Neeraj vs. Raj Kumari

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 163 of 2014.

Date of decision: 22.4.2014.

Neeraj & anr. …… Appellants

Vs.

Smt. Raj Kumari & ors. ….. Respondents

Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Rahul Mahajan, Advocate. For the respondents :

Tarlok Singh Chauhan, Judge (Oral).

The appellants are the defendants and have lost in both the courts below and have thus preferred the present appeal before this court. The brief facts, as necessary for the disposal of the present appeal, are that plaintiff –respondents filed a suit against the defendants- appellants on the grounds that defendant No. 3 was owner of 19/80 shares of land comprising khasra No. 2, Khata Khatauni No. 335/449 and 1/4th share of land comprising khasra No. 3, 2140/4, khata khatauni No. 334/448 situate in Phati Kotla Kothi Bunga, Tehsil Banjar, District Kullu. On 25.9.1987, defendant No. 3 sold a share of land to the plaintiffs for Rs.10,000/- by way of registered sale deed and also delivered possession to the plaintiffs.

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

The plaintiffs effected improvements over the suit land by raising orchard and some construction. It is alleged that defendants No. 1 and 2 got a fictitious sale deed in their favour allegedly executed by defendant No. 3 and even got effected mutation in their favour. It is alleged that sale deed subsequently got registered on 7.1.2000 in favour of defendants No. 1 and 2 did not convey any right, title or interest to defendants No. 1 and 2 and even mutation No. 1496 dated 17.1.2000 was null and void. Hence, the suit for declaration and permanent injunction.

2. The defendants No. 1 and 2 filed a joint written statement, wherein they took preliminary objections regarding limitation, maintainability, estoppel, valuation of the suit for the purpose of court fee and jurisdiction, suppression of material facts by the plaintiffs and defendants being bonafide purchasers for valid consideration. On merits, it was averred that the sale deed dated 25.9.1987 in favour of plaintiffs- respondents was no sale in the eyes of law, as it was never executed and never acted upon. It was further averred that possession was never delivered to the plaintiffs and therefore, the plaintiffs were having no right, title or interest in the suit land. The defendant No. 3 had legally and validly executed the sale deed dated 7.1.2000 in favour of defendants No. 1 and 2 for a consideration of Rs.13,000/- and on the basis of such sale deed mutation No. 1496 had been rightly sanctioned in favour of the defendants- appellants No. 1 and 2. It was further averred that possession of the suit land was with the defendants No. 1 and 2, consequently there was no occasion to interfere in the possession of the defendants. As a result, the defendants- appellants prayed for dismissal of the suit.

3. The defendant No. 3 contested the suit by filing a separate written statement, wherein he took preliminary objections regarding limitation, maintainability and estoppel. On merits, he denied any sale deed having been executed in favour of the plaintiffs on 25.9.1987 for a consideration of Rs.10,000/-. It was averred that in fact defendant No. 3 was an illiterate person and no doubt he had agreed to sell the suit land in favour of the plaintiffs and plaintiffs had agreed that defendant No. 3 would be paid a sum of Rs.700/- at the time of sale and remaining sale consideration of Rs.9300/- would be paid at the time of attestation of mutation. It was further averred that possession of the suit land was never delivered to the plaintiffs. It was also averred that sale deed was got executed by the plaintiffs by playing fraud and misrepresentation and that plaintiffs had paid a sum of Rs.700/- only to the defendant No. 3 and not the entire sale consideration. Therefore, defendant No. 3 was competent to execute the sale deed in favour of defendants No. 1 and 2. It was denied that plaintiffs had made any improvements over the suit land by raising orchard and raising construction. It was stated that sale deed executed by defendant No. 3 in favour of defendants No.1 and 2 was valid and the plaintiffs were bound by the same. Consequently, defendant No. 3 also prayed for dismissal of the suit.

4. Replications were filed by the plaintiffs to the written statements filed by the defendants, wherein all the preliminary objections taken in the written statements, were denied and further they reasserted the pleadings already made in the plaint.

5. On the pleadings of the parties, the learned trial court framed the following issues:-

• 1. Whether the plaintiffs are owners in possession of the suit land? OPP.
• 2. Whether the sale deed No. 65 dated 7.1.2000 and subsequent mutation No. 1496 dated 17.1.2000 are illegal, null and void? OPP.
• 3. Whether the plaintiffs are entitled to the relief of injunction as prayed for? OPP.
• 4. Whether the suit is within limitation? OPP
• 5. Whether the suit is not maintainable? OPD
• 6. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD.
• 7. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
• 8. Relief.

After recording the evidence and evaluating the same, the learned trial court vide judgement and decree dated 6.11.2004 decreed the suit of the plaintiffs by declaring the plaintiffs to be owners in possession of the suit land while the sale deed dated 7.1.2000 and mutation No. 1496 was held to be wrong and illegal and having no effect on the rights of the plaintiffs. The defendants were restrained by a decree of permanent prohibitory injunction from interfering in the peaceful ownership and possession of the plaintiffs over the suit land in any manner.

Aggrieved by the judgement and decree, the defendants- appellants preferred an appeal before the learned lower appellate court, who vide judgement dated 11.7.2013 has been pleased to affirm the judgement and decree passed by the learned trial court. It is in this background that appellants- appellants are before this court by way of present appeal.

6. Mr. Rahul Mahajan, learned counsel for the plaintiffs has strenuously contended that both the courts below have failed to appreciate the law and facts in its true perspective, thereby adversely effecting the rights of the appellants. There has been a total misreading and non-appreciation of the oral and documentary evidence available on record. The learned courts below have failed to take into consideration that defendants- appellants were bonafide purchasers for consideration.

7. I have gone through the impugned judgements and decrees and find that both the learned courts below have discussed in brief the pleadings as also the oral and documentary evidence led by the parties in its true and correct perspective.

8. The learned trial court has painstakingly dealt with the matter and after evaluating the evidence has come to the firm conclusion that Ext. PW 1/A is the sale deed in favour of the plaintiffs, which has been proved on record to be genuine, while on the other hand Sh. Mohar Singh DW 1 had himself admitted that defendant No. 3 had sold the land to plaintiffs firstly in the year 1987. While DWs 1 and 3 had shown their ignorance regarding this fact. There was no express denial regarding the factum of the sale deed in favour of the plaintiffs by these witnesses. The important fact which clinches the issue is that no evidence was led by defendant No. 3 nor did he appear in the witness box. The learned trial court further came to the firm conclusion that Rs.700/- had been paid to the vendor- defendant No. 3 at home, while the remaining sale consideration of Rs.9300/ had been paid before the Sub-Registrar and to this effect an acknowledgement by way of receipt was also issued. The learned trial court further came to the conclusion that plaintiffs are in possession of the suit land, while the defendants had failed to prove the sale deed allegedly executed in their favour by defendant No. 3 and their possession or even their title to the suit land because they were not in possession.

9. The learned lower appellate court too has taken into consideration the pleadings of the parties and discussed the evidence after evaluating the same has affirmed the judgement and decree passed by the learned court below.

10. The defendant No. 3 was the best person, who could have deposed regarding the sale-deeds in question, but unfortunately defendant No. 3 did not appear in the witness box, therefore, an adverse inference is required to be drawn against him, since it was this defendant, who in his written statement, had sought to support the case of defendants- appellants. The Hon'ble Supreme Court in Ishwar Bhai C.Patel alias Bachu Bhai Patel versus Harihar Behera and another (1999) 3 SCC 457, has held as under:

"17. Admittedly respondent No. 1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No. 2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No. 2. It has been given out in the statement of respondent No. 2 that

when the appellant had approached him for a loan of Rs. 7,000/-, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No. 1 and it was on his suggestion that the respondent No. 2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No. 2 that it was at his instance that respondent No. 2 had advanced the amount of Rs. 7,000/- to the appellant by issuing a cheque on the account of defendant (respondent) No. 1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act, 1872.

18. As early as in 1927, the Privy Council in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230, took note of a practice prevalent in those days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that the other party may be treated as the witness of the first party. Their Lordships of the Privy Council observed as under :-

"Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness.

This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1910) ILR 32 All 104), calling it "a vicious practice, unworthy of a high-toned or reputable system of advocacy."

19. They further observed as under :-

"But in any view her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case."

20. Their Lordships also took note of the High Court finding which was to the following effect :-

"It is true that she has not gone into the witness box, but she made a full statement before Chaudhri Kesar Ram, and it does not seem likely that her evidence before the Subordinate Judge would have added materially to what she had said in the statement.

21. They observed :-

"Their Lordships disapprove of such reasoning. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination."

22. This decision has since been relied upon practically by all the High Courts. The Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1, observed as under :-

"It is significant that while the plaintiffs put the defendant in the witness-box they themselves had not the courage to go into the witness-box. Plaintiffs were the best persons to give evidence as to the "interest" possessed by them in the institution and their failure to go into the witness-box must in the circumstances go strongly against them."

23. This decision was also relied upon by the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97, which observed as under :-

"It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case."

24. The Lahore High Court in two other cases in 1934, namely, Bishan Das v. Gurbakhsh Singh, AIR 1934 Lahore 63 (2) and Puran Das Chela v. Kartar Singh, AIR 1934 Lahore 398 took the same view.

25. A Division Bench of the Patna High Court in Devji Shivji v. Karsandas Ramji, AIR 1954 Patna 280, relying upon the decision of the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh (AIR 1927 PC 230) (supra) and the Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 MP 225 have also taken the same view. The Madhya Pradesh High Court also relied upon the following observation of the Calcutta High Court in Pranballav Saha v. Sm. Tulsibala Dassi, AIR 1958 Cal 713 :- "The very fact that the defendant neither came to the box

herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny."

26. The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 All 29, held that :-

"the explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the Court would not imagine an explanation which a party himself has not chosen to give."

27. It was further observed that :-

"If such a party abstains from entering the witness box it must give rise to an inference adverse against him.

28. A Division Bench of the Punjab & Haryana High Court also in Bhagwan Dass v. Bhishan Chand, AIR 1974 P & H 7, drew a presumption under Section 114 of the Evidence Act that if a party does not enter into the witness box, an adverse presumption has to be drawn against that party.

29. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by respondent No. 2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of respondent No. 1 in the Central Bank of India Ltd., Sambalpur Branch, and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of respondent No. 1 in its entirety and passing a decree against the appellant also".

11. Similar observations have been reiterated by the Hon'ble Supreme Court in Vidhyadhar versus Manikrao and another (1999) 3 SCC 573, which reads as follows:-

"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 as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksh Singh v. Gurdial Singh AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh AIR 1930 Lah 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR 1931 Bom 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat AIR 1970 MP 225 also followed the Privy Council decision in Sardar Gurbaksh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath AIR 1971 All 29 held that if a party abstains from entering the witness box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand AIR 1974 P&H 7 drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness box."

12. The learned courts below have concurrently found as a matter of fact that the sale deed had been executed in favour of the plaintiffs by the defendant No.3 and therefore, defendant No. 3 had no subsisting right, title and interest, whereby he could have transferred the suit land by way of sale or otherwise in favour of defendants No. 1 and 2. The sale deed in favour of defendants No. 1 and 2 is a result of fraud with the active connivance of defendant No. 3, who as stated above, did not even chose to appear in the witness box despite his having filed a written statement and supported the claim of defendants No. 1 and 2. This completely belies and demolishes the entire case of the defendants- appellants.

13. The findings recorded by the learned courts below are pure findings of fact. Therefore, no question of law much-less substantial question of law arises for consideration and accordingly, the appeal is dismissed in limine.

April 22, 2014. ( Tarlok Singh Chauhan ), (Hem) Judge.