M.M.KUMAR, J. - (1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the concurrent findings of fact recorded by both the Courts below holding that Goman Wanti (now deceased) was not owner of the house in dispute as her vendor Amar Nath was not entitled to pass any valid title to her by way of sale deed dated 4.12.1972 (Ex. PW-1/3) because the Power of Attorney in favour of her vendor Amar Nath was cancelled by way of cancellation deed dated 30.5.1962. After the aforementioned cancellation, the vendor of the plaintiff-appellant did not have any power to execute the sale deed in favour of Goman Wanti (now deceased). The findings of the learned lower Appellate Court in that regard are discernible from para Nos. 10 and 11 and the same read as under :- "10. The power of attorney on the record is Ex. P-1/1. It was executed by Darshan Singh in favour of Amar Nath son of Ram Rakha. It is dated 7.10.1960. Darshan Singh thereby authorised Amar Nath to sell the house of Ram Rakha only. This power of attorney was cancelled through writing Ex. D-3. It is dated May 30, 1062. So I hold that Darshan Singh had appointed Amar Nath as his attorney on October 7, 1960 the deed being Ex. P-1/1 and had cancelled the same on May 30, 1962 vide deed Ex. D-3. Issues Nos. 5, 6-A and 9. 11. All these issues being connected are discussed at one place. The agreement of sale by Darshan Singh in favour of Ram Rakha is Ex. P-1/2. The sale deed by Amar Nath as attorney of Darshan Singh in favour of the plaintiff is Ex. PW- 1/3. Darshan Singh had purchased the property from the Rehabilitation Department. There is a recital in the agreement of sale Ex PW1/2 about consideration having been paid by Ram Rakha to Darshan Singh. Darshan Singh admittedly was a labourer and had no bank account. There is no evidence that Darshan Singh was financed by anybody else other than the plaintiff. So the trial Court rightly held Darshan Singh had purchased the property with the money advanced by Ram Rakha, husband of the plaintiff but the sale deed in favour of the plaintiff is against the terms of the power of attorney because the power of attorney only authorised Amar Nath to execute the sale deed in favour of Ram Rakha and none else. The trial Court went wrong when it depended upon the findings of the Rent Controller to hold the sale deed in favour of the plaintiff to be false. The finding by the Rent Controller in the dispute between the parties about the civil rights could not operate as res judicata. So I hold that the sale deed in favour of the plaintiff did not clothe her with any right but the same cannot be said to be false and forged".
(2.) DURING the pendency of the appeal filed in 1983, Goman Wanti died on 9.10.1991 at Amritsar. No attempt was made to bring on record her representatives within the stipulated period of 90 days. However, Civil Misc. No 2597-C of 2004, dated 11.3.2004 was filed under Order XXII Rule 3 of the Code for bringing on record the legal representatives of the plaintiff- appellant asserting that the plaintiff-appellant has died on 9.10.1991 at Meharpura, District Amritsar and is survived by her three sons and a daughter, namely, Mangal Dass, Amar Nath, Bishamber Singh and Raj Rani. In support of the assertion a document with endorsement by Shri Vijay Kumar, Councillor, Municipal Corporation, Amritsar, certifying that the plaintiff-appellant was cremated at Cremation Ground, Amritsar, has been attached as Annexure A-1. In paragraph 4 of the said application the assertion made is that only one legal representative Mangal Dass has come forward to get himself impleaded as appellant despite the knowledge of the pendency of the instant appeal and request was made that other LRs be brought on record as respondents. The averment made in paragraph 4 of the application along with the prayer is reproduced below :- "4. That since only one of the legal representative of deceased Goman Wanti namely Sh. Mangal Dass, the applicant has come forward to get himself impleaded as appellant despite the knowledge of the pendency of the instant appeal, hence Mangal Dass, applicant should be impleaded as Appellant and rest of the legal representatives as mentioned at Sr. No. (ii) to (iv) in para No. 2 above be impleaded as performa respondents as the above mentioned legal representatives have no interest adverse to Mangal Dass. It is, therefore, respectfully prayed that instant application be allowed and the legal representatives of deceased Goman Wanti be brought on record in the interest of justice impleading Mangal Dass, applicant as Appellant and rest of the legal representatives as mentioned at Sr. No. (ii) to (iv) in para No. 2 as performa respondents". The application is supported by a thumb marked affidavit of Mangal Dass, applicant. Notice of the application was issued and the defendant-respondents contested the same. When the application came up for consideration before this Court on 4.8.2004, the following order was passed :- "CM No. 2597-C of 2004 and RSA No. 1960 of 1983 Present : Mr. Sanjay Majithia, Advocate for the appellant. Mr. B.R. Mahajan, Advocate for the respondents. The prayer made in the present application is to bring on record the legal representatives of the sole appellant Gomanwanti. As per the averments made in the application Gomanwanti died on October 9, 1991. In view of the view of the aforesaid fact, it is apparent that since no legal representative of deceased appellant was brought on record, therefore the appeal stands abated. Faced with the aforesaid situation, Mr. Sanjay Majithia, the learned counsel appearing for the appellant prays for time to seek necessary instructions. Adjourned to August 25, 2004. Main case be also listed on that date. Sd/- (VINEY MITTAL) JUDGE" August 4, 2004.
(3.) IN pursuance to the aforementioned observation made by this Court, learned counsel for the applicant Mangal Dass filed an application dated 23.8.2004, under Section 5 of the Limitation Act, 1963 read with Order XXII Rule 1 of the Code being Civil Misc. No 8232-C of 2004 along with an affidavit of Mangal Dass. It has been asserted that the legal representatives of the plaintiff- appellant are illiterate persons and did not have any knowledge that they were required to be brought on record within a period of 90 days from the date of death failing which appeal was to abate. It was further asserted that the legal representatives of the deceased plaintiff-appellant came to know about the pendency of the appeal when her counsel wrote a letter to her in the month of September, 2003 and one of the sons of Goman Wanti contacted the counsel disclosing the information that the plaintiff-appellant had expired on 9.10.1991. It is appropriate to mention that this Court has amended the Rules which came in operation with effect from 4.12.1992 and, therefore, the aforementioned amendment is not applicable to the present case as is admitted by the learned counsel for both the parties. Further averment has been made on the basis of provisions of order XXII Rule 1 that the right to sue survives and the appeal cannot be deemed to be abated on the expiry of 90 days from the date of the plaintiff-appellant. Accordingly condonation of delay of 12 years and 5 months in bringing on record the legal representatives of the deceased plaintiff-appellant has been sought.;