 15/01/1988 (Exhibit 2) and possession of the plot was handed over alongwith necessary documents whereafter the plaintiff raised construction on the said plot and started using the same. However, the sale deed was not executed nor registered. In this regard, a general power of attorney dt.14/01/1988 (Exhibit A-3) was executed by Balveer Kumar Jain in favour of Sajjan Raj, the present appellant empowering Sajjan Raj to execute the sale deed of Plot No.44-A in favour of the plaintiff-respondent. 2.1 The plaintiff further came out with the case that the plot was not registered by the general power of attorney holder Sajjan Raj. In the meanwhile, the plaintiff had executed one general power of attorney for a strip of land measuring 6 ft. x 4 inch x 30 ft. in his Plot No.166-B in favour of one Chandra Shekhar for carrying out various works relating the said land. This power of attorney, wrongfully and in conspiracy with the appellant, was interpolated. It was mentioned in the power of attorney that the concerned Chandra Shekhar would also have a right to execute the sale deed in favour of Madan Singh Bhati through whom the plaintiff has received Rs.50,000/- as cash for sale of Plot No.44-A situated at Cheerghar, Shanti Priya Nagar, Jodhpur. The said power of attorney dated 12/11/1990 executed on 23/11/1990 is marked as Exhibit-1. 2.2 A sale deed was executed for the Plot No.44-A in favour of Madan Singh Bhati wherein it was mentioned that the power of attorney was given by the plaintiff for selling the said Plot No.44-A and the power of attorney of Balveer Kumar Jain was also mentioned. Thus, Chandra Shekhar and Sajjan Raj, both power of attorney holders executed a sale deed in favour of one Madan Singh Bhati vide sale deed dated 02/12/1990 (Exhibit-A-12) for a sum of Rs.50,000/- which was mentioned to have already been paid to the plaintiff. 2.3 Later on, Madan Singh Bhati sold the said Plot No.44-A in favour of Sajjan Raj who is the appellant in this appeal by executing a sale deed dated 12/08/1994 (Exhibit-A-14). 2.4 The plaintiff, therefore, preferred a suit seeking setting aside of the sale deed dated 02/12/1990 alleging therein that his power of attorney which he had executed for strip of land situated in Plot No.166-B had been misused and interpolated upon. It was stated that in the sale deed Madan Singh Bhati was shown to be a tenant of the plaintiff whereas he had never been handed over possession of the said plot. A separate suit had been preferred on 13/04/1991 by Madan Singh Bhati seeking injunction against the plaintiff for restraining them from dispossessing him from the plot which was wholly based on false facts. It was further stated that Madan Singh Bhati got a Commissioner Report who submitted a report stating that possession of the plot was with Madan Singh Bhati and that no one was present on behalf of the plaintiff-Sushil Agarwal. Later on, when the plaintiff came to know, he moved an application in the said suit for appointing another Court Commissioner who submitted his report and detailed out that the possession of the house had never been handed over to Madan Singh Bhati and therefore, there was no question of dispossessing Madan Singh Bhati from the said suit property. 2.5 An FIR was also registered against Madan Singh Bhati by Sushil Agarwal wherein charge-sheet was filed against Madan Singh Bhati under Sections 417, 427, 467, 468, 471 and 120-B IPC as well as against Sajjan Raj and Chandra Shekhar. However, on account of provisions of Section 195 Cr.P.C., Sajjan Raj and Chandra Shekhar were discharged. 2.6 The said suit was later on returned as an application was moved by Sajjan Raj seeking amendment of the suit who got himself substituted in place of Madan Singh Bhati claiming that he had purchased the suit property from Madan Singh Bhati. Accordingly, the suit was returned for presenting before the competent court on 12/03/1996. Thereafter, the suit was presented before the Additional District Judge. 2.7 The present suit filed by the plaintiff-Sushil Agarwal was rejected by the Trial Court on 27/02/2006 holding that the power of attorney given by the plaintiff to Chandra Shekhar was a valid power of attorney and the sale deed dated 02/12/1990 executed on the said basis was valid in law. 2.8 Relying upon the judgment passed by the Trial Court in the present suit, the Additional District Judge (Fast Track) decreed the suit presented before it by Sajjan Raj in his favour vide judgment dated 15/12/2007. The plaintiff-Sajjan Raj filed a first appeal before the Court of District Judge assailing the judgment passed by the Trial Court dated 27/02/2006. 2.9 Separately, another appeal was preferred by Sushil Agarwal challenging the judgment passed by the Additional District Judge in favour of Sajjan Raj dated 15/12/2007 in the High Court as the first appellate court. 2.10 The High Court in the first appeal upheld the judgment passed by the Additional District Judge vide his judgment dated 05/8/2011 and also observed that the sale deed dated 02/12/1990 is unquestionable and therefore, the subsequent sale deed by Madan Singh Bhati dated 12/08/1994 in favour of Sajjan Raj is also equally unassailable. 2.11. So far as the present suit filed by Sushil Agarwal which was rejected by the Trial Court dated 27/02/2006 is concerned, the appeal was decreed in his favour on 21/05/2012 holding that the power of attorney executed by the plaintiff in favour of Chandra Shekhar had been tempered with and interpolations have been made. It was also held by the Appellate Court that no such power of attorney could have ever been given by the plaintiff in favour of Chandra Shekhar for Plot No.44-A as the sale deed for Plot No.44-A had not been executed in favour of the plaintiff for which a separate suit was pending for specific performance of the agreement dated 14/15.01.1988. 2.12 Thus, the Appellate Court held that as there was no title in favour of the plaintiff, a power of attorney could not have been executed in favour of Chandra Shekhar and the subsequent sale deed executed on 02/12/1990 in favour of Madan Singh Bhati was also held to be without authority and was set aside. 2.13 So far as the judgment passed by the High Court dated 05/08/2011 in the Fist Appeal preferred by the plaintiff-Sushil Agarwal with regard to the suit decided by the Additional District Judge No.3 is concerned, Sushil Agarwal has filed SLP No. 30373- 30374/2011 before the Supreme Court which has been admitted with directions to Sushil Agarwal to pay mesne profits at the rate of Rs.5,000/- per month to Sajjan Raj during pendency of the appeal. The Civil Appeal No.362-363/2013 is pending before the Supreme Court.
(3.) In the circumstances, the present two appeals have been preferred by Sajjan Raj and Balveer Kumar Jain. The original defendant no.3-Chandra Shekhar was ex-parte before both the courts below.;

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