THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 274 of 1999 Date of order: 7.10.2010 Between: Mrs. Abdur Rahman Khan (died by LRs) and others …Appellants and Najmunnisa Begum and others …Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. No. 274 of 1999 JUDGMENT: This appeal is by the defendants against the decree and judgment of the lower appellate court, which has reversed the decree and judgment of the trial court. The respondents/plaintiffs instituted a suit for declaration that they be declared as owners of second floor of house No. 4-1-464, Troop Bazar, Hyderabad and for possession. Though other reliefs were also claimed, we are not concerned with those, as the rest of the reliefs were denied to the plaintiffs by both the courts below and there is no appeal by the plaintiffs. It is averred in the plaint that the plaintiffs have become owners of the suit property having purchased the same in a court auction on 26.8.1969 and they were granted sale certificate in October, 1969-Ex.A2 together with plan-Ex.A3. The plaintiffs claimed that they are in possession of ground, first and second floor as described in sale certificate and the plan attached thereto and on 19.8.1984 they were dispossessed by defendants from the second floor portion resulting in driving the plaintiffs to file the present suit. The appellants/defendants contend that the first defendant purchased the house property in an earlier auction on 15.9.1957 arising out of the same suit as she was highest bidder and was granted sale certificate Ex.B1, dated 11.9.1965 together with plan Ex.B2 in respect of their house property, which is described as House No. 463 B2. The defendants also claimed that possession was delivered to them on 26.4.1966. They also filed auction leaf let-Ex.B4 and the plan of the auctioned property. Ex.B4 and Ex.B2 the plan attached to sale certificate are identical. The defendants rely upon projection shown in the first floor towards west which is shown as M.T. 17’ x 16’9”. It is the further case of the defendants that the portion shown below the said projection is the property auctioned and sold to the plaintiffs and therefore, because of the different levels of the property in the front and the property in the rear, the defendants’ property is shown as first floor, which the plaintiffs were claiming as the second floor of their property. The plaintiffs examined their General Power of Attorney as P.W.1, a tenant as P.W.2 and a retired Bailiff as P.W.3, whereas the defendants examined defendant No.2 as D.W.1. The material documents marked on behalf of both the parties are already referred to above. The trial court found on issues 1 and 2 that the plaintiffs, having not examined themselves and having led evidence of their GPA only, have failed to establish their case and the suit being one for declaration and for possession, the plaintiffs have failed to discharge the burden placed on them. The trial court specifically found that Ex.A1-GPA allegedly given by the plaintiffs in favour of P.W.1 does not inspire confidence, as the signatures of the plaintiffs thereon do not tally with that of their signatures in the plaint. Consequently the suit was dismissed by the trial Court. But, on appeal, the lower appellate court reversed the said findings by holding that the plaintiffs being Paradhanashin ladies and their father being 95 years old, P.W.1-GPA who is brother of the plaintiffs was competent to give evidence and there is no infirmity in that respect. The lower appellate court also found that when the defendants were claiming the ownership of the property purchased by them under Exs.B1 to B4, the burden is entirely on the defendants and the suit schedule property i.e., second floor being just above the property of the plaintiffs, has to be presumed as belonging to the plaintiffs. It is this decree and judgment of the lower appellate court which are challenged in this second appeal. This Court, while admitting the second appeal on 19.3.1999, formulated the following substantial question of law for consideration, “Whether the Appellate Court committed error in law in granting the relief to the plaintiffs basing upon Ex.A1 dt. 26.8.1969 over the suit schedule property which was not available at the time of sale in favour of the plaintiffs when the defendants have already acquired title and possession over the very same property by a document Ex.B1 dt. 15.8.1957 much anterior to the document produced by the plaintiffs?” Heard both the learned counsel appearing on either side. I have also examined the oral evidence of P.Ws. 1 to 3 and that of D.W.1 including the admissions of D.W.1 which were pointed out by the respondents/plaintiffs’ counsel. I have also seen the record Exs.B1, B2 and B4 in particular as well as Exs.A2 and A3 marked on behalf of the plaintiffs. Ex.A1-GPA has also been compared by me with the plaint and prima facie agree with the trial court. The signatures of the plaintiffs in those two documents, prima facie, appear to be different. Apart from the aforesaid feature of Ex.A1-GPA, I am unable to appreciate as to how GPA given to P.W.1 on 6.9.1993 can be relied upon by the plaintiffs as the said GPA can only speak of the matters within his personal knowledge after the power of attorney was given to him. A reading of the evidence of P.W.1 does not show that he has any personal knowledge about the delivery of possession in pursuance of the auction in favour of the plaintiffs. Thus in view of the decision of the Supreme Court reported in Janki Vashdeo Bhojwani and another Vs. Indu Sind Bank Ltd and others [1], it is difficult to accept that P.W.1 is the competent witness to speak on behalf of the plaintiffs. It is also to be noted that the plaintiffs have not examined themselves either on commission nor have they examined their father. It is the admitted case of the plaintiffs that the father of the plaintiffs acted as their representative and gave receipt for delivery of possession. Since the core question in this case is as to nature, extent and location of the property purchased by the plaintiffs, the evidence on behalf of the plaintiffs cannot be said to be sufficient in view of the fact that P.W.1 is not competent to speak of matters prior to the attorney given to him and P.W.2 being only a tenant of the plaintiffs cannot speak of their title, which they acquired under a court auction. Similarly P.W.3 a retired bailiff whose evidence has impressed the lower appellate court also cannot be treated as a material witness in the absence of any evidence to establish that the he was the bailiff at the relevant point of time and delivered possession to the plaintiffs. These deficiencies on behalf of the plaintiffs went unnoticed by the lower appellate court and by erroneously placing the burden of proof on the defendants, the lower appellate court proceeded to decree the plaintiffs’ suit. The lower appellate court thus has committed an error in failing to keep in mind the principle that in a suit for declaration and possession, it is the exclusive burden of the plaintiffs to establish their title and entitlement to possession and that the plaintiffs cannot rely upon the weaknesses of the defendants’ case and seek a decree in such a suit. I am, therefore, satisfied that the judgment of the lower appellate court is perverse and is required to be set aside and the substantial question of law has to be answered in affirmative in favour of the appellants/defendants. However, the plaintiffs being the Pardhanashin ladies and for the errors committed in conducting of the case, they should not suffer any injustice. Therefore, in the interest of justice, I deem it appropriate to remit the appeal AS No. 168 of 1995 to the lower appellate court for fresh disposal in accordance with law. I also deem it appropriate to grant the plaintiffs as well as the defendants one opportunity each to lead any additional, oral or documentary evidence, if they so desire. If such opportunity is availed and additional evidence is produced, the lower appellate court shall consider the entire appeal, as is expected to be a final Court of fact and shall deal with all the issues and decide the appeal in accordance law, preferably within six months from the date of receipt of a copy of this judgment. The second appeal is accordingly allowed, however there shall be no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 7.10.2010 KR [1] (2005) 2 Supreme Court Cases 217