IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.10 of 1997. Judgment Reserved on: 21.03.2011 Date of decision: 08.04.2011. Smt.Swarni Devi … …Appellant Versus Smt.Sham Sundri & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.Ajay Sharma, Advocate. For the Respondents: Mr.Onkar Jairath, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the successor-in-interest of the defendant against the judgment of the two Courts below granting a decree of declaration and injunction that the plaintiff- respondent is entitled for possession with respect to share of deceased Salig Ram over Khasra Nos.962, 963, 953 only as the rest of the land is possessed by one Swarni Devi who is not a party to the suit. 2. The case pleaded by the original plaintiff Roop Lal was that the suit land, situated in village Bhadsali, Tehsil and District Una, was owned and 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 possessed by his brother Salig Ram son of Suba, who died issueless on 31.1.1981 and at that time he was residing with the plaintiff, who looked after and rendered services etc. to him. He executed a valid will duly registered in favour of the plaintiff on 29.8.1979 with respect to his entire immovable property and after his death he was the owner in possession of the property. Piaro Devi, it was pleaded, had no relationship with Salig Ram and she, in connivance with the revenue officials, had got mutation No.5655 attested in her favour by stating that she is the widow of the deceased. The plaintiff pleaded that the mutation is illegal and void and does not bind his interest. 3. In the written statement, Piaro Devi adopted a different stand that she is the widow of the deceased Salig Ram and the mutation has been rightly attested in her favour. 4. On the pleadings of the parties the learned trial Court settled six issues. Issues No.1 to 3 were important as they dealt with the core of the dispute, namely, (1) as to whether the plaintiff is the owner in possession of the suit land, (2) whether deceased Salig Ram executed a valid will in favour of the plaintiff and (3) whether the defendant Piaro Devi was the legally wedded wife of Salig Ram. 5. Taking up issue No.3 as the first issue the learned trial Court held on the evidence on record that 3 it was not established that Piaro Devi was wife of the deceased Salig Ram. On the second issue, “as to whether a valid will has been executed”, the Court held that there was no will in his favour. On the question, “as to whether the plaintiff is the owner in possession of the land”, the Court holds that the plaintiff, being real brother of the deceased, succeeds the ownership rights in accordance with law and that he is the owner in possession to the extent of the share of the deceased. 6. The judgment was challenged in appeal before the learned District Judge, who after re-appreciation of the entire evidence on record dismissed the appeal. The learned appellate Court holds that on the evidence of DW-1 Hari Pal, General Power of Attorney of Piaro Devi, who stated that he knew Salig Ram and that Piaro Devi was his wife, one child was born to them and this child lateron died, Salig Ram was not remarried nor had divorced Piaro Devi and they were living together as husband and wife in village Bhadsali, the relationship of husband and wife was not established. The Court did not place any reliance on his statement for the reasons that the name of the father of Piaro Devi was unknown to him nor he has proved the special means of knowledge as to how the relationship has been established or the ground of his possessing such special knowledge. DW-2 Dharampal also deposed on lines similar to those of DW- 1 and could not state anything about the other 4 particulars with respect to which he was cross-examined and which would have pointed out to the fact that he knew Piaro Devi well and to state that she was married to the deceased. On the evidence of DW-3 Gian Chand, the Court says that he admitted that he did not see the deceased and Piaro Devi living together as husband and wife. On the evidence on record, the learned Court concluded that none of the witnesses possess special knowledge to state with respect to the marriage of the deceased with Piaro Devi and in these circumstances, the relationship of husband and wife was not established. An important fact observed by the learned appellate Court was that the defendant infact kept herself out of the witness box and in these circumstances an adverse inference was correctly drawn against her. Though there is no bar to an Attorney stating anything on behalf of the defendant, but since she had the actual and primary knowledge, “as to whether she was the wife of the deceased Salig Ram or not” it was her bounden duty to have stated so in her evidence as her own witness. 7. The defendant’s successor-in-interest is now in appeal which was admitted on two substantial questions of law, namely:- (2) Whether statements of DW-1 to DW-3 and exhibit D1 have wrongly been appreciated by both the Ld.courts 5 below, thereby vitiating the impugned judgments and decree? (3) Whether in law, there is any embargo in deposing through a General Power of Attorney? 8. Questions No.2 and 3: Both these questions are interlinked inasmuch as, the statements of DW-1, DW-2 and DW-3 are required to be considered for the purpose, to establish the relationship between the deceased Salig Ram and defendant Piaro Devi. What I find from the record is that she has not appeared in the witness box. She is the person with primary knowledge of facts which would either establish the marriage or otherwise. Why she stayed away from the witness box is not clear. Coupled with the second question regarding the fact as to whether there was an embargo on the General Power of Attorney appearing on behalf of the person to give evidence, the proposition is urged in very wide terms. This General Attorney does not have special means for proving the factum of marriage as pleaded, more especially, when she herself is alive and capable of appearing in evidence. However, in the present case there is no reason as to why the witness having knowledge about the primary facts should keep away from the witness box. After all, the factum of marriage can be proved by the husband or wife when such relationship is questioned and corroborated by others who can say 6 that both parties have been living as husband and wife and their conduct leaves no doubt that they were not living as such. But, in the present case, I do not find any reason which has been placed on the record to show as to why the petitioner-defendant Piaro Devi kept herself away from being cross-examined. 9. In these circumstances, it was but natural that the Courts should have drawn an adverse inference against her. Adverting to Ex.D1, all that I need say is that the revenue record for the year 1975-76 does not in any manner establish the relationship between the parties. Both the Courts having found against the defendants on facts and merit, there is no perversity in the findings which require interference by this Court. The appeal is accordingly dismissed. No order as to costs. 10. All miscellaneous applications are disposed of. April 8, 2011 (Dev Darshan Sud) (aks) Judge.