IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 127 of 1994. Reserved on: 13.3.2008 Date of decision: 23.4.2008 Smt. Kimtu ... Appellant Versus Smt. Sheela Devi & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Baldev Singh, Advocate. For the respondents: Mr. Rajiv Jiwan, Advocate, for L.Rs of respondent No. 1. V.K. Ahuja, J. : This a regular second appeal under Section 100 CPC filed by the appellant against the judgment and decree of the Court of learned Additional District Judge, Kullu, dated 6.11.1993, whereby he dismissed the appeal of the appellant filed against the judgment and decree dated 16.5.1990 passed by the learned Senior Sub Judge, Lahaul & Spiti District at Kullu. Briefly stated the facts of the case are that the appellant hereinafter referred to as plaintiff filed a suit for possession of land measuring 3 Bighas 9 Biswas in Khasra No. 1348 as detailed in the plaint as well as for recovery of Rs.960/- as mesne profits. The suit was 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 originally filed against Pritam Chand and Kali Dass, defendants and Smt. Devku was impleaded as, proforma, defendant. It was the case of the plaintiff that she is the daughter of deceased Gehru who was deaf and dumb from his birth, was of low intelligence and was unable to manage his worldly affairs. Thus, it was alleged that he was legally disabled to enter into any contract or incur any liability. It was further alleged that the land of Gehru was being managed by his mother so long she was alive. But after her death, Smt. Sobhi wife of Gehru started squandering away his landed property and got a General Power of Attorney executed and registered in her favour in the year 1962 when the plaintiff was a minor of 5-6 years. It was also alleged that Smt. Sobhi as General Power of Attorney executed sale deeds and gift deed in favour of Tikkam Ram, predecessor-in-interest of defendants No. 1 & 2 to whom she sold the land for an ostensible consideration of Rs.2000/- on 4.10.1962. It was further alleged that Gehru was a person under legal disability in the year 1962 and continued to be so till his death on 22.2.1984. Therefore, all the actions taken by Smt. Sobhi on his behalf as her Attorney including the sale deeds so executed were found void ab- initio and defendants were alleged to have reaped great benefits from the suit land but the plaintiff has claimed only Rs.960/- on account of mesne profits for the last three years. The plaintiff alleged that cause of action had arisen to her on the death of Gehru on 22.2.1984. since she was minor at the time of sale, hence the suit filed by her. Defendants pleaded that the plaintiff is not daughter of Gehru. It was further pleaded that even if the plaintiff was proved to be the daughter of said Gehru, widow of Gehru i.e. proforma defendant 3 No. 3 is alive, therefore, the plaintiff was not entitled to sue for the whole property in suit. It was also pleaded that Gehru was not completely deaf and dumb from his birth but was partially deaf and dumb and Smt. Sobhi as General Attorney validly executed the sale in question in favour of the father of the contesting defendants No. 1 & 2, which is binding upon on all including the plaintiff and proforma defendant No. 3. A plea was also taken that the father of the defendants was tenant-at-will of the land in suit on payment of rent and continued to be so till the date of sale deed and they did not lose their rights to remain in possession as tenants and ultimately, the defendants became owners of the land in suit under the H.P. Tenancy and Land Reforms Act. In the alternative, the plea of adverse possession was also taken by the defendants. The learned trial Court framed various issues and it was held that the plaintiff was not daughter of Gehru, Gehru was competent to execute the valid Power of Attorney and Smt. Sobhi sold the suit property for the benefit and legal necessity of Gehru, deceased. The suit was dismissed. On appeal the findings were affirmed by the learned Additional District Judge, Kullu, vide his judgment dated 6.11.1993. A Regular Second Appeal was preferred by the appellant and this Court vide its judgment dated 13.8.1999 allowed the appeal and set aside the judgments of learned trial Court as well as the first appellate Court and a decree for possession of the suit land was passed in favour of the plaintiff. However, the suit for recovery of Rs.960/- as mesne profits was dismissed. A perusal of the record shows that the Special Leave Petition filed by the respondents was allowed on the ground that substantial 4 questions of law have been answered without framing an additional substantial question of law and, therefore, findings of this Court were set aside. The case was remitted to this Court for determining the issues between the parties afresh in accordance with law after framing proper questions of law, vide its judgment dated 11.8.2005. On 5.5.2006, the following substantial question of law was formulated by this Court: “Whether the judgment delivered in RFA No. 355 of 1992 is relevant for determining the question whether Gehru was of unsound mind and hence incapable of executing any power of attorney for the purpose of dealing with his property?” The appeal was disposed of by this Court vide its judgment dated 24.5.2006 and the case was remanded to the learned trial Court to frame the issue based upon the pleadings that being deaf and dumb Gehru was in capable of understanding the contents and the nature of the instrument. The case was remitted to learned trial Court to frame the issue covering this plea of the appellant and then to afford opportunity to the parties to lead evidence and based on the said evidence as also the evidence already on record to give its finding on the said issue in the form of report. Thereafter, the findings were given afresh by the learned Civil Judge vide his judgment dated 14.9.2006. The following additional issue was framed by the trial Court:- Issue No. 4-A: Whether Shri Gehru on account of being deaf and dumb was incapable of understanding the contents of the General Power of Attorney dated 28.8.1962 and if so, its effect? -OPP 5 It was held that the plaintiff has failed to prove that Gehru being deaf and dumb was incapable of understanding the contents of General Power of Attorney dated 28.8.1962. This is how the present appeal is before this Court for final disposal. I have heard learned counsel for the parties and have also gone through the record. The submissions made by the learned counsel for the appellant were that findings recorded by both the Courts below are totally against law. It was submitted that once it was held that Gehru was deaf and dumb, it has to be presumed in law that he was incompetent to deal with this property either by himself or by executing General Power of Attorney in favour of Smt. Sobhi, say an invalid document being nonest in the eyes of law. It was submitted that the substantial question of law involved in the appeal was once Gehru was held to be an idiot or lunatic, he cannot be allowed to keep this property by himself or through appointment of any agent. It was also submitted that the suit can not be said to be barred by limitation if it is filed within three years of his death by his successors. On the other hand, the learned counsel for respondent No. 1 had supported the impugned judgment for the reasons given therein supplementing it by the submissions that no reliance can be placed on the judgment of the Division Bench passed in other case ignoring other material on record as observed by the learned Apex Court and there was nothing to hold that the findings of both the Courts below were not legally sustainable and, therefore, there is no merit in the appeal which deserves to be dismissed accordingly. 6 A perusal of the record also shows that during the pendency of the appeal before this Court, copies of the judgment and decree sheet of the Civil Court in another connected case i.e. Civil Suit No. 38 of 1983, decided on 10.1.1992 were tendered in additional evidence by respondent No. 1. Coming to the submissions, a perusal of the judgment of learned trial Court shows that it was held under Issue No.1 on the basis of evidence produced in this case that plaintiff is not the daughter of Gehru deceased. It was also held under Issue No.2 that Devku is not the widow of Gehru. However, under Issue No.3 and 6, it was held that the sale of the suit land made in favour of father of defendants No.1 and 2 was valid and that the sale of the suit land by Sobhi was for the benefit of Gehru deceased and for legal necessity. After the decision of both the Courts below, this Court has also to consider the findings given by the learned Civil Judge after the case was remanded to him for giving his findings on an issue to be framed by him which was framed as mentioned above and findings have been recorded by the learned Civil Judge. I have gone through the findings. Since these findings have come up before this Court in second appeal and those findings were not considered by the learned first Appellate Court, therefore, the findings recorded have to be appreciated by this Court as to whether they are in accordance with law or not. A perusal of the findings shows that the learned trial Court had referred to the oral as well as documentary evidence and had concluded that the evidence produced by the parties is evenly balanced. It was rather rightly observed by the learned trial Court that the plaintiff has placed a very heavy reliance upon the judgment of Division Bench of this Court in 7 another case and it was held that the judgment in question was not judgment in rem and as such was not binding on the defendants. The observations made appear to be correct since the judgment in the other case cannot be said to be operating as resjudicata and it was based upon the facts proved in that case and, therefore, the learned trial Court after referring to the oral evidence had come to the conclusion that solely on the basis of judgment it cannot be held that Gehru being deaf and dumb was in capable of understanding the contents of General Power of Attorney dated 28.8.1962. A perusal Ext. CA shows that it is copy of the judgment of learned Single Judge in another Civil Suit filed by plaintiff Smt. Kimtu against Smt. Rama Dogra and others. The defendants were not party to these suits and no plea of resjudicata was taken and proved by the parties before the said judgments could be relied upon in this case. Those findings were given on the basis of the facts proved in those cases and since the parties were different, the said judgments cannot be said to be binding upon the parties to the present suit and, therefore, are not conclusive for present discussion. Those judgments were based upon the evidence proved on those cases and, therefore, these are not decisive so far as the present facts are concerned. In view of the above, it is clear that the learned trial Court while giving its findings on the additional issue has held that the plaintiff has failed to prove that Gehru being deaf and dumb was incapable of understanding the contents of General Power of Attorney dated 28.8.1962. The findings can be said to be correct based upon the sound reasonings given by the learned trial Court after referring to the oral and documentary evidence and it is clear that there was a statement of 8 defendant No. 1 and as well as DW-4 that Gehru could speak a little but he could understand everything by means of signs. The said conclusion drawn by the learned trial Court cannot be said to be incorrect and they are liable to be affirmed since the plaintiff had failed to prove such evidence to show that deceased Gehru being deaf and dumb was incapable of understanding the contents of General Power of Attorney executed by him. Therefore, those findings are liable to be affirmed. During the course of arguments, no such oral or documentary evidence was referred to by the learned counsel for the appellant to show that there has been misreading of evidence by the Courts below calling for reappraisal of the evidence by this Court. Accordingly, I find no reason to interfere in the findings recorded by both the Courts below dismissing the suit of the plaintiff for possession and mesne profits and as such, those findings are liable to be affirmed. The appeal filed by the appellant is dismissed. However, the parties are left to bear their own costs. In view of final disposal of the main appeal, miscellaneous application, pending if any, shall also stand disposed of. ( V.K. Ahuja ), April 23, 2008 Judge (BSS) 9