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2006 DIGILAW 797 (RAJ)

Rameshwar v. L. Rs of Bhanwari Devi

2006-03-08

PRAKASH TATIA

body2006
Judgment Prakash Tatia, J.-Heard learned Counsel for the appellants and perused the record also. 2. The appellant is aggrieved against the decree of eviction passed by the trial Court dated 22.03.2003 which was upheld by the first appellate Court vide Judgment dated 27.09.2003 3. The facts which emerged are that the suit property was purchased by the plaintiff Smt. Bhanwari Devi by registered sale-deed in the year 1983. According to plaintiff , suit property was let out to the Defendant No. 1 on 010.1988 on rent of Rs. 600/-per month which has been increased to Rs. 700/-per month. The defendant paid rent up to 312.1993 but despite demand of rent by the plaintiff and her sons, Defendant No. 1 Rameshwar did not pay the rent. The plaintiffs, therefore, sought decree of eviction on the ground of default. The second ground of eviction was sub letting by Defendant No. 1 to Defendant No. 2. Third plea was taken that Defendant No. 2 already constructed his own house and shifted there. 4. Both defendants filed jointly written statement and pleaded that the suit property was taken on rent by the Defendant No. 2 Murli Narain from Kishan Lal for rent of Rs. 125/-per month and he alone is residing in that shop. The Defendant No. 1 was never tenant. Tenants also pleaded that have no knowledge of the sale of property by Kishan Lal to Bhanwari Devi. The defendants admitted Defendant No. 1 constructed house near Jhalamand Choraha and doing business (karobar) there. Defendant No. 1, therefore, denied any payment of rent to the plaintiff . Since, plaintiff filed the suit through power of attorney Holder Shri Jas Raj, therefore, defendants raised objection that suit of the plaintiff is not maintainable as no power of attorney of said Shri Jasraj was filed to file suit. 5. Rejoinder was filed by the plaintiff stating of denying the tenancy of Defendant No. 2 Murli Narain or taking on rent the premises from Kishan Lal by Murli Narain. 6. Issues were framed by the trial Court and trial Court decreed the suit by the impugned Judgment and decree dated 22.03.2003 which has been upheld by the first appellate Court vide Judgment and decree dated 27.09.2003. .7. 6. Issues were framed by the trial Court and trial Court decreed the suit by the impugned Judgment and decree dated 22.03.2003 which has been upheld by the first appellate Court vide Judgment and decree dated 27.09.2003. .7. Learned Counsel for the appellants vehemently submitted that suit filed by the plaintiff was not maintainable as power of attorney was not filed by the plaintiff with the suit (though that was produced subsequently and it was admitted in evidence). It is also submitted that by virtue of power of .attorney, power of attorney of plaintiff Jasraj cannot become competent witness in place of plaintiff . Learned Counsel for the appellants have relying on the decision of the Apex Court reported in 2005 (2) Supreme Court Cases 217 Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors., and other Judgment s of this Court reported in 2001 (3) RLR 715 Sikhar Chand (now dead) through L.Rs. vs. Santi Kumar & Anr. and 1997 (1) 737 RLR Ram Prasad vs. Hari Narain & Ors. 8. It is also submitted that the Courts below have committed serious error in holding Rameshwar was tenant in suit shop and wrongly relied on rent receipts produced by the plaintiff . According to the learned Counsel for the appellants, the suit property was taken on rent from Kishan Lal by Defendant No. 2 Murli Narain and defendant sought to produce photostat copy of rent deed but that was not taken by the trial Court on record on the ground that original was not produced, therefore, the appellants has submitted application under Order 41 Rule 27 CPC, and also produced the said rent deed before this Court in second appeal on 04.03.2006. Learned Counsel for the appellants has also submitted that the Courts below wrongly relied upon the alleged admission of the defendant by which Defendant No. 1 admitted his signature on the rent receipt produced by the plaintiff ignoring back ground that said admission was made. According to the learned Counsel for the appellants those signatures were obtained by the plaintiff with collusion and rent receipts are not in relation to the suit property. 9. In addition to above, according to the learned Counsel for the appellant, the appellant defendant witnesses were discarded rather their evidence was not considered properly simply because of the admitted signatures over the rent receipt. 10. 9. In addition to above, according to the learned Counsel for the appellant, the appellant defendant witnesses were discarded rather their evidence was not considered properly simply because of the admitted signatures over the rent receipt. 10. I considered the submissions of the learned Counsel for the appellants and perused the record also. 11. The facts have been proved by the plaintiff are that suit property was purchased by the plaintiff by registered sale-deed in the year 1983. The plaintiff produced several rent receipts bearing signatures of Defendant No. 1 evidencing payment of rent for the shop No. 25. In these receipts property identified and subject matter is shop No. 25 is admitted fact, as admitted by the defendant in the written statement itself . To meet with oral evidence produced for plaintiff as well as documentary evidence, the defendant came up with the case that suit property was taken on rent by the Defendant No. 2 Murli Narain from Kishan Lal but it appears from the written statement that no specific date has been given by the defendants when premises was taken by Murli Narain from Kishan Lal. There is no mention when rent deed was executed between said Kishan Lal and Murli Narain. Not only this the alleged original rent deed was not produced by the defendant before the trial Court and they sought permission to produce photostat copy and that was not allowed by the trial Court. Suit was filed in the year 1996 and now in the year 2006 an application has been filed in second appeal seeking permission to produce said rent deed dated 31.03.1983 with the original said deed. 10.12. I perused the alleged rent deed which is in the form of receipt wherein Kishan Lal admitted that shop No. 25 has been let out to his brothers son Murli Narain on rent of Rs. 125/-and he has received rent of three months as Rs. 375/-. Not only the said document has been produced after such inordinate delay and that too after two decisions against the defendants. It is worthwhile to mention here that Murli Narain himself appeared and gave his statement before the trial Court. In the statement he gave entirely new story that suit property was taken on rent not by him but taken by his father and he is residing since time of his father and mother. It is worthwhile to mention here that Murli Narain himself appeared and gave his statement before the trial Court. In the statement he gave entirely new story that suit property was taken on rent not by him but taken by his father and he is residing since time of his father and mother. He also stated that he is in occupation since before 1983. The suit property was never vacated from the time of his father. Suit property was taken on rent of Rs. 16/-from Thakur of village Pal and rent was increased to Rs. 20/-. For this a rent deed was executed and Ganpat Singh was rent collector. That statement on oath contradicts document which sought to be produced alognwith application under Order 41 Rule 27 CPC, therefore, application deserves to be dismissed, have dismissed. .13. The defendants oral evidence produced in support of his case is not sufficient to rebuttal the evidence produced by the plaintiff . In view of the fact that defendant failed to prove that the plaintiff obtained signature of Defendant No. 1 by any deceitful means or rent receipts are in relation to any other property. The arguments which has been advanced here appears to have not coming from the pleas taken in the written statement and documents which has been sought to be produced or stand which has been taken by Defendant No. 2 who is claiming tenant in the premises .also, not as pleaded by the defendants. In view of above two Courts below on the basis of evidence held the Defendant No. 1 is tenant, Courts have not committed any error of fact or in law. 114. It is true that the suit has been filed through power of attorney. It is true that power of attorney cannot be competent substitute of the plaintiff himself / herself and also he cannot depose for principal in respect of matters of which principal alone can have personal knowledge but it does not disqualify the power attorney for the evidence which are in his personal knowledge. In this case the power of attorney is plaintiff s son and plaintiff has very specifically stated that plaintiff s sons are looking after the property and they were collecting the rent. This fact is not denied by in the written statement. In this case the power of attorney is plaintiff s son and plaintiff has very specifically stated that plaintiff s sons are looking after the property and they were collecting the rent. This fact is not denied by in the written statement. The power of attorney Jasraj was also collecting rent as stated by him and as is proved from the rent receipt produced by the plaintiff . These facts clearly mentioned in the power of attorney produced by the plaintiff . Therefore, the facts which were in personal knowledge of said Jasraj, Power of Attorney of the plaintiff , was competent witness to give evidence. It may be true that the defendant was deprived of from cross-examination of the plaintiff but it is choice of plaintiff to appear in witness box with risk of drawing adverse inference in case he did not appear to give statement in Court. At the same time it is not necessary for the Court the draw adverse inference against plaintiff for his absence in cases where other evidence are available. The son of plaintiff Jasraj cannot be discarded for any reason and in view of the documentary evidence, two Courts below have not drawn adverse inference for non appearance of plaintiff in witness box. This Court is not of the view, in the facts of the case, that the two Courts below have committed any error of facts or law, looking to the relationship of plaintiff and defendants and between plaintiff and his power of attorney. It can be presumed that the plaintiff may not have that much of knowledge which was of her son looking to the entire statement of Jasraj plaintiff who also holding Power of Attorney. In the facts of the case Judgment relied on by the appellant is of no help to the appellant particularly in the view of 2005 (2) SCC 217 (Supra), wherein Apex Court held that power of attorney holder cannot depose for principal in respect of matters in which principal alone can have personal knowledge and in respect of which principal is liable to be cross-examined. 15. In view of above, I find no any substantial question of law involved in this appeal. Learned Counsel for the appellants submits that possession of the suit property has already been taken and delivered to the land in execution proceedings. 16. In view of above, appeal is dismissed.