IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 359/1999 Reserved on:11.8.2009 Decided on: 21.8. 2009 ________________________________________________ Dr. Y.S. Parmar University of Horticulture and Forestry. …Appellant. Versus Shanti Swaroop. … Respondent. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. B. S. Attri, Advocate. For the Respondent : Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 30.6.1999 passed by the learned District Judge, Solan in civil appeal No. 7-S/13 of 1999. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 as ‘the plaintiff’ for convenience sake) filed a suit against the appellant-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) alleging that he is owner in possession of the land comprised in Khata No.1, Khasra No. 252/87 measuring 1 bigha 5 biswas situated in Mauza Ded, Hadbast No. 446, Tehsil Kandaghat, District Solan. It is further alleged that in the year 1992 settlement took place in the area and Khasra No. 252/87 was given new Khasra No. 73. The land was previously owned and possessed by Bhairon Dutt and Nek Ram to the extent of one half share and Devi Prashad, predecessor-in-interest of the plaintiff to the extent of one half share. However, the father of the plaintiff was in exclusive possession of the entire suit land. He succeeded to the property owned by Devi Prashad. The partition took place between the parties and the land was divided between the co-sharers. The plaintiff has challenged the revenue entries. The suit was contested by the defendant by filing a written statement. It is contended by the defendant that the University was in possession of the suit land and the plaintiff or his predecessor- in-interest had no right, title or interest in the same. The suit was decreed by the learned Sub Judge 1st Class, Kandaghat on 18.11.1998. The defendant-University preferred an appeal before the learned District Judge, Solan. She dismissed the same on 30.6.1999. The Regular Second Appeal has been directed against the judgment and decree dated 30.6.1999. The same was admitted on the following substantial questions of law: 1. “Whether the suit (plaint) is liable to be rejected under order 6 rule 14 and 15 CPC as the plaint is neither 3 singed nor verified by the plaintiff nor the said defect has been cured/removed by getting the suit amended? 2. Whether the brother of the plaintiff who has signed and verified the plaint can be termed as a recognized agent under order 3 rule 2 CPC without any authority or power of attorney on record? 3. Whether defendant has proved on record that it has acquired ownership of the suit land by adverse possession by proving that the possession of the defendant upon it is peaceful, actual, open, notorious, exclusive and hostile since 1932, when the Fruit Research Station came into being thereat?” Mr. B.S. Attri, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable in the eyes of law. He then contended that the plaint was neither signed nor verified by the plaintiff. He has referred to order 6 rules 14 and 15 and order 3 rule 2 of the Code of Civil Procedure to buttress his submission. He also contended that his client had become owner of the land by way of adverse possession. Mr. Bhupender Gupta, Senior Advocate has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. PW-1 Shanti Swaroop has deposed that he is owner in possession of the suit land and his name also appeared in the 4 revenue record. It was only in the year 1991-92, the entry of the possession was made in the name of the defendant-University. According to him, neither the land was acquired by the defendant nor he gifted the same to the defendant-University. PW-3, Sunita Thakur has supported the version of the plaintiff. The defendant has produced seven witnesses. DW-1 is Khayali Ram. In his cross-examination, he has deposed that he had not done any plantation in the land of plaintiff. He retired in the year 1985. No demarcation has taken place in his presence. DW-2 Palkhya has deposed that he was working as Mali at Ded Gharat orchard. In his cross-examination, he has admitted that the land of the plaintiff never remained in possession of the defendant nor any demarcation took place in his presence. He is also not aware of the actual dimension of the University land. DW-3 is Ghanshyam Sood. He has admitted in his cross-examination that the suit land was never demarcated in his presence. He is not aware of the khasra number where he had planted 42 plants. He also deposed that the University never intended to usurp the land of the plaintiff. DW-4 is Amar Singh Kashyap. He is not aware as to how and when the suit land had come in possession of the University. No demarcation was conducted in his presence. DW-5 Baldev has produced the demarcation report Ex.DW-5/A and copy of statement Ex.DW-5/B. He has admitted the construction of shed by the plaintiff over the suit land. It is clear from the demarcation report that the same has not been conducted as per the prescribed procedure. DW-6, S.S. Jafri has been produced only to 5 support that he has supervised the fencing of the land abutting the National Highway. The plaintiff has proved on record copy of mutation No.130 (Ex.P-3). He has proved on record, copy of mutation No. 185 (Ex.P-9) and copy of mutation No. 179 (Ex.P-10). It is clear from Ex.P-9 that family partition was effected between the co-sharers and the suit land came into the share of the plaintiff. Ex.P-4 is the copy of jamabandi for the year 1960-61. It shows that the suit land is in ownership and possession of Bhairon Dutt, predecessor-in-interest of the plaintiff. Ex.P-5 i.e. jamabandi for the year 1974-75 shows that the suit land was in possession of the predecessor-in-interest of the plaintiff. Ex. P-6 and P-7, copies of the jamabandis for the year 1984-85 and 1979-80 respectively reveals the same entry. The presumption of truth is attached to these jamabandis. Ex.P-2 is the copy of the jamabandi for the year 1991-92. It is a stray entry. It is not proved by the defendant by leading any tangible evidence that before recording the possession in favour of the University any notice was issued to the plaintiff or his predecessor-in-interest. In these circumstances, the courts below have come to a right conclusion that Ex.P-2, copy of jamabandi for the year 1991-92 was illegal and has not created any right in favour of the defendant. The defendant has not led any evidence to prove the plea of adverse possession. It was necessary for the defendant to prove the commencement of the period and also establish that its possession was hostile and continuous. It has come in the statement of DW-3 Ghan Shyam Sood that the defendant- 6 University never intended to usurp the land of the plaintiff. Thus the plea of adverse possession cannot succeed. Now, the Court will advert to the effect of singing of the plaint by the brother of the plaintiff. The plaintiff has deposed while appearing as PW-1 that the plaint has been signed by his brother. The defendant has not specifically taken any ground that the plaint was not signed or verified as per order 6 rules 14 and 15 of the Code of Civil Procedure. It was necessary for the defendant to take specifically this plea in the written statement and to get the issue framed on this point. The objection to verification and signing of the plaint should have been taken by the defendant at the earliest possible opportunity. Since it has failed to take this objection at that stage, it will be deemed to have been waived. The learned District Judge has touched this issue in para 21 of the judgment. It was not necessary for the plaintiff to impart instructions in writing to his brother to sign the plaint. There is a difference in the language employed in order 6 rules 14 and 15 and order 3 rule 2 of the Code of Civil Procedure. It was not required under the law for the plaintiff to execute any power of attorney special or general in favour of his brother to sign the plaint or to verify the same. A Division Bench of Madras High Court in Subbiah Pillai alias S.S.M. Subramania Pillai versus Sankarapandiam Pillai and others, AIR (35) 1948 Madras 369 has held that where the plaintiff has not signed the plaint and the same has been filed with his knowledge and consent, it is an omission which can be cured and indeed should be corrected in the interests of justice. Their Lordships 7 have further held that the omission to sign or verify a plaint is not such a defect as could affect the merits of a case or the jurisdiction of the court and is curable under the provisions of section 99. Their Lordships have further held as under: “10. In 17 Cal. 580, one of the three plaintiffs had not signed the plaint. In reference to that omission their Lordships of the Judicial Committee observed at page 582 of the report as follows: “In the first place it was said that the plaints were signed and verified by Mohini Mohan alone. But that is immaterial. There is no rule providing that a person named as a co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint.” Later at P. 583 it is observed further that: “Their Lordships think that Khatter Mohun, as well as Gobind Rani became a party, as plaintiff, on 2nd November 1883, and that the suits therefore are not barred by lapse of time.” 22 All. 55 is a decision to a like effect where it was held that a defect in the signature of the plaint or the absence of signature, where it appears that the suit was in fact filed with the knowledge and by the authority of the plaintiff named therein, may be cured by amendment at any stage of the suit and is not aground for interference in appeal. Those two decisions were given at the time when the Code of 1882 was in force. In 22 All. 55 reference is made to S. 578 of the old Code which corresponds to S. 99 of the Code of 1908. That section enacts that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the 8 suit, not affecting the merits of the case or the jurisdiction of the Court. The result of the above decisions by the Judicial Committee and the High Court of Allahabad is that where a plaintiff has not signed a plaint, filed with his knowledge and consent, it is an omission which can be cured, and indeed, should be corrected in the interests of justice. Regarding O.6, R. 14 of the Code, the commentary in the late Sir Dinshah Fardunji Mulla’s work on the Code of Civil Procedure refers to the two cases cited above and then adds this: “If the defect is not discovered until the case comes on for hearing before an appellate Court, the appellate Court may order the amendment to be made in that Court. The appellate Court ought not to dismiss the suit or interfere with the decree of the lower court merely because the plaint has not been signed. The omission to sign or verify a plaint is not such a defect as could affect the merits of a case or the jurisdiction of the Court.” With respect I subscribe fully to the observations in Sir Dinshah Fardunji Mullah’s book.” Similarly, in A.K. Sharafudin versus S. Jagadeesan, AIR (37) 1950 Mysore 70, their Lordships have held that the objection with regard to signing and verification has to be done at the earliest possible stage. Their Lordships have further observed that the defect in the petition which has neither been verified nor signed by the petitioner cannot defeat the ends of justice. Their Lordships have held as under: “9. As regards the defects in the petition which has neither been verified nor signed by the petitioner it 9 has to be observed that such technical defects cannot again defeat the ends of justice. As observed in 7Mys. L. J. 149: “Omission on the part of the petitioners to sign and verify their application for setting aside an order of dismissal of a suit was a mere irregularity which did not affect the merits of the case, and when the defect was pointed out the lower Court should have given them time to rectify it.” Again as observed in 7 Mrs. L.J. 151: “The mere fact that the application was not signed and verified by a party at the time it was presented to the Court will not necessarily make the application absolutely void. It is a mere irregularity which can subsequently cured. It will not affect the merits of the case or the jurisdiction of the Court.” I might add in this case that no objections were taken specifically on those pointes in the objection statement filed by the respondents and the lower Court should not have allowed the witnesses to be cross-examined on the point in the absence of such objections. If the respondent became aware of those defects at late stage, he should have obtained permission to amend his statement by adding these objections. If this had been done, the petitioner would have had an opportunity to apply for permission to rectify the mistake. Moreover, an affidavit of the petitioner bearing his signature is filed with the petition and could be read as part of the petition; the defects referred to above might be taken as cured.” A Division Bench in Dhruv Chhotalal Khushalchand versus Gandhi Gulabray Pragji, AIR 1954 Saurashtra 99 has held that 10 where objection with regard to verification of the plaint has been taken the issue ought to have been framed. Their Lordships have held as under: “Another technical objection made for the defendant was that the verification of the plaint is not orpoer. The plaint is verified by Jethalal Zaverchand Patalia and one Soni Sojpal Kachra who have been given the power of attorney by the plaintiff Chhotalal. Under O.6 R. 15, Civil P.C. a pleading is to be verified by the party or by one of the parties’ pleader or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. No doubt the verification of the plaint by Jethalal and Sojpal was disputed in the written statement, but no issue on the point was soguht by the defendant and it appears that the contention was given up. Had the point been pressed evidence might have been led and the Court would have then been in a position to judge whether it was proved to its satisfaction that the persons verifying the plaint were acquainted with the facts of the case. Apart from this aspect of the question, Jethalal, Ex.32, says that the suit has been brought on the strength of the plaintiff’s books and of what the plaintiff had represented to them. It is true he has not himself gone into the accounts but has accepted them as he found them. In the circumstances of the case that can be taken as sufficient acquaintance with the facts of the case in order to enable him to verify the plaint. The defendant himself has said nothing against the verification in the course of his evidence. Therefore, even if the question was open, we would hold that the plaint has been properly verified.” 11 In the present case the defendant has not taken any objection in the written statement nor any issue was framed. The plaintiff’s brother was sufficiently acquainted with the facts of the case to enable him to verify the plaint. Their Lordships of the Bombay High Court in All India Reporter Limited, Bombay with Branch Office at Nagpur and another versus Ramchandra Dhondo Datar, AIR 1961 Bombay 292 have held that a plaint signed by a person orally authorized by the Managing Director in that behalf would be valid in law. Their Lordships have held as under: “19. The plaint in the instant case is signed by plaintiff No. 2. The signature of plaintiff No. 2 on the plaint is therefore sufficient. Plaintiff No. 2 also admittedly happens to be the Managing Director of the plaintiff No. 1 Company. The Managing Director of the Company admittedly has authority to file suits on behalf of the Company. 21. In the matter of signature on the plaint, as already observed, Order 3, Rule 1, and Order 3 Rule 2, have no application because signature on the plaint is not an act in or to a Court. It is therefore not necessary to decide whether the power of attorney dated 1.5.46 in favour of Ghushey was a valid one, whether it ceased to be operative after the AIR Limited became a public Limited Company in 1948, and whether the power of attorney dated 13.4.51 in favour of Ghushey was invalid as it did not bear the seal of the Company. In order to decide whether a person is duly authorized by the plaintiff to sign a plaint for him under Order 6, Rule 14, one has ordinarily to consider the provisions of the Civil 12 Procedure Code alone and the general law. But in the case of a plaintiff who happens to be a Company, the company cannot oralluy authorize another person. A company can act only under its Articles of Association. If a power of attorney is to be executed for a company, it must satisfy the requirements of its Articles of Association. Article 153(19) of the Articles of Association of plaintiff No. 1 in the instant case requires that a power of attorney must be under the seal of the Company. In the instant case it is conceded by the learned counsel for the Appellant that there is no evidence on record to show that either the power of attorney dated 1.5.1946 or the power of attorney dated 13.4.1951 bore the seal of the company. There was therefore no proper power of attorney on behalf of the Company in favour of Ghushey. However, as already observed, it is not necessary that there should be a written authorization or a written power of attorney. The Managing Director of the Company has under Articles 153(16) and 156 of the Articles of Association full powers of general management of the business of the company and he has also all the powers and authority vested in the Board of Directors except those specified in Articles 157. The Managing Director of the Company can therefore orally authorize any person to act for him. As already observed, it is the evidence of both plaintiff No. 2 and of Ghushey that plaintiff No. 2 as Managing Director of the Company (plaintiff No. 1) had orally authorized Ghushey to sign the plaint. 23. As regards signature of the plaint, authorization by plaintiff No. 2 as Managing Director of the plaintiff No. 1 Company is quite sufficient, and it is the evidence of both plaintiff No. 2 and Ghushey 13 that the former had authorized the latter to sign the plaint. Moreover, as already observed, this is a case of plaint with two plaintiffs, and admittedly, one of the plaintiffs, plaintiff No. 2 has signed the plaint.” The learned Single Judge of Punjab and Haryana High Court in Smt. Mukhtiar Kaur versus Smt. Ghulab Kaur, AIR 1977 Punjab and Haryana 257 has held that the plaint can be signed and verified by a person authorized by the plaintiff and the defect in signing and verification is only an irregularity which can be remedied under section 99. The learned Single Judge has held as under: “5. Order VI, Rule 14, Civil P.C. (hereinafter referred to as the Code) requires that every pleading shall be signed by the party and his pleader (if any). A plaint can also be signed by any person, duly authorized by the plaintiff, in case the plaintiff is absent. It is not disputed that Gurdial Kaur had not signed the plaint, rather it was signed by her lawyer. The plaint has also not been verified by Gurdial Kaur, rather it has been verified by her counsel. Under O. VI, R. 15 of the Code verification of the plaint can be made by any person, proved to the satisfaction of the Court to be acquainted with the facts of the case. In the instant case Shri Krishan Mohan Jauhar, counsel for Gurdial Kaur, verified the plaint saying that paras Nos. 1 to 8 were told to him by the plaintiff after getting personal knowledge about them and that paras Nos. 4 to 7 were correct according to her knowledge and belief. The counsel for Gurdial Kaur is presumed to be acquainted with the facts of the case, so the verification of the claim made by him, can be accepted. Moreover, it is a defect which can amount to an irregularity and can be ignored for 14 rejecting the plaint. The legal position is, that want of verification has not the effect of making the plaint void. It merely amounts to an irregularity. So far as the question of signing the pleading is concerned, the decisions are not uniform as to whether the defects are of substance or of procedure. The prominent view is that an irregularity in the signatures of a plaint is a mere defect of procedure and does not affect the jurisdiction of the Court.” The learned Single Judge in Kailash Singh versus Hiralal Dey, AIR 1994 Gauhati 12 while relying upon Haryana High Court in Smt. Mukhtiar Kaur versus Smt. Ghulab Kaur, AIR 1977 Punjab and Haryana 257 has held that it would be unfair and unjust to reject the plaint merely on the ground that the plaint was not properly signed and/or verified as plaintiff himself came to the witness box and made out the case in the plaint. Their Lordships have held as under: “15. I am in respectful agreement with the above law laid down by the Punjab and Haryana High Court. In my view we have come to a stage in our jurisprudence where we should not be tied down with procedural technicalities. But we should true to do substantial justice to the parties. In the case in hand it would be unfair and unjust to reject the plaint merely on the ground that the plaint was not properly signed and/or verified as plaintiff himself came to be witness box and made out the case in the plaint.” 15 In the present case also, the plaintiff has deposed that the plaint was signed by his brother. It can safely be presumed that he was well aware of the facts contained in the plaint. As far as the signing of the plaint is concerned, order 3 rule 2 of the Code of Civil Procedure are not attracted. Order 3 rule 2 of the Code of Civil Procedure apply in a different domain. Accordingly, there is no merit in this Regular Second and the same is