Heard.

1. The present appeal is against the judgment and decree dated 06/08/2019 passed by the District Judge, District Mungeli, C.G. in Civil Suit No.16-A/2017 against a decree whereby the sale deed executed in favour of the appellant was annulled at the behest of the respondents. The defendants are in appeal before this Court.

2. The case of the plaintiffs/respondents, in brief, was that late Adwin Benet, who was the father of plaintiff No.1 Manoj Benet, plaintiff No.3 Rajesh Benet and plaintiff No.4 Smt. Sandhya Chhatterji and husband of plaintiff No.2 Smt. Sheelwati Benet, owned different land at village Kurankapa, Tehsil Kurankapa and the lands were bearing Khasra Nos.85/1, 85/2 and 61 total admeasuring 2.415 hectares. Adwin Benet died on 09/08/2016, after his death the property devolved on the plaintiffs. The plaintiffs further pleaded that Adwin Benet was weak in eye sight and his wife used to stay at Dallirajhara and son at Bhilai – Durg. Late Adwin Benet since had attained the ripened age, as such in order to look after his agricultural land he agreed to sale it to Naresh Patel, the defendant No.3 and as an earnest money, received an amount of Rs.1,50,000/-. In order to record such transaction Naresh Patel called lated Adwin Benet to Tehsil office and by playing fraud executed a power of attorney for entire 7 acres of land. It was further pleaded by plaintiffs that the said power of attorney was not voluntary executed and the same has been executed taking advantage of weak eye sight of Adwin Benet. The plaintiffs further stated that taking advantage of such power of attorney without knowledge of late Adwin Benet a sale deed was executed for an amount of Rs.20,00,000/- (Twenty Lakhs) in favour of defendant No.1 Smt. Purnima Pandey, w/o Kamalkant Pandey and defendant No.2 Kamalkant Pandey on 16/03/2015. The knowledge of the said execution of the sale deed never reached to late Adwin Benet and the sale consideration was not passed on to him. The plaintiffs state that therefore defendant No.1 Smt. Purnima Pandey did not become the sole and exclusive owner of the property as the power of attorney by which the sale deed was executed was non-existing.

3. The plaintiffs further state that when they came to know about such sale deed they made a police report in respect of the same complaining the fact that Naresh Patel was never appointed as power of attorney holder to execute any sale. They further stated that after death of late Adwin Benet they played fraud upon the different revenue authorities and in connivance with them defendant No.1 Smt. Purnima Pandey got her name mutated in the revenue records. It was further stated that the sale deed dated 16/03/2015 is not a binding on the plaintiffs. Plaintiffs sought for cancellation of sale deed along with prayer for permanent injunction for their right and further prayed that their possession should not be disturbed.

4. Per contra, appellants/defendants No.1 to 3 namely Smt. Purnima Pandey, Kamalkant Pandey and power of attorney holder Naresh Patel stated that late Adwin Benet knowingful well about the intricacies of the documents executed power of attorney in favour of Naresh Patel. It was further stated that the said power of attorney was a registered one and on the basis of the same sale deed was executed. It was further stated that sale deed dated 16/03/2015 also got executed after receipt of the amount/sale consideration, therefore, the sale deed is binding on the plaitniffs. They further stated that during the lifetime of late Adwin Benet no suit or any proceeding was commenced and it was after his death as an after thought the instant civil suit was filed. They further stated that on the basis of the power of attorney two sale deeds were executed one in favour of Smt. Purnima Pandey and another in favour of Kamalkant Pandey and only suit for cancellation was filed in respect of one sale deed which was in favour of Smt. Purnima Pandey. Further all the adverse averments were denied to claim ownership over the said property and it was stated that the names were rightly mutated in the revenue records.

5. On the basis of the pleadings of the parties, the learned trial Court framed 10 issues and it was held that the power of attorney was executed on 12/02/2015, however, same was done with collusion of defendant Nos. 2 & 3 and on the basis of such power of attorney a sale deed was executed in favour of Smt. Purnima Pandey therefore the said sale deed dated 16/03/2015 was held to be a nullity. The Court further held that the property in question the plaintiffs are in possession and they are the owners consequently they were entitled for a permanent injunction and the suit was decreed in favour of the plaintiffs. Being aggrieved by such order, the purchasers Smt. Purnima Pandey along with other defendants have preferred this appeal.

6. Learned counsel for the appellants would submit that on the basis of power of attorney two sale deeds were executed, one in favour of Smt. Purnima Pandey and another in favour of Kamalkant Pandey, who is the husband of Smt. Purnima Pandey. He would further submit that the power of attorney dated 12/02/2015 is a registered one and first sale deed Ex. D/2 was executed on 19/02/2015 and the disputed sale deed Ex. D/3 was of 16/03/2015, whereas suit was filed only for cancellation of one sale deed. As a result, the plaintiffs could not have questioned the execution of the power of attorney on the basis of which the sale deed was executed. He would further submit that the suit was filed on 17/08/2018 after death of Adwin Benet on 01/08/2016 and during his lifetime no proceedings were commenced. He would further submit that in the proceedings which took place before the revenue authorities, the execution of the agreement was admitted, therefore, the plaintiffs could not have challenged the execution of the power of attorney having been admitted. He would further submit that in respect of the subject sale deed of 16/03/2015 in order to get the electricity connection when the application was filed before the electricity authority, the plaintiffs admitted the execution of the sale deed, therefore, they cannot now come back from their statement as both the documents i.e. the power of attorney and sale deed were registered one. He would further submit that the learned trial Court completely misdirected itself to travel beyond the evidence of the parties to reach to a wrong conclusion for which the interference is required by this Court.

7. Per contra, Shri Uttam Pandey, learned counsel along with Shri Jitendra Gupta, learned counsel for the respondents would submit that the power of attorney itself was an out come of fraud. The evidence on record specially of Jyotish Lal, who was the witness to the power of attorney, have categorically deposed about fraud. He would further submit that Naresh Patel, who obtained the power of attorney, was in a dominating position to control the free consent of the seller. Consequently, when there is execution of documents in fiduciary capacity the burden of proof shall be on the defendant. He placed reliance in the matters of Subhra Mukherjee and Another Versus Bharat Coking Coal Ltd. And others {(2000) 3 SCC 312 [LQ/SC/2000/483] } & Krishna Mohan Kul alias Nani Charan Kul and Another Versus Pratima Maity and others {(2004) 9 SCC 468 [LQ/SC/2003/900] }. to submit that when a person is in an active, confidential or fiduciary relationship with another the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position. Therefore, the order of the learned Court below is well merited which do not call for any interference.

8. We have heard learned counsel for the parties and perused the documents and records.

9. The suit was filed by the legal heirs of Adwin Benet on 17/08/2017. According to the respondents/plaintiffs a power of attorney was fraudulently got executed by Naresh Patel from Adwin Benet. The document is filed as Ex.D/1. Perusal of Ex. D/1 would show that it is a registered document of 12th of February, 2015 wherein two attesting witnesses Jyotish Lal and Ramadhar Dhuri have signed. Since the suit was filed after death of Adwin Benet, his son Manoj Benet was examined. He has deposed that his father was 83 years old and he was working at Dallirajhara and his father when was in need of money, he obtained a loan of Rs.1,50,000/- through Jyotish Lal and in order to get certain document executed, the appellants fraudulently got the power of attorney executed which is Ex. D/1. In the cross-examination of this witness at para 19 he admits that Ex. D/1 the power of attorney bears the signature of his father and also bears the signature of Jyotish Lal. In the cross-examination he further states that the disclosure of the fact of fraud in respect of power of attorney on the basis of which registered sale deed has been executed, how and by whom it was disclosed to him has not been narrated. He further states that he had made a report to the police and the statements of him and his father were recorded. According to the defendants on the basis of said power of attorney Ex. D/1 of 2015 two sale deeds were executed one was in name of Kamalkant Pandey on 19/02/2015 and another was in favour of Smt. Purnima Pandey on 16/03/2015 (Ex. D/3). Ex. D/2 is the sale deed in favour of Kamalkant Pandey wherein signature of Jyotish Lal, who is examined as PW-2, also appears.

10. Jyotish Lal (PW-2) in his cross-examination admitted his signature in the power of attorney and the subsequent sale deed Ex. D/2 in favour of Kamalkant Pandey. He deposed that he along with Adwin Benet had signed on the blank papers and they had singed it on trust. The perusal of Ex. D/2 the earlier sale deed which was on the basis of power of attorney (Ex. D/1) since is a registered one, a presumption would be drawn of correctness unless proved otherwise by strong evidence.

11. Likewise, subsequent sale deed which was under challege dated 16/03/2015 in favour of Smt. Purnima Pandey is also a registered one which was on the basis of power of attorney (Ex. D/1). The another witness to the power of attorney namely Ramadhar Dhuri was examined as DW-3. In the cross-examination of this witness, the suggestion was given by the plaintiffs at para 8 that he came along with Naresh Patel to Mungeli and the power of attorney was scribed at Mungeli, so suggestion of execution of power of attorney was given by plaintiffs. Further when the suggestion given to Ramadhar Dhuri (DW- 3) that no transaction of sale ever took place, he denies the same and stated that the sale transaction took place in the house of Adwin Benet wherein Naresh Patel, Kamalkant Pandey and Ramadhar Dhuri (DW-3) were present. He further states that terms of power of attorney were not discussed, however, it was registered on 12/02/2015. On the basis of said power of attorney the subsequent sale deed which is under challenge (Ex. D/3) was executed.

12. The allegation of the plaintiffs that the power of attorney was got executed by way of fraud, the Supreme Court in the matter of Electrosteel Castings Limited Versus UV Asset Reconstruction Company Limited and Others {(2022) 2 SCC 573 [] } has reiterated the earlier view by the privy council that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges and even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence particulars shall be stated in the pleading. When we revert back to the pleading of the parties, only simplicitor allegations have been made that Adwin Benet has availed a loan of Rs.1,50,000/- from Naresh Patel and in order to get it documented some documents were executed and by fraud the power of attorney was executed. This fact cannot be ignored that the power of attorney is a registered one with the Sub Registrar and on that basis alone sale deed got executed. When the allegations of fraud have been made without any particulars, simplicitor allegations cannot be accepted. The Supreme Court in the above stated matter has held thus in paras 8.1 & 9:-

"8.1 Similar view has been expressed in Ladli Parshad Jaiswal (1964) 1 SCR 270 [LQ/SC/1962/443] and after considering the decision of the Privy Council in Bharat Dharma Syndicate Ltd. vs. Harish Chandra (64 IA 146), it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in K.C Sharma & Company {(2020) 15 SCC 209 [LQ/SC/2020/601] } it is held that ‘fraud’ has to be pleaded with necessary particulars. In Ram Singh {(1986) 4 SCC 364 [LQ/SC/1986/340] }, it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation.

9. Having considered the pleadings and averments in the suit more particularly use of word ‘fraud’ even considering the case on behalf of the plaintiff, we find that the allegations of ‘fraud’ are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act."

13. Further the Supreme Court in Ramesh B. Desai Vs. Bipin Vadilal Mehta {(2006) 5 SCC 638 [LQ/SC/2006/583] } has held that specific pleadings of fraud are required. At para 22 of the judgment it was observed as under:-

"22. Undoubtedly, Order 6 Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard."

14. Since two sale deeds were executed on the basis of power attorney in respect of first sale deed Ex. D/2 in favour of Kamalkant Pandey on 19/02/2015. The documents Ex. D/4 the order-sheets of revenue Court are on record. Perusal of it would show that on 25/05/2015 in a mutation proceeding late Adwin Benet along with purchaser Kamalkant Pandey appeared and admitted to have executed the sale deed and the statement would show that he admitted to have executed the power of attorney and the subsequent sale deed.

15. Now reverting back to the subsequent sale deed for which the challenge was made, the second sale deed was of 16/03/2015. According to the defendant in order to change the electricity line in her name Smt. Purnima Pandey applied to the electricity board as per Ex. D/5 and D/6 would show that on 22/06/2015 the seller Adwin Benet consented to the same. The plaintiff Manoj Benet in his statement at para 25 in the cross-examination has admitted the fact that in a mutation proceeding his father consented for change of name. In the instant case, the statement of the executor on 25/05/2015 before Nayab Tehsildar in respect of power of attorney (Ex. D/4) shows that he has admitted the execution of it. Since the deceased admitted the execution in a statutory proceeding carried out in a Revenue Court we are of the view that such proceeding has a presumptive value of correctness to have been done in accordance with law.

16. The Supreme Court in the matter of Union of India and Another Vs. S. Narasimhulu Naidu (Dead) Through Lrs. and Others {2021 SCC OnLine SC 644} has held thus in para 44:-

"44. Apart from the fact that the transfer of title in favour of the Union is complete when the possession was delivered, but even thereafter, the military land register and general land register produced by the appellants show the possession of the appellants over such land. The military land register and general land register are public documents within the meaning of Section 74 of the Evidence Act, 1872 (Evidence Act) containing the records of the acts of the sovereign authority i.e., the Union as well as official body. Still further, Section 114 of the Evidence Act grants presumption of correctness being an official act having been regularly performed. Therefore, in the absence of any evidence to show that such records were not maintained properly, the official record containing entries of ownership and possession would carry the presumption of correctness. In view of the transfer of land on 10.10.1956 followed by delivery of possession on 19.3.1958 and continuous assertion of possession thereof, it leads to the unequivocal finding that appellants are owners and in possession of the suit land."

17. In respect of the registered power of attorney the Powers of Attorney Act, 1882 do not contemplate that the donee has to show, or for the Court to be satisfied, that the donor had understood the nature and effect of the power and the burden of proof remains throughout on any objector to show that the ground of his objection was made out and has to establish that the Court has no residual discretion to refuse the authenticity. The said proposition further followed by the principle laid down in re W (Enduring Power of Attorney) (CA) {[2001] 2 WLR}. Therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, the correctness of power of attorney which is the nucleus of dispute is held to be genuine

18. As held by the Supreme Court in the matter of Prem Singh Vs. Birbal {(2006) 5 SCC 353 [LQ/SC/2006/410 ;] } which is further reiterated in the case of Rattan Singh and others Vs. Nirmal Gill and Others {(2021) 15 SCC 300 [LQ/SC/2020/779 ;] } and has held thus in para 33:-

"33. To appreciate the findings arrived at by the courts below, we must first see on whom the onus of proof lies. The record reveals that the disputed documents are registered. We are, therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by this Court in Prem Singh vs. Birbal {(2006) 5 SCC 353 [LQ/SC/2006/410 ;] }. The relevant portion of the said decision reads as below:

(SCC pp. 360-61, para 27)

“27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption.”

(emphasis supplied)

In view thereof, in the present cases, the initial onus was on the plaintiff, who had challenged the stated registered document.

19. Perusal of the facts in its entirety would that the plaintiffs/respondents contended that the power of attorney on which the sale deed was executed was forged except those facts the pleading of the plaintiffs do not disclose about the particulars which is a vague statements have been made that when the father of the plaintiff Adwin Benet availed the loan in order to get the document for the loan, registered power of attorney was executed. Two sale deeds were executed on the basis of the power of attorney one was in favour of Kamalkant Pandey and another was in favour of Smt. Purnima Pandey. The sale deed in favour of Kamalkant Pandey is not under challenge. On the basis of sale deed when Kamalkant Pandey wanted to get his name mutated before the revenue authorities, Adwin Benet was also noticed and the proceedings have been placed and accepted would show that Adwin Benet in his statement admitted to have executed the power of attorney and the sale deed when the substratum of the entire case of the plaintiffs was the power of attorney was out come of fraud then as a natural human consequence the plaintiffs would have challenged two sale deeds but has left out one sale deed for the reasons better known to them. In

respect of the registered power of attorney, the plaintiffs have not been able to prove that how such deed was got registered before the Sub- Registrar and it being a registered document it carries a presumption of correctness. There is no evidence on record that Adwin Benet was weak by eye sight at any point of time. The mutation proceedings when were carried out by the statutory authority would have a presumption of correctness and the statement given by the late Adwin Benet, the seller and the executor of power of attorney would be presumed to have been give before the authority in absence of evidence of fraud that any other person appeared as Adwin Benet and made the statement.

20. Under these circumstances, the finding which is arrived at by the learned District Judge was beyond the scope as certain facts which do not appear on record were presumed which can be termed as absurd without any fact on record. Accordingly, we are inclined to allow the appeal. The impugned judgment and decree dated 06/08/2019 is set aside.

21. In a result, the appeal is allowed.