A sale deed for immovable property executed by an agent is not proven unless the registered power of attorney is produced in court and the agent is examined to establish proper authorization for the transfer of title.

JUDGMENT :

With the consent of learned counsel appearing for the parties, appeal is heard finally at motion stage.

2.This first appeal has been preferred by the appellant/plaintiff challenging judgment and decree dated 05.01.2002 passed by Second Additional District Judge (Fast Track Court), Harda in Civil Suit No.24-A/2001, whereby the trial Court has dismissed the suit of appellant/plaintiff.

3.Learned counsel for appellant/plaintiff submitted that respondent/defendant is in possession of ground floor of the suit house. Sona Bai was the mother of the respondent/defendant and Mahendra Kumar is the brother of the respondent/defendant. The appellant/plaintiff has acquired the newly constructed ground and first floor constructed in the back side of the existing house from 20.02.1997. The mother of the respondent/defendant has died on 07.03.1998. At the time of execution of the sale deed the mother of respondent was living with her other son Mahendra Kumar at Durg. It is further submitted that appellant/plaintiff had purchased the suit house, which was in ownership of Late Sona Bai by a sale deed dated 20.02.1997 from Mahendra Kumar, who was the Power of Attorney holder of Late Sona Bai. Respondent/defendant was residing in the suit premises on the oral consent of his mother and it is also mentioned that appellant/plaintiff immediately after execution of the sale deed asked the respondent/defendant to vacate the portion in his possession. It is also submitted by counsel for appellant/plaintiff that the said property had come to Late Sona Bai from her father Shankar Lal according to his last Will dated 15.05.1966. The appellant/plaintiff has duly entered his name in Nagar Palika Harda as owner of the same and the respondent/defendant had not taken any objection for the same nor put up his own claim of any kind neither he challenged the ownership of late Sona Bai. The appellant/plaintiff therefore disputed structure valued at Rs.85,000/- and has paid appropriate court fee and filed a suit for ejectment of the respondent/defendant from the suit property. In the said suit the appellant/plaintiff had also prayed for the interim mesne profit at Rs.20/- per day till the decision of the suit from the respondent/defendant.

4. Learned counsel for the appellant/plaintiff further submitted that respondent/defendant denied the claim of the appellant/plaintiff. Trial Court failed to see that the appellant has duly proved by the evidence of the witnesses of the sale deed and also the power of attorney that the said power of attorney was issued by Late Sona Bai to Mahendra Kumar and therefore, the same is valid one and therefore the further sale deed on the strength of the said power of attorney is legal and valid. Learned trial Court has also accepted the proper valuation in para 13 of the judgment. In these circumstances, this first appeal filed by appellant/plaintiff may be allowed and judgment/decree passed by the trial Court be set aside.

5.Counsel appearing for respondent/defendant supported the judgment and decree passed by the trial Court. It is submitted that the pleadings of the parties and evidence was also considered in right perspective and no error has been committed by the trial Court in decreeing the suit.

6. The trial Court framed the issue and taking evidence of both the parties, passed the impugned judgment and decree on 05.01.2002 and suit filed by the appellant/plaintiff has been dismissed.

7. Heard the learned counsel for the parties.

8. Sahabuddin (P.W.-1) has given evidence on behalf of the plaintiff Jabbar Khan, because the plaintiff Jabbar Khan executed a special power of attorney (Mukhtyarnama Khas) in favour of Sahbuddin, authorizing him to give evidence in this case. The special power of attorney has been exhibited as Ex.P-1. Thus, in this case, the plaintiff Jabbar Khan himself has not been examined. In such a situation, the respondent/defendant did not get any opportunity to cross-examine the plaintiff Jabbar Khan regardin