IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 539 of 2000 Reserved on: 22.9.2010 Date of decision: 25.10.2010 Bihari Lal ... Appellant Versus Shitla Devi and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Bimal Gupta, Advocate. For the respondents: Pt. Om Parkash, Advocate, for respondent No. 1. V.K. Ahuja, J.: This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/defendant No. 2 against the judgment and decree of the Court of learned District Judge, Hamirpur, dated 22.9.2000, vide which he reversed the judgment and decree passed by the Court of learned Sub Judge Ist Class (2), Hamirpur, dated 1.12.1992, decreeing the suit of the plaintiff for declaration in regard to Khasra No. 1205 and for recovery of possession, but suit regarding declaration and possession qua Khasra No. 1206 was dismissed. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. Briefly stated, the facts of the case are that respondent No. 1 hereinafter referred to as the plaintiff filed a suit for declaration and possession in regard to the land comprised in Khasra Numbers 1205 and 1206 measuring 72-22 Sq .Mtrs. She alleged that she purchased the land alongwith one shop on 6.11.1986 for a consideration of Rs.25,000/- from Madho Ram, hereinafter referred to as defendant No. 1. It was alleged that with a view to fraud the plaintiff, defendant No. 1 again effected the sale deed in respect of the suit property on 7.8.1987 in favour of defendant No. 2. It was alleged that subsequent sale deed dated 7.8.1987 inter se the defendants is null and void and does not confer any title upon defendant No. 2. She also challenged the mutation No. 67 in respect of subsequent sale deed effected by defendant No. 1 in favour of defendant No. 2 as null and void. 3. Defendant No. 1 pleaded that he has not sold the suit land to the plaintiff and alleged sale deed is the reuslt of fraud, undue influence, misrepresentation as defendant No. 1 is an old, illiterate and simpleton person. He also pleaded that the suit land was sold to defendant No. 2 and agreement to sell was executed much earlier and defendant No. 2 raised a shop in the year 1981-82. 4. Defendant No. 2 pleaded that the sale deed dated 7.8.1987 qua the suit land in his favour is legal and binding, but the sale deed dated 6.11.1986 in favour of the plaintiff qua the suit land was null and void being result of fraud and misrepresentation. It was also pleaded that an affidavit to this effect was given by Julmi Ram, the predecessor-in-interest of defendant No. 1 on 5.8.1987 and an agreement was also executed by Som Nath, husband of the plaintiff on 3 16.12.1986 that shop of defendant No. 2 is situated over the suit land and he would alienate the suit land to defendant No. 2. It was pleaded that defendant No. 2 constructed the shop in the year 1981 incurring expenses of Rs.50,000/- since defendant No. 1 had executed an agreement of sale qua the suit land in the year 1980 with defendant No. 2. 5. On the pleadings of the parties, issues were framed by the learned trial Court. The main issues were issues No. 1 and 3, which are being reproduced below:- “1. Whether the plaintiff has become owner of the suit land on the basis of sale dated 6.11.1986 as alleged? … OPP 3. Whether the sale of the suit property by defendant No. 1 in favour of defendant No. 2 dated 7.8.1987 is null and void and does not confer any title upon the defendant No. 2, as alleged? … OPP” 6. Parties led their evidence and the learned trial Court vide its judgment decreed the suit of the plaintiff for declaration and for possession partly in regard to Khasra No. 1205 and also held that the sale deed dated 7.8.1987 by defendant No. 1 in favour of defendant No. 2 was null and void and the mutation was also illegal and the suit for declaration and for possession in regard to Khasra No. 1206 was dismissed. 7. Appeals were preferred by both the parties. The learned District Judge vide his impugned judgment and decree allowed the appeal of the plaintiff and also granted the relief of declaration ad possession in regard to Khasra No. 1206 also. 4 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 the plaintiff had not stepped into the witness box and only her General Power of Attorney had appeared in the witness box and as such, an adverse inference has to be drawn against the plaintiff in not appearing in the witness box. It was also submitted that the defendant had proved that an agreement to sell was executed with him prior to the sale deed in favour of the plaintiff and as such, the plaintiff was rightly held not entitled to the relief of injunction in respect of Khasra No. 1206 which was admittedly in possession of defendant No. 2/appellant. On the other hand, learned counsel for the respondent had submitted that defendant No. 2 was relying upon the Ext. DA and he also submitted that adverse inference be drawn against the plaintiff. It was submitted that the plaintiff had proved the sale deed in her favour and her non-examination or examination of her Attorney on her behalf does not lead to the inference that an adverse inference should be drawn against the plaintiff for not appearing in the witness box. 10. A perusal of the plaint filed by the plaintiff shows that she has claimed that she is owner of the land and shop existing over Khasra Nos. 1205 and 1206 measuring 72-22 Sq. Mtrs. and apart from the relief of declaration, she had also sought decree for possession of the suit property. She had also challenged that the subsequent sale deed by defendant No. 1 dated 7.8.1987 in favour of defendant No. 2 was null and void. 5 11. Coming to the sale deed executed by defendant No. 1 in favour of the plaintiff which is dated 6.11.1986, that is, prior to the subsequent sale deed executed by defendant No. 1 in favour of defendant No. 2. The sale deed dated 6.11.1986 which was prior in date and was in favour of the plaintiff has been proved in evidence as Ext. PW2/A, which was in regard to both Khasra Numbers 1205 and 1206. The two attesting witnesses of the sale deed Ext. PW2/A are Satish Kumar and Om Prakash, who have been examined as PW-3 and PW-4 respectively. They have clearly stated that the sale deed was executed by the predecessor-in-interest of defendant No. 1 namely Julmi Ram in favour of the plaintiff, which was read over and explained to Julmi Ram, who appended his thumb impression after admitting its contents to be correct. The scribe of the document PW-2 Milap Chand, was also examined, who has corroborated the statements of the attesting witnesses. On the basis of this evidence, the learned trial Court had come to a conclusion that insofar as the execution of the document Ext. PW2/A is concerned, it stands duly proved on record. 12. On the other hand, the learned trial Court had observed that defendant No. 2 has also succeeded in proving the execution of document Ext. DW12/A sale deed dated 7.8.1987 and Ext. DW6/A by examining the attesting witnesses, but in view of the earlier deed Ext.PW2/A, no title of the suit property can be said to have been passed to defendant No. 2 vide this sale deed. It was also observed by the learned trial Court that the predecessor-in-interest of defendant No. 1 had allegedly executed agreement of sale qua the suit property in the year 1980 with defendant No. 2, but surprisingly no such agreement of sale has been placed on record by the defendants. A 6 reference was also made to the affidavit executed by the predecessor-in-interest of defendant No. 1 Ext. DW4/A that he has sold the land to the extent of 2 Marlas out of the suit land through an agreement of sale dated 7.4.1980 for Rs.1200/- to defendant No. 2. Therefore, it was held that it was necessary for the defendants to produce the agreement of sale dated 7.4.1980. The said document had no relevance once the sale had been effected prior in date and in favour of the plaintiff by defendant No. 1 and once the agreement of sale dated 7.4.1980 did not see light of the day, it cannot be said that there was any document in existence or what was conveyed and as to whether it was a valid sale deed or not giving any right over the suit land in favour of defendant No. 2. 13. In view of the above discussion, it is clear that the learned trial Court had held that the sale deed Ext. PW2/A stands fully proved and the subsequent sale deed in favour of defendant No. 2 by defendant No. 1 is not a valid one since defendant No. 1 had already lost the title in the suit property after execution of the sale deed Ext. PW2/A dated 6.11.1986. Once defendant No. 1 had already passed on the title in favour of the plaintiff, he was no more the owner and as such, could not pass better title in favour of defendant No. 2. Insofar as the allegations are concerned as to fraud and misrepresentation, the learned trial Court had rightly come to the conclusion that these allegations were not there and these had not been proved also and this had also not been substantiated by the plaintiff by any evidence and, therefore, the sale deed in favour of the plaintiff which was prior in date was held valid by the learned trial Court. Once the sale deed 7 conveying the title in favour of the plaintiff had been held to be valid. It was for two Khasra numbers i.e. 1205 and 1206.The learned trial Court could not have declined the relief in favour of the plaintiff, mainly on the basis of equity that the evidence suggests that the shop was constructed by defendant No. 2. It was for defendant No. 2 to prove in what capacity he constructed the shop. Once he was not the owner and in case he had constructed the shop, it was for him to substantiate by evidence that he was entitled to the amount from defendant No. 1 or he was not liable to hand over the possession in favour of the plaintiff, who was a lawfully purchaser. The learned trial Court has splitted the relief in regard to Khasra Numbers 1205 and 1206, though the sale deed in favour of the plaintiff was held to be valid and, therefore, the relief appears to have been declined on ground of equity, which approach cannot be said to be correct. 14. Coming to the plea raised by the learned counsel for the appellant that the plaintiff had not stepped into the witness box, therefore, an adverse inference has to be drawn against the plaintiff for not appearing in the witness box. Reliance was placed upon an unreported decision of this Court in Kamlesh Rani Vs. Balwant Singh, RSA No. 225 of 2000, decided on 31.8.2010, wherein this Court had referred to the law in regard to the examination of the Attorney and as to whether adverse inference can be drawn or not. The conclusion drawn by this Court in Para-21 of the judgment in that case may be reproduced as under:- “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 8 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.” 15. The above conclusion was drawn by this Court after referring to the decisions of the Apex Court in Vidhyadhar versus Mankikkrao 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.” 16. It is, therefore clear that it has to be seen as to whether there were some facts which were within the knowledge of the plaintiff 9 which Attorney was not able to answer and the personal presence of the plaintiff was necessary and then only an adverse inference can be drawn in the facts and circumstances of the case. In the present case, the husband of the plaintiff, namely, Som Nath had appeared in the witness box and he had only to prove the sale deed effected in favour of his wife and according to his testimony, the deal had been struck by him and he had given the money one week earlier to defendant No. 1. He stated that his wife remains ill and, therefore, has not come. There was nothing to suggest that there were some facts, which could not be deposed by him and once the case rested upon the document i.e. sale deed, which had been duly proved, non-examination of the plaintiff does not lead to the question that an adverse inference has to be drawn in the facts of the case as against the plaintiff for not appearing in the witness box. Therefore, the contention putforth by the learned counsel for the appellant is repelled being devoid of any force. Both the Courts below had held the sale deed in favour of the plaintiff to be valid one and the subsequent sale deed in favour of defendant No. 2 to be invalid one, which was later in date and the relief was wrongly declined by the learned trial Court on the basis of the sale deed for one Khasra Number, though the sale deed was held to be valid in regard to both the Khasra Numbers. Therefore, the learned Appellate Court had rightly granted the relief of declaration and possession in regard to both the Khasra Numbers in favour of the plaintiff and those findings do not call for in interference by this Court. 17. The appeal in question had been admitted as to the fact of failure of the parties in stepping into the wetness box in support of their respective case and I have already held above that it does not effect 10 the merits of the case and as such, I accordingly, hold that there is no merit in the appeal filed by the appellant, which is dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), October 25, 2010 Judge (BSS)