HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 230 of 1997. Decided on: 14.5.2008. Gulzari Lal and another ………Appellants. Versus Sita Ram and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the appellants: Mr.N.K. Thakur, Advocate. For respondents No.1 and 2: Mr.Rahul Mahajan, Advocate. V.K. Ahuja, J (Oral): This is a regular second appeal filed by the appellants against the judgment and decree of the court of learned District Judge, Una, dated 9.6.1997, vide which the appeal filed by the appellants against the judgment and decree passed by the learned Sub Judge (II), Amb, on 2.7.1993, decreeing the suit of the plaintiff, was allowed and the decree passed by the learned Sub Judge was set aside. Briefly stated the facts of the case are that the original plaintiff Smt.Babi, predecessor-in-interest of the appellants, as plaintiff filed a suit for ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? - 2 - declaration as against the respondents, who were impleaded as defendants. The plaintiff alleged that she had not executed any Power of Attorney in favour of defendant No.3, namely, Bhagwan Dass, to sell her land. She challenged that the sale made by defendant No.3 in favour of defendants No.1 and 2, vide sale deed dated 17.11.1988, is void. Defendants pleaded that the sale deed was effected by defendant No.3 in favour of defendants No.1 and 2 on the basis of the Power of Attorney executed by the plaintiff in favour of defendant No.3 and as such the sale, in question, was valid. The learned trial Court framed issues in regard to the validity of the sale deed and as to whether the plaintiff executed General Power of Attorney in favour of defendant No.3 for the purpose of sale or not and the question as to whether the sale deed in question was valid or not. All these points were decided by the learned trial Court in favour of the plaintiff holding that the plaintiff was an illiterate lady and had not executed any Power of Attorney in favour of defendant No.3 to effect the sale deed, though it was executed for procuring pension for her and accordingly held that the sale deed in question was not valid. The suit for declaration was accordingly decreed, which findings were reversed on appeal. I have heard the learned counsel for the parties and have gone through the record of the case. On a perusal of the judgment passed by the learned trial Court, it is clear that the learned trial Court had observed that the plaintiff was an illiterate lady, though there is nothing to hold that she was also a pardanasheen lady. - 3 - The Power of Attorney, in question, was executed by the original plaintiff on 7.11.1988 and the sale in question was effected on 17.11.1988. The original Power of Attorney never saw light of the day and its certified copy was also not proved in evidence in accordance with law. A perusal of the record of the learned trial Court shows that at the time of closing of evidence, the learned counsel for the defendants tendered a copy of Power of Attorney Ext.D-1, which was taken in evidence by the learned trial Court and has been discussed by both the courts below and rather has been relied upon much by the learned First Appellate Court. The mere fact that the document Ext.D-1 was tendered in evidence, which is a copy of the General Power of Attorney, does not dispense with the requirement of proving the same in accordance with law, since it was a private document, it was required to be proved. No witness to the General Power of Attorney, copy of which is Ext.D-1, was examined to prove that this document was executed by the plaintiff in favour of the defendant No.3. No witness has stated that it bore the signatures of the executant or that the witnesses or the scribe proved the document in question bearing thumb mark of the original plaintiff. The plaintiff has never disputed that she did not execute the Power of Attorney in favour of defendant No.3 but it was alleged by the plaintiff that she had executed it for obtaining pension but not for the sale in question. It has to be considered as to whether the power to sell was there or not in favour of defendant No.3 and that was required to be proved by defendant No.3 that he had a valid Power of Attorney in his favour to execute the sale deed also which - 4 - fact does not stand proved since the certified copy of the Power of Attorney or the original was not proved in accordance with law. I am unable to go through the contents of the Document Ext.D-1 since it was not legally proved from any evidence. However, the learned First Appellate Court has drawn various inferences from the document holding that there is a clause for the sale of the land and the plaintiff had admitted the execution of the Power of Attorney. The plaintiff had admitted the execution of the Power of Attorney but for another purpose and never stated that she had executed it for the purpose of effecting the sale. It has to be considered as to what was the necessity for the plaintiff to execute the General Power of Attorney for selling her land when she had come to the court of the Sub Registrar some days prior to the sale deed to execute this Power of Attorney. In cross examination of the plaintiff, it was never suggested that she had asked defendant No.3 to sell her land. It was never suggested to her that she needed the money and accordingly this Power of Attorney was executed and the sale was effected. The plaintiff was not confronted with the Power of Attorney that it was executed by her or that it also contained a clause that defendant No.3 was entitled to sell the land. There is nothing in the statement of defendant No.3, who appeared as DW-2 in the Court, that he received money and paid the sale consideration to the plaintiff also. In cross examination DW-2 admitted that the plaintiff had agreed to give him the land but had not asked him to sell the same. This clearly clinches the issue since the plaintiff has never stated that she had asked defendant No.3 to sell the land and it was never suggested to her that the land was sold at her instance and the sale consideration was also paid to her. - 5 - Coming to the findings of the learned First Appellate Court that the suit was not within time since the suit was filed after more than 3 years of the execution of the sale deed, the plaintiff has clearly alleged that she had no knowledge of the sale deed and when she came to know about the execution of the sale deed, she filed the suit. This finds corroboration from the statement of the plaintiff that she was in due possession of the suit land and once the possession was with her, it cannot be assumed that she had the knowledge about the sale deed executed on the basis of the General Power of Attorney. The said Power of Attorney as DW-2 has also admitted that the plaintiff was in possession and he had not given the possession of the land to the defendants. Once the possession was not given, the plaintiff had no knowledge of the sale deed. The assertions made by the plaintiff that she learnt subsequently about the sale deed were to be considered and accordingly the learned trial Court had come to a right conclusion that the suit was within time, which findings were wrongly reversed by the learned First Appellate Court. The substantial questions of law framed at the time of admission of the appeal were as to whether the impugned judgment and decree is vitiated for misconstruction and misinterpreting the document and as to whether the sale in question was valid or not. From whichever angle the facts of the case are considered, it is clear that there was no occasion for the plaintiff to execute the Power of Attorney for selling the suit land in favour of defendant No.3, particularly, when she had appeared for executing the Power of Attorney and the sale in question was effected within 10 days or so and it was never suggested to the plaintiff that she - 6 - needed money or she had asked defendant No.3 to sell the land. The fact that defendant No.3 was in fiduciary relationship with the plaintiff stands proved since he is son-in-law of her close relative and has been pursuing her cases earlier also and possibility that on that basis the Power of Attorney was got executed by defendant No.3 on one pretext or the other and it was used for selling the land stands established, therefore, the findings recorded by the learned trial Court can be said to be correct. In view of the fact that there was misreading of the oral as well as documentary evidence and the findings recorded by the learned First Appellate Court can be said to be perverse, the evidence has been re- appreciated by this Court and as such the findings recorded by the learned Appellate Court are set aside and that of the learned trial Court are restored. The present appeal is allowed accordingly. The suit of the plaintiff for declaration, as decreed by the learned trial Court, stands decreed. However, the parties are left to bear their own costs. May 14, 2008. (V.K. Ahuja), (TILAK) Judge.