Himachal Pradesh High Court
Parma Nand And Anr vs Prem Chand & Others on 29 March, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 601 of 2005.
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Reserved on : 23rd March, 2018.
Decided on : 29th March, 2018.
Parma Nand and Anr. .....Appellants/Plaintiffs.
Versus Prem Chand & others Coram:
r to ..Respondents/Defendants.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellants: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate.
For the Respondents: Mr. G.R. Palsra, Advocate.
Sureshwar Thakur, Judge.
The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for declaration, was, hence dismissed.
1Whether reporters of the local papers may be allowed to see the judgment?
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2. Briefly stated the facts of the case are that Padmawati, predecessor-in-interest of the appellant filed a suit against the defendants before the learned trial Court seeking declaration to the effect that the affidavit of 11.10.1990 and compromise deed without date, as filed in RSA No.131/90, decided on 6.11.1990 by the High Court are the result of fraud, deception, undue influence and misrepresentation and therefore, the decree dated 6.11.1990 passed by the High Court is nullity and not executable and enforceable in the eyes of law and the decree passed by the lower Courts are still binding upon the parties. The case set up by the plaintiff was that she and her daughter Narbada Devi filed a suit against defendants No.1 to 3 in the Court of learned Sub Judge 1 st Class, Court no.1, Mandi, challenging the Will dated 27.2.1990 alleged to have been executed by her husband Dhari in favour of defendants No.1 to 3, on the grounds of fraud, misrepresentation and undue influence etc, which ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...3...
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was decreed on 16.9.1986 and the 1st appeal before the learned Addl. District Judge, Mandi was dismissed on 11.1.1990. Defendant No.1 to 3 dis-satisfied with the judgment and decree of the learned trial Court and the 1 st Appellate Court, filed second appeal before the High Court of H.P. in terms of RSA No.131 of 1990. During the pendency of the appeal, defendant Prem Chand, who is closely related to Padmawati plaintiff represented to her that he would withdraw the appeal before the High Court and for that purpose affidavits of Padmawati and of the defendants were required for which purpose defendant No.1 brought the plaintiff to Mandi and got her thumb impression on a typed paper without explaining the contents to her. Smt. Padmawati affixed her thumb impression believing the representation of defendant No.1 to be correct. Defendant No.1 also got the thumb impression of Padmawati affixed on another typed paper which as per information received as the alleged ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...4...
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compromise filed in RSA No.131 of 1990 in the High Court of H.P. Defendant No.1 on the basis of said compromise got the decree of the lower Appellate Court modified and reversed. Defendant No.1 never informed the plaintiff about the execution of the alleged compromise deed nor the plaintiff was consenting party to such deed as she has already won the case in the lower courts and there was no necessity for her to arrive at such a compromise and this compromise is the result of fraud, misrepresentation and undue influence. The plaintiff never sent any instruction to her counsel to compromise the appeal. Defendant No.4 Fagnu Ram, who is the son of the plaintiff from her previous husband prosecuted the suit in the trial Court and defended appeals in both Courts by engaging counsel. Defendant No.4 was bribed by defendant No.2, who misrepresented to Sh. B.K. Malhotra, Advocate about the genuineness of the compromise and thus the decree passed by the Hon'ble ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...5...
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High Court in R.S.A. No. 131/90 of 6.11.1990 is a nullity.
The total land in that suit was measuring 34 bighas and the plaintiff had already won the case in the lower courts and there was no reason for the plaintiff to compromise the case only for about 3 bighas of land.
3. The defendants contested the suit and filed separate written statements.
r Defendants No.1 to 3, in their written statement have taken preliminary objections inter alia maintainability, estoppel, jurisdiction and valuation. It has been stated that the suit is barred under Order 23, Rule 3-A of the CPC. It has been averred that the plaintiff had come to Mandi with the help of her son and she executed compromise deed with her own free will after admitting it to be correct. Even before the High Court of H.P., where the plaintiff was duly represented by her counsel and compromise deed was readover and explained to the plaintiff and her counsel Sh. B.K. Malhotra and thereafter she signed the compromise ded, ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...6...
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which is Ex. C1. The decree passed by the High Court of H.P. is stated to be legal and binding upon the parties. It is denied that the compromise is the result of fraud, misrepresentation and undue influence. It has been stated that the plaintiff is under the grip of her daughter Narbada Devi and her husband and the right of Smt. Narbada Devi has already been denied by the Civil Court and Narbada Devi had got executed the Will of the entire property of the plaintiff in her name and, therefore, the defendants No.1 to 3 have prayed for dismissal of the suit.
4. Defendant No.4 in his written statement averred that the compromise was arrived between the plaintiff and defendants No.1 to 3 and the plaintiff took defendant No.4 to the High Court of H.P. alongwith Hem Singh where she went to her counsel Sh. B.K. Malhotra and told him about the compromise with the defendants and subsequently compromise deed and the affidavits of ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...7...
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the parties were prepared by her counsel and the same were duly readover and explained to the parties and both the parties have admitted the same to be correct and thereafter compromise and the affidavits were brought to Mandi where the same were attested after explaining the same in Hindi to both the parties which they admitted the same to be correct and then the affidavits were attested, and, therefore, after attestation the same were taken to the High Court of H.P. and were handedover to the counsel of the parties. It is denied that the compromise the result of fraud, misrepresentation and undue influence. It is also denied that defendant NO.4 was bribed by defendant No.1. The decree passed by the High Court of H.P. is stated to be legal.
5. The plaintiff filed replication to the written statements of the defendant(s), wherein, she denied the contents of the written statements and re-affirmed and re-asserted the averments, made in the plaint.
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6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the compromise deed and affidavit dated 11.10.1990, filed in R.S.A. No. 131 of 1990 in the Hon'ble High Court of Himachal Pradesh by the defendant No.1 was the result of fraud, misrepresentation and undue influence practised by the defendant No.1 over the plaintiff?OPP.
2. Whether the suit is not maintainable in the present form?OPD.
3. Whether the plaintiff is estopped by her own act and conduct? OPD.
4. Whether the declaratory suit is not maintainable?OPD.
5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD.
6. Whether the suit is barred U/O 23, Rule 3-A of C.P.C.?OPD.
6-A. Whether compromise deed in R.S.A. No. 131/90 dated 6.11.1990 has been procured by defendant No.4 ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...9...
and is the result of fraud and .
misrepresentation?OPP
7. Relief.
7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant(s) herein. In an appeal, preferred therefrom by the plaintiff/appellant(s) herein before the learned First Appellate Court, the latter Court dismissed the appeal, and, affirmed the findings recorded by the learned trial Court.
8. Now the plaintiff/appellant(s) herein, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 30.11.2005 admitted the appeal instituted by the plaintiff/appellant(s) against the judgment and decree, rendered by the learned first ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...10...
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Appellate Court, on the hereinafter extracted substantial questions of law:-
1. Whether the alleged compromise Ex.D-1 filed in this High Court is not genuine and valid, especially in view of the fact that the parties were not examined in support thereof in the Court and, therefore, no reliance could be placed thereon?
2. Whether the compromise Ex.D-1 is not part of the affidavits, which have been brought on record, as Ex.D-2, D-5, D-6 and D-7, because though these affidavits contain endorsement of attestation by the Oath Commissioner, yet these affidavits are not part of the alleged compromise Ex. D-1, which admittedly does not contain signatures of the Oath Commissioner?
3. Whether both the Courts below have taken a wrong view of the matter that invalidity of the compromise decree on the basis of compromise Ex.D-1 has not been proved by the plaintiffs, though in fact keeping in view the fat that she was old and illiterate lady, therefore, such a burden of proof was to be discharged by the defendants?
Substantial questions of Law No.1 to 3:
9. Co-plaintiffs' suit No.4 of 1982, for, declaration and possession of the suit land, was, decreed vis-a-vis co-
plaintiff No.1, one Padmawati, also, thereunder Will, of 27.2.1980 hence was declared null and void vis-a-vis the ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...11...
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rights, of inheritance of one Padamawati vis-a-vis the suit property. In an appeal carried therefrom, by the unsuccessful defendants, the learned First Appellate Court, affirmed, the judgment and decree, pronounced by the learned trial Court. However, during the pendency of RSA No.131 of 1990, as arose before this Court, against the concurrently recorded verdicts by both the learned Courts below, (i) compromise borne in Ex. C-1, accompanied by the affidavits of litigating parties concerned, hence, occurred inter se the parties at contest. Before, this Court hence accepting, the compromise, which had occurred inter se the litigating parties, (ii) it had upon CMP No. 541 of 1990, permitted, the deletion, from the array of co-respondents, of the name of co-respondent No.2 therein, one Narbada Devi,
(iii) and, also had, upon CMP No.543 of 1990, rendered a verdict, for permitting, the appellant No.3, one Smt. Nirmu, to, on behalf of co-appellant No.2 Master Rajesh, ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...12...
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the then minor, and, whose interests in the litigation were watched, by his mother and natural guardian, co-
appellant No.2, to hence compromise the lis, on the minor's behalf. On anvil of Ex. C-1, and, upon the affidavits appended therewith of the litigating parties, this Court had allowed the appeal, and, rendered a decree in terms of compromise, borne in Ex. C-1.
10. Plaintiff one Padmawati, subsequent thereto instituted civil suit No. 210/92(91), whereby, she challenged, the, recording of a compromise, by this Court upon the subject matter, of, a lis borne in RSA No.131 of 1990. The trite grounds averred in the plaint, for hers making a challenge vis-a-vis the compromise deed, on anvil whereof, this Court had allowed RSA No.131 of 1990, and, also rendered a decree in terms of thereof, are, confined to it being (a), a sequel of fraud, misrepresentation besides undue influence practised by defendant No.1 upon the plaintiff, (b) there being no ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...13...
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occasion, for the plaintiff, one, Padamawait to enter into a compromise with the defendants, especially, when she had succeeded uptill the First Appellate Court. In proof of the averments cast in the plaint, the plaintiff one Padamawati, hence stepped into the witness box as PW-
1, and, testified in consonance with the averments cast in the plaint. In her cross-examination, she echoes, that immediately after a decision being pronounced upon RSA No.131 of 1990, her daughter taking her to reside along with her, at her home, (i) and, also rendered an answer in the affirmative, to a suggestion, of hers, instituting the extant suit No.210/92(91) only at the instance of her daughter. (ii) However, in her testification, she, omits to deny her signatures either, on Ex. C-1 or on her affidavit appended therewith. Since, plaintiff Padamawati casts, an averment in the plaint, of the , appending, of, her thumb impressions upon Ex. C-1, and, upon her affidavit appended therewith, being a sequel of fraud and ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...14...
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misrepresentation, (iii) thereupon, it is imperative, to from the evidence on record, hence make cullings, qua dehors, hers not belying the existence of her signatures/thumb impression thereon, qua hers, rather appending her thumb impression thereon, given hers being evidently illiterate, only as a sequel, of, fraud and misrepresentation being practised upon her. Of course, the aforesaid evidence has to also make telling echoings qua the defendants, under, guises or hence beguiling her by meteing false pretext(s) vis-a-vis her, hence, obtaining her thumb impression, upon Ex. C-1, and, upon her affidavit appended therewith. For making the aforesaid unearthings, it is necessary, to allude, to the testification, of, her daughter, who testified, as PW-4, and, who has been testified, by the plaintiff, one Padamawati to puruse RSA No.131 of 1990, and, who has also been testified by her, to, motivate, her to institute, civil suit No.210/92(91).
In her cross-examination she echoes, of hers, ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...15...
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accompanying Padamawati to Mandi, whereat some papers were prepared. She also continued to testify, in her cross-examination, that, at the time of preparation, of affidavits, hers, remaining beside Padmawati. Moreover, in her cross-examination she acquiesces, to the suggestion put to her by counsel for the defendants, of, Padmawati being accompanied by Faganu, and, by Hem Singh, when the aforesaid visited Shimla, (iv) thereupon, she belies the testification rendered by Padamawati qua the latter never visiting Shimla. Contrarily, she corroborates the testification, of DW-6, Puran Chand , who rather testified, of Padamawati in September, 1990 along with Prem Chand, Fagnu and Hem Singh hence visiting the chambers of Shri Arun Goel, Advocate at Shimla, whereat, the requisite papers were prepared. The further effect, of the aforesaid testification of Narbada, of hers, remaining beside Padamawati, whereat, her affidavit was prepared, and, yet her failing to restrain ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...16...
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Padmawati, from, appending her thumb impression on her affidavit, is, of, the further versions, of Padmawati, and, of Narbada, of the thumb marking(s) by Padamawti, upon, her affidavit, and, on compromise deed, Ex.C-1, being a sequel, of any fraud, undue influence or duress being exerted upon her, hence standing belied.
aforesaid inference garners strength, from the factum, of r The the counsel for Narbada, one Mr. B.K. Malhotra, Advocate, not making objection, to the prayer made in CMP No. 540 of 1990, of, the name of Narbada, being deleted, from, the array of co-respondents, (i) emphatically when the aforesaid orders rendered upon CMP No.540 of 1990, remained uncontested by Narbada, on the trite available ground, of hers not meteing the apposite instructions, to her counsel, and, when evident lack of her contest vis-a-
vis their making, when stand considered with aforestated Padamawati, not, denying the existence of her thumb marking(s) upon Ex. C-1, and, upon her affidavit ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...17...
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appended therewith, (ii) thereupon, constrains this Court, to draw an inference, of hers meteing the necessary instructions to her counsel, to seek her deletion, from, the array of respondents, (iii) besides with hers, accompanying her mother Padamawati, to Mandi, whereat the necessary requisite affidavits were prepared, hers rather not restraining Padamawati to append her thumb marks thereon, thereupon, it is to be concluded, of, hers being estopped to contend, of the preparation and execution of Ex.C-1, and, of her affidavit appended therewith, being beyond the volition of Padamawati, (iv) rather when Padamwati testifies, of, Narvada, motivating her to institute Civil Suit No.210/92(91), ttherefrom a prima facie inference, is marshalled, of one Narbada, for the reasons best known to her, motivating Padamawati, to invent a pretext, for impugning the compromise decree, recorded by this Court, in RSA No.131 of 1990.
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11. The learned counsel appearing for the appellants, while relying upon the provisions, borne, in Order 23, Rule of the CPC, provisions whereof stand extracted hereinafter:-
"3. Compromise of suit.- Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit]: -
Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.
[Explanation : An agreement or compromise which is void or avoidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.]"::: Downloaded on - 05/04/2018 22:52:27 :::HCHP
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and while laying much emphasis, upon, the phraseology "where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise" occurring therein, (I) espouses, that with evidently, the statements on oath of the parties at contest, being, not recorded, especially, at the time contemporaneous, to this Court rendering an order, of, RSA No. 131 of 1990, hence, being compromised, (ii) thereupon, when hence prima facie infraction of the mandate of the parlance borne, in the apt opening statutory words "where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise" rather is evident hence concomitantly, for evident want of imperative satisfaction,being drawn, by this Court while allowing RSA No.131 of 1990, and, its rendering a compromise decree thereon, rather hence renders the compromise decree to be vitiated. The ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...20...
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learned counsel appearing for the appellants, has also contended with vigour, that the provisions borne in Order 19, Rule 1 of the CPC, provisions whereof stand extracted hereinafter:
"1. Power to Order any point to be proved by affidavit.- Any court may at any time for sufficient reason Order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:
Provided that where it appears to the court that either party bona fide desires the production of a witness for cross examination, and that such witness can be produced, an Order shall not be made authorizing the evidence of such witness to be given by affidavit."
Appertaining, to, bestowment of a statutory empowerment, upon, Courts of law, to elicit proof through affidavit, vis-a-vis any particular fact or facts in issue, has also been infringed, given this Court not directing the presence therebefore, of, the deponents, of the affidavits appended with compromise deed Ex. C-1, ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...21...
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nor its proceeding to record their statements on oath, despite, it being enjoined to do so. The learned counsel appearing, for the appellants proceeds, to submit that hence the decision rendered upon RSA No.131 of 1990, rather sparking suspicion, and, the suspicious circumstances, surrounding both the execution of Ex. C-1, and the execution of the apposite affidavits, of deponents concerned, appended therewith, when may beget effacement, by their examination in Court, (a) whereas, their presence neither being elicited, nor their depositions being recorded by this Court, per se, thereupon the averments cast in the plaint, qua Padamawati being beguiled to execute C-1, also, to execute her affidavit appended therewith, rather enjoying credence.
12. The submission aforestated, made, by the learned counsel appearing for the appellants, vis-a-vis the purported infringement(s) made by this Court, while ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...22...
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recording a decision upon RSA No.131 of 1990, arising from, the factum of no valid satisfaction being drawn by this Court qua the valid execution of Ex. C-1, whereas, the availment, of, the aforesaid statutory mechanism may have stripped, Ex.C-1, of, all tainting elements of fraud, and misrepresentation, is not acceptance, by this Court, (a) given occurrence, of, r amenable to signatures/thumb impressions, on compromise deed, borne in Ex. C-1, of executants thereof, standing not denied, nor, belied by any of the executants thereof, rather, when the affidavits, of the executants of Ex. C-1, stand appended therewith, and, with theirs, also, being presented along with compromise deed, borne in Ex. C-1, before this Court, (b) besides when the mandate of Order 19, Rule 1 of the CPC, bestows empowerment, upon Courts, to promote adduction of evidence, through affidavits, particularly vis-a-vis any particular fact or facts in issue, (c) nowat, with the apposite fact being the valid ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...23...
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execution of Ex. C-1, by excutants thereof, (d) whereas, hence, rather theirs appending their respective authentic thumb marks or signatures on the affidavits, appended with Ex. C-1, affidavits whereof prima facie reveal, of, theirs being in consonance, with the then prevalent rules, for attesting of affidavits, by the Oath Commissioner concerned, (e) thereupon, with permissibility under law, of affidavits being received in evidence vis-a-vis valid execution of Ex. C-1, (f) besides when existence, of signatures, or thumb marks thereon, of their, respective exeutants, and, also with the apposite signaturing, and thumb marking, of, affidavits remaining unbelied, (g) hence, per se, thereupon, the satisfaction recorded by this Court, on anvils thereof, for its hence making a conclusion, of, the litigating parties settling the lis inter se themselves, cannot render open any conclusion, of, this Court infringing the mandate of the opening lines, carried, in Order 23, Rule 3 of the CPC.
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13. Be that as it may, the address before this Court by the learned counsel appearing for the appellant, that the receiving, of affidavits of the deponents concerned, by this Court, also necessitated this Court to make insistences, qua theirs recording their presence before it, at the time of its, accepting the proposals, borne in Ex. C-
1, also cannot also be accepted, (a) given the mandate of the proviso, occurring underneath, the provisions of Order 19, Rule 1 of the CPC, proviso whereof carries a clear mandate, of, "unless the Court is satisfied that any party to the lis bonafide requires witness for cross-
examination, (b) thereupon, alone it being vested with jurisdiction to summon the deponent(s) of the affidavit(s) concerned, for recording his/her presence before the Court concerned for producing as evidence the apposite affidavit(s)". An incisive reading of both the substantive Rule 1 of Order 19 of the CPC, and, the proviso appended there underneath, (c) makes a clear display of the power, ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...25...
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vested in Courts, to receive evidence through affidavits, is a power confined to receiving affidavit(s), as evidence vis-a-vis the facts in issue, and, also obviously through witnesses concerned, yet the aforesaid power is neither construable to extend nor it holds any amplitude, for, concerned, whose r to making any construction that apart, from, the witnesses evidence on affidavits, may be received, on any particular fact or facts in issue, the Courts being omnibusly empowered, to also only receive affidavits "as evidence", only upon the presence before it, of the litigating parties, being also ensured, (d) nor the evidentiary worth, of, affidavits is stripped of tenacity merely for want of the deponents concerned testifying in Court, (e) especially, with their compromising the lis, hence, obviously do not through affidavits, hence adduce evidence qua any contentious particular fact or facts in issue, nor concomitantly any fact in issue or contentious fact, enjoins proof being adduced through ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...26...
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deponents of affidavits also testifying in Court. (f) tritely also the mandate thereof is applicable to trial, of, issues, and not vis-a-vis the stage of receiving of a compromise deed, (g) predominantly, assumingly if, mandate thereof is also attracted vis-a-vis stage of compromise of suit, yet also with neither counsel, at the stage of, tendering of affidavits, not seeking cross-examination(s), r of, the deponents concerned, whereas, the making(s) of the aforesaid endeavour was imperative, to invite play thereof, and, nor when vis-a-vis the relevant omission(s), apt collusion(s), is ascribed, vis-a-vis the counsel(s), (h) thereupon, hereat the rendering, of testifications, of the deponents concerned hence was not imperative.
Conspicuously, with the compromise deed concerned, standing appended with their respectively affidavits, besides when the signatures or thumb impressions borne on the affidavits sworn, by the deponents concerned, are, not concerted to be belied, of their authenticity.
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Consequently, with this Court, making the aforesaid interpretation vis-a-vis the mandate of Order 19, Rule 1 of the CPC, and, when reads, it in conjunction, with, the opening lines of Order 23, Rule 3 of the CPC, besides when this Court, for further reasons, to be alluded hereinafter, makes, a conclusion of the affidavits being attested in accordance, with, the then prevalent rules, for attestation of affidavit(s), by the Oath Commissioner concerned, latter whereof has rendered his testification qua the validity, of, execution(s) of the apposite compromise, and, qua the valid execution, of, affidavits appended therewith, thereupon, the satisfaction recorded by this Court, cannot be faulted, on any score.
14. Making(s), of the aforesaid conclusion(s) also makes it imperative, for this Court, to allude, to the testification, of the Oath Commissioner concerned, who has stepped into the witness box as DW-3, and, has in his testification, voiced, of his maintaining, the relevant ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...28...
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register, and, his making entry(ies) at serial No.107, on, 11.10.1990, tritely with, respect to the attestation of the affidavit, of one Padamawati. He has also testified, of, the contents of affidavits, being readover and explained, to, the respective deponents, and, after his ascertaining, of, the deponents concerned, comprehending contents, theirs in his presence respectively thumb r their marking, and, signaturing them, whereafter, his making the relevant attestation(s) marks upon them. He has also testified, of his, entering the compromise deed, at column No.7, of his register, besides also the deponents concerned, appending in his register their respective signatures or thumb marks. He has belied, the suggestion that the respective thumb marking(s), and, signature(s) of the deponents concerned, existing, upon the apposite affidavits, being pre-existing thereon, and, rather his merely putting his signatured attestation seals thereon. The testification aforesaid rendered by DW-3, ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...29...
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the Oath Commissioner concerned, does enhance, an inference (a) of the apposite certificates existing thereon, even if they are signatured, by the counsel, for the adversary party(ies) concerned, rather not affording any leverage, to the appellants to contend, of per se, thereupon, there being any exertion of undue influence, or compulsion upon the deponents, of the affidavits concerned, (b) and, assumingly if the counsel, for the adversary litigants concerned, pre-signatured, the endorsement, qua the contents thereof being readover and explained, in vernacular by him vis-a-vis the litigants concerned, (c) yet, all effects thereof, stand obliterated, by DW-3, ensuring the deponents concerned, of, the apposite affidavits, being identified by their proper identifier(s) also his personally ensuring to read contents thereof and also explaining them vis-a-vis the deponents concerned, besides his obtaining, in his apposite register, their respective signatures or thumb marks. The ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...30...
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thoroughness, of the exercise conducted by the Oath Commissioner concerned, preceding his putting his signatured seals, and, attestation marks, on, the affidavits concerned, does also galvanize a firm inference, of, the deponents concerned, only, after theirs respective thumb r to comprehending contents thereof, hence, appending their marks, and, signatures thereon, whereupon, hence any contention, of the deponents concerned, being rather compelled and influenced to append their signatures or thumb marks, on their respective affidavits, rather being bereft of any legal tenacity.
15. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being based, upon a proper and mature appreciation of evidence on record.
While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have not ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP ...31...
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excluded germane and apposite material from consideration. Accordingly, all the substantial questions of law are answered in favour of the respondents/ defendants and against the appellants/ plaintiffs.
16. In view of the above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgements and decrees rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 29 th March, 2018. Judge.
(jai) ::: Downloaded on - 05/04/2018 22:52:27 :::HCHP