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2013 DIGILAW 978 (HP)

Jiwan Singh v. Rajinder Sharma

2013-11-22

DEV DARSHAN SUD

body2013
JUDGMENT : Dev Darshan Sud, J. This appeal has been preferred by the defendants against the concurrent findings of the learned two courts below. The suit of the plaintiffs Ram Lal and Maya Devi praying for a decree of permanent prohibitory injunction restraining the defendants from interfering in the suit land, cutting and removing the trees as also forcibly ousting the plaintiffs from the joint possession, was decreed by the learned trial Court. The plaintiff pleaded that there was consolidation in the village in the year 1982-1983 and the consolidation authorities without any right had allotted the suit land to defendants No. 1 and 2. The learned trial Court on the pleadings of the parties settled five issues, the primary being whether the plaintiffs and defendants No. 4 and 5 are joint owners in possession of the suit land, the second issue as to whether they are entitled to the relief of injunction. The defendants also urged ouster of jurisdiction by the civil Court. On the first two issues, the learned trial Court held in favour of the plaintiffs holding them and defendants No. 4 and 5, namely, Devi Chand and Smt. Shakuntla Devi as joint owners in possession of the suit land. On the issue of jurisdiction both the Courts held that the Civil Court has jurisdiction to decide the suit and is not barred by the provisions of H.P. Holding (Consolidation and Prevention of Fragmentation) Act, 1971. The defendants appealed challenging the findings on these issues. The learned District Judge dismissed the appeal holding that the revenue record did not support the contention of the defendants and that the plaintiffs have been able to prove and establish their possession of the suit land. The Court also notes that both defendants No. 1 and 2 have not entered the witness box in support of their plea and that they were in actual physical possession and have been represented by their power of attorney. The third defendant did not appear as his witness despite the fact that his son Rattan Singh has appeared as DW 3/1 who admits in his cross-examination that his father Gurnam Singh is hale and hearty and he can move about to attend Court. In this eventuality adverse inference should and ought to be drawn against them. The learned Court relied upon the decision of the Supreme Court in Vidhyadhar Vs. In this eventuality adverse inference should and ought to be drawn against them. The learned Court relied upon the decision of the Supreme Court in Vidhyadhar Vs. Manikrao and Another, AIR 1999 SC 1441 which decision was later on reiterated in Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, AIR 2005 SC 439 . The Court holds: 13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2, CPC, confines only in respect of the "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. In other words, 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.(p. 442) 2. The decision was further followed in Kamakshi Builders Vs. Ambedkar Educational Society and Others, AIR 2007 SC 2191 holding: 28. It may be true that respondent No. 3 herein should have examined himself and the learned Trial Judge committed a serious error in drawing an adverse inference in that behalf as against respondent No. 1. It was, however, so done keeping in view the fact that respondent No. 3 was evidently not interested in the property in view of the fact that it had suffered a decree. For all intent and purport, even if the submission of Mr. Parasaran is accepted that the appellant is claiming only by reason of an award, he has transferred the property in his favour. He received a valuable consideration in terms of the award. We are not concerned with the validity thereof. Non-examination of Respondent No. 3 indisputably would give rise to a presumption, as has been held by this Court in AIR 1927 230 (Privy Council) Martand Pandharinath Chaudhari Vs. Radhabai Krishnarao Deshmukh, (1930) 32 BOMLR 924 and The Ramanathapuram Market Committee Vs. He received a valuable consideration in terms of the award. We are not concerned with the validity thereof. Non-examination of Respondent No. 3 indisputably would give rise to a presumption, as has been held by this Court in AIR 1927 230 (Privy Council) Martand Pandharinath Chaudhari Vs. Radhabai Krishnarao Deshmukh, (1930) 32 BOMLR 924 and The Ramanathapuram Market Committee Vs. East India Corporation Ltd., AIR 1976 Mad 323 and Vidhyadhar Vs. Manikrao and Another, AIR 1999 SC 1441 but by reason of presumption alone, the burden is not discharged. A title is not created. 3. The defendants are now in second appeal. The appeal was admitted on 3.7.2000 on the following substantial questions of law: 1. Whether the impugned judgments and decrees passed by both the courts below stand vitiated for misreading and mis-appreciating document Ex. P-4 (order of remand passed by the learned Divisional Commissioner Kangra at Dharamashala)? 2. Whether impugned judgments and decrees passed by the courts below are hit by the provisions of Section 57 of the H.P. Holding (Consolidation and Prevention of Fragmentation) Act, 1971? Question No. 1 4. The appellants claim total misreading of Ex. P-4, the order of remand by the Divisional Commissioner, Kangra at Dharamshala which according to the appellants is the back bone of the case of the plaintiffs. In the judgment of learned District Judge, I do not find any such emphasis by the learned Judge on this document alone. The learned court while considering the documents on record does not make this as the foundation of its judgment. 5. Adverting to the judgment of the learned trial Court, on the first issue framed which is for determination of the fact as to whether the plaintiffs and defendants No. 4 and 5 are joint owners in possession of the suit land, the learned trial Court considered the evidence in detail. It has referred to Ex. D-5, copy of the order of the Consolidation Settlement Officer showing that the suit land has been allotted to the plaintiffs and defendants No. 4 and 5. This order was complied with and recorded in the revenue record. The court then considered in detail Ex. P1, which is the copy of Missal Hakiat Settlement for the year 1984-85. D-5, copy of the order of the Consolidation Settlement Officer showing that the suit land has been allotted to the plaintiffs and defendants No. 4 and 5. This order was complied with and recorded in the revenue record. The court then considered in detail Ex. P1, which is the copy of Missal Hakiat Settlement for the year 1984-85. According to the learned trial Court, it incorporates that khasra numbers 73, 76, 79, 137, 142 which had been allotted to defendants No. 2 and 3 was allotted to the plaintiffs and defendants No. 4 and 5, mutation to this effect was attested and thereafter entry was made in Missal Hakiat Ex. P1. Similar is the position in the Missal Hakiat Settlement for the year 1984-85, Ex. P-2 showing that the land allotted to defendant No. 1 was allotted to the plaintiffs and defendants No. 4 and 5 vide order Ex. D-5 and mutation was also thereafter effected which was incorporated in the Missal Hakiat Ex. P-2. Jamabandi Ex. P-3 for the year 1984-85 accepts this position. Khasra No. 73 has been shown in the ownership of plaintiffs and defendants No. 4 and 5. The Court then proceeds that Ex. P-4 proves that earlier allotment was set aside and the case was sent for reconsideration. Documents Ex. P-9 to Ex. P-14 (revenue records) and the documents relied upon by the defendants Ex. D-1 to D-6 and Ex. Dy reaffirmed the possession of the plaintiffs and defendants No. 4 and 5 jointly. In this background, it cannot be said that the order of the remand has been unduly relied upon/misconstrued and is the only document as the foundation of the case of the plaintiff. This document was considered in the entirety of the evidence as noticed above. 6. In appeal, the learned Additional re-appreciated the entire evidence. The learned Appellate Court holds that the admitted facts as emerging from the record are that in consolidation operation, the suit land was earlier allotted to defendants No. 1 to 3. Khasra No. 71, 80, 81 and 78 were allotted to defendant No. 1, Bhuri Singh and khasra No. 73/2 was allotted to defendant No. 2 Khushia and khasra Nos. 66, 79, 137, 142 were allotted to defendant No. 3 Gurnam Singh. Khasra No. 71, 80, 81 and 78 were allotted to defendant No. 1, Bhuri Singh and khasra No. 73/2 was allotted to defendant No. 2 Khushia and khasra Nos. 66, 79, 137, 142 were allotted to defendant No. 3 Gurnam Singh. The learned Appellate Court then proceeds that the plaintiffs and defendants No. 4 and 5 objected to the allotment before the Consolidation Officer which was cancelled and the suit land was allotted to the plaintiffs and defendants No. 4 and 5 vide order dated 2.5.1986. The learned Appellate Court read this evidence in conjunction with the testimony of PW 1 Shri Ram Lal as also Missal Hakiat for the year 1983-1984, Ex. P-1 to Ex. P-3. The Court then proceeds that against order dated 2.5.1986, the defendants were in appeal before the Settlement Officer who vide order dated 20.12.1989 set aside the order dated 2.5.1986 passed by the ACO with respect to mutation No. 10 which order found further adjudication before the Divisional Commissioner, who vide his order dated 7.6.1991 allowed the appeal and remanded the case to the Settlement Officer for decision afresh. In these circumstances, I find that the first question with respect to misreading of Ex. P-4 has to be answered against the appellants more especially for the reason that this document does not form the only basis for settlement but read in conjunction with the testimony of the witnesses and other documents on record. 7. I also note at this juncture that the learned Additional District Judge while considering the appeal on the facts for determination of the matter holds that defendants No. 1 and 2 did not appear as witnesses in support of their plea that they were in physical possession of the land. Their sons Jeewan Singh and Rattan Singh appeared as powers of attorney. It is not clear from the evidence that they had personal knowledge about this fact. The Court then holds that defendant No. 3 Shri Grunam Singh also did not appear as his own witness despite the fact that Shri Rattan Singh while appearing as DW 3 admitted in his cross-examination that his father Gurnam Singh is well and can move about and in fit condition to depose. Learned Court draws the adverse inference against the defendants. Counsel for the respondents placed reliance upon the decision of the Supreme Court in Man Kaur (dead) by LRS. Vs. Learned Court draws the adverse inference against the defendants. Counsel for the respondents placed reliance upon the decision of the Supreme Court in Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, (2010) 10 JT 565 to urge that: 14. In Vidhyadhar Vs. Manikrao and Another, AIR 1999 SC 1441 this Court reiterated the following well-recognized legal position: 9 SCC 583084, para 17) 17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct..... (p. 521). 8. The Court further relied upon the decisions in Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, AIR 2005 SC 439 Shambhu Dutt Shastri Vs. State of Rajasthan and Others, (1986) 2 WLN 713 and Ram Prasad Vs. Hari Narain and Others, AIR 1998 Raj 185 affirming the decision in Shambhu Dutt Sastri's and Ram Prasad's cases. The gist of the principle of law laid down was that if the power of attorney holder has rendered some acts in pursuant thereto, he may depose for the principal in respect of such acts, but he cannot depose for the acts done by the principal. There can be no dispute as this is the settled aspect of the law. Question No. 2. 9. On the second question as to whether the suit is barred by the provisions of Section 57 of the H.P. Holding (Consolidation and Prevention of Fragmentation) Act, 1971, the learned Appellate Court holds that a decree for permanent injunction has been prayed for, in which event it is not barred by the provisions of the aforesaid Act. The learned trial Court considered this aspect under issues No. 3 and 5. The learned trial court holds that the suit land was allotted to the plaintiffs and defendants No. 4 and 5 in the consolidation proceedings, for which they are in joint possession. The suit filed is one for injunction against the defendants and not allotment of the land in which eventuality provisions of Section 57 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 are not attracted. In these circumstances, second question is answered against the appellants. I find no merit in this appeal which is accordingly dismissed. The suit filed is one for injunction against the defendants and not allotment of the land in which eventuality provisions of Section 57 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 are not attracted. In these circumstances, second question is answered against the appellants. I find no merit in this appeal which is accordingly dismissed. All pending miscellaneous application(s) also stands disposed of.