JUDGMENT Parthivjyoti Saikia, J. - Heard the learned counsel, Mr. A. Dhar appearing for the appellant. Also heard Ms. R. Choudhury, learned counsel for the respondents. 2. This is a regular second appeal directed against the judgment of the First Appellate Court that was passed in T.A. No. 57 of 2011 by Civil Judge, karimganj. 3. Ramendra Narayan Das (the respondent No. 3 herein) filed the T.S. No. 75 of 2007 against Late Nilima Das Gupta (the respondent No. 1 herein), Kulchuma Bibi (respondent No. 2 herein) and Md. Abdur Rouf (the appellant herein) for declaration of his right, title and interest over a plot of land measuring 16 Katas along with a C.I. sheet roofed house standing thereon. This land originally belonged to 3(three) persons namely Md. Motosin Ali, Halima Begum and Md. Assaddar Ali. They sold the land to the respondent No. 3. A registered sale deed was also executed on 24.01.2007. Since then, the respondent No. 3 has been peacefully occupying the said land. He also constructed his residential house over that land. Plaintiff was an employee of the State of Assam and because of his duties, he had to stay away from his house. It is alleged that late Nilima Das Gupta intended to sell the aforesaid land to the respondent Kulchuma Bibi. Thereafter, late Nilima Das Gupta and Kulchuma Bibi tried to dispossess the respondent No. 3 of the land. Therefore, the respondent No. 3 filed the suit before the Court of the Munsiff seeking declaration of his right, title and interest over the said properties. 4. It may be stated that the present appellant was impleaded at a subsequent stage of the suit. 5. Nilima Das Gupta has filed a written statement and a counter-claim seeking a declaration of her Right, Title and Interest over the said property and for cancellation of the sale deed dated 24.01.2007. 6. The present appellant also filed a written statement along with a counter-claim seeking a declaration of his right, title and interest over the said land. 7. Kulchuma Bibi did not contest the case. Therefore, the case proceeded ex-parte against her. The respondent No. 3, Respondent No. 2 and the appellant examined some witnesses. They also exhibited some documents. 6. The present appellant also filed a written statement along with a counter-claim seeking a declaration of his right, title and interest over the said land. 7. Kulchuma Bibi did not contest the case. Therefore, the case proceeded ex-parte against her. The respondent No. 3, Respondent No. 2 and the appellant examined some witnesses. They also exhibited some documents. On conclusion of the trial, the Court of the Munsiff dismissed the suit of the respondent No. 3 and also dismissed the counter-claim of the respondent No. 1, Nilima Das Gupta. The Counter-claim of the appellant Abdur Rouf was decreed. Therefore, the respondent No. 1, late Nilima Das Gupta filed the appeal, being, T.A. No. 57 of 2011. In that appeal, the present appellant Abdur Rouf, the respondent No. 3, Ramendra Narayan Das and Kulchuma Bibi were made respondents. The First Appellate Court allowed the appeal and decreed the counter-claim filed by Nilima Das Gupta and the counter-claim filed by Abdur Rouf was dismissed. Hence, the present appeal has been filed. 8. The Court of the Munsiff dismissed the counter claim of Nilima Das Gupta because she did not appear before the Court and offered herself for cross-examination. In her place, her son deposed on her behalf. The Trial Court opined that since she failed to offer herself for cross-examination, it could be presumed that she had set up a false case. The aforesaid view of the Munsiff was based upon a ratio laid down by the Supreme Court in the case of Vidhyadhar v Manik Rao reported in (1999) 3 SCC 573 . The Trial Court did not rely upon the evidence of the son of Nilima Das Gupta who examined himself as D.W. 5. No power of Attorney was given to DW 5 to depose on behalf of Nilima Das Gupta. This time, the Trial Court relied upon the decision of the Supreme Court that was rendered in Janki Vashdeo Bhojwani v. Indusind Bank Limited, (2005) 2 SCC 217 , which held that since there is no Power of Attorney, the DW-5 is not entitled to give evidence on behalf of his mother. The appellate Court simply held that D.W. 5 is entitled to give evidence on behalf of his mother. 9. I have given my anxious consideration to the submissions made by the learned counsels for the parties. The appellate Court simply held that D.W. 5 is entitled to give evidence on behalf of his mother. 9. I have given my anxious consideration to the submissions made by the learned counsels for the parties. Here at this stage, the Section 120 of the Indian Evidence Act maybe visited. It reads has under: "120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial.-In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness." 10. In the case of Vidhyadhar (supra), in paragraph-17, the Supreme Court has held has under: "17. the son of the landlady is not a person covered under the aforesaid provision and as such is not a competent to depose on her behalf." 11. This view has been followed by the Supreme court in the case of Man Kaur (Dead) by LRS reported in (2010) 10 SCC 512 . 12. Dw 5 is entitled to appear as an independent witness or attorney but because of the embargo of Section 120 of the Evidence Act, he is not entitled to step into the shoes of his mother. He cannot adduce evidence on behalf of his mother. 13. I find that the opinion of the Munsiff is based on sound reasoning. The learned appellate Court took an irresponsible casual approach and pushed aside the reasoned finding of the Munsiff. The Privy Council in Sardar Gurbaksh Singh v. Gurdial Singh, (1927) AIR PC 230 has held that the presumption would arise that the case set up by the party is not correct, if he/she fails to appear as witness to state his/her case on oath and to offer himself/herself for examination. Till today, this is a fundamental law. Therefore, I have reasons to agree with the decision of the Munsiff. By failing to appear in the witness box and to offer her for cross-examination, it can be presumed that the case set up by Nilima Das Gupta is not correct. 14. Under the aforesaid premised reasons, this court hereby holds that the judgment passed by the First Appellate Court is not sustainable in law. By failing to appear in the witness box and to offer her for cross-examination, it can be presumed that the case set up by Nilima Das Gupta is not correct. 14. Under the aforesaid premised reasons, this court hereby holds that the judgment passed by the First Appellate Court is not sustainable in law. Therefore, the judgment & Decree dated 18.04.2012 passed by the learned Civil Judge, Karimganj in T.A. No. 57 of 2011 is hereby set aside. 15. In the result, the judgment & Decree passed by the learned Munsiff No. 1, Karimganj on 17.06.2011 in T.S. No. 75 of 2007 is affirmed. 16. The Second Appeal is answered and disposed of, accordingly. 17. Send back the L.C.R.