R. S. A. No. 3150 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3150 of 2010 Date of Decision : October 29, 2010 Akhtar Hussain and another .... Appellants Vs. Raj Chaudhary and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arun Jain, Senior Advocate with Mr. Vishal Goel, Advocate for the appellants. Mr. Lokesh Sinhal, Advocate for respondents no.1 to 6 – caveators. * * * L. N. MITTAL, J. (Oral) : Defendants no.1 and 3 are in second appeal. Suit was filed by respondents no.1 to 6 against the appellants and against proforma respondent no.7 Roshan Lal impleading him as defendant no.2. The plaintiffs' case is that the suit property was allotted to Punnu Ram by Rehabilitation Department. On the death of Punnu Ram 50 years ago, his son Chander Parkash inherited the suit property. On the death of Chander Parkash, plaintiffs being widow, son and daughters of Chander Parkash, inherited the suit property and became owners thereof. However, R. S. A. No. 3150 of 2010 2 defendant no.2, impersonating as Punnu Ram, executed sale deed dated 01.03.1996 of the suit property in favour of defendant no.1. The said sale deed is false and bogus and obtained by impersonation and fraud. Defendants have raised illegal construction in the suit property about 2½ years before the filing of the suit. Accordingly, the plaintiffs claimed possession of the suit land from the defendants. Defendant no.2 admitted that he was neither owner nor in possession of the suit property, but he executed the sale deed impersonating as Punnu Ram. Defendant no.2 pleaded that he was made to execute the sale deed by defendants no.1 and 3 by intoxicating him. Defendants no.1 and 3 contested the suit and controverted the plaint allegations. It was denied that Punnu Ram was not alive at the time of sale deed. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Mobile Court, Punhana, vide judgment and decree dated 05.02.2009, partly decreed the plaintiff's suit holding the impugned sale deed dated 01.03.1996 to be invalid, false, fabricated and forged document and restraining the defendants from alienating the suit property on the basis of the said sale deed. However, relief of possession of the suit property was declined. First appeal preferred by the plaintiffs has, however, been allowed by learned Additional District Judge, Nuh vide judgment and decree dated 24.12.2009 and suit filed by the plaintiffs has been decreed in toto. Feeling aggrieved, defendants no.1 and 3 have preferred the instant second appeal. R. S. A. No. 3150 of 2010 3 I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that none of the plaintiffs stepped into the witness-box and only Dalsher Khan – attorney of the plaintiffs appeared as witness, but testimony of Dalsher Khan – attorney of the plaintiffs is not sufficient to prove plaintiffs' case. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. reported as 2005 (1) R. C. R. (Civil) 240. I have carefully considered the aforesaid contention, but find no merit therein. It is amply proved on record that Punnu Ram had died long before the execution of the sale deed, but the sale deed had been executed on behalf of Punnu Ram. Obviously, the said sale deed was executed by impersonation. In fact, it has also come on record that Roshal Lal – defendant no.2 impersonated as Punnu Ram and executed the said sale deed. Photograph of Roshan Lal appearing as executant Punnu Ram is there on the sale deed itself. It is thus manifest that the sale deed, purporting to have been executed by Punnu Ram, was in fact not executed by Punnu Ram. In view of this factual position, there was no necessity for any of the plaintiffs to step into the witness box. It is undisputed that earlier Punnu Ram was owner of the suit property. After his death, his son Chander Parkash R. S. A. No. 3150 of 2010 4 inherited the same. Plaintiffs are legal heirs of Chander Parkash being his wife, son and daughters. Defendant no.1, while appearing as DW-1, admitted that plaintiffs are legal heirs of Punnu Ram. It is thus fully established that plaintiffs are owners of the suit property and the impugned sale deed has been obtained by impersonation and fraud and is, therefore, null and void and nonest in the eyes of law. Consequently, the plaintiffs cannot be non-suited merely because none of the plaintiffs stepped into the witness-box. When a party does not appear as witness, the Court is left with no alternative, but to decide the case on the basis of evidence whatever has been led by the parties. If the said evidence is sufficient to prove the case of the party, which has not stepped into the witness-box, the case cannot be decided against that party merely because of non-appearance as witness. In the instant case, facts are either admitted or well established and in view thereof, the plaintiffs could not be non-suited merely because of non- appearance of any plaintiff as witness and their suit has, therefore, been rightly decreed by the courts below. It may be added that the sale deed was held to be invalid even by the trial court and the suit was decreed partly. Defendants did not challenge the said decree of the trial court by filing first appeal. Consequently, said part of the decree of the trial court has attained finality. Since plaintiffs are proved to be owners of the suit property, relief of possession thereof has been rightly granted by the lower appellate court because the said relief had been wrongly declined by the trial court. R. S. A. No. 3150 of 2010 5 Learned counsel for the appellants contended that in view of Order 41 Rule 33 of the Code of Civil Procedure (in short – CPC), the appellants can challenge the said part of the decree of trial court in the instant appeal. The contention is misconceived. Order 41 Rule 33 CPC deals with the situation, where there are more than one decree and appeal is preferred against one decree. This provision lays down that requisite relief can be granted even in respect of other decree, which has not been challenged. In the instant case, however, there was single decree of the trial court and the same was not challenged by the defendants by filing first appeal. Consequently, the same cannot be challenged directly in the instant second appeal. On the contrary, the decree of the trial court has attained finality against the defendants. There is concurrent finding by both the courts below regarding the sale deed being invalid. The said finding is based on proper appreciation of evidence and finding of lower appellate court that plaintiffs are proved to be owners of the suit property also does not suffer from any infirmity, much less illegality or perversity, so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely bereft of any merit and is accordingly dismissed. October 29, 2010 ( L. N. MITTAL ) monika JUDGE