RSA No.2239 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2239 of 2010(O&M) Date of decision: 7.7.2010 Bahadur Singh and another ......Appellant(s) Versus Manjinder Singh & others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. B.P Singh Gill , Advocate for the appellants. Rakesh Kumar Garg, J. CM No.6816-C of 2010 Application is allowed subject to all just exceptions. CM No.6817-C of 2010 Application is allowed subject to all just exceptions. Annexure A1 is taken on record. RSA No.2239 of 2010(O&M) The appellants, who were defendants No.1 and 5 before the trial Court have filed the instant appeal challenging the judgment and decrees of the Courts below whereby suit of plaintiff-respondent No.1 for joint possession by way of specific performance and execution and registration of sale deed in terms of agreement dated 24.2.1990 concerning the suit land, was decreed. Brief facts of this case are that Inder Singh son of Ram Singh, original owner of the suit land through his general power of attorney Manjit Kumari entered into an agreement dated 24.2.1990 to sell the suit land and received Rs.75,000/- as an earnest money. The sale deed was to be executed on or before 5.6.1990. Inder Singh died on 6.3.1990 leaving behind the appellants and other LRs arrayed, as defendants. The plaintiff RSA No.2239 of 2010(O&M) 2 (now respondent No.1) was ready and willing to perform his part of the contract but the defendants including Manjit Kumari, general attorney of Inder Singh did not comply with the terms and conditions of the agreement; rather the appellants filed civil suit for declaration to set aside and to ignore the agreement in favour of the plaintiff. Hence, the suit. The suit was contested by the appellants only, raising various preliminary objections. On merits, it was submitted that Inder Singh, through his attorney, never entered into an agreement to sell dated 24.2.1990 and no earnest money was ever received as alleged in the plaint. It was further stated that Inder Singh never appointed Manjit Kumari as general attorney and any such power of attorney must have been forged by her in connivance with the plaintiff and her husband, who was contesting the inheritance of Inder Singh on the basis of a forged and fabricated Will. The appellants were the testamentary heirs of deceased Inder Singh on the basis of a valid and registered Will dated 16.5.1980 and they have become owners of the estate of Inder Singh including the suit property. Rests of the averments of the plaint were denied and dismissal of the suit was prayed for. The trial Court, after going through the evidence and hearing learned counsel for the parties, decreed the suit vide its judgment and decree dated 17.4.2009. Aggrieved from the aforesaid judgment and decree of the trial Court, the appellants filed an appeal which was also dismissed by the Lower Appellate Court. While dismissing the appeal, the Lower Appellate Court found that prior to the present suit, the present appellants had challenged the power of attorney dated 16.5.1980 executed by Inder Singh in favour of Manjit Kumari and agreement to sell dated 24.2.1990 executed by Inder RSA No.2239 of 2010(O&M) 3 Singh through his power of attorney Manjit Kumari in favour of the plaintiff-respondent terming these, as forged documents, but vide judgment and decree dated 8.6.1995 Ex.P-4 and Ex.P-5 both the documents were held to be validly executed. Even the appeal preferred by the appellants against the aforesaid judgment and decree was dismissed by the Additional District Judge, Ludhiana vide Ex.P-6 and Ex.P7 and this Court vide Ex.P-8 dated 16.11.1999. Still not satisfied, the appellants have filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that Manjit Kumari, power of attorney holder, was not authorized to execute the agreement to sell as such act was not specifically mentioned in the power of attorney. Elaborating further, learned counsel for the appellants argued that the plaintiff-respondent has failed to prove his case by leading evidence in the present case and thus, the following substantial questions of law arise in this appeal: “a. Whether an Attorney Holder can execute agreement to sell the land of the executant of General Power of Attorney if such act is not specifically mentioned in the Power of Attorney? b. Whether the execution of agreement for sale is valid if the Attorney Holder is not specifically directed to execute the same? c. Whether the Attorney Holder can receive earnest money in agreement of sale if not specifically directed in the Power of Attorney? d. Whether a statement recorded in a previous suit and exhibited in the later suit can be read as deposition RSA No.2239 of 2010(O&M) 4 without calling the witness for the purpose of confrontation and corroboration? e. Whether a document can be proved without the examination of marginal witnesses?” I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. It is not in dispute that in the earlier suit which was dismissed vide Ex.P-4 and Ex.P-5, the appellants had challenged the alleged power of attorney dated 16.5.1980 in favour of Manjit Kumari and the agreement to sell in question executed by her in favour of the plaintiff-respondent on 24.2.1990. Learned counsel for the appellants also could not dispute that the aforesaid judgment and decree passed by the trial Court vide Ex.P-4 and Ex.P-5 has become final between the parties upto this Court vide Ex.P-6, Ex.P-7 and Ex.P-8. Once the power of attorney dated 16.5.1980 in favour of Manjit Kumari and the agreement dated 24.2.1990 executed by her in favour of the plaintiff-respondent, which are under challenge in the present suit, have been upheld by this Court, the appellants cannot be allowed to raise the same issue again in this suit. Thus, no substantial question of law arises. No merits. Dismissed. July 7, 2010 (RAKESH KUMAR GARG) ps JUDGE