IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 27/1997 Reserved on: 24.7.2008 Decided on:31.7.2008 Gian Chand …Appellant. Versus Amar Nath and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.no. For the Appellant : Mr. K. D. Sood, Advocate. For the respondents : Mr. J.R. Thakur, Advocate for respondent No.1. Rajiv Sharma, J. This Regular Second Appeal has been preferred against the judgment and decree dated 18.12.1996 passed by the learned District Judge, Hamirpur in Civil Appeal No. 44/92. The brief facts necessary for the disposal of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration by way of permanent injunction that he was owner in possession of land entered in Khatauni Hal 219/259, previous Khasra No. 140/2/1 and 140/3/2 min present khasra No. 361 measuring 2 kanals 10 marlas as per Khatauni 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 pamaish of Tikka Barsar, Mauza Panjgran, Tehsil Barsar, District Hamirpur and mutation No. 1118 showing the sale in favour of respondent No.1-defendant (hereinafter referred to as ‘the defendant No.1’ for convenience sake) by respondent No.2-defendant (hereinafter referred to as ‘the defendant No.2’ for convenience sake) was null and void and defendant No.2 was not having any authority to sell the land owned by the plaintiff hence, the defendants be restrained from interfering with the ownership and possession of the plaintiff and mutation be set aside and in case it was proved that defendant No.2 was an agent of plaintiff in that event suit for rendition of account. The learned trial court partly decreed the suit on 2.4.1992. The plaintiff preferred an appeal against the judgment and decree dated 2.4.1992 before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur dismissed the appeal on 18.12.1996. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether in view of the admitted position that defendant No.2 who was the petition writer and in whose favour power of attorney had been executed by the appellant for executing the sale deed for a consideration of Rs. 55,000/- to the knowledge of respondent No.1, it had to be assumed that the sale deed Ex.PW-3/A was fraudulently executed for Rs. 30,000/- when the power of attorney had been cancelled and revoked and returned by the appellant and the document Ex.PW-5/A was duly proved? 2. Whether the court below has misconstrued the basic document of title Ex.PW-5/A, PW-3/A, P-1, P-2 and wrong inference have been drawn from facts proved on record? 3. Whether on the material on record it was established that there was non-compliance of mandatory provisions of section 18-A, 59 and 3 61 of Registration Act and the findings that registered power of attorney could only be executed by registered document is sustainable in law? 4. Whether the sale deed Ex.PW-3/A conferred any valid title on defendant No.1 and the plaintiff was entitled to the relief of injunction and declaration? 5. Whether in the facts and circumstances of the case, the presumption raised stood rebutted and the plaintiff was entitled to the relief of injunction and declaration instead of the alternative relief of rendition of accounts as held by the court below? Mr. K.D. Sood, Advocate had strenuously argued that the judgment and decree dated 18.12.1996 passed by the first appellate court is not sustainable in the eyes of law. He has also contended that once Ex.P-2 has been cancelled by the plaintiff, the sale executed in favour of defendant No.1 by defendant No.2 is null and void. Mr. J.R. Thakur, Advocate had supported the judgment and decree dated 18.12.1996. He also contended that the sale made by defendant No.2 in favour of his client is valid and the same is registered. I have heard the learned counsel for the parties and have perused the record carefully. Since all the questions of law are inter-connected, therefore, the same can be conveniently discussed together to avoid repetition of discussion of the evidence. The plaintiff has appeared as PW-1. He has specifically deposed that an agreement Ex.P-1 dated 30.1.1987 was executed and it was agreed upon that defendant No.2 would be competent to sell the property only for a consideration of Rs. 55,000/- and not less than that. He further 4 deposed that he executed special power of attorney in favour of defendant No.2 which was cancelled later on. Defendant No.2 applied for the certified copy of the special power of attorney Ex.P-2 and got the sale deed executed in favour of defendant No.1 on 23.4.1997 Ex.PW-3/A. According to him, defendant No.1 was having the knowledge of cancellation of special power of attorney Ex.P-2. PW-2 Sh. Kishori Lal has proved his signatures over Ex.P-1. PW-3 Sh. Ram Singh has proved the sale deed Ex.PW-3/A. He has stated that Ex.PW-3/A was scribed at the instance of defendant No.2, who claimed himself to be the special power of attorney of the plaintiff. He has further stated that at the time of execution of the document Ex.PW-3/A, the original power of attorney was not with defendant No.2 and he was having a copy of power of attorney. PW-4 Sh. G.D. Bhatia has stated that an application Ex.P-4 was received in the office, which bears his signatures. The application in question was written and signed by defendant No.2. He has categorically admitted that on the application he had not passed any order for the issuance of copy of any power of attorney. He has further admitted that it was not clear from the endorsement on the sale deed by whom defendant No.2 was identified as power of attorney of the plaintiff. PW-5 Sh. Vijay Kumar has proved the application and the document Ex.PW-5/A which was written in his presence vide which defendant No.2 admitted that the payment of Rs.30,000/- will be paid by him. PW-6 Sh. Dev Raj has deposed that Ex.P-1 was read over to defendant No.2, who acknowledged the same and then signed it. Ex.P-1 was written by Sh. Nikka Ram and he put his signatures as witness. PW-7 Sh. Kartar Singh has proved his signatures on Ex.PW-5/A on the basis of which defendant No.2 had admitted to make the payment. PW-8 is the scribe of Ex.P-1, who has proved the same. DW-1 has deposed that the sale deed was executed at the instance of 5 defendant No.2. He has admitted in his cross-examination that he has seen the original power of attorney which might have been produced before the Sub Registrar. He has admitted the consideration value of the land in dispute from Rs. 40,000/- to Rs. 50,000. DW-2 Roshan Lal has proved Ex.PW-3/A and the endorsement Ex.PW-4/A. He has shown his ignorance whether the original power of attorney was produced at the time of the registration of the sale deed. DW-4 has stated that he was the power of attorney of the plaintiff and letter Ex.DX was written to him. Sale deed Ex.PW-3/A was executed as per the instructions of the plaintiff. The marginal witnesses signed the endorsement Ex.PW-4/A. He has admitted that letter Ex.DX was written by the plaintiff to him, however, he has denied his signatures over Ex.PW-5/A and admitted that original special power of attorney was not in his possession at the time of the execution of the sale deed as the same was misplaced. He has denied his signatures over Ex.P-1 and he further stated that the word ‘cancel’ was not written by him over Ex.P-2. The execution of special power of attorney Ex.P-2 and sale of the suit land vide Ex.PW-3/A is not in dispute. Mr. K.D. Sood has strenuously argued that the power of attorney executed in favour of defendant No.2 on 28.1.1987 was cancelled on 2.2.1987. According to Mr. Sood, once the power of attorney has been cancelled, defendant No.2 could sell the land to defendant No.1 by way of sale deed Ex.PW-3/A. He has also contended that under the Indian Registration Act, 1908 it was obligatory for the Registering Authority to ensure that the original of special power of attorney was produced. Mr. Sood further contended that to over reach this hurdle defendant No.2 had applied for the supply of the certified copy of power of attorney, which was supplied to him and it was only on the 6 basis of the certified copy that the sale was effected on 28.4.1987 vide Ex.PW-3/A. The Sub Registrar had appeared in the witness box as noticed above as PW-4. He has denied the production of original of special power of attorney. He has admitted that it was not clear from the endorsement on the sale deed that by whom defendant No.1 was identified to be the power of attorney of the plaintiff. It is evident from the language employed under section 18 of the Indian Registration Act, 1908 that it was necessary for the Registering Authority to see the true copy of the special power of attorney. In the present case the special power of attorney dated 28.1.1987 was cancelled on 2.2.1987. Once a document has been cancelled, the same could not be relied upon and considered by the Registering Authority for the purpose of execution of sale deed Ex.PW-3/A. PW-6 Sh. Dev Raj has categorically stated that at the time of cancellation of the special power of attorney Ex.P-2, defendant No.1 was present. It thus implies that defendant No.1 was aware that the special power of attorney stood cancelled by the plaintiff. In fact in the written statement, the stand of defendant No.2 was that the special power of attorney executed in his favour by the plaintiff has been misplaced. The trial court has erred in law by over looking this vital aspect. The trial court has given a finding that the execution of the sale deed in favour of defendant No.2 by defendant No.1 was validly executed only on the basis of Ex.DX dated 2.6.1986. Defendant No.2 was not at all competent to execute the sale deed once the special power of attorney dated 28.1.1987 was cancelled on 2.2.1987. Once the special power of attorney was cancelled on 2.2.1987, no reliance could be placed by the trial court on the same. The sale effected in favour of defendant No.1 by defendant No.2 in the absence of special power of attorney was void. The trial court has 7 come to a wrong conclusion that the sale made in favour of defendant No.1 by defendant No.2 is in accordance with law. Consequently, the findings recorded by the trial court on issues No.1 and 2 and affirmed by the appellate court are set aside. It was necessary for the appellate court to discuss the entire oral as well as documentary evidence. The appellate court has erred in law by not discussing the evidence led by the parties before affirming the findings recorded by the trial court on issues No.1 and 2. This practice is deprecated. The appellate court is required to discuss the entire evidence. In view of the observations made hereinabove, the Regular Second Appeal is allowed. The judgments and decrees passed by both the courts below are set aside. The suit of the plaintiff is decreed. The plaintiff is declared owner in possession of the land as described in the head note of the plaint and mutation No. 1118 showing the sale in favour of defendant No.1 by defendant No.2 is declared null and void. There shall be no order as to costs. 31.7.2008 (Rajiv Sharma ), J. *awasthi*