JUDGMENT K.C. Sood, J. (Oral).: This second appeal arises out of the judgment and decree of the learned Additional District Judge (1), Kangra at Dharamshala, dated 13th May, 2005. 2. Plaintiff Kanta Devi (Respondent herein) laid a suit before the Learned Sub Judge, (1), Dharamshala, for permanent injunction, restraining the defendants (appellants herein) from changing the nature or raising any construction over the land, subject matter of dispute. 3. Plaintiff and defendants admittedly are the joint owners of the land, subject matter of dispute. Plaintiff is the owner of 3/8 shares whereas defendants are the owners to the extent of 2/8 shares. Case of the plaintiff was that the land abuts to Shahpur road and, therefore, the land abutting road is valuable. The partition proceedings, regarding this land before the Revenue authority are pending. The defendants to frustrate the pending partition proceedings are raising construction on the joint land. The stand of the defendants in the written statement is that the parties are in actual physical possession of the suit property to the extent to their respective shares and, therefore, it is not open to the plaintiff to ask for any injunction against them. 4. Both the learned trial court and first Appellate Court found, as fact, that the defendants have already raised some construction over the land adjoining the road and if they are permitted to raise further construction, the plaintiff will be deprived of the land which adjoins the road and accordingly decreed the suit. 5. Dissatisfied the defendants are in this appeal. 6. Heard Mr. Rathour, learned counsel for the appellants. 7. The first contention of Mr. Rathour is that the plaintiff herself did not step into the witness box and in stead her power of attorney was examined. The power of attorney cannot be a substitute for the plaintiff to state her case. Learned counsel heavily rely upon Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others AIR 2005 Supreme Court 439 to advance his submission. In Janki Vashdeo the Apex Court observed that power of attorney can act on behalf of the principal, as contemplated under Order 3 Rules 1 and 2 of the Code of Civil Procedure, but his testimony should confine only to the "acts" done by the power of attorney holder in exercise of power granted by the instrument.
In Janki Vashdeo the Apex Court observed that power of attorney can act on behalf of the principal, as contemplated under Order 3 Rules 1 and 2 of the Code of Civil Procedure, but his testimony should confine only to the "acts" done by the power of attorney holder in exercise of power granted by the instrument. He cannot depose for the principal in respect of the acts of the principal. He also cannot depose in respect of the matter in which he principal may have exclusive knowledge in respect of which the principal is liable to the cross-examined. In the present case, power of attorney appearing as witness of the plaintiff has provided the documents which are not disputed by the defendants. It is common case between the parties that the land is till joint between the parties and partition proceedings are pending before the revenue officer concerned. The Power of attorney, in the witness box, noticed learned first Appellate Court, did not travel beyond the admitted position between the parties in his deposition. The learned counsel or the appellants refers to Bachan Singh vs Swarn Singh AIR 2001 Punjab & Haryana 112 and contends that a co-owner cannot obtain an injunction against the co-owner, who is in exclusive possession of the entire property. It is true that a co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who happens to be in exclusive possession of the joint property unless any act of the person of the principal prejudicially affects the rights of other co-owner. In the present case, very fact that the defendants intend to raise construction on the land, subject matter of dispute, prejudicially affects the rights of the plaintiff. The ratio of this case is of no assistance to the appellants. No other point is urged. 8. No question of law much less a substantial question of law arises in this appeal.