JUDGMENT
T.H.B. Chalapathi, J.
1. This appeal is directed against the decree and judgment of learned Additional District Judge, Hoshiarpur in Civil Appeal No. 100 of 1990 dated 25.3.1994.
2. The 1st respondent filed the suit for a declaration that the Sale Deed executed by the 2nd defendant in favour of the 1st defendant is illegal and void and also for temporary injunction restraining the 1st defendant from dispossessing him from the suit property. According to the plaintiff, he is owner of the double storeyed shop in dispute which he had purchased from one Ram Dutt Sud and he constructed the same about 40 years back and since then he has been in possession of the same. The 2nd defendant Kuldip Chand is his son and the plaintiff had given possession to the second defendant. The 1st defendant obtained an alleged agreement of sale dated 5.9.1985 from the 2nd defendant without any necessity and the 2nd defendant was misled and got a Sale Deed executed and the Sale Deed is illegal, void and does not confer any right. The 1st defendant who is appellant herein contested the suit. He averred in the written statement that the plaintiff has no locus-standi and he is also estopped from filing the suit. He has also disputed that the plaintiff is the owner of the suit property and according to him he purchased the suit property under a regd. Sale Deed dated 4.10.1985 from the 2nd defendant who was general attorney holder of the plaintiff. Thus the 1st defendant became the owner of the suit property by virtue of the Sale Deed dated 4.10.1985 and the plaintiff himself agreed to sell the suit property vide agreement dated 5.9.1985 and received a sum of Rs. 10,000/- as earnest money. Therefore, the suit is liable to be dismissed.
3. On the basis of the pleadings, the trial Court framed appropriate issues and on a consideration of the evidence on record, the learned Sub Judge, 1st Class dismissed the suit of the plaintiff with costs. Aggrieved by the same, the plaintiff filed an appeal to the learned Additional District Judge who by the impugned judgment and decree allowed the appeal and decreed the suit of the plaintiff. Hence this appeal by the 1st defendant.
4. According to the 1st defendant, the plaintiff agreed to sell the suit property on 5.9.1985 and executed an agreement of sale in his favour. In order to prove his claim, the 1st defendant has produced on record the agreement of sale which is marked as Exhibit D-1. The plaintiff has not disputed the signatures on the agreement of Sale Exhibit D-1. When the signatures on the agreement of sale are admitted by the plaintiff, it is for the plaintiff to prove that it was obtained either by misrepresentation or by playing fraud on him. In fact, the evidence of the plaintiff Hans Raj clearly shows that he knew the attesting witnesses Deena Nath Vaid and Daljit. When the agreement of sale is proved, then the only question is whether the plaintiff executed a power of attorney in favour of his son namely Kuldip Chand, the 2nd defendant to execute the Sale Deed in favour of the 1st defendant. Exhibit P-2 is the copy of the power of attorney executed by the plaintiff on the basis of which the 2nd defendant sold the suit property to the 1st defendant under the Sale Deed Exhibit DW-1/D and Kuldip Chand also received the balance of the sale consideration. When the plaintiff admitted the execution of the power of attorney in favour of his son, it is for him to prove that it was executed for raising a loan and not for selling the house. It has not been pleaded by the plaintiff that the power of attorney does not bear his signature. According to him, he had executed the power of attorney in favour of his son to raise a loan. In this regard, the plaintiff utterly failed to produce any reliable evidence. In pursuance of the power of attorney executed by the plaintiff, his son Kuldip Chand, the 2nd defendant executed a Sale Deed in favour of the 1st defendant after receiving the consideration. This aspect of the matter was overlooked by the learned Additional District Judge. The power of attorney which is marked as Exhibit P-2 clearly shows that the plaintiff executed the power of attorney in favour of his son to sell, mortgage and gift any of his property. Thus as General Power of Attorney holder of his father, the 2nd, defendant sold the property to the 1st defendant. Even after the execution of the Sale Deed, the son of the plaintiff executed a Rent Note in favour of the 1st defendant. The said Rent Note is marked as Exhibit DW-1/A. Thus the 2nd defendant has been in possession of the suit property as a tenant of the 1st defendant. Further the trial Court on the basis of the evidence on record came to the conclusion that the plaintiff was not in possession of the suit property. The learned District Judge erred in coming to the conclusion that if really the plaintiff intended to sell the property or execute a Sale Deed in favour of the 1st defendant, he would have directly executed the Sale Deed in favour of the 1st defendant, but the fact remains that the plaintiff never denied his signatures on the agreement of sale and he also failed to explain the circumstances under which he was made to execute the agreement of sale. The reasoning given by the learned Additional District Judge, Hoshiarpur is based on surmises. I am, therefore, of the opinion that the learned Additional District Judge erred in reversing the well reasoned judgment of the trial Court.
5. Accordingly, I allow the appeal, set aside the decree and judgment of the learned Additional District Judge and restore that of the trial Court and the suit of the plaintiff stands dismissed. However, there will be no order as to costs.