IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.144 of 1995 Decided on : April 30, 2007 Lal Chand and another ....Appellants. VERSUS Dulo Ram ....Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : M/s Ankush Sood & Paresh Sharma, Advocates. For the Respondent : Mr. Neeraj Gupta, Advocate. Surjit Singh, Judge (Oral) A suit was filed by respondent-plaintiff Dulo Ram, hereinafter called plaintiff, challenging the sale of 1 biswa area, out of Khasra No.2088 situate in Phati Balh, Kothi Maharaja, Tehsil and District Kullu, made in favour of Lal Chand by appellant-defendant Om Parkash, acting as attorney of plaintiff Dulo Ram. 2. Cause of action, as was disclosed in the plaint, may be summed up thus. Respondent-plaintiff Dulo Ram owned 9 biswas land bearing Khasra No.2088. Out of this land, he sold 2 biswas land to one Lajya Devi, 2 biswas land to appellant-defendant Lal Chand and 4 biswas land to Leela Wati, wife of one Ran Bahadur, and 1 biswa land remained with the plaintiff. Plaintiff alleged that once when he was at his native place in Palampur Tehsil, appellant-defendant Lal Chand accompanied by Advocate Khem Chand Thakur from Kullu Whether the reporters of the local papers may be allowed to see the Judgment? …2… and respondent-defendant Om Parkash visited him and he was told that possession of 2 biswas land, which had been sold to him by the respondent-plaintiff was not being delivered by Leela Wati to whom 4 biswas land had been given. Plaintiff told the appellant-defendant that he had not paid the full sale consideration of 2 biswas area sold to him. Upon that the appellant-defendant agreed to pay the sale consideration in instalments of Rs.500/- per month. Plaintiff required that writing to that effect be prepared. He accompanied defendant Lal Chand and his companions to Palampur for preparing such writing, where appellant-defendant Lal Chand, in connivance with Khem Chand Thakur Advocate and appellant-defendant Om Parkash, got prepared an instrument of power of attorney, per which the respondent-plaintiff appointed appellant-defendant Om Parkash as his attorney for sale of remaining 1 biswa land. On the basis of that instrument of power of attorney appellant-defendant Om Parkash executed sale deed in respect of 1 biswa land in favour of appellant- defendant Lal Chand on 6.7.1990. The instrument of power of attorney was executed on 5.7.1990. On these allegations, the respondent-plaintiff sought a declaration that the sale of 1 biswa area made by appellant-defendant Om Parkash in favour of the appellant- defendant Lal Chand was illegal and void, because the instrument of attorney, on the strength of which the sale was made, had been obtained by playing fraud upon him or making misrepresentation to him. 3. Suit was contested by the appellants-defendants. It was denied that any fraud had been played. The particulars of the alleged …3… fraud/misrepresentation, as stated in the plaint, were specifically denied. 4. Parties went to trial. The trial Court held that the execution of the instrument of power of attorney, Ex. DW-3/A, was the result of fraud/misrepresentation. Consequently, the suit was decreed. Appeal filed against the decree of the trial Court was dismissed by the District Judge. 5. The present appeal was admitted on the following substantial questions of law: 1. Whether under the circumstances of the case, the learned Courts below were right in holding that the execution of Ex.DW-3/A was not proved. 2. Whether under the circumstances of the case it was rightly held by the courts below that the power of attorney was a result of fraud and mis- representation. 6. I have heard the learned counsel for the parties and gone through the record. 7. Admittedly, the instrument of power of attorney bears the signature of the respondent-plaintiff. It is implied in the very allegation of fraud/misrepresentation that the instrument is signed by the respondent-plaintiff. In the plaint also, it is stated that the respondent- plaintiff’s signature was obtained on the document by making him believe that it was a document pertaining to the payment of sale consideration in instalments in respect of the land earlier sold to appellant-defendant Lal Chand. …4… 8. The next question is whether the plea of fraud/mis- representation stands established from the evidence on record. It may be stated at the very outset that respondent-plaintiff did not enter the witness-box, though he had been going to the trial Court on every date of hearing, per deposition of PW-1 Ran Bahadur, whom the plaintiff appointed his attorney for prosecuting the suit, out of which the appeal has arisen. Plaintiff’s attorney Ran Bahadur, no doubt, stated that he was aware of the facts of the case, but in fact he was unaware of the allegations regarding fraud and misrepresentation made in the plaint, because he nowhere stated that he was present at the native place of the respondent-plaintiff in Palampur Tehsil when the alleged misrepresentation was made or in Tehsil Office Palampur when the document was prepared. Therefore, he cannot be said to have had any personal knowledge of the allegations/particulars of fraud and misrepresentation and, therefore, his deposition that he was aware of the facts of the case and about the facts themselves is meaningless. 9. Now when the respondent-plaintiff had been attending the trial Court on every date of hearing, he ought to have entered the witness-box to testify the allegations of fraud/misrepresentation and afforded an opportunity to the appellants-defendants to test the veracity of his allegations on the touchstone of cross-examination. 10. In view of the abovestated position, respondent-plaintiff is liable to an adverse inference that had he entered the witness-box, he would not have testified the allegations of fraud or mis- representation, as stated in the plaint, or if he would have testified …5… such allegations, he would not have successfully withstood the test of cross-examination. 11. Learned counsel for the respondent-plaintiff submits that it is not only the testimony of the attorney of the plaintiff but also the affidavit sworn by the plaintiff on 12.11.1990 and the contents of another instrument of power of attorney Ex. PW-1/A executed in favour of Ran Bahadur, which prove the plea of fraud/mis- representation. No doubt, in the affidavit, Ex. PW-1/C and the instrument of attorney Ex. PW-1/A, it is alleged that the appellant- defendant had got executed a power of attorney in favour of his driver, i.e. respondent Om Parkash and on the strength of that document Om Parkash had executed sale deed in favour of the appellant-defendant but these are unilateral allegations/declarations by the respondent-plaintiff. The appellants-defendants had no opportunity to challenge these allegations/declarations by cross- examining the respondent-plaintiff. Therefore, the same cannot be used as a piece of evidence. 12. It may be stated that Ran Bahadur, the attorney of the plaintiff, through whom the suit was filed, is the husband of Leela Wati to whom 4 biswas land out of Khasra number, in question, has been given by the respondent-plaintiff. Though this attorney claims to be an adopted son of the respondent-plaintiff, in the cross-examination he admits that neither a deed of adoption was executed in his favour nor was any religious ceremony performed for his adoption. It appears that it is Ran Bahadur, the husband of Leela Wati, who, with a view to grabbing 1 biswa area sold to appellant-defendant Lal …6… Chand by the attorney of the respondent-plaintiff, namely Om Parkash, has filed this suit. The plaint is not signed or verified by the respondent-plaintiff but by this Ran Bahadur. Similarly, as noticed hereinabove, respondent-plaintiff did not enter the witness-box to testify the particulars of alleged fraud/misrepresentation. 13. In view of the above discussion, both the substantial questions of law are answered in favour of the appellants-defendants. Consequently, the appeal is accepted. Judgment and decree of the trial Court, as affirmed by the first appellate Court, i.e. Additional District Judge, Kullu, are set aside. The suit of the respondent-plaintiff is dismissed. April 30, 2007(sd) ( Surjit Singh ), J.