R.S.A.No. 1119 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1119 of 2010 (O&M) Date of decision: 7.2.2011 Jaswant Saini and another ......Appellants Versus Gian Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sumeet Goel, Advocate, for the appellants. **** SABINA, J. Plaintiff had filed a suit for declaration and for joint possession with consequential relief of permanent injunction. The case of the plaintiff, in brief, was that he was co- owner in joint possession of the land described in the plaint. Plaintiff had constructed his house and had raised boundary wall in 1 acre of the land where he was tethering his cattle. Plaintiff had never sold the said land to anybody nor had executed a power of attorney in favour of defendant No.1. The alleged power of attorney executed in R.S.A.No. 1119 of 2010 (O&M) 2 favour of defendant No.1 was a result of fraud and fabrication. The sale deed dated 2.5.2000/3.5.2000, executed by defendant No.1 on the basis of power of attorney, was bogus. Defendants, in their written statement, averred that the plaintiff was not the owner of the land in dispute. Plaintiff had sold the land to defendant No.2 through his special power of attorney holder defendant No.1 and had received the entire sale consideration. Defendants also filed a counter claim claiming that defendant No.2 be declared owner in possession of 458 marlas of land on the basis of sale deed dated 3.5.2000. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner in joint possession of the suit property and sale deed bearing vasika No.1213 dated 3.5.2000, mutation No.1214 dated 8.6.2000 are illegal, null and void? OPP. 2. Whether the defendants are liable to be restrained from interfering in plaintiff's possession over the suit property and alienating it ?OPP 3. Whether the suit is not maintainable in the present form ? OPD 4.Whether the plaintiff has no locus standi to file the present suit ? OPD 5. Whether the plaintiff is estopped from filing the R.S.A.No. 1119 of 2010 (O&M) 3 present suit by his own act, conduct ? OPD 6. Whether the defendant is co-owner in possession of land measuring 458 marlas out of total land 52666 marla comprised in khewat No.115, Khatauni No.134 situated in the revenue estate of village Ghata vide sale deed dated 3.5.2000 ? OPD 7. Whether the plaintiff is liable to be restrained from interfering in possession of defendant No.2 over the suit property ? OPD 8. Whether the defendant No.2 is entitled to alternative relief of specific performance of the agreement datede 24.1.1996 as prayed for? OPD 9. Whether the counter claim is within limitation ? OPD 10. Whether the proper court fee has been affixed on the counter claim? OPD 11. Relief.” Trial Court vide judgment and decree dated 2.6.2009 decreed the suit of the plaintiff and held that the plaintiff was owner in possession of the suit property and restrained the defendants from interfering in peaceful possession of the plaintiff over the suit land. Counter claim filed by the defendants was dismissed. Aggrieved by the same, defendants preferred an appeal and the same was dismissed by the Additional District Judge, Gurgaon vide judgment and decree dated 31.8.2009. Hence, the present appeal by the defendants. R.S.A.No. 1119 of 2010 (O&M) 4 After hearing learned counsel for the appellants. I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The case of the plaintiff was that he had not sold the suit property either himself or through his attorney vide sale dated 3.5.2000. Plaintiff also challenged the mutation sanctioned in favour of defendant No.2 dated 8.6.2000 on the basis of the sale deed . The execution of special power of attorney by the plaintiff in favour of defendant No.1 was also denied by the plaintiff, whereas, the case of the defendants, on the other hand, was that defendant No.1 had executed the sale deed in question in favour of defendant No.2 on the basis of special power of attorney executed by plaintiff in favour of defendant No.1. In order to substantiate their pleas both the sides examined handwriting experts. Both the handwriting experts gave reports in favour of the party who had examined them. Ex.D-3, the power of attorney alleged to have been executed by the plaintiff in favour of defendant No.1, is not a registered document and hence, the courts below rightly held that no reliance could be placed on the said power of attorney. In these circumstances, the sale deed executed on the basis of power of attorney Ex.D-3 was liable to be set aside. Moreover, the sale deed was got registered in Mumbai, whereas, the property was situated in Haryana. Defendant No.2 also placed reliance on agreement to sell Ex.D-2 dated 24.1.1996 but in the said agreement, the land sought to R.S.A.No. 1119 of 2010 (O&M) 5 be sold was not described. Hence, the Courts below rightly held that the said agreement was not enforceable in the eyes of law. Moreover, the agreement to sell Ex.D-2 is dated 24.1.1996 and the counter claim seeking a specific performance was filed on 25.5.2005 much beyond the period of limitation. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE February 07, 2011 anita