IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.435 of 2010 Date of decision: 28.4.2011 _______________________________________________ Alka …. Petitioner Versus Ms.Sharda & ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr.Pratap Singh Goverdhan, Advocate. For the respondents: Mr.Ashwani Sharma, counsel for the respondent No.1. Mr.Adarsh Vashista, counsel for respondents No.2 to 4. Mr.Rupinder Singh, counsel for respondent No.5. _____________________________________________ Deepak Gupta, J. (oral) 1. By means of this petition under Article 227 of the Constitution of India, the petitioner has laid challenge to the order dated 3.8.2010 passed by the learned District Judge, 2 Solan in Civil Miscellaneous Appeal No.19-S/14 of 2009 whereby he allowed the appeal of the respondent No.1-plaintiff and passed an order directing the parties to maintain status quo qua the nature and possession of the suit land. 2. Briefly stated the facts of the case are that the plaintiff-respondent No.1 filed a suit against the present petitioner and the other proforma respondents. In the suit, it was alleged that Jawala was the predecessor-in-interest of the parties to the suit and after his death, his property was inherited by his son Partap Singh and his widow Roop Dei in equal shares. Partap Singh also expired and his property was inherited by his two sons Yogesh Kumar, Upender Kumar, his widow Indira Devi, defendants No.1 to 3 respectively and his mother Roop Dei in equal shares. The plaintiff alleges that Roop Dei was not keeping good health and she was not mentally and physically well and defendant No.1 Yogesh Kumar using his influence managed to get executed a power of attorney in his favour and on the basis of this power of attorney 3 sold the land, in question, to the present petitioner, Alka. The General Power of Attorney was allegedly executed on 28.11.2006 and the sale deed in favour of the petitioner was executed on 11.12.2006 for a consideration of Rs.5,68,000/-. The plaintiff challenged the validity of the General Power of Attorney as well as the sale deed basically on the ground that the General Power of Attorney was obtained by fraud and the sale deed executed on the basis of the Will does not create any right, title and interest in favour of the defendants. Alongwith the suit, an application was filed that the respondents be restrained from changing the nature, raising construction, cutting and removing valuable tress etc. from the land in question. 3. The learned Trial Court was of the prima facie view that the plaintiff could not allege that Roop Dei was not in a fit condition to execute the General Power of Attorney. As stated above, the General Power of Attorney was executed on 28.11.2006 and the sale deed 4 was executed on 11.12.2006. The revocation deed was executed on 16.1.2007. If Roop Dei was in a fit condition to execute the revocation deed on 16.1.2007 how can it be said that she was not in a fit condition to execute the General Power of Attorney on 28.11.2006? The question as to whether the General Power of Attorney was validly executed or not cannot be decided at this stage and has to be decided in the main suit after recording the evidence. 4. Presumption of truth is attached to public documents which are registered before the Sub Registrar in terms of the Registration Act. No doubt, this presumption is rebuttable and a party can prove that such document was executed by fraud or that the person who allegedly executed such document did not have the mental ability or faculty to execute such document but this can only be done after leading evidence and at this stage, when there is virtually no material on record, it cannot be said that the General Power of Attorney was obtained by fraud or that Roop Dei was not in a 5 fit mental state to execute these documents. The learned Trial Court rightly held that the plaintiff had failed to show that she had a prima facie case in her favour. 5. In fact, the learned Lower Appellate Court also held that the applicant-plaintiff has no prima facie case at this moment in her favour since she is relying upon the revocation of General Power of Attorney and the sale deed was executed before the execution of the revocation deed. After holding that the applicant-plaintiff did not have a prima facie case, the learned Lower Appellate Court still went on to grant a stay order in her favour only on the ground that she is a co-sharer in the property. 6. I am constrained to observe that the learned Lower Appellate Court totally mis- directed itself while coming to this finding. If the entire share of Roop Dei has been sold then the plaintiff would have a very meagre share in the land. The share is so meagre, i.e., it does not affect the main sale itself. 6 7. It is a well settled law that while granting stay, the Court has to consider the following three factors:- 1. Prima facie case 2. Balance of convenience 3. Irreparable harm and injury 8. As far as the last two aspects are concerned, here we are dealing with a case where the petitioner purchased the entire property for a substantial valuable consideration of Rs.5,68,000/-. Should a stay order be granted restraining her from raising any construction or from in any manner changing the nature of the suit land? Can the interest of the petitioner be otherwise safeguarded so that in case she succeeds her interest is protected? It is a huge property about 33 bighas and in case nobody cares for the property, the same will not remain in the same condition. Therefore, the order of the learned Lower Appellate Court is set aside and the following order is issued:- 7 1. The petitioner shall not in any manner transfer the property or encumber the same without permission of the Court. 2. That the petitioner can otherwise manage and deal with the suit property in any manner and develop the same. 3. That in case the plaintiff succeeds then the defendant No.5 shall not claim any equity on account of development or constructions raised by her and if the suit is finally decreed in favour of the defendants, defendant No.5 shall hand over the entire land to the plaintiff without raising any objection that she has raised construction on the land or developed the same. With these observations, the petition is disposed of. No order as to costs. April 28, 2011 ( Deepak Gupta ) (m) Judge