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2015 Supreme(HP) 954
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Atma Ram - Appellant
Versus
Smt. Surji & ors - Respondents
RSA No. 189 of 2015
Decided on : 26.8.2015
Advocate Appeared:
For the Appellant :Mr. R.L.Chaudhary, Advocate.
For the Respondents:Mr. Vikrant Chandel, Advocate, for respondents No.3 & 4.
Mr. G.R.Palsra, Advocate, for respondent No. 14.
The legal point established is that the execution of legal documents, such as a General Power of Attorney, must comply with legal requirements, and adverse possession must be proven with evidence.
Headnote:
General Power of Attorney - Property Rights - 1.11.1983 - Mutation Nos. 493 and 494, Order dated 16.6.1994, Sale Deed Ext. PW-7/A - Adverse Possession - November, 2003 - 7.3.2005
Fact of the Case:
The plaintiffs filed a suit for declaration and injunction, claiming that their share in the suit land was decreased by the defendants without their knowledge. They alleged illegal actions by the defendants, including obtaining a General Power of Attorney from a deaf and dumb individual, illegal mutation orders, and interference with their possession of the land.
Finding of the Court:
The Court found that the General Power of Attorney was not legally executed, the mutation orders and sale deed were illegal, and the defendants failed to prove adverse possession. The Court also held that the suit was not barred by limitation and that the Civil Court had jurisdiction to decide the matter.
Issues: The issues included the validity of the General Power of Attorney, legality of mutation orders and sale deed, adverse possession, and jurisdiction of the Civil Court.
Ratio Decidendi: The Court relied on evidence of the individual's mental capacity, lack of evidence for adverse possession, and the timeline of events to reach its decision.
Final Decision: The appeal was dismissed, affirming the judgments and decrees of the lower Courts.
Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned Additional District Judge (I), Mandi, H.P. dated 29.6.2013, passed in Civil Appeal No.93/12/11.
2. Key facts, necessary for the adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs), have instituted a suit for declaration and injunction with a prayer for consequential relief for permanent prohibitory injunction against the appellants defendants(hereinafter referred to as the defendants). According to the plaintiffs, the proprietary rights were conferred on Masadi and Basantu during their life time and after their death the suit land was inherited by the legal representatives of Basantu having half share. The plaintiffs alongwith their brother Bhagat Ram and defendant No. 4 Smt. Thopali each had ¼ share in the half of the suit land. The defendant No. 4 sold her share and the LRs of Masadi also sold their share to other defendants recorded as owner-in-possession of the suit land in excess to their entitlement, thus, decreasing the share of the plaintiffs, without their knowledge. The plaintiffs have never sold their share to any of the defendants nor created any tenancy to any of the defendants. Sh. Bhagat Ram, brother of the plaintiffs died during the pendency of the suit. He was deaf and dumb. He was living in the care and custody of his sister i.e. plaintiff No.1. Defendant No. 2 in connivance with defendant No. 1 and his mother Kununu manipulated wrong and illegal General Power of Attorney from Bhagat Ram. No such General Power of Attorney was ever executed by Bhagat Ram. The mutation Nos. 493 and 494 were attested on the basis of the sale made to father of defendant No. 8, in an illegal manner. The defendant No. 1 Atma Ram had moved an application for correction of revenue entries against Bhagat Ram in connivance with defendant No. 2 and obtained order of Tehsildar on 16.6.1994. The entries regarding Kh. Nos. 1253, 1227 and 1254 were wrongly recorded. No General Power of Attorney was ever given by the mother of Bhagat Ram i.e. Smt. Purni Devi to compromise the suit. Mutation No. 208 dated 28.4.1974 was illegal. The defendants started interfering with the suit land in the month of November, 2003. The matter was reported to the Deputy Commissioner, Mandi, vide letter dated 17.4.2004. The cause of action has arisen in their favour in the month of November, 2003. The defendants were asked by the plaintiffs to get the entries corrected, however, they refused to do so in the month of March, 2005. The suit was instituted praying for declaration to the effect that plaintiffs, deceased Bhagat Ram and defendant No. 4 have equal shares in the suit land. The share of Bhagat Ram after his death has been inherited by plaintiffs and defendant No. 4 i.e. 1/3rd share each in the half of the suit land. The entries in the revenue record reducing the share of the plaintiffs, the alleged General Power of Attorney of Bhagat Ram, order dated 16.6.1994 passed by Tehsildar regarding the correction of revenue entries have been prayed to be declared as illegal, wrong, null and void. The alleged sale made by defendant No. 7 in favour of defendant No. 6 was illegal, null and void.
3. The suit was contested by the defendants. According to the written statement filed by defendants No. 2 & 4, Bhagat Ram was of sound disposing mind. He has executed the general power of attorney and mutation Nos. 493 and 494 were properly attested. The defendants No. 1 & 3 have stated in their written statement that the revenue entries have not been changed and previous possession of Masadi and Basantu have been admitted. Smt. Kununu has been conferred the proprietary rights in the suit land. It was also denied that plaintiffs alongwith Bhagat Ram and defendant No. 4 have ¼ share in the half of the suit land. Defendant No. 8 has stated in the written statement that she has purchased the p
