Himachal Pradesh High Court
Smt. Rubi Sood And Another vs Major (Retd.) Vijay Kumar Sud & Others on 28 May, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 436 of 2000 .
Reserved on 21.5.2015
Date of decision: 28.5.2015
Smt. Rubi Sood and another ...Appellants
Versus
Major (Retd.) Vijay Kumar Sud & others ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes.
For the Appellants: Mr. G.C. Gupta, Senior Advocate with Ms. Meera Devi, Advocate.
For the Respondents: Mr.Ajay Kumar, Senior Advocate with Mr.Dheeraj K. Vashisht, Advocate, for respondents No. 5, 7 and 8.
Mr.Bhupinder Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate, for respondent No. 6.
Tarlok Singh Chauhan J.
The defendants/appellants have filed this appeal against the concurrent findings of fact recorded by the learned Courts below. The facts of the case may be noticed as follows:-
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 2 The respondents/plaintiffs filed a suit for partition and separate possession, contending therein that Shri Kedar Nath .
Sud and Sh.Sansar Chand Sud sons of late Shri Shiv Dayal jointly owned 1/4th undivided share in the double storeyed building known as shop No. 72, Lower Bazar, Shimla standing built upon portion of land bearing Khasra No. 313, Bazar Ward, Bara Shimla Tehsil and District Shimla (herein after referred to as suit property) and the remaining 3/4th share in the said building No. 72, Lower Bazar Shimla was owned by Smt.Udhi Devi W/o late Dr. Shiv Dayal and grandmother of late Sh. Ajay Sud (defendant No. 1 in the suit) and respondents Nos. 1, 2, 4, 5 to 7 and 8 and mother-in-law of plaintiffs No. 3 and 9 (plaintiffs in the suit).
2. After death of late Sh. Kedar Nath which occurred in December, 1985, his 1/8th undivided share in the said property No. 72, Lower Bazar, Shimla was inherited by his legal heirs i.e. respondents/plaintiffs No. 5 to 9 and the other 1/8th undivided share owned by Sh. Sansar Chand in the said property was inherited by plaintiffs No. 1 to 4. Smt. Udhi Devi W/o late Dr. Shiv Dayal bequeathed her 3/4th undivided share in the said shop No. 72, Lower Bazar, Shimla standing built upon land comprised in Khasra No. 313 in favour of her grandson defendant No. 1 vide Will dated 5.11.1974 registered in the office of Sub Registrar, Hamirpur, ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 3 H.P. Thus 1/4th undivided share in the property known as Shop No. 72, Lower Bazar, Shimla was owned by the plaintiffs jointly and .
the remaining 3/4th share in the said double storeyed building was owned by defendant No. 1.
3. In the ground floor defendant No. 2 Shri Kanehya Lal Mehra was the tenant for the last many years and in the first floor of the said shop legal heirs of Mangat Ram are doing their business.
Therefore, it was the plaintiffs and defendant No. 1, who were the joint owners of the said property and are in constructive and legal possession of the said property through their tenants.
4. The plaintiffs had recently come to know that since the property situated in the commercial heart of the town and its ownership value and premium value runs into lacs, defendant No. 3 had surreptitiously purchased the same for a paltry sum from defendant No. 1 and was trying to oust defendant No. 2 from the ground floor of the said shop No. 72, Lower Bazar, Shimla by paying some money to him for surrendering possession and then was trying to induct some other person in the said shop by pocketing huge amount of 'Pagri' for which the defendants were colluding with each other. Since defendant No. 3 was not legally entitled to purchase the said property under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 as amended in April, 1988, ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 4 defendant No. 3 had obtained a General Power of Attorney from defendant No. 1 which was registered in the office of Sub Registrar .
(Urban), Shimla on 25.7.89 to camouflage and hide the original unlawful sale transaction which was illegal null and void abinitio being directly hit by Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. In fact, the said General Power of Attorney had been made with a view to defeat and frustrate and nullify the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. Therefore, the said power of attorney had been manufactured for unlawful purposes. On the strength of the said document, the defendants were trying to part with the possession of shop in the ground floor of shop No. 72 Lower Bazar, Shimla without the consent of the plaintiffs who were also co-owners to the extent of 1/4th share in the said property. The defendants had no right to induct any new tenant or change the tenancy of the said shop without the consent or permission of the plaintiffs who are the co-owners thereof.
5. It was further averred that the interest of the plaintiffs in the suit property is not safe in the hands of defendants who are out to defraud and cheat the plaintiffs and pocket huge sum of premium by inducting some new person in Shop No. 72, Lower Bazar, Shimla. Therefore, the plaintiffs do not want to keep the ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 5 property joint. Defendant No. 1 had also realized rents of the said property but had not rendered the accounts for the last about 12 .
years to the plaintiffs. Defendant No. 1 was also, therefore, liable to render accounts of the income and profits of the said property. The plaintiffs were, therefore, entitled to an injunction restraining the defendants to induct any person in the said property without their consent or permission. If the injunction was not granted the plaintiffs would suffer irreparable loss and injury which could not be compensated in terms of money.
6. The suit was resisted and contested by defendants by filing separate written statements. Defendant No. 1 in written statement had raised preliminary objections to the effect that the plaintiffs had no locus standi to file the present suit because the plaintiffs had no right, title or interest in the suit property, as it was exclusively owned and possessed by late Smt. Udhami Devi as an absolute owner and after her death the property had come to the replying defendant through a Will dated 5.11.1974, the plaintiffs were estopped from filing the present suit on account of their acts, deed and acquiescences, that the present suit was barred in view of the dismissal of earlier suit by Sub Judge Ist Class (1) Shimla, on 19.4.1988 between the same parties pertaining to the same ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 6 property and that the replying defendant is not the accounting party being the exclusive owner in possession of the property.
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7. On merits, it is submitted that the suit property was exclusively purchaded by Smt.Udhami Devi along with 3/4th share in shop No. 72/1 from Sh.Himat Singh through a registered sale deed dated 24.7.1956, duly registered in the office of Sub Registrar, Shimla for a consideration of Rs.18,975/-. Sh. Himat Singh had purchased the same from custodian through a sale certificate in the year 1952 and mutation was attested in his favour. It was denied that Sh. Kedar Nath Sood and Sh. Sansar Chand Sood had any share in the suit property. The relationship of plaintiffs with late Smt.Udhami Devi was not denied. It was submitted that Sh. Kedar Nath Sood had no share in the suit property and as such there was no occasion for the plaintiffs No. 5 to 9 or other plaintiffs to had inherited his share in the suit property. It was admitted that Smt.Udhami Devi had executed a Will dated 5th November, 1974 in favour of replying defendant duly registered in the office of Sub Registrar, Hamirpur by which her 3/4th share in Shop No. 72/1 and the entire property known as Shop No. 72 was bequeathed in favour of replying defendant. It was denied that 1/4th share in the suit property was owned by the plaintiffs, as the entire property ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 7 was owned by replying defendant on the basis of will executed by Smt.Udhami Devi.
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8. It was admitted that Sh. Kanhya Lal Mehra was the tenant in the ground floor of suit property and in the first floor the legal heirs of Sh. Mangat Ram were the tenants. The rent from both the defendants was being realized by Smt.Udhami Devi during her life time and thereafter by replying defendant. It was denied that the plaintiffs were the joint owners with defendant No. 1. It was also denied that they are in constructive and legal possession of the said property through their tenants.
9. Respondent No. 1 further denied that defendant No. 3 had purchased the suit property and defendant No. 3 had been unnecessarily impleaded as a party to the suit. It was also denied that defendant No. 1 was trying to oust defendant No. 2 from the ground floor of the shop in which the business was being run by defendant No. 2. It was also denied that defendant No. 2 was taking any premium from defendant No. 3. Since defendant No. 3 neither purchased nor intended to purchase the property, the applicability of the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 were not attracted in the present case.
It was also denied that any power of attorney had been manufactured for unlawful purpose. Since the plaintiffs had no ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 8 right, title or interest in the suit property, they had no right to object to any new tenant which may be inducted by defendant No. 1 .
nor there was any necessity to get their consent. The replying defendant being the owner of the suit property was within his rights to let out the same to anyone.
10. It was further submitted that since the plaintiffs had no right, title or interest in the property, there was no question of their being cheated by the replying defendant, who was exclusive owner of the property. The plaintiffs had no right to seek partition of the property nor ask for rendition of accounts. The defendant No. 1 being exclusive owner of the property was not liable to render any accounts to the plaintiffs, who are only strangers to the property in dispute. The plaintiffs also were not entitled to any injunction.
11. Defendant No. 2 in his written statement had also raised preliminary objections that the suit was not maintainable, the plaintiffs had got no locus standi to file the suit against the replying defendant and the plaintiffs were estopped from filing the suit against the replying defendants on account of their own acts, conducts and deeds.
12. On merits, it was submitted that Smt. Udhi Devi was the owner of Shop No. 72, Lower Bazar, Shimla and after her death ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 9 and as per Will dated 5.11.1974 (which was the subject matter of the suit), Mr. Vijay Kumar Sud, minor son of late Shri Virender .
Kumar Sud (i.e. defendant No. 1), became the absolute owner qua the said shop, in the tenancy and in the use and occupation of M/s Mehra Bros. Late Sh. Kedar Nath was appointed as a guardian by the Court, only to receive rent on behalf of minor Shri Ajay Kumar, defendant No. 1. After few years of realizing rent from the tenants M/s Mehar Brothers, on behalf of minor Ajay Kumar, Shri Kedar Nath Sud, moved an application before the Court, expressing his desire that some other guardian be appointed for the minor, as he wanted to withdraw.
13. Shri Kedar Nath was only entitled to receive rent on behalf of minor Ajay Kumar, defendant No. 1, which right he even relinquished before his death by moving an application in the Court in the eviction case, which had been filed on behalf of minor Ajay Kumar, defendant No. 1 against defendant No. 2. Smt. Udhi Devi mother of late Shri Kedar Nath had bequeathed the absolute ownership of Shop No. 72, Lower Bazar Shimla (in the tenancy of M/s Mehra Brothers) in favour of Sh. Ajay Kumar who was minor at that time and who was the son of late Sh. Virender Kumar. Late Sh. Kedar Nath or Sh. Sansar Chand had never laid any claim in ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 10 their individual capacity as owner over the said shop or its rent etc in the tenancy and use and occupation of M/s Mehra Brothers.
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14. It was further submitted that M/s Mehra Brothers were the tenants qua the ground floor of Shop No. 72, Lower Bazar, Shimla since the time of custodian department, who had allotted the said shop to M/s Mehra Brothers. Sh. Ajay Sud, defendant No. 1 was the owner/landlord qua the same after death of Smt. Udhi Devi. It was denied that the plaintiffs are the co-owners qua the said shop after the death of Smt.Udhi Devi.
r It was further averred that the plaintiffs had never laid their claim over the rents of Shop No. 72. It was only defendant No. 1 who had been realizing rent from M/s Mehar Brothers, tenant qua the said shop after death of Smt. Udhi Devi.
15. Defendant No. 3 in his written statement also raised preliminary objections qua maintainability, locus standi, estoppel etc. In addition to it, defendant No. 3 had submitted that the suit was not properly valued for the purpose of court fee and jurisdiction.
16. On merits, it was submitted that Sh.Ajay Kumar Sood S/o ShVarinder Kumar Sood was the owner of Shop No. 72, Lower Bazar, Shimla (two storeyed building) by way of Will executed by Udhi Devi, dated 5.11.1974 registered with Sub Registrar, ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 11 Hamirpur in favour of Ajay Kumar, defendant No. 1. It was further submitted that late Sh. Kedar Nath or Sh. Sansar Chand had never .
laid any claims in their individual capacity as owners over the said shop or its rent etc, in the tenancy and use and occupation of M/s Mehar Brothers. It was admitted that M/s Mehra Brothers were the tenants qua the ground floor of Shop No. 72, Lower Bazar, Shimla. It was submitted that Ajay Kumar Sood, defendant No. 1 was the sole owner of Shop No. 72 by way of a will and question of joint ownership did not arise.
17. It was denied that the plaintiffs were the co-owners qua the said shop after the death of Smt. Udhi Devi. The General Power of Attorney of Sh.Ajay Kumar Sood in favour of Sh.Kuldip Singh, defendant No. 3 was admitted, as defendant No. 1 was residing thousand miles away from Shimla, as such, he had executed a general power of attorney in favour of defendant No. 3.
Defendant No. 3 had not purchased the property in question, so the question of any Section of Land Reforms Act did not arise. It was submitted that it was only defendant No. 1 who had been receiving rents from the tenants after death of Smt. Udhi Devi.
18. In replication, the plaintiff controverted the allegations of the written statement and re-asserted the averments contended in ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 12 the plaint. The learned trial Court vide orders dated 21.12.1989 framed the following issues:-
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"1. Whether the plaintiffs are owners to the extent of 1/4th share in shop No. 72 in dispute as alleged? OPP
2. Whether the plaintiffs are entitled to the relief of partition, separate possession of their share in the suit property as alleged? OPP
3. Whether the plaintiffs are entitled to the relief of rendition of accounts from defendant No. 1 as alleged? OPP
4. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction as claimed? OPP
5. Whether the suit is not maintainable in view of preliminary objection No. 1 in the written statement of defendant No. 2 and preliminary objection No. 3 in the written statement of defendant No. 1? OPD
6. Whether the plaintiffs had no locus standi to file the suit?
OPD
7. Whether the suit is not maintainable in view of preliminary objection No. 3 as alleged by defendant No. 2? OPD-2
8. Whether the plaintiffs are estopped from filing the present suit as alleged? OPD
9. Whether the Smt. Udhmi Devi W/o Shiv Dayal was the exclusive owner of shop No. 72 as alleged? OPD
10. If issue No. 9 is held in affirmative, whether defendant No. 1 has become absolute owner of the suit property as alleged? OPD
11. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
12. Whether the plaintiffs had no cause of action to had file the suit against defendant No. 3, as alleged? OPD-3
13. Whether this Court has no jurisdiction to try the suit as alleged by defendant No. 3? OPD
14. Relief."::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 13
19. After recording evidence, the learned trial Court decreed the suit. Aggrieved by the judgment and decree passed by .
the learned trial Court, the defendants preferred an appeal before the learned lower Appellate Court and the same also was dismissed.
Undeterred, the defendants had preferred the present appeal.
20. This Court admitted the appeal on the following substantial question of law:-
"Whether the Courts below had misconstrued and misread the oral as well as documentary evidence and especially the documents Exhibits P-1 to P-6, P-15, PW-9/A to PW-9/14?"
21. Mr.G.C. Gupta learned Senior Advocate, duly assisted by Ms.Meera Devi, Advocate has vehemently argued that the findings recorded by the learned Court below though concurrent are yet perverse. Both the Courts below have failed to take into consideration the fact that the plaintiffs/respondents had failed to prove that their predecessor-in-interest had purchased shop bearing No. 72. According to him, the predecessor-in-interest of the respondents had purchased the shop through Ex.P-2, which is the sale deed dated 15.2.1926, which clear shows that what was purchased by Dr.Mukand Lal and Sh. Sansar Chand was 1/4th share of Shop No. 72/1 and 72/2, which they had purchased for a consideration of Rs.6,000/-. Subsequently, vide sale deed Ex. P-1, ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 14 1/8th share in shop No. 72/1 and 72/2, owned by Dr.Mukand Lal was transferred in favor of Sh. Kedar Nath on 8.12.1977 and as .
such Sh.Kedar Nath became owner of his 1/8th share and the other 1/8th share remained in the ownership of Sh.Sansar Chand.
Subsequently, on the death of Sh.Sansar Chand, vide Ex.P-15, 1/8th share in the shop No. 72/1 was mutated in favour of his legal heirs on 18th October, 1969.
22. He further contended that the predecessor-in-
interest of the respondents, during their life time till 1983 never claimed any interest in shop No. 72 nor made any application to any authority in regard to the fact that there did not exists any shop bearing No. 72/2 and it was in fact shop No. 72, which was purchased by their predecessor-in-interest to the extent of 1/4th share. Even the documents Ex. PW-9/1 to Ex. PW-9/13 were showing Smt.Udhi Devi as the exclusive owner to the extent of 3/4th share in shop No. 72/1 till her death and after her death Sh.Ajay Kumar was recorded as owner. Prior to the purchase by Smt.Udhi Devi, the tax assessment report for the years 1952 to 1955 shows Sh. Naimant-ullah and others to be the owners of Shop No. 72 and they along with Dr.Mukand Lal and Sh. Sansar Chand as owners of shop No. 72/1. It was only in the year 1983, that too behind the back of the appellants that the name of respondents was added in ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 15 the column of owners along with Ajay Kumar in the assessment list relating to the year 1982-83.
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23. He further contended that map Ex. P-4 had also not been properly considered by the learned Courts below, which clearly shows that there exists three shops on the spot and subsequently the third shop was merged in shop No. 72/1 by the predecessor-in-interest of the respondents. Learned Senior Counsel for the appellants further contended that vide sale deed Ex. P-5, it was established on record that Sh.Himant Singh had sold the property in favour of the predecessor-in-interest of the appellants, wherein also it have been clearly mentioned that he had sold shop No. 72 and 3/4th share in shop No. 72/1. This description tallied with the description of the property as mentioned in the sale certificate Ex. P-6. In this background it was for the respondents to have led cogent and trustworthy evidence to prove that their predecessor-in-interest had in fact purchased shop No. 72, while as a matter of fact no evidence worth the name had been produced.
24. On the other hand, Mr.Ajay Kumar, and Mr.Bhupinder Gupta, learned Senior Advocates, duly assisted by Mr.Dheeraj K. Vashishta and Mr.Neeraj Gupta, Advocates have argued that merely by terming the finding to be perverse, the same ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 16 cannot be held to be perverse, particularly, when not only the learned trial Court, but even the learned Lower Appellate Court has .
dealt with the issue thread bare and only thereafter decreed the suit of the plaintiffs. It is further stated that this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure Code ought not to interfere with pure findings of fact.
I have heard the learned counsel for the parties and have gone through the records.
25. It is more than settled that this Court in exercise of its jurisdiction under Section 100 CPC would not upset the concurrent finding of fact, unless the finding so recorded are shown to be perverse. A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 17 being perverse, then the finding is rendered infirm in the eye of the law.
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27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, than the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated.
29. The main thrust of the appellants is that by merely by saying that shop No. 72 has wrongly been mentioned as shop No. 72/2 in the sale deed dated 5.2.1926, was not a ground in itself, which would proves the respondents to be owners of remaining part of the property, apart from 3/4th share already owned by him.
30. To my mind, the appellants are trying to take unnecessary advantage of the mis-description of the property. The description otherwise when compared with the other documents on record, clearly establishes that as a matter of fact there were only two shops i.e. shop No. 72 and 72/1, whereas shop No. 72/2 was ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 18 never in existence. It is established by oral and documentary evidence on record that 1/4th share in the suit property and .
adjoining shop No. 72/1 originally belonged to Sh.Thiku Mal, S/o Sh. Mukadi Mal and Sh.Khusi Lal S/o Sh. Hira Lal Sood, who vide sale deed dated 15th February, 1926 sold their 1/4th share in the said properties i.e. 72 and 72/1 in favour of Dr.Mukand Lal S/o Bhandari Mal and Sh.Sansar Chand, S/o Sh. Shiv Dayal. This deed was duly registered in the office of Sub Registrar, Shimla. Dr. Mukand Lal thereafter sold his 1/8th share as mentioned above in favour of Sh.Kedar Nath vide sale deed dated 8.12.1977, which was duly registered with the Sub Registrar, Shimla.
31. Obviously, the discrepancy which found its way in the sale deed would form the basis of entry in all the subsequent records kept for this purpose. Later this mistake was also reflected in the municipal records. It would further be seen that in the sale deed of 1926 and the subsequent sale deed of December, 1977, the two shops have been properly identified by permanent boundaries, which fact is also mentioned in the sale certificate of Sh.Himat Singh issued by the Custodian Department, namely, on the North Alley and passage, on the South Lower Bazar, on the East Alley No. 9 and on the West house of Bhedu Mal Mohinder Chand. Not only this, the dimensions of the property on the East are 21 feet, on the ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 19 West 25 feet, on the South 29 feet and on the north 28 feet, meaning thereby the shops were comprised over a total area of 644 .
Sq. feet.
32. In such situation, it was incumbent upon the appellants to have proved that the dimensions as mentioned in the sale certificate and the sale deeds are different from those existing on the spot. On failure to do so, the necessary inference and rather the only conclusion which this Court can draw is that there appears to be a mistake in the sale deed of 1926, whereby shop No. 72 by mistake has been referred to as 72/2.
33. Sh.G.C. Gupta, learned Senior counsel for the appellant would then argue that an adverse inference ought to be drawn against the respondents for not examining Dr.Mukand Lal as a witness, though he was cited as a witness and given up. This contention is without any force. The record reveals that apart from the plaintiffs, even the defendants have summoned Dr.Mukand Lal and the learned counsel for the appellant vide statement dated 29.8.1991 has stated before the learned trial Court as follows:-
"I give up Dr.Mukand Lal and Uttam Singh present, as not required to be examined, since they are won over."
34. The learned counsel for the appellants has vehemently contended that the map Ex. P-4 has not been properly ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 20 considered by the learned Courts below, which otherwise clearly proves that there exists three shops on the spot and subsequently .
third shop was merged in Shop No. 72/1 by the predecessor-in-
interest of the respondents. I have perused the map Ex. P-4 and find that the contention of the appellants is not factually correct.
35. The map does not in any manner depict three shops, rather it appears to be the area where the window was to be placed.
The mere fact that the shops as also the space has been shown in blocks and in contiguity would not if-so-facto prove that this block depicts the third shop.
36. The record reveals that defendant No. 1 in the suit did not appear in the witness box and state his own case on oath and did not offer himself for cross-examine by other side.
Therefore, in such situation a presumption would arise that the case set up by him was not correct.
37. In Man Kaur (dead) by LRs. Vs. Hartar Singh Sangha, (2010) 10 SCC 512, the Hon'ble Supreme Court has summarized the legal position as to who should give evidence in regard the matters involving personal knowledge and it was held as follows:-
::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 21"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
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(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
r (c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction.
This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 22 to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff .
or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
38. The judgment rendered by the learned lower Appellate Court would reveal that though while concurring with the judgment of the learned trial Court, it was not required to re-state the effect of the evidence and even expression of general agreement with reasons given by the learned trial Court would have ordinarily sufficed yet the learned First Appellate Court has given a more elaborate and detailed finding, whereby he had not only discussed the pleadings thread bare, but has also discussed the evidence in ::: Downloaded on - 15/04/2017 18:16:30 :::HCHP 23 its right perspective. The appellants have failed to prove any perversity in the impugned judgments.
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Having observed so, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their costs.
(Tarlok Singh Chauhan), Judge.
28th May, 2015
(KRS)
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