HARISH CHAND Vs. VASANT KUMAR

JUDGEMENT

(1.) Heard on admission.

(2.) Facts of the present case are that the plaintiff filed a suit for declaration of title and permanent injunction on the ground that he purchased the suit property comprising survey No. 316 ad measuring 1.858 hectares through a registered sale deed dtd. 23/8/1995 in consideration of Rs.20,900.00. The sale deed was registered on 23/8/1995. The property was purchased from Pancham S/o Kalu through the power of attorney holder Harish Chand. It is further pleaded that the plaintiff is a contractor and he supplies clay soil to Tata Iron Steel Company Ltd. and a work order was issued in his favour on 15/6/1995. The lease was sanctioned in favour of the plaintiff by the Mines and Minerals Department and the same was effective from 5/10/1995 till 4/10/2000. It is further pleaded that defendant No. 1 is interfering in the peaceful possession of the plaintiff and thus suit was filed. The defendant No. 1 remained ex-parte. Learned trial court vide judgment dtd. 12/5/2000 held that witness to sale deed PW-2 Gowardhan has admitted his signature over the document but he has not stated anywhere that in his presence, vendor put his signature and on this ground alone the civil suit was dismissed. An appeal was preferred by the plaintiff and vide judgment dtd. 29/9/2000, the learned appellate court decreed the civil suit holding that a sale deed was executed in favour of the plaintiff and possession was also handed over. It is further held that defendant No. 1 remained ex-parte.

(3.) The appellant has moved an application under Order 41 Rule 27 of CPC whereby Rin Pustika has been filed. Learned counsel appearing for the appellant would argue that earlier the property was recorded in the name of Harishchand. He would further submit that the suit property is recorded in the name of Harishchand, Dukhiram and Kartikram whereas the name of the power of attorney holder is Hari Shankar as mentioned in the sale deed. He would also submit that no power of attorney was filed along with the plaint and sale deed, therefore, the execution of the sale deed becomes doubtful. He would further contend that defendant No. 1 is the title as well as possession holder of the property and no ancillary relief of possession has been sought by the plaintiff, therefore suit is liable to be dismissed however the learned trial Court committed an error of law.