- (1.) THIS appeal, under Section 100 of the C. P. C. has been preferred against the judgment and decree dated 27-8-2001 passed by Civil Judge (S. D.) Roorke thereby dismissing First Appeal No. 5/2001, Smt. Rabiya v. Ali Hussain and others, thereby con firming the judgment and decree dated 19-1-2001 passed by Civil Judge (J. D.) dismissing Suit No. 155/96, Smt. Rabiya v. Ali Hussain and others.
(2.) BRIEF facts of the case are that plaintiff /appellant filed a suit against the defendants/ respondents for cancellation of sale deed dated 10-5-1995, registered in Sub Registrar Office, Jagadari, Roorkee, at Bahi No. 1, Zild 02, 25 on 22-5-1995. According to the plaint case the plaintiff Smt. Rabiya inherited the property, shown in the Schedule of property given at the foot of the plaint, from her father late Sri Ahamad and now she is owner in pos session of the said land. The defendant Nos. 1 and 3, Ali Hassan and Abdul Hassan, re spectively are the sons of her great grand father and Smt. Raqiba, defendant No. 2, is the wife of Ali Hassan (defendant No. 1 ). The defendant No. 1, in order to grab the property of the plaintiff, got prepared forged power of attorney, in the name of the plaintiff on 25-4-1995. Thereafter, the defendant No. 1, Ali Hassan, on the basis of forged power of at torney, also got prepared forged sale deed with regard to the property belonging to the plain tiff for a consideration of Rs. 1,50,000/- on 10-5- 1995 in favour of defendant Nos. 2 and 3 and also got it registered. According to the plaintiff the sale price of the disputed land in any manner could not be less than Rs. 3,00,000/ -. In the sale deed the witness Tosheef is the man of the defendants and scribe is the Clerk Advocate Asif Ali. It is also alleged in the plaint that there is no recital that who had actually received the sale con sideration of Rs. 1,50,000/ -. The further as sertion of the plaintiff is that she is in actual possession of the disputed land and the forged sale deed was never acted upon. She also al leged that Roorkee Tehsil is nearer to her village and there was no occasion for her to pre pare power of attorney instead of registering the sale deed directly. Therefore, the plaintiff sought a decree for cancellation of sale deed allegedly obtained by playing fraud. The defendant No. 1 contested the suit by filing written statement and admitted this fact that the plaintiff inherited the disputed property from her father late Sri Ahamad, but he alleged that the said property remained in his possession and used to plough, to sow and to harvest the crops over it upto 15-5-1995. Thereafter the disputed land was handed over to defendants 2 and 3. According to him, the plaintiff lives in her Sasural in village Ikkar which is about 30 kilometers away from vil lage Landhora. Her husband is a labour by profession and he often used to go to Haryana and Punjab and the plaintiff also accompany him. Therefore, the disputed land was being looked after by the defendant No. 1. The de fendant No. 1 used to give her half of the crops obtained from the disputed land, but the plain tiff was not satisfied with it she directed him to search for a purchaser of the said land and also asked him for preparation of a power of attorney. In the month of April 1995 die plain tiff had come Roorkee for preparation of power of attorney and its registration but there it was informed that the Collector had for bidden for doing registration of power of at torney and for that purpose permission of Collector was necessary. At this the plaintiff suggested that he should visit Jagadari where she will execute power of attorney in his fa ther. Thereafter on 25-4-1995 the plaintiff got executed power of attorney in favour of de fendant by free consent empowering the de fendant No. 1 to act on her behalf. Before its execution the contents of power of attorney were read over and explained to the plaintiff /appellant in presence of witnesses of power of attorney namely Shri Rati Ram and Shri Shamsher Ali and after understanding the contents of power of attorney she put her thumb impression on power of attorney, which was registered in Sub Registrar Office. "she also appeared in the office of Sub Regis trar and admitted the execution of power of attorney before Sub Registrar. The power of attorney dated 25-4-2005 is not a forged docu ment. The defendant No. 1 exercising the powers given to him in the power of attorney executed the sale deed on 10-5-1995 in favour of defendants Nos. 2 and 3. He also called the plaintiff to come to Roorkee so that she may obtain the sale price but she did not come there on 10-5-1995. On 15-5-1995 the plain tiff came in the village and the sale consider ation was handed over to her there and the sale deed was presented for its registration. He also alleged that the defendants 2 and 3 are bona fide purchasers of the disputed land and they are owner in possession of that land and the plaintiff has no concern with the said land. The defendants/respondents Nos. 2 and 3 also contested the suit by filing their writ ten statement and denied the averments of the plaint. They have made specific assertion that the power of attorney was got registered by the plaintiff in favour of defendant No. 1 on 25-4-1995 in Tehsil Jagadari Registrar Office and on the basis of the powers given to de fendant No. 1 in the power of attorney, they have purchased the disputed land on 15-5-1995 for a price of Rs. 1,50,000/ -. According to them the cost of the land, i. e. Rs. 1,50,000/ - was handed over to defendant No. 1. There fore, they are owner in possession of the dis puted land since 15-5-1995 and no one else has any concern with that land.
(3.) ON the pleadings of parties the learned Civil Judge (S. D.) framed following is sues:- (1) Whether the sale deed dated 10-5-1995 executed by defendant No. 1 in favour of de fendant Nos. 2 and 3 is liable to be cancelled on the grounds set in the plaint? (2) Whether the alleged power of attor ney dated 25-4-1995 executed by plaintiff in favour of defendant No. 1 is forged document and the plaintiff did not execute the same? If so, its effect? (3) Whether the plaintiff received the sale consideration in respect of sale deed from defendant No. 1 in favour of defendant Nos. 2 and 3 ? (4) Whether the plaintiff is owner and in possession of the property in dispute? (5) Whether the plaintiff is entitled for any relief? (6) Whether after selling the property in dispute to Mohammad Mateen by the plaintiff, the suit rendered infructuous? (7) Whether the suit is barred by principle of estoppel and acquiescence? (8) Whether the suit rendered infructuous in view of the contention raised in para No. 13-A of the written statement? Parties adduced oral as well as docu mentary evidence in support of their case.;