KAMLESH Vs. SANTOSH MOHINDROO

JUDGEMENT

(1.) The petitioner is defendant in Civil Suit No. 48 of 2008 instituted against her seeking the relief of declaration with plaintiff claiming that she is owner in possession of the suit property which is a dwelling house constructed on the disputed plot situated in an area measuring 250 sq. yds. falling in Village Shekhpura Khurd, Tehsil Dera Bassi, District Mohali now comprising in the area of Nagar Council, Dera Bassi. The plaintiff claimed that she purchased the suit property vide a registered sale deed No. 4629 dated September 7, 2005 executed in her favour through power of attorney executed in favour of Smt. Pushpa Devi. She asserted delivery of possession of the said property on conveyance. Since the defendant was disputing title before filing of the law suit, the plaintiff claimed relief of permanent injunction as well against the petitioner. In defence of the suit, the petitioner on entering appearance refuted the claim and asserted that the plaintiff was neither owner nor in possession of the house brought into dispute. The sale deed was null and void since the power of attorney executed in favour of Pushpa Devi by the owner stood cancelled vide Vasika No. 130 dated May 14, 2003. All formalities following cancellation of power of attorney including issuance of notice etc. were duly carried out and therefore Pushpa Devi was not competent to execute sale deed in the year 2005 in favour of anyone.

(2.) The trial Court dismissed the suit vide judgment and decree dated February 5, 2013.

(3.) Aggrieved, the plaintiff preferred an appeal on 11th March, 2013 before the learned Additional District Judge, Mohali. During the pendency of the appeal, the unsuccessful plaintiff applied for leave of the Court to withdraw the suit. The learned Appellate Court has accepted the request and allowed the plaintiff to withdraw the suit by reasoning that the Appellate Court enjoys the same powers as that of the trial Court in terms of Section 107(2) of the Code of Civil Procedure, 1908 (for short "the Code"). The result is that the decree against the plaintiff and in favour of the defendant has been nullified. Nevertheless, the suit was contested and findings were returned and recorded by the trial Judge on the merits of the case and the decree that resulted conclusively determined the rights of the parties with respect to the issues framed during trial which according to the learned counsel for the petitioner-defendant could not have been negated by allowing withdrawal of the suit itself. Valuable declaratory rights which have accrued to the defendant on adjudication have been casually destroyed by the impugned order with respect to the sale deed leaving her exposed to a double civil jeopardy.