The main legal point established in the judgment is the interpretation of possession in property disputes and the application of the Specific Relief Act in determining the validity and timeliness of suits.

JUDGMENT

Anil Kshetarpal, J. (Oral) - By this judgment, Regular Second Appeal as well as CrossObjection filed therein shall stand disposed of.

2. This appeal has been filed by defendant No.1-Prem through his legal heirs. For convenience, the parties would be referred by their name. Prem executed a registered sale deed with respect to land measuring 17 kanals 11 marlas in favour of Smt. Umavati wife of Zile Singh. There was some typographical error in the aforesaid registered sale deed and hence supplementary deed was executed by Prem on 11.12.1981 acknowledging the first sale deed and giving details of corrected khasra numbers. Subhash son of Prem-defendant No.1, filed a suit for possession by way of superior right of pre-emption. Prem was impleaded as a party-defendant. Prem, defendant-appellant, of course now dead, admitted the execution of the sale deed. The suit filed by Subhash is Ex.PW10/B whereas written statement filed by Prem is Ex.PA/9. However, unfortunately the sale was not incorporated in the revenue record or the revenue record was not updated in accordance with the sale of land, which resulted into this litigation. Prem while taking the advantage of wrong entry, transferred the property in favour of his sons i.e. defendant Nos.2 to 6 by release deed dated 03.01.2003 and defendant Nos.2 to 6 further mortgaged the property in favour of defendant No.7 on the basis of the aforesaid wrong entries. The plaintiff-Umavati, the purchaser through a registered sale deed filed a suit seeking declaration that she is owner in possession of the property purchased i.e. 17 kanals and 11 marlas and the release deed as well as mortgage deed executed by defendant No.1 in favour of defendant Nos.2 to 6 are not binding on her rights. The plaintiff also prayed for decree of permanent injunction.

3. Defendant Nos.1 to 6 filed their joint written statement and apart from taking usual objections, contested the suit and pleaded that the sale is result of fraud as Prem wanted only to mortgage the land.

4. After leading the evidence, learned trial Court dismissed the suit by giving strange reasons. However, First Appellate Court after re-appreciating the evidence, has decreed the suit declaring the plaintiff to be owner. However, the First Appellate Court has also returned a contradictory finding inasmuch as, after declaring that the plaintiff is owner in possession of the suit land on the basis of the sale deed and has only partly decreed the suit which has forced the plaintiff to file cross-objection.

5. Learned counsel for the appellant submitted that as per the revenue record, defendant No.1 is recorded as owner in possession of the property. He submitted that no evidence has been led by the plaintiff to prove her possession. Hence, her suit is barred as per proviso to section 34 of the Specific Relief Act. He further drew attention of the Court to the finding of the First Appellate Court wherein the question of possession of the property in dispute has been held in his favour. He further submitted that since the plaintiff has not appeared in the witness-box, therefore, adverse inference should be drawn against her. He further submitted that Special Power of Attorney was executed by the plaintiff in favour of her husband, there is no authorization to appear in evidence on her behalf and hence, there is no oral evidence on behalf of the plaintiff. He further submitted that in the Special Power of Attorney, the factum of the plaintiff being not in possession is admitted. He further submitted that the suit filed by the plaintiff challenging the release deed dated 03.01.2003 is barred by time and, therefore, the appeal should be accepted.

6. On the other hand, learned counsel appearing on behalf of respondents-Cross Objectors has submitted that in the sale deed dated 05.06.1974, the possession of the property was delivered and this fact is specifically recorded and signed by Prem Singh. He further drew attention of the Court to the fact that