R.S.A.No. 1194 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1194 of 2008 (O&M) Date of decision: 4.12.2009 Raghbir Singh ......Appellant Versus Ishwar and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.K.Gautam, Advocate, for the appellant. Mr.Harkesh Manuja, Advocate, for the respondents. **** SABINA, J. Plaintiff-appellant filed a suit for declaration, which was decreed by the Civil Judge (Jr.Divn.), Panipta vide judgment and decree dated 28.7.2007. In appeal, filed by defendant No.1, the said judgment and decree were set aside by the Additional District Judge, Panipat vide judgment and decree dated 7.3.2008 and the suit of the plaintiff was dismissed. Hence, the present appeal by the R.S.A.No. 1194 of 2008 (O&M) 2 plaintiff. Brief facts of the case, as noticed by the trial Court in para Nos. 1 and 2 of its judgment, are as under:- “ The disputed property is 66 K 2 M of land comprising in Khewat No.362, Khatoni No.519 min, Rect. No.105, killa No.17/2, 18, 8, 9, 10, 13, 14/1 including 46K situated in village Kurar, Tehsil and District Panipat. The plaintiff claims his ownership and possession of the same. Earlier defendant No.2 son of the plaintiff played a mischief and later defendant No.1 threatened the plaintiff on 19.10.1999 t dispossess the plaintiff from the same property measuring 46 K alleging the same to have been purchased by him. Later the plaintiff came to know that there was a bogus sale deed dated 5.1.1999 executed by defendant No.2 in favour of defendant No.1 in regard to this 46 K property of the plaintiff which is called to be illegal, null and void. Later it was also revealed to the plaintiff that defendant No.2 has executed the impugned sale deed dated 5.10.1999 in favour of defendant No.1 on the basis of a document and illegal power of attorney dated 26.10.1998 when actually there had been no such power of attorney so executed by the plaintiff in favour of defendant No.2. It is detailed by the plaintiff that at one point of time on 25.8.1998, plaintiff R.S.A.No. 1194 of 2008 (O&M) 3 and his wife had relied upon defendant No.2, who had taken them to the Tehsil Office on the pretext of preparing the papers of pension and there had got signature of the plaintiff on some blank papers which later could have been used and manipulated in the form of power of attorney on the basis of which the impugned sale deed dated 5.10.1999 was executed. In this way, power of attorney and the subsequent sale deed was all challenged by the plaintiff categorically mentioning the fact that the possession of the property always remained with the plaintiff during this period till date. 2. Written statement was filed in joint by both the parties taking preliminary objection of suit not maintainable; plaintiff not coming to the court with clean hands. On merits, the relation between the plaintiff and defendant No.2 was alleged and execution of the sale deed dated 5.10.1999 was admitted, but then defendants justified a proper power of attorney so executed from the plaintiff in favour of defendant No.2, after which the impugned sale deed dated 5.10.1999 was so executed, it was a complete denial that defendant No.2 had ever played fraud of any kind of having been taken plaintiff and his wife in the office of Tehsildar on 25.8.1998 and then took away the thumb impression of the plaintiff and later R.S.A.No. 1194 of 2008 (O&M) 4 on converted the same in the form of general power of attorney which later became the basis of the impugned sale deed. Power of attorney was spoken to have been correctly executed after which came the impugned sale deed.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the impugned sale deed dated 5.10.1999 is liable to be declared illegal, null and void and not binding upon the rights of plaintiff? OPP 2. Whether the plaintiff has no cause of action? OPD 3. Whether the suit is not maintainable? OPD 4. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The appellant-plaintiff had filed a suit for declaration that he was owner in possession of the suit property. A bogus sale deed dated 5.10.1999 had been executed by defendant No.2 in favour of defendant No.1 on the basis of an illegal power of attorney dated 26.10.1998. The suit filed by the plaintiff was decreed by the trial Court. However, in appeal, the suit filed by the plaintiff was dismissed on the ground that simple suit for declaration without seeking relief of possession was not maintainable. R.S.A.No. 1194 of 2008 (O&M) 5 It has been held by the Apex Court in Mehar Chand Das vs. Lal Babu Siddique and others AIR 2007 SC 1499 that, “the High Court, in our opinion, committed a manifest error not relying upon the decision of this Court in Vinay Krishna (supra). The said decision categorically lays down a law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that if the plaintiff is not in possession, the suit for mere declaration would not be maintainable”. In these circumstances, the learned Additional District Judge had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 04, 2009 anita