Punjab-Haryana High Court
(O&M) Kartar Singh Etc vs Chander Bhan on 14 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-366-1991
Reserved on: 06.02.2024
Date of decision: 14.03.2024
KARTAR SINGH AND ORS. ..Appellants
Versus
CHANDER BHAN ..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Anil Rathee, Advocate
for the appellants.
Mr. M.S. Rana, Advocate
for Mr. Ashish Kapoor, Advocate
for respondent.
ANIL KSHETARPAL, J.
1. Brief facts of the case:-
1.1 This is defendant's appeal against the judgment and decree
passed by the First Appellate Court while decreeing the plaintiff's suit for
possession and recovery of Rs.360/- as rent, which in turn has reversed the
judgment and decree passed by the trial Court.
1.2 In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed.
1.3 The parties hereinafter shall be referred to as their status in the
suit. The plaintiff filed a suit for possession and recovery of Rs.360/- as
arrears of rent claiming that the defendants are in possession of the property
as tenant for the last 7 years and they have not paid rent for the last 3 years
i.e. from 31.07.1980 to 31.07.1983. By notice dated 09.07.1983, the tenancy
1 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
has been terminated with effect from 01.08.1983. However, the plaintiff has
refused to handover possession of the property and pay the due rent. The
defendants (defendant No.1 is the father of defendants No.2 to 6). The
defendants while contesting the case, claimed that the plaintiff is not the
owner of the property and it is defendants No.2, 3 and Sh. Kuldeep Singh,
Sh. Sanjeev Kumar, and Sh. Karambir Singh who are owners in possession
of the house by virtue of a Civil Court decree dated 17.08.1982. The
plaintiff gave Special Power of Attorney in favour of Sh. Kartar Singh
regarding the house in question, and on the basis of aforesaid Special Power
to Attorney he suffered a decree in favour of defendant No.2 and 3 and his
three other children. The consideration amount of the house has already
been paid to the plaintiff by defendant No.1 at Delhi. The defendants never
remained in possession as tenants under the ownership of plaintiff. After
filing the replication, the issues were framed, and the parties were permitted
to lead evidence.
2. Evidence led by the respective parties:-
2.1 In oral evidence, the plaintiff examined PW-1 Sh. Surajmal,
power of attorney holder of plaintiff who is also brother-in-law of the
plaintiff. PW2 Sh. Mahendar Singh, PW3 Sh. Amar Singh, PW4 Sh. Kailash
Bhushan were examined by the plaintiff.
2.2 Per contra, the defendants in their oral evidence examined Sh.
Ram Kumar, a clerk from DC office, Sonepat, who brought file of case
No.484, dated 17.08.1982, Dharambir versus etc. versus Chander Bhan.
DW-2 Sh. Devinder Singh, Advocate, DW-3 Sh. Kartara (defendant No.1),
DW-4 Sh. Chander Bhan, the plaintiff were also examined.
2.3 In the documentary evidence, the defendants also produced the
Special Power of Attorney dated 03.08.1982, executed by the plaintiff in
2 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
favour of defendant No.1.
2.4 On evaluation of evidence, the trial Court dismissed the suit,
however, the First Appellate Court has reversed the judgment and decree
passed by the trial Court.
2.5 At this stage, it is appropriate to extract the relevant part of the
Special Power of Attorney executed by the plaintiff in favour of defendant
No.1, which reads as under:-
"1. To look after the above said house on my behalf.
2. To apply for mutation in the revenue record and can
sign the applications, affidavit etc., on my behalf and can
appear before the concerned department in respect or
the above said house on my behalf.
3. To present the sale deed for registration before the
Sub-Registrar, Sonepat, Haryana or any other
concerned department on my behalf and can do the
needful as he likes.
4. To engage any Advocate and can sign the
vakalatnama and can sign the plaint, W.S., replication
and can file the appeal if so required on my behalf by his
own signatures and can appear before the concerned
court and can give statement as he likes.
5. To sell the above said house and can receive the
consideration amount and can handover the vacant
possession to any body as he likes by his own signatures
and can use the said house as he likes.
In witness whereof I have put my signatures on
this deed of SPA on this 3rd day of August 1982 at
Delhi."
2.6 It has come in evidence that Sh. Chandra Bhan was residing in
Delhi for quite some time, whereas, the Sh. Kartar Singh is residing in
village Kakroi, where the property is situated. It is also evident that Kartar
Singh has been authorized to execute the sale deed, engage an advocate,
sign the vakalatnama, sign the plaint, written statement, replication and
appeal. He has also been empowered to appear before the concerned Court
and to give statement as he likes. He has also been authorized to sell the
abovesaid house and to receive consideration and handover the vacant
possession to anybody he likes and to use the said house as he likes. Sh.
3 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
Chander Bhan and Sh. Kartar Singh are not related to each other. It is the
case of plaintiff that he inducted Sh. Kartar Singh as his tenant around 7
years before the filing of the suit. The registered Special Power of Attorney
has been executed at New Delhi. Both the witnesses are also from New
Delhi. Witness Sh. Ram Nivas is a resident of House No.21/35, Shakti
Nagar, Delhi along with the plaintiff.
2.7 Sh. Chander Bhan did not appear in evidence as the plaintiff.
On his behalf, Sh. Surajmal appeared as PW-1. Faced with the aforesaid
situation, the defendants summoned Sh. Chander Bhan as their witness. The
Court had to issue warrants of arrest in order to secure the presence of Sh.
Chander Bhan. When Sh. Chandra Bhan appeared in evidence, he stated
that he gave the house on rent at New Delhi. He did not execute power of
attorney Ex.P-1. He claimed that he is totally illiterate, however, in the next
sentence, he stated that he cannot speak, write and understand English
language. Subsequently, he stated that he had signed on the power of
attorney. During the cross-examination, he admitted that he had signed the
plaint and vakalatnama in Hindi language. He admits the execution of
power of attorney Ex.D-2, dated 03.08.1982, at New Delhi.
2.8 It shall be noted here that when Sh. Surajmal (power of
attorney of plaintiff) appeared in evidence, he stated that Sh. Chandra Bhan
cannot appear in Court as he is ill and can't walk. However, when Sh.
Chandra Bhan appeared in evidence pursuant to the warrants of arrest, he
nowhere mentioned about his ill health. Sh. Chandra Bhan is a shopkeeper
running his shop in Delhi.
3. Reasons recorded by the First Appellate Court:-
3.1 On careful study of the judgment passed by the First Appellate
Court, it is evident that the following reasons have been recorded to set
4 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
aside the judgment and decree passed by the trial Court:-
1. The plaintiff is not a party to the judgment and decree
dated 17th August 1982, hence, the same is not binding
on him.
2. Ex. D-2 is a power of attorney executed by Sh.
Chander Bhan in favour of Sh. Kartara Ram on 3rd
August 1982, however, its attesting witness Sh. Ram
Nivas, has not been examined and therefore, the Special
Power of Attorney is not proved.
3. Sh. Chander Bhan has nowhere stated the purpose of
the power of attorney.
4. Sh. Surajmal as the power of attorney holder of the
plaintiff has appeared in evidence. Hence, no adverse
inference is required to be drawn against the plaintiff.
5. Though enmity between Sh. Amar Singh and Sh.
Mohinder Singh on the one hand and Sh. Kartar Singh on
other hand is proved, however, it is not sufficient to
discard their evidence.
6. Defendant did not send reply to the plaintiff's notice
terminating the tenancy, hence, tenancy is admitted.
7. Defendants have taken the risk of examining Sh.
Chander Bhan as their witness, hence, they are bound by
his statement.
8. No amount of evidence beyond the pleadings can be
led by the parties, hence, the possession of the
defendants as licensees is not proved.
9. Sh. Kartar Singh has stated that amount of Rs.10,000/-
5 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
was paid to Sh. Chandar Bhan, 10-15 days before the
execution of the special of power of attorney, however,
his statement is beyond the pleadings.
10. Sh. Chandra Bhan has not been given a suggestion
that he was paid Rs.10,000./-
11. The property in dispute is located in the area of the
Abadi area of the village, hence, there was no need of
asserting that the mutation of the property was got
sanctioned by Sh. Kartara Ram. Hence, Sh. Chander
Bhan had no occasion to execute the Special Power of
Attorney. The statement of Sh. Chander Bhan that he
does not know English inspires confidence.
12. Special Power of Attorney does not authorize Sh.
Kartar Singh to transfer the property in favour of his
children by a Court decree
13. According to the defendant's case, Sh. Kartar Singh
had paid Rs.10,000/- to Sh. Chander Bhan. In these
circumstances, it was not necessary to specifically recite
that Sh. Kartar Singh can receive consideration.
14. The Special Power of Attorney is not a General
Power of Attorney. Hence, it amount to a waste paper.
Special Power of Attorney is required to be strictly
construed and Sh. Katar Singh was not authorized to
concede to the suit filed by his children.
15. Sh. Chander Bhan was not the exclusive owner, but
Sh. Pale Ram, Sh. Gopi Ram etc. were having share in
the disputed property.
6 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
16. The plaintiff is entitled to receive rent from the
defendants.
4. Analysis of the reasons recorded by the First Appellate
Court:-
4.1 At this stage, it would be appropriate to analyze the reasons
recorded by the First Appellate Court while accepting the appeal.
4.2 The First Appellate Court's reason No.1 is factually incorrect.
Sh. Chander Bhan is party to the judgment and decree dated 17.08.1982,
through Sh. Kartar Singh. The execution of Special Power of Attorney in
favour of Sh. Kartar Singh is admitted by Sh. Chander Bhan, therefore, the
first reason recorded by the First Appellate Court is against the record,
hence, erroneous.
4.3 The First Appellate Court's reason No.2 is also not correct. As
per Section 33 of the Registration Act 1908 (hereinafter referred to as the
'1908 Act'), the Special Power of Attorney can be proved by its mere
production without any further proof as the document is duly registered as
per the provisions of '1908 Act'. Section 85 of the Indian Evidence Act,
1872, provides a mandatory and rebuttable presumption about the execution
of the power of attorney and the powers given thereunder. Section 60 of the
'1908 Act' provides that once the certificate of registration is issued, then it
shall be admissible for the purpose of proving that the document has been
duly registered in the manner provided in the '1908 Act' and that the facts
mentioned in the endorsement referred to in Section 59 of the '1908 Act'
have occurred as therein mentioned. This Court in Smt. Prakash Devi
versus Rajinder Kumar, 2022 (4) RCR (Civil) 145, has elaborately
discussed the admissibility of the power of attorney without examining the
attesting witness and its effect. Moreover, the First Appellate Court has
overlooked the fact that Sh. Ram Nivas is stated to be residing in the same
7 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
house, in which Sh. Chander Bhan is residing. Hence, it was not possible
for the defendants to examine that witness. In any case, the execution of
power of attorney by Sh. Chander Bhan in favour of Sh. Kartar Singh is
admitted and therefore, it is not required to be proved.
4.4 The First Appellate Court's reason No.3 also lacks substance.
The Court has observed that Sh. Chander Bhan nowhere stated for what
purpose the power of attorney was given. The purpose for giving power of
attorney has been specified in the Special Power of Attorney. Hence, he was
not required to orally reiterate the aforesaid facts.
4.5 The First Appellate Court's reason No.4 is also incorrect,
particularly when Sh. Chander Bhan was hale and hearty. He intentionally
did not appear in his evidence. When the defendants summoned him as
their own witness, the plaintiff was forced to appear, after the Court issued
his warrants of arrest. Hence, the First Appellate Court has erred in failing
to draw adverse inference against the plaintiff.
4.6 The First Appellate Court's reason No.5 is also erroneous. Sh.
Amar Singh and Sh. Mohinder Singh have been examined to prove that the
property was given on lease by Sh. Chander Bhan in favour of Sh. Kartar
Singh, however, Sh. Chander Bhan while appearing in evidence has stated
that the property was leased out in New Delhi, and at that time it is also
proved on file that Sh. Amar Singh and Sh. Mohinder Singh on the one
hand and Sh. Kartar Singh on other hand are inimical to each other. Thus,
the evidence of Sh. Kartar Singh and Sh. Mohinder Singh should have been
discarded by the Court.
4.7 The First Appellate Court's reason No.6 is unsubstantiated.
Even, if the defendants did not send a reply to the plaintiff's notice
terminating the tenancy, no inference that the defendants admitted the
8 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
termination of tenancy could be drawn.
4.8 The First Appellate Court's reason No.7 is also incorrect. The
defendants were faced with a peculiar situation, hence, they had no other
choice but to examine Sh. Chander Bhan as their witness. Luckily for them,
Sh. Chander Bhan admitted the execution of power of attorney Ex.D-2. In
such circumstances, the defendants are not bound by his entire oral
statement, particularly when it is against the record. The Court cannot
overlook that the defendants have taken the risk of examining the plaintiff
in the peculiar facts and circumstances of the case.
4.9 The First Appellate Court's reasons No.8, 9, and 10 are also
incorrect. In para No.3 of the written statement, the defendants have pleaded
that Sh. Kartar Singh has already paid the consideration of the house in
question to Sh. Chander Bhan. As per Order VI Rule 2 of the Code of Civil
Procedure, 1908, only the facts in concise form are required to be stated.
Evidence is not required to be made a part of the pleadings. Similarly,
reason No.8 is insignificant because even if it is assumed that in the
beginning the property was rented out to Sh. Kartar Singh, still there were
subsequent developments, which prove that the possession of defendants on
the disputed property was not as tenants. Similarly, reason No.10 is also
incorrect because Sh. Chander Bhan was examined by the defendants as
their witness. Hence, they could not give any suggestion to Sh. Chander
Bhan in examination-in-chief.
4.10 The First Appellate Court's reason No.11 is bizarre. In the
power of attorney, it was recorded that Sh. Kartar Singh can get the property
mutated in his favour. The Appellate Court has found that there was no
necessity to get the property mutated in his favour. Even, if there was no
necessity, still mutation records are maintained to update the revenue
9 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
records. The second part of reason No.11 is also strange because it was for
Sh. Chander Bhan to explain why he executed a Special Power of Attorney
in favour of Sh. Kartar Singh. On reading of the statement of Sh. Chander
Bhan it is evident that he has nowhere alleged that there was any
misrepresentation or fraud played by Sh. Kartar Singh. It gives rise to a
strong presumption that Sh. Chander Bhan voluntarily executed the Special
Power of Attorney in Sh. Kartar Singh's favour. Hence, the second part of
the reason No.11 is also unfounded because Sh. Chander Bhan has executed
two separate power of attorney documents namely Ex.P-1 and Ex.P-2. Both
are scribed in English language and Sh. Chander Bhan has signed in Hindi
Language. Ex.D-2 has been signed, attested and registered at Delhi, where
he resides, whereas, the defendants are residing in the village.
4.11 Similarly, reason No.12 is unsubstantiated because in the
Special Power of Attorney, Sh. Kartar Singh has been specifically
authorized to sign the pleadings and give statement in place of Sh. Chander
Bhan. He has been specifically authorized to give statement as per his
comprehension and no such limitation has been specifically mentioned in
the Special Power of Attorney. Thus, Sh. Kartar Singh has been given the
freedom to make statements as per his wisdom and understanding. Hence,
there was not any specific restriction upon Sh. Kartar Singh to not suffer
that statement in favour of his children.
4.12 The reason No.13 is also fallacious. Sh. Kartar Singh had
specifically made a statement that he had paid Rs.10,000/-, 15-20 days
before the execution and registration of the Special Power of Attorney.
Even if it was recorded in the Special Power of Attorney that he can receive
the consideration, still the inclusion of the abovesaid statement will not
make the Special Power of Attorney a doubtful instrument. It may be
10 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
superfluous assertion.
4.13 The reason No.14 is again anomalous. A registered Special
Power of Attorney is not a waste piece of paper. Through this Special Power
of Attorney, Sh. Chander Bhan has authorized Sh. Kartar Singh to sell the
house, execute the sale deed, engage a counsel, sign the vakalatnama &
pleadings and appear in Court on behalf of his principal (i.e. Sh. Chander
Bhan). Even, if it was not a General Power of Attorney, still, it can be used
for executing sale deed as well as suffering statement in the Court, i.e. for
the specific purposes mentioned in the instrument. Reason No.14 has some
substance. However, considering the overall facts of the case, it is evident
that Sh. Kartar Singh was given all the powers to act in any manner
according to his prudence. Hence, the power to file a written statement
admitting certain facts in favour of his children in the suit filed by his
children stands included and in no way can be excluded; because he was
especially empowered to suffer statements on behalf of Sh. Chander Bhan.
Particularly, when he was given authority to use the house in the manner he
likes.
4.14 The reason No.15 has no substance because Sh. Chander Bhan
has not produced any evidence that he was not the exclusive owner. In any
case, no one else (i.e. the other co-sharers) has come to the Court to claim
possession of the disputed property.
4.15 The last reason i.e. reason No.16 is also insubstantial because
in the peculiar facts of the case, the plaintiff was not entitled to receive the
rent after execution of the Special Power of Attorney on 03.08.1982.
5. Discussion by this Court:-
5.1 This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook along
11 of 12
Neutral Citation No:=2024:PHHC:039548
RSA-366-1991 2024:PHHC:039548
with the requisitioned record of the trial Court.
5.2 To recapitulate the facts and evidence, it is evident that Sh.
Chander Bhan had voluntarily executed a Special Power of Attorney in
favour of Sh. Kartar Singh, authorizing him to sell or use the property in
accordance with his prudence. He was also authorized to engage a counsel,
sign pleadings on Sh. Chander Bhan's behalf and to appear in the Court to
give depositions as per his ordinary prudence and understanding.
5.3 Keeping in view the aforesaid circumstances, it is reasonable to
infer that the Special Power of Attorney was executed for valuable
consideration.
6. Decision:-
6.1 Consequently, the appeal is allowed.
6.2 The judgment and decree passed by the First Appellate Court is
set aside, and the suit filed by the plaintiff shall stand dismissed.
6.3 All the pending miscellaneous applications, if any, are also
disposed of.
March 14th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
12 of 12
