Punjab-Haryana High Court
Surinder Kaur vs Gian Kaur on 5 November, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.1657 of 2012(O&M) #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
RSA No.1657 of 2012(O&M)
Date of Decision: 5.11.2012
Surinder Kaur
....Appellant
Versus
Gian Kaur
....Respondent
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. G.P. Singh, Advocate for the appellant. JASWANT SINGH, J C.M.No.4518-C of 2011 For the reasons stated in the application, which is supported by an affidavit, the same is allowed. Delay of 26 days in re-filing the appeal is condoned.
RSA No. 1657 of 2012 By filing the instant appeal, plaintiff-appellant has prayed for setting aside the impugned judgment & decree of reversal dated 26.11.2011 passed by the learned Addl. District Judge, Kapurthala whereby appeal filed by the defendant-respondent against the judgment and decree 2.12.2009 passed by the learned Civil Judge (Jr. Division), Phagwara decreeing the suit of the plaintiff-appellant, has been allowed while setting aside the judgment and decree dated 2.12.2009.
Brief facts of the case are that the plaintiff-appellant filed a suit for declaration and permanent injunction that she is exclusive RSA No.1657 of 2012(O&M) #2# owner in possession of the suit land as described in the plaint and the sale deed dated 30.3.1983 and 10.10.1983 executed by Pargan Singh son of Teja Singh being attorney of Amrik Singh son of Udham Singh in favour of defendant-appellant Gian Kaur are illegal, null and void. Learned trial Court decreed the suit despite resistance by the defendant- respondent, however, in an appeal preferred by the defendant- respondent, the appeal has been accepted by the learned Appellate Court while setting aside the judgment and decree passed by the learned trial Court, hence the present second appeal.
Learned counsel for the appellant has argued that the learned first appellate court has gravely erred in law while dismissing the suit of the plaintiff-appellant and accepting the appeal of the defendant-respondent by relying upon the alleged power of attorney dated 10.3.1983 (Ex.D3) executed by her husband-Amrik Singh in England.
After hearing learned counsel for the appellant and perusing the paper book, this Court does not find any merit in the present appeal and the same deserves dismissal.
There is no dispute that previously land in dispute was owned by one Amrik Singh, who got married with the plaintiff in the year 1996 and said Amrik Singh died issueless on 18.12.2002. General power of attorney (Ex.D.3) was executed in favour of Pargan Singh on 10.3.1983 in England and the same was embossed in India and on the basis of that, two sale deeds dated 30.3.1983 and 10.10.1983 were RSA No.1657 of 2012(O&M) #3# executed in favour of Smt. Gian Kaur-defendant/respondent. Although, learned trial Court has wrongly mentioned these sale deeds to have been executed in favour of the "plaintiff" while framing issue No.2 and the same is repeated by learned first Appellate Court also but that seems to be only a typing error and in fact, it should have been the "defendant".
It is pertinent to mention here that Amrik Singh during his life time i.e upto 18.12.2002 has not challenged the alleged sale deeds dated 30.3.1983(Ex.D.7) and 10.10.1983(Ex.D.9) and even the plaintiff has also filed the present suit only on 17.9.2003 i.e after expiry of 20 years after the execution of the sale deed.
There is no dispute that both the sale deeds are registered documents and are public documents as well. It is not in dispute that the plaintiff used to visit India every year and to reside in the house of his brother-in-law i.e the real brother of her husband-Amrik Singh (since deceased). It is also not in dispute that the land in dispute is situated adjoining to the land of her brother-in-law and thus, the present for declaration is not maintainable being hopelessly time barred and only on this ground, the present appeal is liable to be dismissed.
Even on merits also, plaintiff has admitted in his cross examination that she had never remained in possession of the suit property and she has not claimed any relief of possession in the present suit, thus, the mere suit for declaration is not maintainable.
So far as questioning the alleged sale deed on the ground RSA No.1657 of 2012(O&M) #4# that the signatures on the power of attorney were not genuine is also not sustainable in view of the facts and circumstances of the present case. Mere allegation of forgery is not sufficient as that is to be proved by leading the cogent and sufficient evidence but in the present case, there is no sufficient evidence on record to prove that the power of attorney is a forged and fabricated document.
The Expert, who is the only witness examined by the plaintiff to question the genuineness of the general power of attorney has admitted that natural variation always occurs in the signature of the same person even if he signs at the same place after a gap of some time. Moreover, in the present case, the plaintiff-appellant did not supply other standard signatures of Amrik Singh and she has provided only the pass-books, which pertained to the year 1992 i.e after a period of nine years from the execution of alleged sale deeds. Thus, learned first appellate court has rightly come to the conclusion that the plaintiff- appellant has failed to prove the forgery on record. Moreover, the person, who has seen the original power of attorney, appeared as DW5 and deposed that at the time of execution, he has seen the original attorney and the then Registrar made the endorsement.
Still further, Major Singh-DW3/registration clerk has also supported the case of the defendant by deposing that he has seen the original power of attorney and made the entry in the register.
Learned First Appellate Court has rightly observed in para 17 of its judgment that that Notary Public has not been called nor any RSA No.1657 of 2012(O&M) #5# record from the High Commission has been summoned with regard to embossing of the power of attorney.
No substantial question of law is involved in the present appeal for adjudication under Section 100 CPC.
Dismissed.
November 05,2012 ( JASWANT SINGH ) manoj JUDGE