R.S.A. No. 2086 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2086 of 2009 & C.M. No. 6197-C of 2009 Date of Decision : 20.5.2009 Smt. Amrik Kaur & others .......... Appellants Versus Smt. Manjit Kaur ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. B.R. Mahajan, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 3.3.2009, passed by the learned lower appellate Court partly decreeing the suit filed by the plaintiff / respondent. The plaintiff/ respondent filed a suit for possession by claiming herself to be the owner of the suit property in pursuance to the sale deed executed in her favour by defendants No. 1 to 3. The sale deed was said to have been executed by attorney of defendants No. 1 to 3 in favour of the plaintiff by claiming that the suit property was Willed by Atma Singh, who was the owner of the property in dispute. It was further the case of the plaintiff / appellant that the defendants being inter se related, in order to deny the right of the plaintiff, connived with each other and got mutation sanctioned in their favour on the basis of Will, said to have been executed in R.S.A. No. 2086 of 2009 2 their favour by Atma Singh. The learned trial Court dismissed the suit in view of the fact that both the Wills, one set up by defendants No.1 to 3 and second by defendants No. 4 & 5, was not proved on record . The learned trial Court further pleased to hold that the execution of power of attorney in favour of Jarnail Singh was not proved, and further that under the said power of attorney he had no right of sale. In appeal, the learned lower appellate Court has affirmed the finding of the learned trial Court holding, that none of the Will was proved. Therefore, the property was to be inherited by way of succession in which each legal heir i.e. defendants had 1/5th share. The learned lower appellate Court reversed the finding that the power of attorney was not proved on record. The reason for reversing the finding is that the execution of power of attorney was admitted, by taking a positive stand that the power of attorney was given for getting the mutation sanctioned, which did not authorise the attorney to sell the property. The learned lower appellate Court, however affirmed the finding, that in the registered power of attorney executed in favour of Jarnail Singh, the right of sale was not given to the attorney. Consequently the judgment and decree was modified, and the plaintiff / appellant has been held to be owner in possession of 3/5th share with defendants No.4 and 5 and that defendants No. 1 to 3 have ceased to be co-owners. The suit qua share of defendants No. 4 & 5 was dismissed. The learned counsel for the appellant contends that this appeal raises the following substantial question of law :- R.S.A. No. 2086 of 2009 3 Whether the finding of the learned Addl. District Judge that the general power of attorney dated 4.3.1998 allegedly executed by defendant-appellants No. 1 to 3 in favour of PW3 Jarnail Singh is proved on record is perverse, as none of the attesting witness was produced to prove its execution, the scribe examined also did not produce the register to prove the entry in this regard ? In support of the substantial question of law the learned counsel for the appellant contends, that the learned trial Court had rightly held, that the power of attorney was not proved, as no attesting witness was examined to prove the due execution of the power of attorney. The evidence led by scribe did not inspire confidence as the register was not produced. Furthermore, plea regarding sale by power of attorney was not raised in the plaint filed by the plaintiff / respondent. However, this contention of the learned counsel for the appellant cannot be accepted. It is settled law that admitted document need not be proved. The execution of the power of attorney was not disputed, rather a positive stand was taken that Jarnail Singh was appointed as attorney, to appear for the purpose of mutation proceedings where he had no right of sale. It has been found, as a fact that under the power of attorney the right of sale was not given to the attorney. The finding recorded cannot be said to be vitiated. In the plaint a positive stand was taken that sale was executed by defendants No. 1 to 3. The plea was controverted by the defendants in the written statement. Thereafter in the replication it was specifically pleaded that the sale deed was executed through attorney. The sale deed as R.S.A. No. 2086 of 2009 4 well as power of attorney was placed on record. The pleaded case qua attorney, was admitted by defendant Nos. 1 to 3, when a positive stand was taken that the attorney was to appear in mutation proceedings with no right of sale. The findings recorded by the learned Courts below are based on appreciation of evidence. The findings cannot be said to be vitiated being perverse. The substantial question of law raised, therefore, does not arise for consideration in this appeal. No merit. Dismissed. 20.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE