KARAMVIR Vs. MAAN SINGH

JUDGEMENT

(1.) THIS Second Appeal is filed by the plaintiffs under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the judgment of the first appellate court dated 30.11.2013 by which the first appellate court set aside the judgment of the trial court dated 28.1.2012 which had decreed the suit of the appellants/plaintiffs seeking injunction against forcible dispossession. The disputes between the parties are with respect to a plot bearing no.C -1, khasra no.965/391, C -Block, Gali no.12, Meet Nagar, Shahdara, Delhi admeasuring 200 sq yds.

(2.) THE case of the appellants/plaintiffs was that they purchased rights in the suit property from Sh. Subhash Chand by paying a consideration of Rs.27.20 lacs. In favour of the appellants/plaintiffs a registered general power of attorney (GPA) dated 10.8.2009 was executed by the said Sh. Subhash Chand. The registered power of attorney dated 10.8.2009 was exhibited as Ex.PW1/3 in the affidavit by way of evidence filed on behalf of the appellants/plaintiffs. At the place of exhibition the documents/GPA was wrongly called as a sale deed. The other documents which have been exhibited are the site plan (Ex.PW1/1), complaint dated 13.8.2009 to the police (Ex.PW1/2), order of assessment by the house tax authority (Ex.Pw1/4), house tax receipt (Ex.PW1/5) and P -4 form (Ex.PW1/6) of the revenue authorities showing the property in the name of the appellants/plaintiffs. I must mention that though in the affidavit by way of evidence filed on behalf of the appellants/plaintiffs, these documents have been specifically exhibited, I find that the exhibit numbers on the documents which are there are not the exhibits as per the affidavit by way of evidence as the power of attorney is found as Mark CA, the P4 form is Mark D, property tax receipt is Mark C and the house tax assessment order is Mark B. The issue is that whether the documents though have been exhibited in the evidence but have been only marked by the trial court results in the set of documents being not proved. In this regard, it is relevant to note that the cross -examination of the plaintiff has been conducted on 10.3.2011 and on 10.3.2011 before beginning of cross -examination, there is no objection recorded by the respondents/defendants (who are husband and wife) with respect to affidavit by way of evidence wrongly exhibiting the documents. I may also note that neither in the written statement filed nor in the affidavit by way of evidence which is filed on behalf of the defendant no.1 (husband of defendant no.2)/ Sh. Man Singh, it is stated that the documents which are relied upon by the appellants/plaintiffs are forged and fabricated documents. In any case, I do not think that the documents being registered power of attorney, house tax assessment order and the house tax receipt filed by the appellants/plaintiffs would be forged and fabricated because if that was so, the respondents/defendants would surely have summoned the officials from the relevant department to prove that the documents, which are in fact public records, are forged and fabricated. Therefore, in view of the ratio of the judgment of the Supreme Court in the case of R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P.Temple & Anr. AIR 2003 SC 4548 it is held that the documents filed by the appellants/plaintiffs though are marked, the same would be exhibited and proved documents more so because authenticity of the same cannot be doubted inasmuch as they exist in the public records.

(3.) (i) Both the aforesaid questions have to be answered in favour of the appellants/plaintiffs. (ii) Firstly, the first appellate court has overlooked the ratio of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr. (183) 2011 DLT 1 (SC) and wrongly held that the general power of attorney cannot be looked at, inasmuch as, the general power of attorney is a registered general power of attorney. The judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) specifically allows benefit of registered documents. This aspect is further to be noted with the fact that it was only after 25.9.2001, when Act 48 of 2001 was passed by the legislature amending various provisions including Section 53A of the Transfer of Property Act, 1882, that the registration of the documents such as an agreement to sell having the flavor of doctrine of part performance was required to be registered. Therefore, once the power of attorney is a registered power of attorney, this document can surely be looked into in terms of Section 202 of the Contract Act, and which provides for irrevocability of a power of attorney given for consideration and such a GPA cannot be cancelled. The relevant observations of the Supreme Court in the case of Suraj Lamps (supra) read as under: -