SHAMSHER SINGH THAKUR Vs. BABA JAGTAR DASS

JUDGEMENT

(1.) This revision is directed against the judgment and decree passed by the learned Civil Judge (Senior Division), Shimla, on 13.08.2004 whereby the summary suit filed by the plaintiff/petitioner (hereinafter referred to as the plaintiff) under Section 6 of the Specific Relief Act (for short the 'Act') came to be dismissed and has now approached this Court by invoking its jurisdiction under Section 115 of the Code of Civil Procedure (for short 'Code') readwith Section 227 of the Constitution of India.

(2.) The brief facts leading to the filing of the present petition are that the plaintiff filed a suit as aforesaid wherein it was averred that respondent/defendant (hereinafter referred to as the defendant) was the owner of the building known as 'Baba Shri Chand Mandir', standing on Khasra No.541/2, Station Ward, Bara Shimla. The defendant had appointed Shri Niranjan Dass as his attorney vide General Power of Attorney dated 05.07.1993 duly registered in the Office of Sub - Registrar (Urban), Shimla at serial No.187 dated 06.07.1993. The defendant through his duly constituted General Power of Attorney created a lease for 99 years in favour of the plaintiff vide lease deed dated 23.04.1996 and even the possession was handed over to the plaintiff in respect of one room/shop measuring 1.96 metres x 1.69 metres (Shop No.4). This lease deed has been executed after the duly constituted General Power of Attorney had already received a sum of Rs. 2,60,640/ - being advance rent for 38 years i.e. upto the year 2033 from the plaintiff. However, on 02.06.1996 when the plaintiff had gone to Basantpur in connection with marriage of Shri Mohan Singh son of Shri Ajit Singh, the defendant got removed the brick wall that separated the suit property from the store of the building and illegally and forcibly took possession of the premises and dispossessed the plaintiff from the same.

(3.) The defendant contested the suit by filing written statement as also a counter -claim wherein the defendant inter alia raised preliminary objections regarding cause of action, valuation, misjoinder of parties on the ground that the alleged General Power of Attorney had not been arrayed as a party and estoppel etc. It was also averred that the plaintiff had got executed the sale deed by misrepresentation, fraud and coercion, besides the agreement being against the public policy and immoral. On merits, the averments contained in the plaint were denied and it was submitted that the suit property was a temple and had been constructed by the general public by way of donations and contributions and thus was a public property for the purpose of performing 'pooja' of 'Chand God' and the founder of the temple was one Baba Kumbh Dass, who had executed a will in favour of 'Baba Shri Chand Mandir' whereby the defendant was authorized to manage the property and had no right to transfer the same. After the death of Baba Kumbh Dass, the Court granted succession certificate in favour of the defendant and thereafter the defendant was stated to be managing the suit property. It was denied that Niranjan Dass was 'Chela' of the defendant and it was submitted that defendant infact had signed certain papers in respect of the power of attorney for the conduct of the proceedings in the Civil Court and had not authorized anyone to do away wi th the property of the temple as the defendant was himself not authorized to do so. The alleged General Power of Attorney was stated to be a result of misrepresentation of facts, fraud and it was alleged that Niranjan Dass and some other interested persons had taken undue benefit of the illiteracy of the defendant and got executed alleged Power of Attorney in active connivance with the concerned agency so as to get benefit out of it illegally to the detriment of the temple property. It was further denied that the defendant had executed any lease deed of the suit property in favour of the plaintiff. It was further denied that the defendant received a sum Rs.2,60,640/ - as advance of 38 years from the plaintiff.