IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 403 of 1998 Date of decision: 20.10.2010 Sunder Singh and others ... Appellants Versus Brij Lal and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellants: Mr. Karan Singh Kanwar, Advocate. For the respondents: Mr. Romesh Verma, Advocate, for respondent No. 1. V.K. Ahuja, J. (Oral) : This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/plaintiff against the judgment and decree of the Court of learned District Judge, Sirmaur District at Nahan, dated 16.7.1998, vide which he set aside the judgment and decree passed by the Court of learned Sub Judge, Rajgarh, dated 23.6.1997, decreeing the suit of the appellant for declaration. 2. Briefly stated, the facts of the case are that a suit for declaration was filed by the appellant, hereinafter also referred to as the plaintiff, as against the respondents, hereinafter also referred to as defendants No. 1 and 2. It was alleged by the plaintiff that he was owner in possession of the suit land comprised in Khasra No. 2288/624 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 measuring 0-7 Bigha. He alleged that out of this land, he gifted 2 Biswas of land in favour of defendant No. 1 in the year 1987-88 and that land is still lying vacant on the spot and other 5 Biswas land is in possession of the plaintiff. It was alleged that the plaintiff constructed his residential house over the suit land about 12 years back and the house is being possessed by the plaintiff, which is on the remaining 5 Biswas of land owned by him. It was further alleged that defendant No. 2 on 29.9.1993 claimed that he has purchased house from defendant No. 1 and threatened the plaintiff to oust him from the lawful possession over the house, to which he has no right. It was further alleged that the defendant No. 1 taking undue advantage of the illiteracy of the plaintiff and in collusion with revenue staff got the residential house of plaintiff entered in his name, whereas it was constructed by the plaintiff about 12 years back and is being occupied by him. Hence, the suit for declaration and permanent injunction filed by the plaintiff. 3. Defendants took up preliminary objections in regard to limitation, estoppel and locus-standi. On merits, it was pleaded that initially the land in question was measuring 0-7 Bigha and out of this land, the plaintiff vide gift deed dated 24.9.1982 gifted away 0-2 Bigha of land to defendant No. 1. Thereafter, defendant No. 1 constructed one room on the land for running a shop, which was rented out by defendant No. 1 to defendant No. 2 vide agreement dated 26.7.1985. Thus, it was pleaded that the shop and the land is possessed by the defendant as owner and as such, the plaintiff has no right, title or interest in the suit land. Hence, the suit is liable to be dismissed. 3 4. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether plaintiff is owner in possession of the suit land and revenue entries in favour of the defendant No. 1, are null and void, in respect of part of the suit land? … OPP 2. Whether gift deed executed on 22.9.93 by defendant No. 1 in favour of deft. No. 2, is null and void and not binding of the rights of the plaintiff in respect of part of the suit land? … OPP 3. Whether the suit is barred by limitation? … OPD 4. Whether the plaintiff is estopped from filing the suit as alleged? … OPD 5. Whether plaintiff has no locus-standi? … OPD 6. Whether plaintiff has no cause of action? … OPD 7. Relief. 5. Parties led their evidence and the learned trial Court vide its judgment held that the plaintiff was owner in possession of the house and was entitled to the relief claimed by him. 6. On appeal, those findings were reversed by the learned District Judge, who hold that the plaintiff had failed to prove that he was owner of the house and as such, the suit was liable to be dismissed. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellants were that the house in question had been constructed by the plaintiff over the land owned and possessed by him and only the vacant piece of land was gifted to defendant No. 1, who later on gifted it to defendant No. 2. It was further contended that the plaintiff had 4 constructed the house and the revenue entries in favour of defendant No. 1 showing owner in possession of the abadi are incorrect and had been wrongly procured. It was also submitted that the plaintiff had examined mason Biru Ram as PW-2 who had constructed the house of the plaintiff and his statement clearly proves that the house was constructed by the plaintiff, who was entitled to the relief claimed by him. On the other hand, learned counsel for the respondent had supported the impugned judgment passed by the learned First Appellate Court for the reasons recorded therein. 9. The appeal in question was admitted on four substantial questions of law, which were mainly in regard to the question as to whether there was no mention in the gift deed about the house and as to whether the presumption of correctness attached to the jamabandis has been rebutted by the plaintiff and that the learned trial District Judge had wrongly relied upon the documents Ext. DW5/A, Ext. DW6/A and Ext. DW6/C when it was not established that these documents relate to the premises in question. 10. The evidence of the parties, has, therefore, to be appreciated in the light of these two questions of law, on which the appeal was admitted by this Court. I will firstly make reference to the documents placed on record the earliest copy of jamabandi on record is Ext. DW1/A for the year 1979-80, which shows that the land comprised in Khasra No. 2288/624 measuring 7 Biswas and is entered in ownership and possession of Dila, plaintiff and there is no mention of any abadi existing therein. The next copy of jamabandi is Ext. DW1/B for the year 1984-85, which also shows that the same entries as in Ext. DW1/A. In the remarks column only there is reference to the 5 gift deed executed by the plaintiff in favour of defendant No. 1. The next copy of jamabandi on record is for the year 1989-90, which shows that the land measuring 2 Biswas comprised in Khasra No. 2468/2288/624 is entered in ownership and possession of defendant No. 1 and there is a reference of Gair Mumkin Abadi over the suit land. These documents suggest that the construction of the house was made after 1984-85 and prior to 1989-90. 11. Coming to the oral evidence, the plaintiff’s son had appeared in the witness box as PW-1 and had stated that the house was constituted by his father 15 years ago and he made the statement in the year 1996, which comes to 1981. However, this does not find corroboration from the revenue record, which shows that the house was constructed after 1984-85 but prior to 1990. 12. The learned First Appellate Court had placed reliance upon the document produced by the defendant Ext. DW5/A, which is a copy of application for electric connection and the name of the owner is shown as Dandoo Ram i.e. defendant No. 1. Ext. DW5/B is the copy of electricity bill, which is in the name of defendant No. 1. Ext. DW5/C is also disconnection order, which shows the name of consumer as Dandoo Ram, defendant No. 1. Ext. DW5/D is also an application submitted to S.D.O. Electricity and the name of owner has been mentioned as Dandoo Ram. It has come in the testimony of defendant No. 2 Brij Lal, who appeared in the witness box as DW-1, that Dandoo Ram had rented out the shop to him on 26.7.1985. He further stated that now-a-days he is living in this room, which is disputed one. The gift deed executed by defendant No. 1 in favour of defendant No. 2 has been proved in evidence as Ext. PW1/E, in which there is no 6 reference to the constructed portion having been gifted, when this gift deed was executed on 22.9.1993. In case, the house had been gifted, there would have been recital in the gift deed, which could have substantiated the case of the plaintiff. 13. Apart from the above, the plaintiff had examined only PW-2 Biru Ram, mason, to prove that he had constructed the house for the plaintiff and he is the solitary witness to prove this fact that the house was constructed by the plaintiff. The learned Appellate Court had not relied upon the testimony of this witness since he was related to the plaintiff and his statement was not relied rightly by the learned Appellate Court. The plaintiff could have led any evidence to prove that he purchased material, got the plan sanction or raised the construction, which evidence was lacking in this case. The only statement of PW-2 was not sufficient to hold that he had constructed the house on behalf of the plaintiff. Moreover, the plaintiff had not stepped into the witness box and his son had only appeared in the witness box as PW-1 Sunder Singh. He gave the reasons for non- examination of the plaintiff that he is an old person, but this was no ground not to examine him and he could have been examined by a commission also when he was not able to move. 14. The learned counsel for the respondent had relied upon the decision in Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jajoo, 2009(3) Civil Court Cases 220 (S.C.), wherein in Para-15 of the judgment it was held by their Lordships that an adverse inference has to be drawn against the party for not appearing in the witness box. A reference was also made to the decision in Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd., 7 and another, AIR 2005 Supreme Court 439, in which the following observations were made:- “Order, 3 Rr. 1 and 2 empowers the holder of power of attorney to ‘act’ on behalf of the principal. The word ‘act’ 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 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.” 15. It is, therefore, clear that in case some of the facts are within the knowledge of the party, he has to depose himself and the Attorney cannot depose in his favour and the statement of Attorney has to be taken as a witness only and not as a party. The facts and circumstances of the case clearly justify that this fact was within the knowledge of the plaintiff as to when he constructed the house, how much amount was spent by him and who were the persons connected with the construction of the house, but he has not appeared in the witness box. Therefore, an adverse inference has to be drawn against the plaintiff for not appearing in the witness box. 16. From the above discussion, it is clear that the findings recorded by the learned Appellate Court accepting the appeal and dismissing the suit of the plaintiff are based upon correct appreciation of 8 evidence and law and these do not call for an interference by this Court. 17. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant and the same is accordingly dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), October 20, 2010 Judge (BSS)