^>\^ o^ ^ HIGH CQURT OF CHHATTISGARH AT BILASPUR Single^Bench : Hon'ble Shri DiiiD Raosaheb Deshmukh, J. First Aooeal No.153 of 2007 Smt. Yashoda Bai and another versus Smt. Sunder Bai and others GMENT PosSfor Z-04-: Sd/- Dilip Raosaheb Deshmukh Judge ^ HIGH COURT QF CHHATTISGARH AT BILASPUR Smale Bench : Hon'ble Shri Dilio Raosaheb Deshmukh. *S. Defendants Np.1 & 2 2. Plaintiffs Nos. 1 to 4 Smt. Yashoda Bai, aged about 50 Years, W/o Shri Arjun La! Brahman, R/o Telibandha, Raipur (C.G.) Through The Attornsy Holder, Deen Bandhu Mlshra S/o Shri Ram Kumar Mishra, Rfo Viiiage - Urla (Abhanpur) Tahsit Abhanpur, District Raipur (C.G.) Ram Kumar Mishra, aged about 72 yeare, S/o Late Ram Jiwan Mishra, Occupation-Agriculture, R/o Viilage - Urla (Abhanpur) Tahsit Abhanpur, District Raipur (C.G.) versus 1. Smt. Sunder Bai, Aged about 70 yeare, W/o Leite Nanhe Lal, 2. Smt. Kamla Bai, aged about 65 years, W/oGondulal, 3. Smt. Kala Bai, Aged about 53 years, W/o Chhagna Lal, All the three R/o Viflage Ural, Tahsil- Abhanpur, Distt. Raipur (C.G.) 4, Smt. Saraju Bai, Aged about 51 years, W/o Suresh Chandra, R/o Sector No.4, Bhilai Nagar, District Durg (C.G.) Al! the four Respondents are D/o Late c Bhanshi Lai, Sfo Late Maniram Dhimar, 5. State of Chhattisgarh^Through - The Coltector Raipur, District Raipur (C.G.) 6. Smt. Rachana Agrawat, aged about years, W/o Shri Ram Lakhan Agrawal, C/o R.L. and Company - 40, indira Commsrciai Complex; Transport Nagar, Korba, Distrtet-Korba (C.G.) First Appea! under Section 96 Read with Order 41 Ruie 1 of the Code ofCiviiProcedure 1 N ^S^!^^ <s ^'"%> y '% '"%, 1 'A ». V3 » ^^y '''-ssesesey '^ Present : Shri Maiay Kumar Bhaduri, counset for the appeilants. Shri H.SPatel, Counsel forthe respondents No.1,2 & 3. Shri Vtmlesh Bajpai, counsel for respondent No.4. Shri Akhii Agrawal, P.L. for respondent No.5. Shri A.K.Prasad, counsel for respondent No.6 on tv'i This is defendants' first appeat who are aggrieved by the judgment and decree dated 27.10.2007 passed in Civil Suit No.13-A/2006 by Uie 11h Additional District Judge (F.T.C.), Raipur whereby the respondents No.1 to 4/plaintiffe' suit for declaration that the sale deed executed by the appellantfdefendant No.2 in favour of appellantf'defendant No.1 on 17.04.1998 was void and the respondents/plaintiffe were the tltle holders of the land Kh.No.752/1 area 3.082 hectares and also for permanent injunctlon to restrain the appeliants/defendants from interfering with the possession of the respondents No.1 to 4/plaintiffe over the suit land was decreed in favour of the plaintife. 2. Brief facts that on the basis of a genera! power of attorney dated 2t.05.1983 Ex.D.12 executed bythe respondents/plaintiffs in favour of the appellanVdefendant No.2 a sale deed of the suit iand Kh.No.752/1 area 3.082 hectares situated at Abhanpur, District Raipur was ex^cuted by the appeilanVdefendant No.2 in favour of the appellanydefendarit No.1 on 17.04.1998. The name of appellanVdefendant No.1 was mutated over the suit land. She put Kh.No.752/84 i.e. an area of 1.03 hectares out of the above iand for sa!e. The purehaser - respondent/plaintiff No.6 published a notice dated 17.06.2005 ofthe proposed saie in the newspaper. By this notice, the respondents/plaintiffs learnt about the execution of the sale ^ tlKllNB^ deed bythe appellanfdefendant No.2 in favour ofthe appeliant/defendant No.1 on 17.04.1998 andfiledCivilSuitNo. 13-A/2006. 3. It was averred by the respondents/plaintiffs that no power of attorney was executed or got registered by the respondents/plaintiffe in favour of the appe!!ant/defendant No.2. The appelianVdefendant No.2 had thus no legal right to act as a power of attorney and to transfer the !and Kh.No.752/1 in favour of his daughter - appe!!ant/defendant No.1 on 17.04.1998. On thls premise, a declaration of title over the suit land was sought. A dectaration that the sa!e deed executed by the appellanVdefendant No.2 in favour of the appellanydefendant No.1 on 17.04.1987 was not binding on the plaintiffe was aiso sought. Permanent injunction to restrain the appe!!ants/defendants from interfering with She possession ofthe respondente/piaintiffe over the suit land was also prayed for. 4. The appeilants/defendants pteaded that the respondents/ptaintiffe had executed a general power of attorney in favour of the appeilantfdefendant No.2 and had got it reglstered. Under the power of attorney, the appellant/defendant No.2 had transferred the sui{ tand Kh.No.752/1 in favour ofthe appellant/defendant No.1 by a registered sale deed. 5. The trial Court held that execution of general power N attorney Ex.D.12 by respondents/plaintiffs in favour ofthe appellant/defendant No.1 was proved. It further held that the appeilanVdefendant No.2 under a bona ffcfe assumption that under the power of attorney he was authorized to seil fte suit land had executed the sate deed in favour of the flantfdefendant No.2. !t was further held that the .stf^"S''%t ^ra"€"^.. ff IL^ 'q 1, f 1^'Ba.. 1 I j ','6 r^ '' j;-.;^ ^ "NB^S!^ respondents/plaintiffe were in possession of the suit !and. On these premises, the learned trial Judge decreed the suit in toto in favour of the respondents/plaintiffs. 6. Learned counsel for the parties were heard at length. 7. Issue No.5 framed by the tria! Court which goes to the root of the matter is as under: "(5) TOT ^i^ ^pr ^ yRidi41 ^2 ^ wr 4 qRTRa cfrww ^tijiftaft^ gswFim P>«nferten ^T ^iiyihR^wirt ? The first question that the trial Court ought to have taken into consideration while deciding the above issue is the question of burden of proof. The respondents/piaintiffe had specfficaliy averred that they did not execute any power of attomey in favour of the appellant/defendant No.2. The appetlant/defendant No.2 asserted by specifica!!y pteading that the respondents/plaintiffe had executed and had got registered a power of attomey in hi's favour for authorizins him to execute the sale deed of the suit land. in this view of the matter, since the appellants/defendants had specificaliy averred the existence of a fact i.e. the execution of a power of attorney by the respondents No.1 to 4/plaintiffs in his favour, the burden of proving the same was on the appeiiants/defendants. The appellant/defendant No.2 i.e. holder df the power of attorney did nof enter the witness box. The respondent/plaintiff - Sarju Devi P.W.1 specifically denied in paragraph 7 of her afRdavit und^r Order 18 Rule 4 of C.P.C. that the plainti^had not executed any power of attorney in favour of the appetlantfdefendant No.2. in cross-examination, no question was put to her to rebut the same, She was not even asked whether the power of attomey Ex.D.12 contains her signature or that such power of attorney /pv\ '%, °» a. ^S S was executed by her. Attesting witness Raj Kamal Singhania P.W.3 also denied that a power ofattorney was executed by the respondents/plaintifi's in his presence. K.K.Agrawal D.W.1 , the registration Clerk, Sub-registrar's Office, merely produced the origina! general power of attomey and did not prove its execution by respondents/piaintiffe. Deenbandhu, son of the appelianVdefendant No.2 a!so admitted in cross-examination paragraph 6 that the genera! power of attorney was not executed in his presence, and therefore, he was unable to state as to who had signed the document. In this view of the matter, 1 am of the considered opinion that the appellants/defendants had miserably faHed to prove the executton of general power of attorney Ex.D.12 by the respondents/piaintiffs in favour of the appellant/defendant No.2. The trial Court erred in recording a finding that execution of power of attorney by the respondents/plaintiffs in favour of the appeltantfdefendant No.2 was proved. Once it is held that it is not proved that the respondents/plaintiffs executed a genera! power of attorney in favour of the appellanffdefendant No.2, this appeal is liable to bedismi'ssed. 8. A perusal of the genera! power of attorney Ex.D.12 also shows that description ofthe entire immoveable property ofthe respondents/plaintiffe is not given therein. !t shows ,that the respondents/piaintiffe intended to sel! Kh.No.754 and 755, and therefore, needed assistance of a trustworthy and experienced person. It further states that the aRpetlant/defendant No,2 was appointed for pleading on their behalf in suits, for appointin< advocate, for compromising a suit, for producing evidence, document or affidavits, for initiating execution proceedings, for receiving possession under a warrant of possession and executing receipt after receiwng possession, for withdrawing money from the govemment treasury and for —BTTOT^""—T 1 ~«iB®i SgEaE;?iffSB s ^^-'y other incidental works. Thereafter, it states that the respondents/plaintiffe authorized for selling their property, receiving advance, for executing sale deed, getting the same registered and deiivering the possession to the purchaser. This can, under no circumstances, be construed as giving a blanket implied authority to the appellant/defendant No.2 to execute the sale deed of any land belonging to the respondents/piaintiffe. The intention of the plaintiffs that can be culled out from the recital in the alleged general power of attomey is that authorization was being made in favour of the appellant/defendant No.2 only to sell Kh.No.754 and 755. Thus, it cannot be inferred that the appellant/defendant No.2 had implied authorization under the power of attomey to execute sate deed of the suit land Kh.No.752/1. In ttiis view of the matter also, the appetiant/defendant No.2 had no legal right to execute the s,aie deed of Kh.No.752/1 area 3.082 hectares in favour ofthe appeliantfdefendant No.1. In view ofthe above discussion, I am ofthe considered opinion that this appeal has no merit which is accordingly dlsmissed. Sdi- \ Dilip Raosaheb Deshmukh ^ Judge Anjani