RSA No. 2955 of 1980 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2955 of 1980 (O&M) Date of decision 24.08.2010. Pritpal Singh ...... Appellant. versus Parmeshra Singh and others ...... Respondents. RSA No. 1479 of 1984 Prit-Paul Singh ...... Appellant. versus Dalip Singh died through LRs and others ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. B.R.Mahajan, Advocate for the appellant in both the cases. Mr. R.K.Gupta Advocate and Mr.Aminesh Sharma, Advocate for respondent Nos.1,2,5 to 7, in both cases. K.C.PURI, J. By this common judgment, I intend to dispose of RSA No. 2955 of 1980 and RSA No. 1479 of 1984 preferred by the plaintiff as the same law point is involved in both the aforesaid appeals preferred by RSA No. 2955 of 1980 2 the plaintiff-appellant. The facts are being taken from RSA No. 2955 of 1980. The present regular second appeal directed by plaintiff- appellant against the judgment dated 2.8.1980 passed by learned Additional District Judge, Patiala vide which the appeal preferred by the defendants against the judgment and decree dated 30.10.1979 passed by Sub Judge IInd Class, Nabha decreeing the suit of the plaintiff, stood accepted and dismissed the suit of the plaintiff. Briefly stated, the case of the plaintiff is that the sale effected by Gurbachan Singh defendant No.3 in favour of defendant No.1 and 2 representing himself as mukhtiar-i-am of the plaintiff on 30.12.1969 registered on 30.12.1969 vide sale deed No.1488 relating to agricultural land measuring 25 bighas 07 biswas as described in the head note of the plaint is null and void and is without any authority and has no effect on the ownership rights of the plaintiff and for possession of the same and consequential relief. It has been averred that the plaintiff was the owner of agricultural land in suit and on 10.11.1961 when plaintiff was minor (date of birth being 30.8.1951) and his father and mother having been alive were his natural guardian and Gurbachan Singh defendant No.3, representing himself as mukhtiar-i-am of the plaintiff, when no power of attrney was at all given by the plaintiff, made a sale of the agricultural land in dispute by means of registered sale deed dated 30.12.1969 for Rs.25,000/- in favour of the defendant Nos.1 and 2 without any purpose and without any legal rights to do the same and for the benefit of the plaintiff being minor, he also RSA No. 2955 of 1980 3 delivered the possession to defendant Nos.1 and 2. On notice, defendants No.1 and 2 appeared and filed written statement and denied the allegations of the plaintiff in toto and inter alia pleaded that the suit was barred by time and was not properly valued for the purposes of Court fee and jurisdiction and that the plaintiff has no locus standi for filing the suit and that the suit was not maintainable in the present form and was not properly verified and that they had improved the suit land by various ways and means at a huge sum and that the sale was an act of good management and prudence. The plaintiff gave up defendant No.3 Gurbachan Singh vide his statement dated 19.9.1973. Following issues were framed:- 1. Whether the suit is within time ?OPP 2. Whether the suit is properly valued for the purposes of court-fee and jurisdiction ? OPP. 3. Whether the plaintiff has locus standi to file the suit ? OPP. 4. Whether the plaint is not maintainable in the present form ? OPD 5. Whether the suit is not properly verified ?OPD. 6. Whether Gurbachan Singh was mukhtiar-i-am of minor plaintiff at the time of sale ?OPD 7. Whether the sale in dispute is void ?OPD. 8. Whether the sale money was spent for the benefit of the plaintiff, if so its effect ?OPD. 9. Whether the defendants have effected any improvements on the land in suit, if so its effect ?OPD 10. Whether the sale was an act of good management and prudence ?OPD RSA No. 2955 of 1980 4 11. Whether the suit is collusive ?OPD. 12.Relief. On 8.10.1974, on the application of the defendants, issue Nos 5 to 7 were re-framed as follow :- 5. Whether the plaint is not properly verified ?OPD 6. Whether Gurbachan Sigh was Mukhtiar-i-am of the plaintiff at the time of sale ? If so its effect ?OPD. 7. Whether the sale in dispute is void ?OPD On amendment of the written statement by defendants, following additional issues were framed on 25.9.1979. 11-A Whether the sale cannot be set aside as pleaded ?OPD 11-B Whether the plaintiff is barred by his act and conduct from filing the suit ?OPD 11-C Whether the suit is bad for nonjoinder of Gurbachan Singh, if so its effect ?OPD The learned trial Court returned the finding on issue No.1 to 3 in favour of the plaintiff whereas all other issues were decided against the defendants and consequently the suit of the plaintiff was decreed vide judgment and decree dated 30.10.1979. Feeling dissatisfied with the judgment and decree dated 30.10.1979, the defendants-appellant preferred appeal before the First Appellate Court. The said appeal was heard by learned Additional District Judge, Patiala. The First Appellate Court accepted the appeal and the suit of the plaintiff was dismissed vide judgment and decree dated 2.8.1980. Feeling dissatisfied with the judgment and decree dated RSA No. 2955 of 1980 5 2.8.1980 passed by Shri M.S.Luna, learned First Appellate Court, the plaintiff-appellant has preferred the present regular second appeal. I have heard learned counsel for the parties and have gone through the records of the case with their help. Learned counsel for the appellant has submitted that the First Appellate Court has accepted the appeal on flimsy grounds. The main controversy in the present lis is whether the plaintiff was minor on the date of execution of the power of attorney as well as sale deed. The marriage of the parents of plaintiff has taken place in the year 1949. The date of birth of the plaintiff is 30.8.1951. The birth certificate of the plaintiff has been placed on the file. All the witnesses of the plaintiff have stated that marriage between the parents of the plaintiff had taken place on 4.12.1949 and about birth of the plaintiff as on 30.8.1951. Plaintiff, his father, his paternal grandfather have been examined by the plaintiff to prove the said fact. These witnesses were not cross-examined regarding the birth of the plaintiff on 30.8.1951. So, a fact not specifically challenged in the cross- examination would be deemed to have been admitted. In support of his contention, learned counsel has relied upon authorities Rajinder Pershad (Dead) by L.Rs. vs. Darshana Devi 2001(3) Civil Court Cases 622, Harbans Lal vs. Bhim Sain etc. 1977 Current Law Journal (Civil) Punjab and Haryana 259 and M/s Chuni Lal Dwarka Nath vs. Hartford Fire Insurance Co.Ltd and another, AIR 1958 Punjab 440. In appeal No.1479 of 1984, the judgment Ex.P-12 and P-13 have been placed on the file from which also it is proved that date of birth of the plaintiff is 30.8.1951. The Neaota entry of the marriage of the RSA No. 2955 of 1980 6 parents has been produced on the file but the learned First Appellate Court has discarded the said argument on flimsy grounds. The letter written by Gurbachan Singh has been produced on the file which document also proved that date of birth of the plaintiff is 30.8.1951. The learned trial Court has relied upon the testimony of Gurbachan Singh. This witness has not specifically given the date of birth of the plaintiff. Previous statement of the plaintiff made in another case has also been wrongly taken into account for determining the age of the plaintiff being major. The other fact, which bears in the mind of the plaintiff, is that in Ex.P-5, there is cutting 2004BK/2006BK. It is submitted that in fact there is no cutting in the original of Ex. P5. The learned trial Court has ignored the documentary evidence as well as oral evidence and previous judgment and determined the date of birth of the plaintiff as 30.8.1951. The birth certificate has been ignored on the ground that it does not bear the name of the plaintiff. No name on the birth certificate is normally mentioned. So, it is submitted that following substantial question of law has arisen in the present case. 1. Whether the finding of the First Appellate Court reversing the finding of trial Court is based on misreading and misinterpreting the evidence in respect of date of birth of the plaintiff as 30.8.1951 and is further result of ignoring the oral as well as documentary evidence available on the file ? It is further submitted that in one of the cases, that is in appeal No.1479 civil misc. application No.5188 C of 1997 under Order 41 Rule 27 CPC has been filed to convince the Court that there is no cutting in the original Neaota entry from 2004BK to 2006BK. So, that application may kindly be allowed and date of birth of the plaintiff be determined as on 30.8.1951. RSA No. 2955 of 1980 7 It is further contended that sale deed is 30.12.1969. So, on the date of sale, the appellant was minor and as such Gurbachan Singh was not competent to execute any sale deed. It is further contended that so far as appeal No.,2955 of 1980 is concerned, suit of the plaintiff in respect of ½ share i.e. in respect of Bhagwan Singh defendant No.2 had abated, as his legal representatives were not brought on the record. The plaintiff filed appeal against the said order, which was dismissed on 6.3.1989. The revision filed by both the parties were also dismissed by the High Court on 23.7.1979 and following issues were framed :- 11-A Whether the sale cannot be set aside as pleaded ?OPD 11-B Whether the plaintiff is barred by his act and conduct from filing the suit ?OPD 11-C Whether the suit is bad for nonjoinder of Gurbachan Singh, if so its effect ?OPD Suit qua half share was dismissed for not arraying the legal representative of Bhagwant Singh, which order was upheld by the First Appellate Court. It is submitted that in case the Court comes to the conclusion that suit qua half share is abated in, that case the sale qua remaining half share should be set aside. One of the grounds for dismissing the suit is that Gurbachan Singh defendant No.3 has been given up and on that account the suit of the plaintiff is not maintainable is concerned, that finding is also without any basis. A suit cannot be dismissed for nonjoinder of necessary parties. To support this contention, learned counsel has relied upon authorities Hardeva vs. Ismail and others, AIR 1970 Rajasthan 167 (Full Bench) RSA No. 2955 of 1980 8 & Hameed vs. Eganathan AIR 1981 Madras 137. It is further submitted that minor is not competent to enter into contract. Defecto guardian is also not entitled to sell the land without permission of the Court. To support this contention learned counsel for the appellant has placed reliance on authority Madhegowda (D) by Lrs v. Ankegowda (D) by Lrs & Ors. JT 2001 (9) SC 596 and Lakhwinder Singh vs. Miss Paramjit Kaur 2003(3) P.L.R. 837 . In reply to above noted submission, learned counsel for the respondent has supported the judgment of the trial Court. It is contended that the finding of fact recorded by the First Appellate Court cannot be ignored by the High Court unless the judgment of the First Appellate Court is perverse. To support this contention, learned counsels for the respondent has relied upon authority Mst. Sugani vs. Rameshwar Das & Anr. 2006 (4) R.C.R. (Civil) 319 in paragraph 25 held as under :- “25. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two interference are possible. One drawn by the lower RSA No. 2955 of 1980 9 appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” It is contended that the arguments advanced by the learned counsel for the appellant that the witnesses have not been cross-examined regarding age is concerned that submission is without any substance. Number of questions regarding age has been put up to the witnesses. If that principle is made applicable in that case no witness of the defendant has been cross-examined regarding age of plaintiff. The judgments Ex.P-12 and P-13 are not binding upon the respondents as they are not party in that suit. The documentary evidence has been discussed by the First Appellate Court threadbare and reached to the conclusion that the same is not sufficient to prove that the date of birth is 30.8.1951. The application for additional evidence has been opposed. It is submitted that birth certificate has not been proved to be that of plaintiff. Plaintiff's were four brothers and the birth certificate of all of them have not been produced on the file. In Neaota behi, there is a cutting from 2004Bk to 2006Bk. The application for production of additional evidence cannot be allowed, at this stage. Even if RSA No. 2955 of 1980 10 the suit is held to be maintainable, in the absence of power of attorney, the plaintiff has to prove his date of birth as 30.8.1951. In his previous statement, date of birth was not in issue and in that proceedings and the plaintiff himself has stated in that suit that he was major on 3.4.1968. This Court cannot re-appreciate the evidence in respect of date of birth. There is nothing on the file to establish that the First Appellate Court has misread and misinterpreted the evidence on the file. So, prayer has been made for dismissal of the appeal. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties and have gone through the records of the case. The trial Court has held that execution of power of attorney dated 3.4.1968, stands proved. So far as the application for additional evidence to produce the original Neaota behi is concerned, the said document cannot be allowed in the second appeal. Even if it is presumed that there is no cutting in the original in the Neaota entry that will not make the difference, as discussed in the foregoing paras of the judgment. Consequently, civil misc. application No.5188 C of 1997 under Order 41 Rule 27 CPC for additional evidence stands dismissed. The fate of the present appeal hinges on the fact whether plaintiff was born on 30.8.1951 as alleged by him or in the year 1949 as alleged by the defendants and as held by the First Appellate Court. The date of birth of the appellant is a question of fact and the question of fact cannot be allowed to be challenged in the second appeal unless the First Appellate Court has misread and misinterpreted the evidence on the file. RSA No. 2955 of 1980 11 The argument of the counsel for the appellant is that plaintiff's witnesses have not been cross-examined regarding the date of birth of the plaintiff. This fact is wrong on the face of it. Number of questions regarding date of birth have been asked to the witnesses. So, it cannot be said that defendants have not challenged the factum of date of birth in the cross-examination of the witnesses. So, authorities Rajinder Pershad (Dead) by L.Rs.' case (supra), Harbans Lal's case (supra) and M/s Chuni Lal Dwarka Nath's case (supra) , are not helpful to the case of the appellant. In authorities Madhegowda (D) by LRs' case (supra)and Lakhwinder Singh's case (supra), it has been held that the sale deed by a guardian on behalf of minor is a nullity. There is no dispute to that proposition of law but in case the plaintiff is proved to be a major on the date of execution of the power of attorney on 3.4.1968, in that case, the sale deed executed by Gurbachan Singh cannot be said to be invalid. The First Appellate Court has reached to the conclusion that plaintiff was major on 3.4.1968 as he was born in the year 1949 and not 1951. That being a finding of fact cannot be allowed to be challenged in the second appeal. There is nothing on the record that the judgment of the First Appellate Court is based upon misreading and misinterpreting the evidence. All the documentary and oral evidence have been discussed thoroughly by the First Appellate Court to arrive at the conclusion that on 3.4.1968, the plaintiff was major. So far as the documents Ex.P-12 & P-13 are concerned, those documents are not binding on the defendant as they are not parties in that litigation. No doubt, the date of birth was in dispute in that litigation but from the perusal of those judgments, it is revealed that the defendants in RSA No. 2955 of 1980 12 those two cases have not produced any evidence regarding date of birth of plaintiff. The birth entry has been rightly discarded by the First Appellate Court as the plaintiffs are failed to prove that the same relates to the plaintiff. Plaintiffs are four brothers. The birth certificates of all the four brothers have not been produced on file. The Neaota entry has been discussed by the trial Court and on account of the cutting the same has been discarded. Otherwise such type of Neaota entry can be manipulated at any stage. The letter alleged to be written by Gurbachan Singh defendant No.3 has not been put to him. Otherwise also, it only depicts that son had born to Mohinder Singh but the name of that son is not mentioned. It has been held in authority Mst. Sugani's case (supra) that the High Court cannot interfere in the finding of the First Appellate Court unless the same are perverse or are the result of misreading and misinterpreting the evidence. There is nothing on the file that finding of the First Appellate Court that plaintiff was major on 3.4.1968, is result of misreading and misinterpreting the evidence on the file and cannot be held to be perverse. The passing of consideration through the sale deeds in question has been admitted. So far as appeal qua legal representatives of Bhagwan Singh is concerned, his suit qua half share has already been abated and that matter has become final. So far as the other half share is concerned the sale deed executed by Gurbachan Singh is valid on account of the power of attorney dated 3.4.1968. So, no interference in the regular second appeal in respect of that is made out. Even if it is ignored that Gurbachan Singh has been given up and on that account also the appeal of the plaintiff cannot be RSA No. 2955 of 1980 13 allowed. However, in authorities Hardeva's case (supra) and Abdul Hameed's case (supra), it has been held that power of attorney holder is not a necessary party. In view of the above discussion, the substantial question of law raised by the appellant stands determined against the appellant. Consequently, both the appeals are without any merit and the same stand dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 24th , 2010 sv