WPMS/545/2007 of BABU RAM Vs SOMA AND ANR. on 31 December 2012

1. Soma S/O Sri Nihal, R/O Village Imlikhera, Dharampur, Pargana & Tehsil Roorkee, District Haridwar.

2. Jagdish Prasad S/O Sri Mangat Ram, R/O Village Imlikhera, Dharampur, Pargana & Tehsil Roorkee, District Haridwar. Dharampur, Pargana & Tehsil Roorkee, District Haridwar.

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…Respondents.

Mr. Lokpal Singh Advocate, learned counsel for the petitioner. Mr. K.S.Bora, Advocate & Mr. M.S.Tyagi, Advocate, learned counsel for the respondent no.1. None is present on behalf of the respondent no.2 despite sufficient service.

Date December 31, 2012.

Hon’ble B.S.Verma, J.(Oral)

By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned judgment and order dated 20-4-2007 passed by the District Deputy Director of Consolidation/Collector, Haridwar ( for short the D.D.C.) (Annexure-15 to the petition), whereby the revision filed by the respondent no.1 has been allowed and the orders dated 22-2-1999 passed by the Consolidation Officer, Roorkee (West-I) and the judgment and order 2-3-2001 passed by the Settlement Officer Consolidation Haridwar At Roorkee (for short the SOC) thereby dismissing the appeal preferred by the respondent no.1, have been set aside.

Briefly stated that the facts giving rise to the present writ petition, according to the petitioner, are that the respondent no.1- Soma had executed a power of attorney duly registered on 23-5-1990 in favour of the respondent no.2- Jagdish Prasad and on the basis of the said power of attorney, the respondent no. 2 after taking sale consideration from the petitioner executed a registered sale deed in favour of the petitioner on 23-10-1990; that on the basis of the sale deed, the petitioner moved an application for mutation before the Assistant Consolidation Officer, Bhagwanpur under Section 12 of the Consolidation of Holdings Act ( for short the Act). Against the said mutation application, the respondent no.

1 filed objection before the Assistant Consolidation Officer Rookee, who sent the matter to the Consolidation Officer. Before the Consolidation Officer the respondent no. 1 filed detailed objection on 22-2-1995 alleging therein that he is the owner in possession of the land in question and Babu Ram and others have no concern with the said land. In paragraph No. 3 of his objection, it has been alleged that the objector had never executed any sale seed in favour of the respondent no.1-Babu Ram and that the objector never executed any power of attorney in favour of Jagdish Prasad. The power of attorney dated 24-5-1990 is totally forged, null and void as also ineffective. He also denied to have put his thumb impression on the alleged power of attorney and had not given any authority to execute the sale deed in favour of Jagdish and others. In paragraph no. 4, the objector inter alia alleged that he never put his thumb impression on power of attorney, rather he had put his thumb impression on the document under the impression that it was mortgage deed. The petitioner has annexed the copy of the objection as Annexure-4 to the writ petition.

To prove the power of attorney, the petitioner had examined himself and witnesses Jagdish Prasad and Satya Prakash. Satya Prakash is one of the attesting witnesses of the power of attorney in question. He stated before the Consolidation Officer that Sri Soma had executed a power of attorney in favour of respondent no. 2 Jagdish Prasad and authorized Jagdish Prasad to execute the sale deed in respect of the land mentioned in the power of attorney. Respondent no. 1 Soma also examined himself and one other witness namely Sundar.

The Consolidation Officer after hearing the parties and considering the evidence led by the parties allowed the mutation application of the petitioner and directed that his name be entered in the revenue record on the basis of the sale deed dated 23-10-1990 in place of Soma son of Nihal through power of attorney holder Jagdish Prasad son of Mangat Ram vide judgment and order dated 22-2-1999.

Aggrieved by the said order, the respondent no. 1 preferred an appeal under Section 11(1) of the Act before the SOC. The learned S.O.C. after hearing both the parties and perusing the evidence has held that a power of attorney was executed in respect of the land in question and the sale deed was duly executed on the strength of the power of attorney in favour of Babu Ram, the petitioner herein. Ultimately by order dated 2-3-2001, the appeal preferred by the respondent no.1 was dismissed.

Aggrieved the respondent no.1 preferred a revision under Section 48 of the Act before the D.D.C. The revisional Court after hearing both the parties has held that the second attesting witness of the power of attorney namely Shamshuddin was not examined by the petitioner and that revisionist examined him namely Shamshuddin before the Civil Judge (Junior Division) Roorkee in the suit (Suit No. 40 of 1995), who has stated that his alleged signatures on the power of attorney is forged. The learned D.D.C. therefore observed that the execution of the power of attorney appears to be doubtful. Ultimately by order dated 20-4-2007, the revision of the respondent no.1 has been allowed and the orders passed by the Consolidation Officer as well as SOC have been set aside, which gave rise to the present writ petition.

I have heard learned counsel for the petitioner as well as learned counsel for the respondent no.1-Babu Ram and perused the entire material placed before this Court including the counter affidavit and the rejoinder affidavit.

Respondent no.2 Jagdish Prasad did not put in appearance in the case to contest the writ petition despite sufficient service.

In paragraph no.2 of the writ petition, it is the specific case of the petitioner that the respondent no. 1 executed a registered power of attorney in favour of respondent no.2 on 23-5-1990 thereby authorizing the respondent no.2 to act on his behalf including the authority of executing sale deed.

In reply of paragraph no.2 of the writ petition, the respondent no.1 in his counter affidavit has stated in paragraph no. 3 as under:- “That the contents of paragraph no.2 of the writ petition are not admitted as stated and in reply it is submitted that the respondent no.1 had borrowed some money from the petitioner and the petitioner asked the deponent to execute a Rahannama in his favour and the deponent agreed for this but in garb of Rahannama the petitioner in collusion with respondent no.2 fraudulently got executed power of attorney on 23-5-90 in favour of respondent no.2 namely Jagdish who is a clerk of the counsel in civil court Roorkee.”

In the rejoinder affidavit filed by the petitioner, the averments made by the respondent no.1 on material points have been denied and in reply of paragraph no3 of the counter affiavit it has been inter alia that the power of attorney was executed by the respondent no.1 in favour of respondent no2 authorizing him the powers including to sell out the land in question and that the registered sale deed in favur of the petitioner had not been cancelled by any competent court.

Arguments

Learned counsel for the petitioner has contended that the learned D.D.C. has committed a manifest error of law in examining the evidentiary value of the statement of Shamshuddin recorded before the Civil Judge (Junior Division) Roorkee, where the suit filed for cancellation of sale deed in question is still pending. Learned counsel for the petitioner has further contended that the finding of the learned D.D.C. is also perverse for the simple reason that there was no need for the petitioner to have examined both the marginal witnesses of the power of attorney to prove the same before the Consolidation Officer, therefore on this count also, the order passed by the learned D.D.C. is not tenable.

I have pondered over the matter.

It is not the case of the respondent no.1 that the respondent no.1 had not executed the power of attorney and someone else had executed the document in his place. The respondent no.1-Soma has examined himself before the Consolidation Officer. It has been observed in the order passed by the Consolidation Officer that the respondent no.1-Soma had stated on oath that Babu Ram (petitioner herein) and Jagdish Prasad, who is respondent no.2 in the writ petition, were in friendly terms and on account of their friendship, the respondent no.1 was asked to put his signatures on the mortgage-deed and not on the sale deed. The learned Consolidation Officer after perusing the evidence led by the parties has held that the land in question had been sold by registered sale deed on the basis of registered power of attorney.

It is pertinent to mention here that in paragraph no. 15 of the writ petition, it has been stated by the petitioner that the respondent no.1 also filed a suit for cancellation of sale deed in the civil court bearing O.S. No. 40 of 1995, Soma Vs. Babu Ram and others and that the said suit is still pending for disposal before the civil Court. In the counter affidavit, this fact has not been denied by the respondent no.1.

The case of the respondent no.1 is that he had put his thumb impression in good faith treating that a mortgage deed was being executed and that he came to know about the execution of sale deed when the notice from the consolidation court was received by him. Then he filed objection. Since it is not disputed that the suit filed by the respondent no.1 for cancellation of sale deed was filed by the respondent no.1 and the matter is sub judice before the Civil Judge (Junior Division) Roorkee. The matter is yet to be decided on the basis of evidence of the parties to the suit whether any fraud was played or not. If the suit for cancellation of sale deed is decreed in favour of the respondent no.1, then automatically the name of the petitioner would be expunged on the strength of the decree passed by civil court in the aforesaid suit.

The contention of the learned counsel for the respondent cannot be accepted at this stage that the alleged power of attorney and the sale deed dated 23-10-1990, which are the subject matter of the present writ petition are void ab initio for the simple reason that as per own case of the respondent no.1, the respondent no.1 himself appears to have put his thumb impression on the document though in good faith. The veracity of these documents has to be examined by the civil Court in relation to playing of fraud, etc.

Having considered the submissions of the learned counsel for the rival parties and on perusal of the entire material placed before this Court, I am of the considered view that it was not necessary for the petitioner to have examined both the attesting witnesses of the alleged power of attorney before Consolidation Officer. The finding thus recorded by learned D.D.C. that second attesting witness of the allegedpower of attorney, namely, Shamshuddin, had not been examined beforethe Consolidation Officer is perverse and more so because the learnedD.D.C. in his impugned judgment and order appears to have assessedthe evidentiary value of statement of a witness, who has been allegedlyexamined before the civil court in the suit referred to above. The suit for cancellation of the sale deed in question is till undisputedly pending for disposal and the matter is sub judice before the civil Court.

For the reasons and discussion above, the writ petition is liable to be allowed outright.

The writ petition is allowed. Costs easy. The impugned order dated 20-4-2007 passed by the learned D.D.C. is set aside. The orders passed by the Consolidation Officer and the S.O.C. concerned are maintained. However, it is made clear that the Civil Judge (Junior Division) Roorkee while deciding the civil suit, mentioned above, shallnot be prejudiced or influenced in any manner by this judgment.

RCP

(B.S.Verma,J.)