Point of Law: While a document is registered and particulars as required by Sections 52 and 58 of the Registration Act are endorsed on it as provided in Section 60, a presumption by reference to Section 114 [Illustration (e)] of the Evidence Act regarding its genuineness arises.

JUDGMENT :

The plaintiff in O.S.No.197 of 2013 before the Sub Court, Kozhikode is the appellant. She filed the suit for declaration, injunction; both mandatory and prohibitory and damages for use and occupation. The suit was decreed as per the judgment dated 24.09.2014, except in regard to the claim for damages. The 1st defendant preferred A.S.No.166 of 2014 before the District Court, Kozhikode. The plaintiff preferred a cross objection. The appeal and the cross objection were disposed of as per a common judgment dated 22.03.2016. The appeal was allowed and the cross objection was dismissed. Resultantly, the original suit stands dismissed. Aggrieved thereby the plaintiff filed this second appeal under Section 100 of the Code of Civil Procedure, 1908.

2. The appeal was admitted on 01.09.2016 on the following substantial questions of law:

i) Whether the lower appellate court is justified in acting on Ext.A4 document as genuine when it is attested by a notary unaccompanied by a certificate and attestation of the same by another notary unaccompanied by certificate and when it is not an act contemplated under the Notaries Act?

ii. Whether the lower appellate court was justified in dismissing the petition to admit additional evidence invoking Order XLI Rule 27 of the Code of Civil Procedure to examine notary who had allegedly attested the copy-Ext.A4 which does not qualify for a presumption?

An additional substantial question of law is framed, namely,

iii. Is the finding of fact by the lower appellate court that the original of Ext. B2 power of attorney is a valid deed so irrational attracting the blame of being perverse?

3. Heard the learned counsel appearing for the appellant and the learned Senior Counsel appearing for the respondents.

4. The parties are referred to in accordance with their ranks in the suit.

5. The trial court, after trial, decreed the suit in part as follows:

“1. Declaring that sale deed bearing No.262/2007 of S.R.O. Kozhikode (Ext.A7) and document No.263/2007 of S.R.O. Kozhikode (Ext.A8) are invalid and void;

2. Restraining the defendants and their men from trespassing into the plaint A schedule property and committing acts of waste therein and interfering with the peaceful possession of the plaint A schedule property by the plaintiff by a permanent prohibitory injunction;

3. Directing the 1st defendant to vacate and surrender vacant possession of the house bearing No.37/1101 situates in the property described as item No.1 in the plaint A schedule to the plaintiff within two months from today by a mandatory injunction.”

6. The plaintiff was aggrieved by the observations in the judgment that she had executed Exts.B6 and B7 receipts, acknowledging receipt of a sum of Rs.11 lakhs and hence she filed the cross objection assailing the said finding. The lower appellate court, after hearing both sides, held that Exts.A7 and A8 documents were executed by the 1st defendant in the exercise of valid authority given to him by the plaintiff in terms of the original of Ext.B2 power of attorney. Thereby, the lower appellate court reversed the findings of the trial court that Exts.A7 and A8 sale deeds were invalid. The finding of the trial court that the said power of attorney is a fabricated one was also reversed by the first Appellate Court. The reasons for the said findings are given by the first Appellate Court in paragraph No.13 of the said judgment which reads thus:

“13. The contention of the 1st appellant is that a power of attorney was got executed by the 1st respondent from Mumbai and the same was attested by one Notary Public by name Davood N Prasada of Greater Mumbai and the same was sent to him authorising him to sell the plaint schedule properties. According to the 1st appellant by using the power of attorney so executed he sold the property to the 2nd appellant and 2nd respondent who are his brothers-in-law. The further case of the 1st appellant is that for the purpose of executing sale deed in the name of the 2nd appellant