ALKA Vs. MS. SHARDA AND ORS.

JUDGEMENT

(1.) BY means of this petition under Article 227 of the Constitution of India, the Petitioner has laid challenge to the order dated 3.8.2010 passed by the learned District Judge, Solan in Civil Miscellaneous Appeal No. 19 -S/14 of 2009 whereby he allowed the appeal of the Respondent No. 1 -Plaintiff and passed an order directing the parties to maintain status quo qua the nature and possession of the suit land.

(2.) BRIEFLY stated the facts of the case are that the Plaintiff -Respondent No. 1 filed a suit against the present Petitioner and the other proforma Respondents. In the suit, it was alleged that Jawala was the predecessor -in -interest of the parties to the suit and after his death his property was inherited by his son Partap Singh and his widow Roop Dei in equal shares. Partap Singh also expired and his property was inherited by his two sons Yogesh Kumar, Upender Kumar, his widow Indira Devi, Defendants No. 1 to 3 respectively and his mother Roop Dei in equal shares. The Plaintiff alleges that Roop Dei was not keeping good health and she was not mentally and physically well and Defendant No. 1 Yogesh Kumar using his influence managed to get executed a power of attorney in his favour and on the basis of this power of attorney sold the land, in question, to the present Petitioner, Alka. The General Power of Attorney was allegedly executed on 28.11.2006 and the sale deed in favour of the Petitioner was executed on 11.12.2006 for a consideration of Rs. 5,68,000/ -. The Plaintiff challenged the validity of the General Power of Attorney as well as the sale deed basically on the ground that the General Power of Attorney was obtained by fraud and the sale deed executed on the basis of the Will does not create any right, title and interest in favour of the Defendants. Alongwith the suit, an application was filed that the Respondents be restrained from changing the nature, raising construction, cutting and removing valuable tress etc. from the land in question.

(3.) PRESUMPTION of truth is attached to public documents which are registered before the Sub Registrar in terms of the Registration Act. No doubt, this presumption is rebuttable and a party can prove that such document was executed by fraud or that the person who allegedly executed such document did not have the mental ability or faculty to execute such document but this can only be done after leading evidence and at this stage, when there is virtually no material on record, it cannot be said that the General Power of Attorney was obtained by fraud or that Roop Dei was not in a fit mental state to execute these documents. The learned Trial Court rightly held that the Plaintiff had failed to show that she had a prima facie case in her favour.