HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 225 of 2000 Reserved on: 2.8.2010. Decided on: 31.8.2010 Kamlesh Rani ………Appellant/plaintiff. Versus Balwant Singh ………Respondent/defendant. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Bimal Gupta, Advocate. For the respondent: Mr.K.D. Sood and Mr.Balwant Singh, Advocates. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree, dated 15.12.1999, passed by the learned District Judge, Sirmour at Nahan, vide which he reversed the judgment and decree, dated 17.1.1998, passed by the learned Senior Sub Judge, Sirmour at Nahan. 2. Briefly stated, the facts of the case are that the appellant, hereinafter after also referred to as the plaintiff, filed a suit for possession of the property comprised in Khasra Nos.790, 791 and 792, measuring 86.62 square meters, situated in Mohal Rajinder Nagar, as against the respondent, hereinafter also referred to as the defendant. It was alleged by the plaintiff that the land in question was owned by Maharaja Rajinder Parkash, who was ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - succeeded by his two widows, two daughters and mother Rajmata Mandalsa Devi. It was further alleged that on the death of Rajmata Mandalsa Devi, she was succeeded by Smt.Prem Lata Devi, daughter of Maharaja Amar Parkash and two daughters and widows of Maharaja Rajinder Parkash. It was further alleged that Smt.Prem Lata Devi, wife of late Maharaja Natwar Singh, sold the property in question to the plaintiff for a sum of Rs.15,000/-, vide registered sale deed, dated 27.8.1984. Smt.Prem Lata Devi, vendor, had been in possession of number of properties inherited from her mother, being a co-owner, and as such was competent to sell the property inherited by her. It was further alleged that the plaintiff was delivered the possession of the suit property through the sale deed and the plaintiff became the owner of the suit property. The suit property comprises of an old house, as shown in the site plan attached with the plaint by words ABCD and pointed by red lines. 3. It was further alleged that the defendant was inducted in possession of the suit property by predecessor-in-interest of the plaintiff and other co- sharers as licensee on account of some services rendered by the defendant. The license in favour of the said defendant stood revoked on account of the transfer of the suit property by the licensor of the plaintiff. The plaintiff approached the defendant to vacate the premises, who had been assuring to vacate the same but did not vacate the possession. The plaintiff served a notice, dated 28.3.1991, upon the defendant calling upon him to vacate the premises - 3 - and pay damages at the rate of Rs.300/- per month for the last 3 years on account of use and occupation of the premises. It was further alleged that the defendant, on receipt of the notice, replied the same and took a false plea claiming to have entered into agreement of purchase of the suit property for a sum of Rs.5,000/- with Smt.Nalini Devi, daughter of late Maharaja Rajinder Parkash, on 15.8.1980. It was alleged that the said plea of the defendant was mala fide and does not confer any right on the defendant because no agreement of sale was ever executed. Even if such an agreement is proved to have been executed, the same does not affect the rights of the plaintiff, who is the bona fide purchaser for value after due inquiry. Thus, it was alleged that the plaintiff is entitled to a decree for possession by way of ejectment from the suit property as well as decree for damages of Rs.10,800/-. 4. The defendant denied that Smt.Prem Lata Devi was in possession of the suit property or that she was competent to sell the same. It was pleaded that Smt.Prem Lata never sold the suit property to the plaintiff. The defendant was in possession of the suit property since the time of ancestors. It was also pleaded that one of the co- owner Smt.Nalini Devi, through her Power of Attorney Shri Uday Parkash, had already sold this suit property with houses for a sum of Rs.5,000/- vide agreement of sale, dated 15.8.1980 and full sale consideration was received and ownership possession was also transferred then and - 4 - there. The sale deed was to be executed within two months after the settlement of a civil dispute. Thus, it was pleaded that the defendant is in possession in part performance of the agreement of sale. The subsequent sale, if any, was not binding upon the rights of the defendants. Thus, it was pleaded that the suit was liable to be dismissed. 5. On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether Smt.Prem Lata Devi sold the suit property to the plaintiff and executed a valid sale deed on 27.8.1984 in favour of the plaintiff? OPP 2. If issue No.1 is proved, whether the plaintiff is a bona fide purchaser for value and without notice as alleged? OPP 3. Whether the plaintiff is entitled to recover mesne profits of Rs.10,800/- as alleged? OPP 4. Whether the plaintiff is entitled to the possession of the suit property under the sale? OPP 5. Whether the defendant had entered into an agreement of sale of the suit property with Smt.Nalini Devi on 15.08.1980 for Rs.5,000/- and delivered possession fo the suit property? If so, to what effect? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Whether the plaintiff is estopped from filing the present suit by her act and conduct, as alleged? OPD 8. Relief. - 5 - 6. The parties led their evidence and the learned trial Court, vide its judgment and decree, decided Issues No.1, 2, 3 and 5 in favour of the plaintiff and as against the defendant and consequently decreed the suit of the plaintiff as well as for recovery of possession and for mesne profits amounting to Rs.10,800/-. 7. On appeal by the defendant, the appeal was accepted and the judgment and decree of the learned trial Court was set aside and the suit was accordingly dismissed. 8. I have heard the learned counsel for the parties and have gone through the record of the case. 9. The submissions made by the learned counsel for the appellant were that on purchase of the suit property by the plaintiff on 27.8.1984, the license of the defendant stood revoked. It was also submitted that the learned District Judge has erred in returning the findings that the sale deed Ext.P-2 in favour of the plaintiff has not been proved. It was also submitted that no objection was taken when the document was tendered in evidence of PW- 1 Kailash Cahnd. Therefore, the ownership of the plaintiff regarding the suit property had been proved on record. It was also submitted that the learned District Judge had not appreciated that in Ext.PW-3/A, which is a copy of the plaint in some other suit, Smt.Nalini Devi has admitted the sale by Smt.Prem Lata Devi in favour of the present plaintiff. Therefore, it was argued that the said admission of Smt.Nalini Devi was binding on the defendant. It was - 6 - wrongly observed by the learned District Judge that the admission made by Smt.Nalini Devi is not binding on the defendant since the defendant was not a party in the earlier suit. It was also submitted that the learned District Judge had erred in drawing adverse inference against the plaintiff for not appearing in the witness box and the Attorney has appeared in the witness box, who was conversant with the facts of the case. It had been wrongly concluded by the learned District Judge that the sale of specific portion by Smt.Prem Lata Devi in favour of the plaintiff shall be deemed to be the sale of share only Since other co-sharers had also been selling specific portions and, therefore, the sale was valid. It was also submitted that the defendants cannot challenge the locus standi of the vendor to sell a specific portion since other co-owners were not aggrieved by any such sale of specific portion. The learned District Judge had wrongly concluded that the sale in favour of the plaintiff shall be treated as sale of share only and had wrongly held that the license of the defendant had not been revoked by all the co-sharers who had not been impleaded as party, therefore, the suit was not maintainable. Thus, it was submitted that the findings recorded by the learned District Judge are liable to be set aside and the judgment passed by the learned trial Court is liable to be restored. 10. On the other hand, the learned counsel for the respondent had supported the impugned judgment passed - 7 - by the learned District Judge vide which the findings recorded by the learned trial court were reversed. 11. The appeal in question was admitted on substantial questions No.1 to 6, 9 and 11, formulated at page 11 of the paper book. Thus, substantial questions of law mainly pertain to the proof of the sale deed Ext.P-2, which was not objected to at the time of its tendering and whether adverse inference could be drawn against the plaintiff for not appearing in the witness box. The substantial questions of law were also pertaining to the findings as to whether Smt.Prem Lata could not transfer specific portion and the defendant could not challenge the sale of specific suit property and whether the license in favour of the defendant stood revoked by implication of law. Substantial question of law was also framed in regard to the rejecting of the claim of the plaintiff for recovery of Rs.10,800/-. 12. In support of his submissions, the learned counsel for the appellant had relied upon the decision in Karuppan versus Ponnarasu Ambalam, AIR 1965 (52) Madras 389, in which, while referring to the provisions of Section 44 of Transfer of Property Act, in regard to the transfer by one of the co-owners, it was held that the transferee is entitled for possession and declaration that the interest of transferor has been conveyed to him. It was also observed that no trespasser could question the right of one of the co-owners to deal with the property in its entirety. - 8 - 13. In regard to the plea as to whether an Attorney could appear for the party and as to whether adverse inference could be drawn in this regard, the learned counsel for the appellant had relied upon the decision in Bhimappa & others versus Allisab and others, AIR 2006 Karnataka 231. The observations made in para 11 are relevant and are being reproduced below: “There is no express bar made in the provisions of Civil P.C. to debar the Power of Attorney to be examined as a witness on behalf of the parties to the proceedings. Power of Attorney is a competent witness and is entitled to appear as such. His evidence cannot be refused to be taken into consideration on the ground that the parties to be suit i.e., plaintiff or defendant do not choose to appear as witness in the witness box. The question whether the General Power of Attorney Holder of a party can be competent witness on behalf of a party has to be answered in the light of S.118 of the Evidence Act. The Power of Attorney Holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in the category of persons who are incapable of being witness as provided by S.118 of the Evidence Act. Whether such Power of Attorney Holder has personal knowledge about the matters in controversy, may be a question which can be thrashed out by cross-examining him and if it is found that the Power of Attorney Holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be determined, but that has nothing to do with the competence of such a Power of Attorney Holder to depose before a Court or a Judicial Tribunal as a competent witness.” 14. Reliance was also placed upon the decision in Girraj Kishore versus Dr.Trilokinath Vimal, AIR 1988 Allahabad 305, in which the following observations were made in para 13: - 9 - “The plaintiff claiming to be the owner of an open piece of land claimed that the defendant was his tenant. A notice under S.106 of the Transfer of Property Act was served whereupon the suit was filed for his eviction. The suit was resisted by the tenant on several grounds but the main ground was that the defendant was continuing as tenant from the time of the plaintiff’s father. It was also contended that since all the heirs had not joined in serving the notice, the plaintiff alone had no right to file the suit or to terminate the tenancy. Held that the plaintiff was collecting rent from the tenant. He functioned for all practical purposes as the landlord and notice served by him alone terminating he tenancy is valid.” 15. On the other hand, the learned counsel for the respondent had submitted that non-examination of the plaintiff and appearance of her Attorney on her behalf leads to the presumption that an adverse inference has to be drawn against the plaintiff for not appearing in the witness box. To substantiate his submissions, the learned counsel for the respondent had relied upon the following decisions. 16. The decision in Janki Vashdeo Bhojwani and another versus Indusind Bank Ltd. and others, AIR 2005 Supreme Court 439, shows that the following observations were made which are relevant and are being reproduced below: “Order, 3 Rr.1 and 2 empowers the holder of power of attorney to ‘act’ on behalf of the principal. The word ‘acts’ employed in O.3, Rr.1 and 2, confines only in respect of ‘acts’ done by the power of attorney holder in exercise of power granted by the instrument. The term ‘acts’ would not include deposing in place and instead - 10 - of the principal. If the power of attorney holder has rendered some ‘acts’ in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.” 17. The decision in Vidhyadhar versus Mankikrao and another, AIR 1999 Supreme Court 1441, in which the observations made in paras 15 and 16 are relevant and are being reproduced below: “Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. In the instant case defendant No.1 alleged that the sale deed, executed by defendant No.2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs.500/- were paid as sale consideration to defendant No.2. But this plea was not supported by defendant No.1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No.2 and the plaintiff was a bogus transaction.” 18. The decision in Rattan Dev versus Pasam Devi, Latest HLJ 2003(SC) 121, shows that the following observations were made in para 3: “A perusal of the judgment of the first appellate court shows that the - 11 - plaintiff-appellant did not appear in the witness box although his special power of attorney and other witnesses were examined by the plaintiff. The first appellate court influenced by the non-examination of the plaintiff drew an adverse inference against him and directed the suit to be dismissed solely on the ground of non-examination of the plaintiff. The judgment of the first appellate court shows that other evidence, though available on record, did not receive the attention of the first appellate court at all.” 19. Another decision relied upon was in Bhimappa & Ors. Versus Allisab & Ors., AIR 2006 Karnataka 231, in which the following observations were made in para 11: “There is no express bar made in the provisions of Civil P.C. to debar the Power of Attorney to be examined as a witness on behalf of the parties to the proceedings. Power of Attorney is a competent witness and is entitled to appear as such. His evidence cannot be refused to be taken into consideration on the ground that the parties to be suit i.e., plaintiff or defendant do not choose to appear as witness in the witness box. The question whether the General Power of Attorney Holder of a party can be competent witness on behalf of a party has to be answered in the light of S.118 of the Evidence Act. The Power of Attorney Holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in the category of persons who are incapable of being witness as provided by S.118 of the Evidence Act. Whether such Power of Attorney Holder has personal knowledge about the matters in controversy, may be question which can be thrashed out by cross- examining him and if it is found that the Power of Attorney Holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be determined, but that has nothing to do with the competence of such a Power of Attorney Holder to depose before a Court or a - 12 - Judicial Tribunal as a competent witness.” 20. A learned Single Judge of this Court in Sita Devi versus Mohinder Singh and others, 2007(3) Shim.LC 424, had also considered this question in the light of various decisions referred to before him. On the facts of the case, after referring to the case law, it was concluded that the defendant deliberately having kept away from the witness box, an adverse inference ought to be drawn against her. 21. It is clear from a perusal of the above decisions that the statement of an Attorney can be considered as a witness. However, it cannot be said to be on behalf of the party unless and until there are facts and circumstances to show that a party was unable to appear in the witness box. His statement has to be tested in cross examination and if he has no knowledge of the personal facts and the party had intentionally avoided appearing in the witness box to avoid cross examination, in these circumstances, an adverse inference can be drawn against the party for not appearing in the witness box. In the present case, as observed by the learned First Appellate Court, there is nothing on the record to show if Smt.Kamlesh Rani was not able to appear in the court and depose in her favour. She only examined her Attorney Kailash Chand as PW-1. His cross examination shows that he had denied his knowledge to some of the suggestions put up - 13 - to him. One of the suggestion put to him was that one suit was filed by Durga Kumari etc. in the year 1987 against the plaintiff in which the sale was alleged to be against law. He stated that the said suit was dismissed but he had no knowledge in case any appeal was filed or the appeal was carried to the High Court. He also denied his knowledge in case at the time of sale, defendant informed about an agreement in his favour. Thus, neither there was any sufficient reason for the plaintiff not to appear in the witness box, nor the plaintiff’s Attorney was well aware of the facts of the case and the specific questions were put to him, which could only be answered by the plaintiff in her cross examination. 22. Coming to the other evidence led by the plaintiff to prove the sale deed, it is clear that the sale deed was only tendered in evidence of PW-1 Kailash Chand. In his cross examination, he stated that Ext.P-2 is the correct copy of the sale deed and there is nothing in his statement that the sale deed was shown to the court and was returned to him by the Court. The plaintiff did not examine any witness to the sale deed to prove the same, which was a private document executed in favour of the plaintiff, which had to be proved according to law. The mere fact that no objection was taken by the defendant at the time the document was tendered in evidence does not lead to the inference that the document was per se admissible in evidence. A document which requires formal proof cannot be tendered in evidence and no presumption of correctness is - 14 - attached to it simply because other party has not objected to its tendering in evidence. No attesting witness of the sale deed was examined by the plaintiff. The mere marking of a document as an exhibit does not dispense with its proof and the learned First Appellate Court had discussed the law in this regard and had come to a right conclusion that the sale deed in question was not proved according to law and once the plaintiff had failed to prove that she had purchased the suit property, she had not become a co- sharer. Moreover, a plea has also been taken that the sale of a specific portion by Smt.Prem Lata Devi in favour of the plaintiff has to be treated as a sale of a share and not of a specific portion and as such the plaintiff had not become co-owner of the specific share, which was in possession of the defendant and the defendant may be holding the land on behalf of other co-sharers, who were required to be impleaded as a party. The license of the defendant could not be revoked by the plaintiff only and, therefore, the findings of the learned Appellate Court are correct that the license of the defendant cannot be said to have been revoked by the plaintiff only, who was also not proved to be owner of the suit property and as such, the plaintiff was rightly held not entitled to the decree for possession or the damages claimed by the plaintiff. Therefore, the findings recorded by the learned District Judge do not call for an interference by this Court and as such are liable to be affirmed. - 15 - 23. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. However, the parties are left to bear their own costs. August 31, 2010. (V.K. Ahuja), (TILAK) Judge.