AGAM PRASAD Vs. BHAKT PRASAD

JUDGEMENT

(1.) THIS is defendant's appeal against the order dated 1-5-2004 passed by the learned Second Additional District Judge, Jabalpur in Civil Suit No. 33-A/2004 allowing the plaintiffs application under Order 39 Rules 1 and 2 of the Code of Civil Procedure.

(2.) BRIEFLY stated : The plaintiff filed a suit for declaration and permanent injunction stating therein that he is owner of the suit land situated in Jabalpur city on the basis of registered sale deed dated 7-3-1972 and since then he is in possession of the same. He being a businessman had to frequently visit various places out of Jabalpur. In order to protect, supervise and sell his land a registered power of attorney was executed by him on 28-4-89 in favour of defendant No. 2. As one Khasra number was left to be mentioned in the said power of attorney another power of attorney was executed in his favour on 4-10-90. On the basis of power of attorney the defendant No. 2 sold part of the land but did not pay him the amount so received. Therefore, he was left with no option but to cancel the power of attorney. Accordingly, he cancelled the power of attorney given to defendant No. 2 vide registered document dated 24-5-2002. He informed about cancellation of power of attorney to the defendant No. 2 vide notice dated 10-7-2002. Thereafter, the cancellation of the power of attorney was also notified on 7-9-2003 in local news paper "dainik Bhaskar". In spite of the cancellation of the power of attorney the defendant No. 2 executed a sale deed on 17-9-2003 in favour of his son defendant No. 1. Plaintiff sought relief of declaration of the sale deed dated 17-9-2003 to be null and void. The plaintiff also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. In this application the plaintiff stated that he is owner and in possession of the suit land, his name is recorded in the Revenue records, the defendant No. 2 on the basis of the power of attorney which was already cancelled had no right to sale the land, accordingly, prayed for temporary injunction, restraining the defendants from making construction on the suit land and interfering in his possession.

(3.) THE appellants/defendants filed their reply and contended that, on 28-4-89 the plaintiff being in the need of money sold the suit land to the defendant No. 2 and executed an agreement and also a power of attorney. Since one Khasra number was left to be mentioned in the said power of attorney on 4-10-90 another power of attorney was executed. It was further stated that the plaintiff sold and handed over the possession of the entire land for Rs. 20,000/- to the defendant No. 2 vide agreement dated 28-4-89, therefore, the plaintiff has no right or title in the land.