LAWS(P&H)-2015-8-64

PRITAM SINGH Vs. RAMESH KUMAR AND ORS.

Decided On August 24, 2015
PRITAM SINGH Appellant
V/S
Ramesh Kumar and Ors. Respondents

JUDGEMENT

(1.) CM No. 4897 -C of 2013

(2.) THE plaintiffs, who filed a suit for mandatory injunction directing the defendant and their agent to remove the construction from the property in Khasra No. 903 (0 -2 marlas) marked as A, B, C, D in the plan, should be removed and for a permanent injunction restraining any further construction to be made thereon. The defendants 1 and 2 were the persons, who were putting up construction and the Nagar Council respectively. The plaintiffs were 3 in number i.e. Pritam Singh, Dayal Chand and Banarsi Dass. Pritam Singh's father was Teja Singh, who was reported to be no more. Dayal Chand is son of Tulsi Ram, who is also no more. All the three persons were said to be in possession of the property that belonged to Dera Bassi Nagar Council. It would appear that Dera Bassi Nagar Council filed petitions for ejectment but the petitions were dismissed holding that the petitioners were not in unauthorized occupation. The suit for mandatory injunction is made on the basis of possessory right over the property.

(3.) IN this case, the whole contest is on a plea made by the first plaintiff. The first plaintiff's father Tara Chand had executed a power of attorney in favour of one Dayal Chand son of Sadhu Ram and he, in turn, had sold the property on 18.04.1995 in favour of the defendant. The defendant, therefore, claimed the property as his son and Tara Chand having lost the property cannot leave behind any property for the plaintiff to claim. This became crucial, for, the plaintiff was claiming right to the property on the basis of a Will said to have been executed by Tara Chand in his favour. The trial Court had found that the Will had not been proved and even the original had not been produced. Before the appellate Court, the first plaintiff sought to prove that there was a judgment between the parties which had gone upto the High Court where the Will of Tara Chand in favour of Pritam Singh was taken as having been established. The court found that the plaintiff was entitled to claim a property left behind by Tara Chand but since the defence was that there had been a sale by Tara Chand through a power of attorney in the year 1995 itself, the issue was the plaintiff could claim any right in respect of the said property. The defendant had produced only a registration copy of the power of attorney and the plaintiff contended that since the original had not been filed and there was no proper evidence given as the justification for production of secondary evidence, the document cannot be relied upon and consequently, even a transaction of sale by the power of attorney in favour of the defendant could not create any right.