- (1.) Leave granted.
(2.) The defendant in a suit praying for a decree to set aside a deed of sale purported to have been executed by the 8th respondent (original defendant No. 2) as a Power of Attorney holder of the original plaintiff (her father), is before us aggrieved by and dissatisfied with a judgment and order dated 24.10.2007 passed by the High Court of Himachal Pradesh at Shimla dismissing a revision application filed before it from an order dated 20.12.2005 of the learned trial judge allowing an application for amendment of the written statement filed by the 8th respondent.
(3.) The following facts are not disputed: The original plaintiff Sh. Babu was the owner of the suit land. He executed a Power of Attorney on or about 13.2.1998 in favour of one Kartari Devi - Respondent No. 8 (original defendant No. 2). The 8th respondent executed a deed of sale on 3.3.1998 in favour of the original defendant No. 1 in the aforementioned capacity. However, inter alia, on the premise that the said Power of Attorney was illegal and the same had been fraudulently obtained, original plaintiff filed a suit for declaration before the Subordinate Judge, First Flass, Amb, District Una in the State of Himachal Pradesh. Indisputably, relying on or on the basis of the said deed of sale, the appellant filed an application for partition before the Revenue Court of the Tehsildar which was decided in his favour. Possession of the land in question is said to have been handed over by the Revenue Officer. Appellant s name was also entered in the Revenue Records. On or about 3.5.2000, the 8th respondent filed a written statement raising various pleas that the suit of the plaintiff be dismissed. In her written statement, the 8th respondent stated as under: 6. That after plaintiff waited the summons of partition case and enquired from the defendant No. 1 but the defendant No. 1 lingered on the matter and in the month of Jan 1999 started extended threats and proclaimed that the suit land has been sold to him by defendant No. 2. The plaintiff was astonished and approached the Halqua Patwari. The Patwari Halqua who is also hand in glubs with the defendant No. 1 did not co-operated nor provided the particulars till June 99 and after obtaining the certified copies it has transpired that the defendant No. 1 got manufactured a power of attorney of plaintiff alleged to be executed on 13.02.98 Regd. No. 41, Sub- Registrar Amb in favour of defendant No. 2. At any rate even if any such power of attorney is proved to be bearing signatures of plaintiff, the plaintiff never give any power of attorney consciously to sell or alienate his property to defendant No. 2 and the power to the contrary in the alleged power of attorney was got entered as a result of fraud, mis-representation taking advantage of old age, sickness, illiteracy of plaintiff and defendant No. 2, physical and mental weakness and in breach of trust and confidence reposed in the defendants. Actually, the intention of defendant No. 1 in active connivance with Halqa Patwari Revenues Officer and marginal witness was to pilfer away the property of plaintiff. The plaintiff did not sell any property or never agreed to execute sale deed qua the suit land to defendant No. 1 nor ever received any consideration. The allegedly sale deed No. 202 dated 03.03.1998 alleged to be executed by defendant No. 2 is contrary as attorney of plaintiff are and further entries got repeated by defendant No. 1 in his favour of back of plaintiffs are bogus, fabricated documents result of fraud, mis-representation, undue influence without consideration without delivery of possession, in breach of trust and confidence reposed in defendants. Moreover, the plaintiff had no necessity to sell the property and was incompetent to sell being landless person having meager holding. 12. It is, therefore, prayed that decree for declaration to the effect that land measuring 0- 07-14 Hects being half share out of land measuring 0-14-28 Hects as fully detailed in the head note of plaintiff as owned and possessed by the plaintiff. The defendants have no right, title or interests in the same. The alleged power of attorney Regd. No. 41 dated 13.02.1998 is illegal, result of misrepresentation, fraud, breach of trust and confidence reposed on defendants, taking advantage of old age, sickness, physical mental weakness, illiteracy of plaintiff and does not in any (sic) give right to defendant No. 2 to deal with andalenate the properties of plaintiff and further alleged sale deed No. 202 dated 3.3.1998 alleged to have executed by defendant No. 2 in favour of defendant No. 1 in respect of suit land and subsequent entries in favour of defendant No. 1 in the revenue record are wrong, illegal, void, baseless, contrary to factual position without consideration, without delivery of possession and in breach of trust and confidences reposed on defendants and result of fraud, undue, influence, mis-representation fictitious and fabricated one. The some gets have not binding effect on the right, title or interest of plaintiff in the suit land and for issuance of permanent injunction as a consequential relief restraining the defendants from interfering in any manner whatsoever raising any constructed, taking forcible possession, cutting and removing trees, taking the suit land, in any manner may please be passed in favour of plaintiff and against the defendant with cost. In the alternative decree for possession of suit land may kindly be passed in favour of plaintiff and against defendant No. 1 with cost and any other further relief to which plaintiff is found entitled in the circumstances of the case may also be awarded in favour of plaintiff with cost.;