IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2577 of 1986 Date of Decision: 5.9.2011 Smt. Mewa (dead) through L.Rs. and others. ....... Appellants through Shri Santosh Sharma, Advocate for Shri Akshay Bhan, Advocate. Versus Maha Singh and another. ...... Respondent no.1 through Shri R.S.Mittal, Senior Advocate with Shri S.K.Tripathi, Advocate. CORAM: HON'BLE MR.JUSTICE VIJENDER SINGH MALIK .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... VIJENDER SINGH MALIK,J. Defendants – Smt.Mewa (since deceased and represented by her legal representatives), Suraj Mal, Ram Kishan and Chet Ram brought this appeal against the judgment and decree dated 20.8.1986 passed by learned District Judge, Sonepat. The suit brought by Maha Singh- plaintiff/ respondent no.1 had been for specific performance of R.S.A.No.2577 of 1986 -2- ..... agreement of sale dated 6.10.1980 in respect of the land measuring 77 kanals 18 marlas being 1/3rd share of the land detailed in paragraph 1 of the plaint. It has been alleged that Smt.Mewa through her husband – Raghbir Singh, who held her power of attorney, executed this agreement. Consideration was fixed at Rs.1,05,000/-, out of which a sum of Rs.50,000/- was paid at the time of execution of the agreement. After obtaining income tax clearance certificate within one month, the sale deed was to be executed. Necessary clearance certificate from the income tax department was not obtained. Rather, defendant no.1- Smt. Mewa suffered a decree in respect of this land in favour of defendant nos. 2 to 5, her nephews on 18.11.1980. This brought the necessity for filing this suit. Defendant no.2- Raghbir Singh admitted the stand of the plaintiff. He has claimed that he was never asked by the plaintiff to have sale deed executed and registered. Defendant nos. 1 and 3 to 5 have contested the suit denying the claim of the plaintiff. It is denied that defendant no.2 was lawfully appointed as attorney of defendant no.1. The execution of the agreement to sell on behalf of defendant no.1 is also denied. The suit is claimed to have been instituted in collusion and conspiracy with defendant no.2. It is lastly pleaded that if the power of attorney carried the thumb impression of defendant noi.1, then the same was obtained by playing fraud upon her. R.S.A.No.2577 of 1986 -3- ..... The parties were at the following issues:- 1. Whether defendant No.2 was the `Mukhtiar-i-am' of defendant No.1; if so to what effect?OPP 2. Whether defendant No.2 executed the agreement deed in favour of the plaintiff as alleged in the plaint; if so, for what amount and on what terms?OPP 3. Whether the plaintiff has paid the amount of Rs.50,000/- towards part performance of the agreement to defendant No.2?OPP 4. Whether the plaintiff was and is still ready and willing to perform his part of the contract?OPP 5. Whether impugned decree dated 18.11.1980 is illegal and not binding on the rights of the plaintiff as alleged in the plaint?OPP 6. Whether the suit has not been properly valued for purposes of court fees and jurisdiction?OPD 7. Whether the suit of the plaintiff is not maintainable in the present form?OPD 8. Relief. Learned trial court, vide judgment dated 15.9.1984, denied the relief of specific performance of the agreement and in its place, decreed the suit for recovery of Rs.50,000/- against Raghbir R.S.A.No.2577 of 1986 -4- ..... Singh – defendant no.2. Proportionate costs and future interest at the rate of 10% per annum were also granted. This decision was based on the finding recorded on issue no.1 to the effect that the power of attorney is not proved to be executed by defendant no.1 in favour of defendant no.2. Aggrieved by this finding and the ultimate decree passed, the plaintiff filed an appeal which has been decided by learned District Judge, Sonepat vide judgment and decree dated 20.8.1986. Learned first appellate court has reversed the finding of learned trial court on issue no.1 and has come to the conclusion that execution of power of attorney by Smt.Mewa in favour of her husband is proved beyond any shadow of doubt. Learned first appellate court could only find minor discrepancies in the agreement which were ignored and accepting the appeal, the suit has been decreed for specific performance of the agreement. Feeling dis-satisfied by the aforesaid judgment and decree of learned first appellate court, defendants no.1 and 3 to 5 have preferred this appeal. I have heard Shri Santosh Sharma, Advocate for Shri Akshay Bhan, learned counsel for the appellants and Shri R.S.Mittal, learned senior counsel with Shri S.K.Triphathi, Advocate for respondent no.1. On the statement of learned counsel for the appellant R.S.A.No.2577 of 1986 -5- ..... that respondent no.2 was only a proforma respondent and need not be served, the order had been made accordingly on 18.5.1994. Learned counsel for the appellants has submitted that issue no.1 framed in the case has been an important issue. According to him, Smt.Mewa did not execute the power of attorney in favour of her husband. He submitted that she is a blind woman and her husband had got her thumb impressions on some papers and he may have converted some of those papers into a power of attorney. According to him, it was for the plaintiff to prove that a valid power of attorney had been executed by Smt.Mewa in favour of her husband. He has submitted that the best evidence has not been produced by the plaintiff. He has further submitted that the best evidence would have been a statement of finger print expert who could have examined and compared the thumb impressions on the power of attorney Exhibit P3 with the admitted thumb impressions of Smt.Mewa that could be taken in the court. He has submitted that it has not been done by the plaintiff and, therefore, the issue could not be decided in favour of the plaintiff. He has cited before me a decision of this court in Gita Ram Kalsy Versus Arjan Singh Kalsy (Died) through his L.Rs., 1996(2) R.R.R. 303 where the legal proposition that if a party withholds best evidence in its possession, an adverse inference has to be drawn against his case, has been laid down. R.S.A.No.2577 of 1986 -6- ..... Learned counsel for the appellants has taken me through paragraphs 9 and 11 of the judgment of learned first appellant court. According to him, the description of the land agreed to be sold in the agreement is discrepant as it does not tally with the description of the land mentioned in the plaint. He has submitted that when an agreement is vague and indefinite, it cannot be specifically enforced. In this regard, he drew my attention to a decision of this court in Bhagwan Singh (deceased) represented by Ranjit Singh and others Versus Nawab Mohammad Iftikhar Ali Khan, Nawab Malerkotla and others, 1982 P.L.R. 668. Learned counsel for respondent no.1 has submitted that learned first appellate court has though noticed some discrepancies in the description of the land of Smt.Mewa in the agreement, yet learned first appellate court has also gone ahead by saying that this discrepancy is minor and it does not make the document indefinite or vague. He has further submitted that defendant no.2 has admitted the claim of the plaintiff. According to him, the power of attorney Exhibit P3 is dated 8.6.1978 whereas the agreement of sale Exhibit P1 is dated 6.10.1980. He has submitted that the plaintiff – respondent no.1 could not be believed to have colluded with the husband of Smt.Mewa in execution of power of attorney for getting this agreement of sale executed after 2-1/4 years thereof. He has submitted that the power of R.S.A.No.2577 of 1986 -7- ..... attorney had been later on cancelled by Smt.Mewa which is further evidence of the execution of the power of attorney. From the submissions made by learned counsel for the parties, the following substantial questions of law arise for determination in this appeal:- 1. Whether the finding returned by learned first appellate court on issue no.1 is perverse? 2. Whether the agreement Exhibit P1 is vague and indefinite and cannot be specifically enforced? Exhibit P3 is a registered document. The executant of this document had appeared before the Sub Registrar. It cannot be believed that without appearance of Smt.Mewa, the document was got registered before the Sub Registrar. Bhana Ram, Registration Clerk from the office of Sub Registrar, Sonepat has been examined as PW2. He has stated that Smt.Mewa had cancelled the power of attorney dated 8.6.1978 by way of a registered document dated 24.10.1980. Instead of proceeding against her husband for forgery on civil or criminal side, Smt.Mewa preferred to get the power of attorney cancelled. Cancellation of power of attorney would itself be a good evidence of execution of the same. Apart from the same, the plaintiff has examined Mahabir R.S.A.No.2577 of 1986 -8- ..... Parsad, a son of Lala Chhaju Ram, the scribe of the power of attorney Exhibit P3, as PW4. Lala Chhaju Ram had been dead by that time. Daya Nand- PW5 is an attesting witness of this document. Statements of these witnesses, which could not be successfully questioned, were sufficient to prove the execution of the power of attorney by Smt.Mewa in favour of her husband. When despite the plea that the thumb impressions had been put by Smt.Mewa on some blank papers and were given to her husband which could be used to forge this document, Smt.Mewa was of the view that thumb impressions on the power of attorney are not her thumb impressions, she could have examined the finger print expert to prove that the thumb impressions appearing on Exhibit P3 were not her thumb impressions. There was no requirement of examination of finger print expert by the plaintiff to prove the valid execution of the power of attorney. Adverse inference could be drawn against the plaintiff only if he was required by law to produce some evidence in his possession and he failed to produce the same. Therefore, the adverse inference available under section 114 of the Evidence Act, as laid down in Gita Ram Kalsy's case (supra) is not available against the plaintiff in this case. Learned trial court had given the finding that the plaintiff has failed to prove the execution of the power of attorney by Smt.Mewa in favour of her husband on very insignificant aspects R.S.A.No.2577 of 1986 -9- ..... which have been satisfactorily dealt by learned first appellate court. I find no reason to differ from the reasons given by learned first appellate court in repelling those circumstances. The submission of learned counsel for the appellants that Smt.Mewa is blind appears to have been raised for the first time. There is no such plea in the written statement of Smt.Mewa. Even if it is taken that she is blind, it gives further reason to her to execute a power of attorney in favour of her husband. The discrepancy regarding description of the land in the agreement is only one. Killa no. 29/21 as mentioned in the plaint is described as killa no. 29/27 in the agreement of sale. A perusal of the agreement of sale would show that it is quite definite. The land has been described by khewat and khata numbers and the land agreed to be sold is further described by the total area and its being 1/3rd of share of land measuring 233 kanals 13 marlas. If killa no.29/21 came to be described in the agreement of sale as 29/27 by slip of pen, it cannot be said that the agreement is indefinite or vague. On the strength of the aforesaid discussion, the substantial questions of law are decided against the appellants. The appeal does not have any merit and is, therefore, dismissed with costs. September 5,2011 ( VIJENDER SINGH MALIK) “SCM” JUDGE R.S.A.No.2577 of 1986 -10- .....