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2021 (8) TMI 1416 - HC - Indian LawsSuit for declaration recovery of possession and permanent injunction - entitlement for the decree to declare that the plaintiff is the owner in title of the property mentioned in the suit schedule of property - HELD THAT - The Power of Attorney executed outside India has to be adjudicated in India as per the provisions of Section 18 of the Indian Stamp Act. The Power of Attorney having been failed to get adjudicated by a competent authority is not entitled to represent the plaintiff as Power holder and it is not valid. Whereas the Court below failed to frame any issue in this regard whether the Power of Attorney which was marked as Ex. A.6 is valid or not. However as rightly pointed out by the learned counsel for the first appellant/third defendant this issue can be raised before this Court and it can be answered by this Court. The Court below brushed aside the issue that if substantive justice and technicalities are fitted against each other with the technicalities go and substantive justice shall revive. Since the Power of Attorney itself was not adjudicated before the authority concerned and as such the Power holder has no authority to depose on behalf of the plaintiff. Section 18 of the Indian Stamp Act mandates the adjudication before the registering authority when the Power of Attorney is executed outside India. Therefore the Power holder cannot maintain the suit unless the Power of Attorney is adjudicated before the registering authority. This Appeal Suit is allowed.
Issues Involved:
1. Entitlement of the plaintiff to a decree declaring ownership of the property. 2. Entitlement of the plaintiff to recovery of possession from the defendants. 3. Entitlement of the plaintiff to a permanent injunction. 4. Validity of the Power of Attorney used to file the suit. 5. Proper identification of the suit property. Issue-wise Detailed Analysis: 1. Entitlement of the plaintiff to a decree declaring ownership of the property: The plaintiff claimed ownership of plot No. A.19, purchased from Rosy George via a registered sale deed dated 04.11.1981. The first defendant purchased plot No. A.18 from the same vendor. The court noted that the plaintiff's vendor had a clear title to the property, but the issue arose regarding the proper identification of the plots. The third defendant, who purchased plot No. A.18 and constructed apartments, admitted that plot No. A.19 belonged to the plaintiff. However, the court emphasized the need for clear identification of the property before granting any decree. 2. Entitlement of the plaintiff to recovery of possession from the defendants:The plaintiff sought recovery of possession, alleging encroachment by the defendants. The court highlighted that the plaintiff failed to properly identify the suit property. An Advocate Commissioner appointed by the court faced difficulties in identifying the property due to unclear measurements. The court concluded that without clear identification, the plaintiff could not sustain a suit for recovery of possession. 3. Entitlement of the plaintiff to a permanent injunction:The plaintiff also sought a permanent injunction against the defendants. Given the unresolved issues regarding property identification and the validity of the Power of Attorney, the court found that the plaintiff was not entitled to an injunction. The court's decision to dismiss the suit rendered the request for a permanent injunction moot. 4. Validity of the Power of Attorney used to file the suit:The Power of Attorney, marked as Ex. A.6, was executed outside India but was not adjudicated before the registering authority as required under Section 18 of the Indian Stamp Act. The court cited precedents establishing that a Power of Attorney executed outside India must be adjudicated in India to be valid. Consequently, the Power of Attorney was deemed invalid, and the suit filed by the Power of Attorney holder could not be maintained. 5. Proper identification of the suit property:The court emphasized the importance of accurately identifying the suit property. The plaintiff amended the boundary description during the proceedings, but the court-appointed Advocate Commissioner and Surveyor faced challenges in identifying the property due to unclear measurements. The court concluded that the plaintiff's failure to properly identify the property precluded any relief. Conclusion:The court dismissed the suit, highlighting the plaintiff's failure to properly identify the property and the invalidity of the Power of Attorney. The judgment and decree passed in O.S. No. 10817 of 2010 were set aside, and the Appeal Suit was allowed.
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