A.K. SIKRI - (1.)Along with the Suit for possession, declaration, mandatory injunction and permanent injunction, the plaintiff has fied IA. 7479/2000 under Order XXXIX Rules 1 and 2 read with Section 151, Civil Procedure Code for ad-interim injunction. Ex-parte injunetion Order dated 31/7/2000 was oranted. It was modified to some extent by Order dated 19/10/2000. The defendants 2 and 3 have filed application no.10932/2000 for vacation of ex-parte Order dated 31/7/2000 as modified "by Order dated 19/10/2000. Both the applications were heard together and are being disposed of by this Order.
(2.)Late S.Hazara Singh was the owner of Tree hold plot of land bearind no.27, block-A, measuring 600 sq.yds. in Haua: Khas, New Delhi. By Will dated 24/4/1965 he bequeathed this property in favour of his four sons. The plaintiff, being one of the sons, inherited 1/4th share of the property. After the death of Sardar Hazara Singh there was a family settlement among fout brothers and the property was divided in four shares. The plaintiff got front portion of first floor which was under the tenancy of one Shri N.K.Sharma. The plaintiff is NRI. On 13/11/1991 he executed Power of Attorney in favour of the defendant ho.1 whereby he empowered the defendant no.1 to deal with and look after the properties of the plaintiff in Distt. Hoshiarpur and other parts of India. Authority given included power to sell these properties also. The defendant no.1 on the basis of this Power of Attorney sold the share of the plaintiff to the defendants 2 and 3. In fact, the defendants 2 and 3 purchased the entire property i.e. they purchased other three portions of the property from the other three brothers for which appropriate Sale Deed were executed in favour of the defendants 2 and 3. The Sale Deed was executed in respect of the plaintiff's portion also and duly registered with the Sub-Registrat. It was preceeded by agreement to sell and other connected documents. The total consideration for the share of the plaintiff was Rs. 25.00 lakhs. defendants 2 and 3 got the tenants vacated, took possession of the entire property and thereafter reconstructed the entire property. At this stage, the present suit was filed by plaintiff on the allegations that the defendant no.1 was never authorised to sell the Suit property to any person and the Agreement to Sell dated 24/11/1999 and the subsequent sale Deed are null and void. The plaintiff has also made detailed averments alleging that the defendants colluded with each Other in selling the property of the plaintiff. In fact the defendant no.6 was the counsel for the plaintiff and eviction petition was filed through him against the tenant Sh.N.K.Sharma. The plaintiff has attributed the acts of collusion and fraud to defendant No.6 as well. Thus in this manner, the plaintiff is seeking repossession of his portion of the property. Although as mentioned above, detailed allegations of fraud are made against all the defendants, it may not be necessary to reproduce these allegation and the submission made by the plaintiff on the basis of these allegations. The Court has to see the prima facie case at this stage and to come to conclusion as to whether the plaintiff is entitled to ad-interim injunction as as prayed for at this stage or not. For this purpose some of the salient facts may be noted:
1. As per the family settlement among the four brothers, the property was partitioned and the share of the four brothers as per this family settlement are as under :- Kuldip Singh :Ground Floor (rear side flat) Bachhitar Singh : Ground Floor (front said flat) Legal heirs of Kulwant Singh (wife Amarjit Kaur & son Manjit Singh :First Floor (rear side flat) Satwant Singh : First Floor (front side flat) 2. The entire property was let out and the total rent from the entire property was Rs. 8,250.00. Rent of the portion of the property in the share of the plaintiff paid by Mr. N.k. Sharma was Rs. 3000.00 p.m. 3. The defendant no.2 entire property. It is not in dispute that other three brothers also sold their respective shares, received full consideration and executed Sale Deeds in favour of defendant No.2. They have no dispute with the defendant no.2. It is the case of the defendant no.2 that all the owners of the property had decided to sell their propertyand the defendant no. 2 was contacted through the defendant no. 3. The defendant no.2 who is the building contractor showed his willingness to buy this property with tenants only if all the owners were agreeable to sell their respective shares. Sale consideration for entire propety was fixed at Rs.84.00 lakhs i.e. Rs.21 lakhs for each owner. still the defendant no.2 ultimately paid the plaintiff in respect of his share a sum of Rs.25.00 lakhs. 4. All the tenants including Mr.N.K.Sharma gave the possession of the portions in their possession to the defendant no.2. It is the case of the defendant no.2 got the possession from the tenants by set with them. The manner in which the possession was taken is stated in para XIV of the written statement. 5. Agreement to Sell dated 24/11/1999 between the defendant no.1 on behalf of the plaintiff and the defendant no.2 is not in dispute. It is also not in dispute that pursuant thereto a sum of Rs.5.00 lakhs was paid as advance by means of cheque dated 11/11/1999 which was deposited in the Bank account of the plaintiff and was duly encashed oh 31/12/1999. It is also not in dispute that balance consideration of Rs.20.00 lakhs was paid by the defendant no.2 by cheque dated 23/12/1999 drawn in favour of the plaintiff and this cheque is also deposited in the account of the plaintiff. Thereafter, on payment of this consideration Sale Deed was executed in favour of the defendant No.2.
6. The most significant aspect to be noticed is that the plaintiff himself wrote a letter to his attorney requesting him to make fixed deposit of Rs.1,50,000.00 out of the amount of Rs.5.00 lakhs deposited in the account of the plaintiff purportedly as advanced under the Agreement Sell. This letter is annexed by defendants 2 and 3 along written statement and the plaintiff does not dispute having written this letter. However, later on the plaintiff change his instruction and instructed the attorney to make two F.D. Rs of Rs. 2,50,000.00 each. On that basis the banker of the plaintiff, namely, UCO Bank made F.D. Rs. of Rs.2,50,000.00 each.The defendants have also produced copies of these F.D.Rs as well as Certificate dated 2/5/2000 from the UCO Bank which inter alia records as under :
"As per records the following FDs. were issued on instruction and application signed by Mr. Satwant Singh Dogra against cross Cheque No. 854590 dtd. 11/11/90 of Union Bank, Kashmiri Gate, New Delhi amounting Rs. Five Lacs." Thus the Certificate of the bankers shows that a cheque in the sum of Rs.5.00 lacs drawn on Union Bank' was deposited in the plaintiff's account. It is the same cheque which is given by defendant No.2 as advance at the time of entering into Agreement to sell. This certificate Agreement to Sell. This certificate further shows that the plaintiff issued instructions to his bank to prepare two F.D.Rs. of Rs. 2.5 lakhs each against this amount of Rs. lacs which were in fact issued by the bank. Therefore, not only the plaintiff had the knowledge of receiving the said amount of Rs.5.00 lacs but his specific instructions to the bank to make two cheques of Rs.2.5 lakhs each belies his theory of fraud being played Upon him by the defendants. This conduct of the plaintiff is self-destructive of his stand that he was totally oblivious about the alleged deal or that defendant N6.1, his attorney, sold his share of the property without his knowledge, consent or authority. The matter does not end here. Balance consideration of Rs.20. 00 lakhs is also paid. That too by means of account payee cheque. This cheque is deposited in the account of the plaintiff maintained by UCO Bank. Again the plaintiff gives specific instructions and application signed by the plaintiff himself whereby he requested the bank to keep that money in fixed deposit under "Capital Gain Scheme. On his instruction the said deposit receipt is issued. Defendants have again placed on record a copy of the deposit receipt as well as Certificate from the UCO Bank confirming that the plaintiff had. given such instructions. This clearly confirms that the plaintiff was hot only in the know of the entire transaction of sale of share of his property but he was rather party to it.

(3.)In view of the aforesaid facts, the plaintiff has prima facie failed to substantiate his theory of fraud being played upon him. The circumstances under which the entire deal of the property in question whereby other three brothers have also sold their respective share to defendant No.3 coupled with overt acts and conduct of the plaintiff himself having knowledge of the receipt of the money and specific instructions as to how the said money is utilised are the circumstances which would militate against the stand taken by the plaintiff and would prima facie show that the plaintiff himself believed that the General Power of Attorney which he has executed in favour of defendant No.1 is proper authority in favour of defendant No.1 to deal with the suit property on behalf of the plaintiff. In fact it is not even the case where acting on the said General Power of Attorney defendant No.1 has entered into some transaction at the back of or without the knowledge of the plaintiff. Once it is held that there was proper authority given by the plaintiff to defendant No.1 to deal with the suit property with further covenant in the said General Power of Attorney that plaintiff would rectify all acts of defendant No.1 even if defendant No.1 had entered into this particular sale transaction without the knowledge of the plaintiff that would have been immaterial. However, in the instant case the facts and circumstances show that the plaintiff was through out informed about the transaction by defendant No.1 on his behalf with defendant No.2 and there is a stamp of approval by him as he not only accepted sale consideration by depositing the same in his account, he even dealt with said money after it was deposited in this account. The deposit of Rs.20 lakhs in Capital Gain Scheme shows that he wanted the money to be deposited in an account so that he is not burdened with capital gain. Therefore, the stand now taken in the plaint alleging collusion and fraud played by the defendants clearly shows that it is an after thought plea raised by the plaintiff after the deal was completed in all aspect which culminated into even execution of sale deed. The conduct of the plaintiff exposes him of double speak.