IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.04.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.200 of 2011 and M.P.No.1 of 2011 Krishnan @ Kishtan ..Appellant/Appellant/Plaintiff vs. 1. Padmavathy 2. Kumarakrishna Reddiar .. Respondents/Respondents/ Dependents This Second Appeal is focussed as against the judgment and decree dated 20.01.2011 passed in A.S.No.47 of 2006 on the file of the Court of the Principal Sub-Judge, Puducherry, confirming the judgment and decree dated 11.12.2006 passed in O.S.No.787 of 2003 on the file of the Court of the District Munsif, Puducherry. For appellant : Mr.T.P.Manoharan For Respondents: M/s Achari & Antoni (for R1) Mr.Mahimairaj (for R2) JUDGMENT This Second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated 20.01.2011 passed in A.S.No.47 of 2006 by the Principal Sub-Judge, Puducherry, confirming the judgment and decree of the District Munsif, Puducherry in O.S.No.787 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit seeking the following reliefs: "(i) To grant permanent injunction restraining the defendants, their men, servants, agents and any persons claiming any right through them from interfering with the peaceful possession and enjoyment of the suit https://hcservices.ecourts.gov.in/hcservices/ property, by the plaintiff until he is duly evicted by due process of law; and (ii) for costs." (extracted as such) (b) D2 filed the written statement which was adopted by D1. (c) Whereupon issues were framed by the trial Court. (d) On the side of the plaintiff, he has not examined himself as a witness, however P.Ws.1 to 4 were examined and Exs.A1 and A18 were marked. The second defendant- Kumarakrishna Reddiar examined himself as D.W.1 along with D.W.2-Rajamanikam and Exs.B1 to B5 were marked. Exs.X1 to X7 were also marked. 3. Ultimately the trial Court decreed the suit partly, by granting injunction relating to items 1 and 2 and dismissed the suit in respect of the remaining items 3 to 6 of the suit properties. 4. Being aggrieved by the same, the plaintiff preferred appeal for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the trial Court. 5. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been focussed by the plaintiff on various grounds and also suggesting the following substantial questions of law: "1. The failure of the Court below to consider the contents of Ex.A5 Rent Receipt viz., the specific mention of all the 6 items of the suit properties and the extent made by the respondents themselves therein as leased out to the appellant, had not vitiated its finding and judgment that the appellant is not the cultivating tenant in possession of the items 3 to 6 of the suit properties and made them perverse? 2. After having issued Ex.A5 receipt, specifically mentioning all the 6 items of the suit properties and the extent as leased out to the appellant and receiving the lease amounts from him therefor, the respondents are not barred and estopped from claiming the contrary that they have leased out only items 1 & 2 to him and they are in possession of the remaining items 3 to 6 of the suit properties? 3. When the appellant is in actual possession of the items 3 to 6 of the suit properties, can he be evicted therefrom without following due process https://hcservices.ecourts.gov.in/hcservices/ of law by stating that he has not proved that he is the cultivating tenant of those items? 4. Whether in view of the facts and circumstances of the case and materials on record, Ex.B4 Adangal Extract which was procured by the respondents after receipt of the suit notice, containing incorrect particulars and not proved in accordance with law, can be relied upon and hold that they are in possession of the items 3 to 6 of the suit properties? 5. In view of the facts and circumstances of the case, the failure of the 1st respondent viz., the competent person to file her written statement, get in to the box, give evidence and make her available for cross examination by the appellant, would not lead a presumption that if she has done so, her statement and evidence would be unfavourable to the case of the respondents and consequential rejection of the same? 6. Whether the Court below was right in proceeding that it has jurisdiction to decide the issue relating to Cultivating Tenant, presuming that the issue involved in the suit is also relating to Cultivating Tenant, ignoring Ex.A5 issued by the respondents admitting that the appellant is the cultivating tenant of all the 6 items and holding that he has not proved that he is Cultivating Tenant of the items 3 to 6 of the suit properties and dismissing the suit in respect of those items, that too, without giving any finding that the respondents are in possession of those items? 7. Whether the rejection of Ex.A2 to 10 and the evidence of P.W.1 to 4 by the Court below by recording incorrect, flimsy and faulty reasons, are sustainable in law? 8. Whether the failure of the Court below to consider the material evidence and read and construe the remaining evidence on record in its correct perspective, had vitiated its findings and judgment and made them perverse? (extracted as such) 6. Heard both so as to find as to whether any substantial question of law is involved in this case. https://hcservices.ecourts.gov.in/hcservices/ 7. At the outset, I fumigate my mind with the following decision of the Hon'ble Apex Court: (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs.COMMISSIONER OF INCOME TAX, DELHI]; certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." 8. In addition to that, the learned counsel for the plaintiff cited the following decisions of the Hon'ble Apex Court: (i) (2004) 9 SCC 468 [Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity and others]; an excerpt from it would run thus: "9. Though, as rightly contended by the learned counsel for the appellants, the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited, where the trial Court and/or the first appellate Court misdirected themselves in appreciating the question of law and placed the onus on the wrong party, certainly there is a scope for interference under Section 100 CPC after formulating a substantial question of law." (ii) (2007) 5 SCC 730 [J.Yashoda v. K.Shobha Rani]; an excerpt from it would run thus: "9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection. https://hcservices.ecourts.gov.in/hcservices/ That rule only means that, so long as the higher of superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it........" (iii) (2011) 1 SCC 158 [D.R.Rathna Murthy v. Ramappa]; an excerpt from it would run thus: "9. Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e., not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the reappreciation or evidence in those proceedings, however, such a course is permissible in exceptional circumstances." (iv) JT 2010(11) SC 398 [D.R.Rathna Murthy v. Ramappa]; an excerpt from it would run thus: "7.1. Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the Courts below are found to be perverse i.e., not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re- appreciation of evidence in those proceedings, however, such a course is permissible in exceptional cases. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa & Ors. Hafazat Hussain v. Abdul Majeed & Ors. [JT 2001 (6) SC 591:200197)SCC 189]; and Bharatha Matha & Anr. v. R.Vijaya Renganathan & Ors. [JT 2010 (5) SC 534]). 9. A mere poring over and perusal of those excerpts including the whole judgments would reveal that unless there is any perversity or illegality in the findings of the Courts below or that the Courts below have failed to apply the correct law, the question of interference in the Second Appeal does not arise. 10. It is therefore just and necessary to find out as to whether any substantial question of law in involved in this matter for interfering with the judgments and decrees of both the Courts below. 11. The learned counsel for the plaintiff would put forth and set forth his arguments thus: https://hcservices.ecourts.gov.in/hcservices/ (a) Both the Courts below failed to give any finding positively on the actual issues involved in the matter. (b) One could see in the judgments of the lower Courts only the narration of facts and the evidence adduced on both sides and that without any finding, straightaway the Courts agreed with the case of the defendants and decreed the suit only in respect of items 1 and 2 and dismissed the suit in respect of items 3 to 6. (c) The non examination of the plaintiff as a witness was taken seriously by the lower Court, but in Ex.A1 - the Power Deed itself, it is found set out that the plaintiff was suffering from serious illness, and hence his son was examined and his evidence is free from blemish. (d) The evidence of P.W.2, the person cultivating the land nearby the suit properties, supported the case of the plaintiff and pointed out that it is the plaintiff who has been cultivating all the six items of the suit properties. (e) During cross examination of P.W.1 or P.W.2, there is nothing to suggest that their versions during their chief examinations were untrue. (f) D1 is the person who is the mother of D2. In fact, one Rangasamy Gounder - the father of the plaintiff took on lease all the items of the suit properties from D1, but D1 herself has not chosen to figure as a witness to speak about her case. (g) D2 was not competent to depose on behalf of D1. (h) There was no cross examination challenging and impugning Ex.A5, which clearly highlights as to what are all the properties which are the subject matter of lease in favour of the plaintiff's father and consequently in favour of the plaintiff. (i) In fact, both the Courts below have not given any specific finding, but simply placed reliance on the so called concession given by the defendants in respect of items 1 and 2. (j) The law enjoins the Courts below which are the Courts of fact, to analyse the facts and give a specific finding on all the issues based on oral and documentary evidence. The oral and documentary evidence placed on the side of the plaintiff were ignored and in such a case, as per the above cited decisions, the interference of this Court in the Second Appeal is warranted. Accordingly, the learned counsel for the plaintiff would pray for formulating the substantial questions of law and decide the lis https://hcservices.ecourts.gov.in/hcservices/ by setting aside the judgments and decrees of both the Courts below and decreeing the suit in toto. 12. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for R2/D2 would advance his arguments thus: (a) The onus of proof is on the plaintiff to prove his case and he cannot try to fob off the burden of proof on the defendants. (b) The plaintiff shunned the box for reasons best known to him. Had he appeared as a witness, then the defendants would have had the opportunity of cross examining him and exposing his falsities, but conveniently he allowed his son to appear and he stayed away from the Court. As per the established principles of law, if the plaintiff fails to figure himself as a witness and speak about the facts which are within his knowledge, then adverse inference has to be drawn as against such a person. (c) The Power of Attorney does not contain any authorisation to depose by the plaintiff in favour of his son, who deposed on his behalf. (d) The deposition of P.W.1 itself would amply make the point clear that the plaintiff is having no evidence to prove that he is the cultivating tenant or possessor of items 3 to 6 of the suit properties. (e) Both the Courts below took into consideration the oral and documentary evidence and also the fact that the burden of proof is on the plaintiff to prove the case and ultimately decided the lis warranting no interference at the second appellate stage. 13. A mere poring over and perusal of the judgments of both the Courts below, would exemplify and demonstrate that they decided the lis adhering to the well settled following maxims namely: (1) Affirmantis est probare : The person who affirms must prove (2) Affirmanti, non neganti, incumbit probatio : The proof is incumbent on the one who affirms, not on the one who denies. 14. The plaintiff cannot pick holes in the defence and try to achieve success in the litigative battle. It is the plaintiff who came with a specific case that the plaintiff's father Rangasamy Gounder took on lease of the six items of the suit properties, about 45 years anterior to the date of filing of the suit. When such is the case, the plaintiff should have figured himself as a witness and https://hcservices.ecourts.gov.in/hcservices/ deposed about those facts. P.W.1 – the son of the plaintiff was only 36 years old as on the date of deposing before the Court. There are ample provisions in the CPC so as to enable the plaintiff to get himself examined by getting a Commissioner appointed in that regard, but he had not chosen to do so. Ex.A1 – the power deed is niggard and bereft of any version authorising P.W.1 - the plaintiff's son to depose on behalf of the plaintiff. 15. I hark back to the following decisions of the Hon'ble Apex Court: (i) (1999) 3 SUPREME COURT CASES 573 – VIDHYADHAR V. MANIKRAO AND ANOTHER, certain excerpts from it would run thus: "17. Where a party to the suit does not appear in 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 as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh1. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh2 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat4 also followed the Privy Council decision in Sardar Gurbakhsh Singh case1. The Allahabad High Court in Arjun Singh v. Virendra Nath5 held that if a party abstains from entering the witness- box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box. 18. Defendant 1 himself was not a party to the transaction of sale between Defendant 2 and the plaintiff. He himself had no personal knowledge of the terms settled between Defendant 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, Defendant 1 have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part-payment thereof? Defendant 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed on the ground that it was without consideration or that the consideration paid to him was highly inadequate. But he, as pointed out earlier, admitted the claim of the plaintiff whose claim in the suit was based on the sale deed, executed by Defendant 2 in his favour. The property having been transferred to him, the plaintiff became entitled to all the reliefs which could have https://hcservices.ecourts.gov.in/hcservices/ been claimed by Defendant 2 against Defendant 1 including redemption of the mortgaged property. 21. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as a defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram7 in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above. 22. In the instant case, the property which was mortgaged in favour of Defendant 1 was transferred by Defendant 2, who was the owner of the property, to the plaintiff. This transfer does not, in any way, affect the rights of Defendant 1 who was the mortgagee and the mortgage in his favour, in spite of the transfer, subsisted. When the present suit for redemption was filed by the plaintiff, Defendant 2, as pointed out above, admitted the claim of the plaintiff by filing a one-sentence written statement that the claim of the plaintiff was admitted. When the plaintiff entered the witness-box, Defendant 2 did not cross-examine him. He did not put it to the plaintiff that the entire amount of consideration had not been paid by him. Defendant 1 alone raised the question of validity of the sale deed in favour of the plaintiff by pleading that it was a fictitious transaction as the sale consideration had not been paid to Defendant 2 in its entirety. Having pleaded these facts and having raised the question relating to the validity of the https://hcservices.ecourts.gov.in/hcservices/ sale deed on the ground that the amount of consideration had not been paid, Defendant 2 (sic 1) did not, in support of his case, enter the witness-box. Instead, he deputed his brother to appear as a witness in the case. He did enter the witness-box but could not prove that the sale consideration had not been paid to Defendant 2. .... 23. The findings of fact concurrently recorded by the trial court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion." (ii) (2010) 10 SUPREME COURT CASES 512 – MAN KAUR (DEAD) BY LRS V. HARTAR SINGH SANGHA, certain excerpts from it would run thus: "14. In Vidhyadhar v. Manikrao4 this Court reiterated the following well-recognised legal position: (SCC pp. 583-84, para 17) “17. Where a party to the suit does not appear in 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….” 15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the attorney-holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd.5 held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21) “13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to ‘act’ on behalf of the principal. In our view the word ‘acts’ employed in Order 3 Rules 1 and 2 CPC confines only to 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 of the principal. In other words, if the power-of-attorney holder has rendered some ‘acts’ in pursuance of 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 of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. 17. … In Shambhu Dutt Shastri v. State of Rajasthan6 it was held that a general power-of-attorney holder can appear, plead https://hcservices.ecourts.gov.in/hcservices/ and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. 18. The aforesaid judgment was quoted with approval