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2005 DIGILAW 127 (PNJ)

Kulwant Singh v. Chaman Lal

2005-01-24

ADARSH KUMAR GOEL

body2005
Judgment Adarsh Kumar Goel, J. 1. The respondents filed a suit for injunction against interference in their possession by the defendant-appellant. 2. Case of the plaintiffs is that Hari Ditta Ram, predecessor of the plaintiffs was allotted evacuee land a nd after his death, the plaintiffs were in cultivating possession thereof. They were entitled to protect their possession. 3. The appellant-defendant contested the suit and claimed his own possession. 4. The trial Court decreed the suit. It was held that from Jamabandi Exhibit P-2 and Khasra Girdawari Exhibit P-3, possession of Hari Ditta Ram was proved, as allottee of the land. 5. On appeal, finding of the trial Court has been affirmed. Hence this appeal. 6. Only contention raised by the learned counsel for the appellant is that the entries in the revenue record continued in favour of Hari Ditta Ram, even though he died and, thus, presumption of truth attached to the said entries stood rebutted. Reliance is placed on a judgment of this Court in Uttam Singh v. Des Raj, (1990-1)97 P.L.R. 130. Entries existed in favour of Hari Ditta Ram during his life time and merely because names of his heirs were not mentioned after his death, did not mean that the said entries had no value. Judgment relied upon is, thus, not applicable. The courts below have also referred to oral evidence of PW-1 Sohan Lal, Sarpanch of the Village to support continuous possession of the plaintiffs after the death of Hari Ditta Ram. 7. It was also submitted that the plaintiffs did not appear as witnesses and instead examined their attorney Krishan Dev and an attorney cannot become a witness. Reliance is placed on a judgment of the Jammu and Kashmir High Court in Kamla Bakshi v. Union of India and Ors., 2004(3) R.C.R. (Civil) 344. 8. This contention cannot be accepted. In the judgment relied upon on behalf of the appellant, an advocate appeared as a witness and it was observed that a vakalatnama did not authorise an advocate to appear as a witness. The judgment has no application to the present case. Whether a witness is competent to appear as a witness, is dealt with under Section 118 of the Indian Evidence Act, 1872 and if a person has knowledge about the facts, he can appear as a witness. The judgment has no application to the present case. Whether a witness is competent to appear as a witness, is dealt with under Section 118 of the Indian Evidence Act, 1872 and if a person has knowledge about the facts, he can appear as a witness. In an appropriate case, the court may draw inference from non-appearance of plaintiff, particularly when case turns on personal knowledge of a party, In the present case, possession of the plaintiffs was proved from revenue record as well as testimony of other witnesses and non-examination of plaintiffs as witnesses, did not affect their case. Both the courts below have concurrently held that the plaintiffs were proved to be in possession. The said finding is not shown to be perverse. No substantial question of law arises. Dismissed.