Full Judgment Text
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PETITIONER:
SMT. BHATORI
Vs.
RESPONDENT:
SMT. RAM PIARI
DATE OF JUDGMENT: 30/07/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (7) 210 1996 SCALE (5)752
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Heard counsel for the appellant.
Pursuant to notice issued on November 22, 1988, Mr. Uma
Dutta had appeared for the respondent. Subsequently, he
reported on January 6, 1995 that he was instructed not to
appear in the matter. He sought for and was granted
permission to withdraw from the case. Thereafter, none
appeared for the respondent. Initially, the case was
adjourned since consequent upon reference doubting
correctness of Mithilesh Kumar & Anr. v. Prem Behari Khare
[(1989) 2 SCC 95] decision by a three-Judge Bench was
awaited. The controversy is no longer res judicata. In view
of the judgment of three-Judge Bench in R. Rajagopala Reddy
v. Padmini Chandrashekharan [(1995) 2 SCC 630], wherein it
was held that the Benami Transaction Prohibition Act is
prospective in operation, the question in this case is:
whether the sale of the appellant’s land to the wife of the
second respondent, Ram Mehrar, holder of power of attorney
of the appellant is valid in law?
It is seen that Ram Mehrar had general power of
attorney not only to engage a counsel and conduct litigation
on behalf of the appellant, but can also mortgage, alienate
or transfer possession of the agricultural land to anyone
whosoever after obtaining the exemption from the appropriate
authorities. It is seen that notification under Section 4(1)
of the Land Acquisition Act acquiring the land was published
in January 1979. Notice, thereafter, was given to the
appellant on March 28, 1979. When the appellant demanded
from the second respondent in August 1979 the return of her
Power of Attorney, he did not return it. On the other hand,
he promised that he would not act detrimental to her
interest. The second respondet appears to have field a suit
on August 23, 1979 in which he impleaded the appellant as
party-defendant. It is the case of the appellant that the
second respondent engaged two advocates, one Mr. Mitter Sain
on behalf of himself and other Ram Kishan for the appellant.
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The counsel appearing for her informed her had produced
damage to the appellant depriving her of the valuable
property denuding right, title and interest to claim
compensation in respect of her lands acquired by the
Government. Having been defrauded, she is entitled to lay to
suit for declaration of title and other reliefs in the suit.
It would, therefore, be a clear case of fraud played by the
respondent upon the appellant. The fraud unreveals the
contract and it is void. The courts below have committed
grave error by not appreciating the fraud played by the
respondent in proper perspective.
The appeal is accordingly allowed. The judgments and
decrees of the courts below are set aside. In the
circumstances, the suit is decreed with exemplary costs
throughout quantified at Rs. 10,000/- at each of the stages
including in this Court.