Himachal Pradesh High Court
Mehar Chand & Others vs Paramjeet Singh & Another on 10 December, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 338 of 2011 Reserved on: 02.12.2019 Decided on: 10.12.2019 __________________________________________________________ .
Mehar Chand & others .....Appellants.
Versus Paramjeet Singh & another ......Respondents.
____________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes.
____________________________________________________ For the appellants: Mr. Rajnish K. Lal, Advocate.
For the respondents: Mr. Dushyant Dadwal and Mr. r Subhash Chander, Advocates.
Respondent No. 2 ex parte.
Chander Bhusan Barowalia, Judge.
The present regular second appeal has been maintained by appellants, who were plaintiffs before the learned Trial Court (hereinafter referred to as "the plaintiffs), against judgment and decree passed by learned District Judge, Kangra at Dharamshala, dated 08.04.2011, in Civil Appeal No. 9- B/XIII-2008, whereby the appeal preferred by the plaintiffs was dismissed and the judgment and decree passed by learned Civil Judge (Senior Division), Baijnath, District Kangra, H.P., in Civil Suit No. 48 of 2004, dated 02.01.2008, was afirmed. 1
Whether reporters of Local Papers may be allowed to see the judgment? ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP -2-
2. The key facts of the case can tersely be summarized as under:
2(a). Shri Ramesh Chand (father of the plaintiffs No. 1(a) and 1(b) and husband of plaintiff No. 1(c)), who was the original .
plaintiff before the learned Trial Court (hereinafter referred to as "the original plaintiff"), maintained a suit seeking a decree of declaration that gift deeds dated 05.12.2003, qua land comprising in Khata No. 49, Khatauni Nos. 134 to 136, Khasra Kita 5, measuring 1-32-18 hectares to the extent of 46667/381706 share measuring 0-16-16 hectares, situated at Mohal Haar Bahi, Mauza and Tehsil Baijnath, District Kangra and land comprising in Khata No. 53, Khatauni No. 163, Khasra Kita 3, measuring 0-04-16 hectares to the extent of 1/3rd share that is 0-01-38 hectares, situated at Mohal Khuh, Mauza Chadhiar, Tehsil Baijnath, District Kangra, H.P. (hereinafter referred to as "the suit land"), executed by the original plaintiff, Shri Ramesh Chand, in favour of Shri Ram Saran alias Saran Dass (father of defendants No. 1 & 3 and husband of defendant No. 2). As per the plaintiffs, the gift deeds were aftermath of undue pressure, coercion, duress and against the wish of the original plaintiff, so the same were sought to be declared null and void alongwith mutation No. 455, dated 16.12.2003, which was attested pursuant to the gift deeds.
2(b). The original plaintiff sought a decree of permanent prohibitory injunction restraining the defendants/respondents ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP -3- (hereinafter referred to as "the defendants") from dispossessing the plaintiffs forcibly from the suit land. The plaintiffs, in the alternative, prayed for a decree of possession.
2(c), As per the original plaintiff, he was owner-in-
.
possession of land comprising in Khata No. 49, Khatauni Nos.
134 to 136, Khasra Kita 5, measuring 1-32-18 hectares to the extent of 115786/381706 share, i.e., 0-40-10 hectares, situated at Mohal Haar Bahi, except land measuring 0-30-00 hectares, gifted in favour of Mehar Chand and the land comprising Khata No. 53, Khatauni No. 163, Khasras No. 902, 903 and 922, measuring 0-04-16 hectares to the extent of 1/3rd share, i.e., 0-
01-38 hectares, situated at Mohal Khuh, Mauza Chadhiar. It is further contended that he purchased the land comprising Khata No. 49, situated in Mohal Haar Bahi from Smt. Kamla Devi widow of Shri Ghanshayam Singh for Rs. 4005/- and to the extent registered sale deed, dated 13.06.1971, was executed. On 20.04.2004 Shri Ram Saran @ Saran Dass died. The original plaintiff used to serve outside and Shri Ram Saran taking advantage of this, behind his back, got mutation attested in his favour qua land comprising in Khata No. 49 at Mohal Haar Bahi to the extent of half share and remaining half share in favour of the original plaintiff in contrast to the contents of the sale deed. It is further averred that Shri Ram Saran subsequently moved an application for partition of land comprising in Khata No. 38, khatauni Nos. 122 to 124, Khasra Kita 5, measuring 1-32-18 ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP -4- hectares situated in Mohal Haar Bahi in the year 1989. The original plaintiff came to know about such proceedings and he objected to it and ultimately the proceedings were dismissed and no appeal was preferred. Subsequently, Shri Ram Saran .
relinquished his share in land comprising in Khata No. 40, Khatauni Nos. 128 to 130, Khasra Kita 5, measuring 1-32-18 hectares to the extent of 46667/381706 share, i.e., 0-16-16 hectares situated at Mohal Haar Bahi in favour of the original plaintiff, vide registered relinquishment deed dated 12.01.2000 and accordingly mutation No. 392, dated 18.03.2000, was attested in favour of the original plaintiff. It is averred that Shri Ram Saran deliberately recorded his wrong age in the relinquishment deed to blackmail the original plaintiff and he was in a habit of altering his signatures time and again. Shri Ram Saran on 30.10.2003 moved a false application to SHO, Police Station Baijnath, and the police, in presence of the witnesses, threatened the original plaintiff and his son (Shri Mehar Chand) to execute the gift deed qua land comprising in Khata No. 49, situated in Mohal Haar Bahi and Khata No. 53, situated in Mohal Khuh, i.e., suit land in favour of Shri Ram Saran and if they fail to do so, they will be jailed. Consequently, on 05.12.2003 original plaintiff executed gift deeds qua the suit land in favour of Shri Ram Saran unwillingly. Shri Ram Saran impishly procured Special Power of Attorney from the original plaintiff. Later on, when the original plaintiff came to know ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP -5- about the same, he moved an application before the Revenue Authorities with a prayer not to attest the mutation. As per the original plaintiff, the gifts deeds were the result of undue pressure, coercion, undue influence, duress and not his .
voluntary act, so the same are not binding upon him. It has been further averred that the physical possession of the suit land was never parted. In view of the above of the above backdrop, the original plaintiff sought the relief of declaration, injunction and possession.
2(d). The defendants by filing the written statement contested the suit and raised preliminary objections, i.e., maintainability, cause of action, estoppel and locus standi. On merits, it is contended that the original plaintiff is not the only owner-in-possession of the suit land and the suit land was recorded in the name of their father, Shri Ram Saran, and the land had been transferred through registered gift deed from the original plaintiff. It is further averred that after the death of Shri Ram Saran, on 24.04.2004, the defendants became owners-in-possession over the suit land. The defendants denied that Shri Ram Saran executed any relinquishment deed dated 12.01.2000 before the Sub Registrar in favour of the plaintiff. As per the defendants relinquishment deed was a false document and qua this they made a complaint to SHO, Police station Baijnath on 30.10.2003, as it does not bear the signatures of their father, Shri Ram Saran. It is contended that ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP -6- as the said document is false, so there is no point mentioning false age of Shri Ram Saran. The defendants averred that application moved to Police station Baijnath was false and illegal. The defendants denied that the original plaintiff was .
pressurized by Shri Ram Saran and undue influence was exerted upon him for the execution of the gift deeds. As per the defendants, the original plaintiff executed the gift deeds out of his free will and volition. On 05.12.2003, the original plaintiff, just to save his skin from the case, which was got registered by Shri Ram Saran, executed gift deeds before the Sub Registrar, Baijnath. The defendants averred that no findings were given by AC 1st Grade on the application and it was simply dismissed. Lastly, the defendants prayed for dismissal of the suit.
3. The original plaintiff, by filing replication, refuted the stand taken by the defendants, and reiterated his claim, as alleged in the plaint. The learned Trial Court on 16.03.2005 framed the following issues for determination and adjudication:
"1. Whether the plaintiff is entitled for the relief of declaration, as prayed for? OPP
2. Whether the gift deeds dated 05.12.2003 regarding the suit land alleged to be executed by the plaintiff in favour of Ram Saran are result of undue pressure, coercion, duress, illegal, invalid and against his wishes, as alleged? OPP
3. Whether the mutation No. 455 dated 16.12.2003 in respect of the land bearing Khata No. 49, Khatauni Nos. 134 to 136, Khasra Kita 5 to the extent of 46667/381706 on the basis of gift deed dated 05.12.2003 is also illegal, invalid and not binding upon the plaintiff, as alleged? OPP ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP -7-
4. Whether the plaintiff is also entitled for the relief of injunction, as prayed for?
OPP
5. Whether in the alternative the plaintiff is also entitled for the relief of possession of the land in dispute, as prayed for?
OPP .
6. Whether the suit is not maintainable?
OPD
7. Whether the suit is without cause of action? OPD
8. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD
9. Whether the plaintiff has no locus standi? OPD
10. Whether the father of the defendants never executed any relinquishment deed dated 12.01.2000 and the alleged deed is false and wrong document, as alleged?
OPD
11. Relief."
4. After deciding issues No. 1 to 5 against the plaintiff and issues No. 6 to 10 in favour of the defendants, the suit of the plaintiff was dismissed. Subsequently, the legal representatives of the original plaintiff (appellants herein) preferred an appeal before the learned Lower Appellate Court, which was dismissed, vide impugned judgment dated 08.04.2011, hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law:
"1. Whether the judgment and decree of the Court below is contrary to law and facts of the case besides being perverse, based on misreding of oral and documentary evidence, particularly, Ex. DA, Ex. DB and Ex. PW-5/A as also pleadings of the parties and drawing up of wrong inferences from the facts proved on record?
2. Whether the judgment of the District Judge is vitiated for not critically examining the ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP -8- oral and documentary evidence, particularly, the evidence recorded in appeal from which a clear case of undue influence, coercion, duress and police pressure in execution of the deeds Ex. DA and Ex. DB was made out and the gifts were liable to be declared null and void .
and the findings are contrary to the provisions of Order 20, Rule 1 CPC and the judgment of this Hon'ble Court in case Om Paraksh vs. State of H.P. AIR 2001 HP 19?
3. Whether the plaintiff was entitled to decree for injunction in view of his settled possession when it was established that neither the gift was executed nor it was complete by delivery of possession and the appellant was entitled to protection of his settled possession?"
5. I have heard the learned Counsel for the appellants, the learned Counsel for the respondents and have carefully gone through the records.
6. The learned Counsel for the appellants has argued that the original plaintiffs was made to sign the gift deeds under coercion and the same were signed under coercion, so the same are not valid and liable to set aside. He has further argued that the learned Courts below without appreciating the facts correctly have given wrong findings which are perverse and liable to be set aside. He has argued that the plaint makes out all the necessary ingredients, so the appeal be allowed. He has relief upon the decision of co-ordinate Bench of this High Court, rendered in Murat Ram versus Bhadar Singh, 2014(1) Himachal Law Reported 664.
7. Per contra, the learned Counsel for the respondents has argued that the pleadings as also the evidence led by the ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP -9- plaintiff nowhere shows that it is the case of the plaintiffs that the original plaintiff was made to sign on the blank documents. He has further argued that the power of attorney cannot depose the facts which only the principal (original plaintiff herein) .
knows qua the coercion and when the original plaintiff had not appeared in the witness-box, so adverse inference is to be drawn against the plaintiffs. In order to get lateral support to his arguments, the learned Counsel for the respondents has relied upon the following judicial pronouncements:
r1. Janki to Vashdeo Bhojwani another vs. Indusind Bank Ltd. and others, (2005) 2 SCC 217; & and
2. S. Kesari Hanuman Goud vs. Anjum Jehan and others, (2013) 12 SCC 64;
8. In rebuttal the learned counsel for the appellants has argued that the necessary ingredients of Order VI, Rule 4 CPC are available in the present matter, so the findings, as recorded by the learned Courts below are required to be quashed and set aside by allowing the appeal.
9. In order to appreciate the rival contentions of the parties, I have gone through the record carefully.
10. The controversy in the case in hand mainly hinges upon Order VI, Rule 4 Civil Procedure Code (hereinafter referred ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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to as "CPC"). At the very outset the same is extracted hereunder:
"Order VI, Rule 4. Particulars to be given where necessary.- In all cases in which the party pleadings relies on any .
misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
Order VI, Rule 4 CPC is clear that detailed facts are required to be stated in the plaint itself qua undue influence, coercion, duress and pressure. A perusal of the plaint filed in the Court of lowest rung nowhere reflects detailed facts and particulars qua what was the type of coercion, what was the undue influence, what kind of duress and what type of pressure exerted on the original plaintiff, which resulted in execution of gift deeds by the original plaintiff in favour of Shri Saran Dass. In fact, the original plaintiff has baldly asserted coercion, undue influence, duress, pressure etc. without stating facts qua the same in the plaint. The plaint has conspicuously no voice qua the details of alleged coercion, pressure, undue influence and duress.
11. Firstly, in the instant case Order VI, Rule 4 CPC, has not been complied with, which is mandatory in nature. Secondly, the original plaintiff made bald assertions without stating facts in details in the pleadings qua coercion, undue ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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influence, duress, pressure etc. and he could have to some extent provided force to his assertions by deposing in the Court, but he was not examined in the Court. So, at the first count, the suit of the plaintiff is hit by Order VI, Rule 4 CPC.
.
12. Now, it would be apt to turn the hands of clock towards the evidence, which has come on record. As highlighted above, testimony of the original plaintiff was not recorded, which could have subtly established coercion, undue influence, duress, pressure etc. on him, which resulted in execution of gift deeds in favour of Shri Saran Dass. PW-1, Shri Bikram Chand, the then Reader to Tehsildar, Baijnath, testified copy of application for partition, Ex. PW-1/A, to be correct and as per this witness it was decided on 02.03.1993. This witness, in his cross-examination, has feigned ignorance about the further proceedings. PW-2, Shri Mehar Chand (son of Shri Ramesh Chand, original plaintiff) deposed that he is special power of attorney of his father and SPA is Ex. PW-2/A. As per this witness, his father is paralytic and due to this he is unable to speak and walk. They are in possession of the suit land and possession was never handed over to the defendants. He has further deposed that his father was in service and Shri Ram Saran in the year 1989 initiated proceedings partition proceedings. Ram Saran got incorporated his name in the revenue records and to this effects objections were filed by his father, so ultimately the partition proceedings were dismissed ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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and no appeal was preferred. He has stated that Shri Ram Saran executed a relinquishment deed, wherein he disclosed his age as 49 years, in favour of his father, which is mark 'A' and to this effect mutation was attested. A criminal complaint was .
filed against his father by Shri Saran Dass, copy of which is mark 'B'. As per this witness, relatives of defendants were in police, so he and his father were summoned in the police station and threatened. On his father pressure was exerted to execute a gift deed otherwise they will be implicated in a false case. He stated that execution of gift deed was involuntary act of his father. He was not present when relinquishment deed was written and he has admitted that it was scribed by Shri Pawan Acharya, Advocate. This witness admitted his signature and signatures and photograph of his father and Ram Saran on gift deeds mark 'DA' and 'DB'. He denied that in sound state of mind his father executed the gift deeds.
13. PW-3, Shri Gian Chand, deposed that Shri Ramesh Chand was in possession of the suit land and he did not hand over the possession of the same to Shri Ram Saran or the defendants. As per this witness, Shri Ram Saran used to reside at Kacha Khuh with his wife and children and the land situated in village Kacha Khuh had been divided in two shares equally. PW-4, Shri Sarwan Singh, deposed that suit land situated in Haar Bahi is owned, possessed and cultivated by the plaintiffs. As per this witness, Shri Ramesh Chand did not relinquish ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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possession of the suit property in favour of Shri Ram Saran or the defendants and the plaintiffs are in possession over the suit land for the last 35 years. This witness, in his cross- examination, admitted that Shri Ram Saran and Shri Ramesh .
were real brothers. He feigned ignorance qua the fact that land situated in Haari Bahi is joint amongst the parties. PW-5, Shri Pawan Acharya, Advocate, deposed that he wrote the relinquishment deed, Ex. PW-5/A, at the instance of deceased Ramesh Chand and Ram Saran and also explained the contents of the same to the parties. He has further deposed that the parties admitted the contents of Ex. PW-5/A to be correct and appended their signatures thereon. As per this witness, he did not know personally deceased Ram Saran and he disclosed his age as 49 years. This witness could not identify deceased Ram Saran in the photograph.
14. PW-6, Shri Satya Pal, the then Registration Clerk, Tehsil Officer, Baijnath, deposed that as per the instructions at the time of registration of sale deed power of attorney and gift deed, the photograph of the executant and witnesses were necessary. He has further deposed that Tehsildar used to inquire from the executant about the execution of such document. This witness testified endorsement in documents mark 'DA' and 'DB'. As per this witness, on mark 'DA' and mark 'DB' the executant as well as witnesses have appended their signatures willingly and their signatures were not obtained on ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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blank papers. PW-7, Shri Rakesh Kumar (police official) brought records qua FIR No. 167 of 2004, dated 20.10.2004, registered under Sections 420 and 467 IPC. This witness admitted that he is not Investigating Officer in the matter and .
as per this witness investigation is in progress and no accused has been arrested till now. He has further deposed that report regarding specimen hand-writing and signatures is awaited. PW-8, Shri Rajesh Verma, Advocate, deposed that on 12.01.2000 relinquishment deed, mark 'A' was scribed by Shri Pawan Acharya, Advocate, at the instance of Shri Ram Saran, which bears his signatures, as witness. As per this witness, contents of the relinquishment deed were read over to the parties by Shri Pawan Acharya, Advocate, and after admitting the contents to be correct, Shri Ramesh Chand and Shri Ram Saran signed on it. Subsequently, Shri Uttam Chand also signed the relinquishment deed, as a marginal witness. This witness, in his cross-examination, deposed that he did not know Shri Ram Saran personally. He has admitted that Shri Ram Saran lodged a criminal complaint with the police qua preparation of fabricated relinquishment deed, upon which FIR under Sections 420, 467, 468 and 471 IPC was registered, which is being investigated. As per this witness, Shri Ramesh Chand (original plaintiff) has been impleaded as an accused. He feigned ignorance that Shri Ramesh Chand returned the land through a gift deed in favour of Shri Ram Saran on 05.12.2003. ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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He denied that Shri Ram Saran did not come to Tehsil Office to execute the relinquishment deed and also denied that relinquishment deed was prepared in forged manner at the instance of Shri Ramesh Chand (original plaintiff).
.
15. On the other hand, defendants examined three DWs. DW-1, Shri Paramjeet Singh, deposed that Shri Ramesh Chand was younger brother of his father. As per this witness, his uncle Shri Ramesh Chand mutated the share of land of his father situated in Bahi Haar, through a forged relinquishment deed. As per this witness his father had not executed any relinquishment deed. His father got registered FIR and matter is being r investigated. Subsequently, the matter was compromised inter se both the brothers, so his uncle executed two gift deeds, Ex. DA and Ex. DB, favouring his father qua the land situated in Chadhiar and Bahi Haar. He has further deposed that gift deeds were scribed by Shri Anil Katoch, Advocate, and other marginal witnesses, i.e. Shri Mehar Chand and Shri Tilak Raj. Mutations qua the gift deeds were sanctioned. The suit land is in their possession and his uncle voluntarily executed the gift deeds. This witness, in his cross- examination, has deposed that suit property was exclusively purchased by father of plaintiffs, namely Shri Ramesh Chand. He admitted that suit land was purchased from Smt. Kamla Devi wife of Shri Ghan Shyam. He denied that the suit land was alienated by Smt. Kamla Devi in favour of the plaintiff, Shri ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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Ramesh Chand, vide registered sale deed dated 13.06.1971. He feigned ignorance that his father moved an application for partition in 1989-90 before Tehsildar, Baijnath. He also feigned ignorance that his father engaged Shri Pawan Acharya, .
Advocate. He deposed that he does not know objections were raised by Shri Ramesh Chand in partition proceedings. He has further deposed that he does not know that application for partition was dismissed by Tehsildar on 02.03.1993. This witness denied that on 12.01.2000 his father relinquished the land situated in Haar Bahi in favour of Shri Ramesh Chand. He also denied that relinquishment deed was scribed by Shri Pawan Acharya, Advocate, and marginal witnesses Shri Rajesh Kumar and Shri Uttam Chand, were present. He has denied that his father was identified by Shri Nanak Chand, Lambardar. He has also denied that in 2003 his father got registered a false FIR and on 30.10.2003 he himself guided his father to register a false case. He admitted that Shri Ramesh Chand was called in police station, but he was not threatened by the police, consequent to which on 05.12.2003 Shri Ramesh Chand executed two gift deeds. He denied that his relative, i.e. Havaldar Pathania was posted in Police Station, Baijnath. Lastly, he denied that defendants have an intention to grab the land falling in the share of the plaintiff.
16. DW-2, Shri Anil Katoch, Advocate, deposed that on 05.12.2003 he scribed two gift deeds, Ex. DA and Ex. DB at the ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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instance of Shri Ramesh Chand in favour of Shri Ram Saran (brother of Shri Ramesh Chand). As per this witness, contents of the deeds were read over and explained to the parties and the parties signed the same. The marginal witness, i.e., Shri Tilak .
Raj and Shri Mehar Chand also signed the gift deeds. He has further stated that the gift deeds were presented before Sub Registrar for registration. Gift deeds bear the signatures and photographs of the parties and the witnesses and Shri Ramesh Chand admitted the contents of the same to be correct before the Sub Registrar. He deposed that Shri Ramesh Chand was his client and it is not that he was not known to him. He denied that Shri Ramesh Chand was baffled while executing gift deeds Ex. DA and Ex. DB. DW-3, Shri Tilak Raj, deposed that he knows the parties and saw Ex. DA and DB. As per this witness, he is marginal witness to the gift deeds and the same were executed by Shri Ramesh Chand in favour of Shri Ram Saran. Shri anil Kumar scribed the deeds and alongwith him other marginal witness was Shri Mehar Chand. Both donor and donee signed the deeds and the contents of the same were read over and explained to the parties and the parties admitted the same to be correct. When the deeds were presented before the Tehsildar, Tehsildar also inquired and found the documents as correct, so both the deeds were registered. As per this witness no fraud was played while executing the gift deeds and he denied that the deeds are executed in a forged manner. He ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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deposed that stamp papers were purchased by Shri Ramesh Chand and gift deeds were written in the office of Shri Anil Katoch, Advocate.
17. PW-9, Shri Balbir Thakur, Criminal Ahlmad, office .
of Judicial Magistrate, Baijnath, was examined in rebuttal. He deposed that Ex. PW-9/A and Ex. PW-9/B are correct. In addition to the above evidence, additional evidence was adduced before the learned First Appellate Court, but the same, being formal in nature, need not to be discussed.
18. After carefully discussing the evidence, manifestly, during the pendency of the suit before the Court of the lowest rung, PW-2, Shri Mehar Chand, who is son of the original plaintiff (Shri Ramesh Chand) and his special power of attorney, appeared in the witness-box and at that time original plaintiff was alive. He deposed that his father is paralytic and unable to walk and speak, so he has been appointed as special power of attorney. He deposed that they are in possession of the suit land and possession was never handed over to the defendants. In 1989 Shri Ram Saran initiated partition proceedings and he got incorporated his name in the revenue records, so his father filed objections and ultimately the partition proceedings were dismissed, but no appeal was preferred. Shri Ram Saran executed a relinquishment deed in favour of his father wherein he disclosed his age as 49 years and mutation qua the relinquishment was attested. A criminal complaint, mark 'B' ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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was filed against his father by Shri Saran Dass and relatives of defendants were in police, so he and his father were summoned in the police station and threatened to execute the gift deed, otherwise they will be implicated in a false case. He stated that .
execution of gift deed was involuntary act of his father. PW-2 was not present when relinquishment deed was written and he has admitted that it was scribed by Shri Pawan Acharya, Advocate. This witness admitted his signature and signatures and photograph of his father and Ram Saran on gift deeds mark 'DA' and 'DB'. He denied that in sound state of mind his father executed the gift deeds. No doubt, the testimony of PW-2 (son of the original plaintiff) is very material in the case in hand, but this witness is not witnessed the execution of the gift deeds. So, through the testimony of PW-2, it cannot be inferred that the gift deeds executed by the original plaintiff was his involuntary act and the result of coercion and pressure exerted upon him by the defendants.
19. The plaintiffs, in order to prove their case, examined PW-1, the then Reader to Tehsildar, Baijnath, but he has only deposed qua the partition proceedings and did not utter anything about gift deeds dated 05.12.2003. As discussed hereinabove, PW-2 is not the eye witness of the gift deeds and PW-1 is witness only to the partition proceedings, so the testimonies of PWs 1 and 2 are not helpful to the cause of the ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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plaintiffs. More over PW-2, who is son of the deceased original plaintiff, is also an interested witness.
20. Now, it would be apposite to discuss the testimonies of DWs 2 and 3, who are eye witnesses of the gift deeds .
executed by deceased Shri Ramesh Chand in favour of Shri Ram Saran alias Saran Dass. At the cost of repetitcion, DW-2, Shri Anil Katoch, Advocate, deposed that on 05.12.2003 he scribed two gift deeds, Ex. DA and Ex. DB at the instance of Shri Ramesh Chand in favour of Shri Ram Saran (brother of Shri Ramesh Chand). As per this witness, contents of the deeds were read over and explained to the parties and the parties signed the same. The marginal witness, i.e., Shri Tilak Raj and Shri Mehar Chand also signed the gift deeds. He has further stated that the gift deeds were presented before Sub Registrar for registration. Gift deeds bear the signatures and photographs of the parties and the witnesses and Shri Ramesh Chand admitted the contents of the same to be correct before the Sub Registrar. He deposed that Shri Ramesh Chand was his client and it is not that he was not known to him. He denied that Shri Ramesh Chand was baffled while executing gift deeds Ex. DA and Ex. DB. DW-3, Shri Tilak Raj, deposed that he knows the parties and saw Ex. DA and DB. As per this witness, he is marginal witness to the gift deeds and the same were executed by Shri Ramesh Chand in favour of Shri Ram Saran. Shri Anil Kumar scribed the deeds and alongwith him other marginal ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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witness was Shri Mehar Chand. Both donor and donee signed the deeds and the contents of the same were read over and explained to the parties and the parties admitted the same to be correct. When the deeds were presented before the Tehsildar, .
Tehsildar also inquired and found the documents as correct, so both the deeds were registered. As per this witness no fraud was played while executing the gift deeds and he denied that the deeds are executed in a forged manner. He deposed that stamp papers were purchased by Shri Ramesh Chand and gift deeds were written in the office of Shri Anil Katoch, Advocate. Thus, there is nothing to disbelieve the testimonies of DWs 2 and 3 and the testimonies of key witness of the plaintiffs, i.e., PW-1 and 2 are of no help to the plaintiffs.
21. The plaintiffs examined PWs 3 and 4 to establish their case, but their statements are of no avail, as the testimonies of these witnesses are hit by Section 92 of the Indian Evidence Act, as also observed by the learned Lower Appellate Court. As per the plaintiffs, the gift deeds were involuntary act of the original plaintiff and deeds were the outcome of fraud, coercion and undue influence. It is settled law that the ingredients of fraud, coercion and undue influence are to be proved and not only simply alleged for the sake of pleadings. In fact, the plaintiffs did not endeavour by examining any witness or bringing on record any document proving the ingredients of fraud, coercion and undue influence. So, the ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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allegations of fraud, coercion and undue influence just remain as unproved bald contentions alleged in the plaint with no proof. As discussed above, PW-5, Shri Pawan Acharya, Advocate, only deposed qua the relinquishment deed, Ex. PW-
.
5/A, executed on 12.01.2000. Thus, it can be safely and authoritatively held that testimony of PW-5 is not helpful to the case of the plaintiffs.
22. Likewise, the testimonies of PWs 6 to 9, i.e., Shri Satya Pal, Registration Clerk, PW-7, MHC Rakesh Kumar, PW-8, Shri Rajesh Verma and PW-9 Shri Balbir Thakur, Criminal Ahalmad, respectively, are of no help to the plaintiffs for the simple reason that these witness had not witnessed the execution of the gift deeds, dated 05.12.2003, and the testimonies of PW-1 and 2, who are key witnesses in the line of plaintiffs' witness, do not provide any lateral support to the cause of the plaintiffs. In fact, the plaintiffs by leading evidence could not prove the ingredients of fraud, coercion and undue influence and they made yet another effort, by leading additional evidence, i.e., AWs 1 to 3, in the learned First Appellate Court, but again AWs 1 to 3 had not witnessed the execution of the gift deeds, so the ingredients of fraud, coercion and undue influence could not be proved.
23. After exhaustively evaluating the evidence, it can be safely held that the plaintiffs failed to establish that the gift deeds, dated 05.12.2003 were the result of fraud, coercion and ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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undue influence upon Shri Ramesh Chand by the defendants. So it cannot be said that the gift deeds are tainted with fraud, coercion and undue influence, as the plaintiffs failed to prove the ingredients of fraud, coercion and undue influence and .
these allegations merely remain confined to the pleadings with no oral and documentary support. Thus, the plaintiffs, through evidence, fail to prove their case.
24. Now, it would be profitable to examine the law relied upon by the parties and relevant for the adjudication of the instant case. In Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others, (2005) 2 SCC 217, the Hon'ble Supreme Court has held as under:
"17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan2 it was held that a general power-of-
attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of - attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff."
Like wise, the Hon'ble Supreme Court in S. Kesari Hanuman Goud vs. Anjum Jehan and others, (2013) 12 SCC 64, has held as under:2
(1986) 2 WLN 713 (Raj) ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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"23. It is a settled legal proposition that the power-of-attorney holder cannot depose in place of the principal. The provisions of Order 3 Rules 1 and 2 CPC empower the holder of the power of attorney to "act" on behalf of the principal. The word "acts"
.
employed therein is confined only to "acts" done by the power-of-
atto0rney holder, in exercise of the power granted to him by virtue of 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 preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal r can have personal knowledge and in respect of which, the principal is entitled (sic liable) to be cross-
examined. (See Vidhyadhar v.
Manikrao3, Janki Vashdeo Bhojwani v. Indusind Bank Ltd.4, shankar Finance and Investments v. State of A.P.5 and Man Kaur v. Hartar Singh Sangha6.)"
The above judgments are fully applicable to the facts of the present case, as it is settled proposition of law that a witness can only appear in his personal capacity and no one can delegate the power to appear in the witness box on behalf of himself. Similarly, a power of attorney holder cannot depose in place of principal, as the in the present case. In present case the original plaintiff had personal knowledge qua the execution 3 (1999) 3 SCC 573 : AIR 1999 SC 1441 4 (2005) 2 SCC 217 5 (2008) 8 SCC 536 : (2008) 3 SCC (Cri) : AIR 2009 SC 422 6 (2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239 ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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of gift deeds by him in favour of Shri Ram Saran, so he could have been the best person to disclose under what circumstances he executed the gift deeds, but only for the reason, as assigned by PW-2 Shri Mehar Chand (son of the original plaintiff), that .
the original plaintiff is paralytic unable to walk and speak, PW-2 cannot be allowed to act as principal and depose in the Court of law in place of the original plaintiff. As held in S. Kesari Hanuman Goud' case, the word "acts" employed therein is confined only to "acts" done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The term "acts", would not include deposing in place and instead of the principal.
25. The learned counsel for the appellant has also placed reliance on a judgment rendered by a co-ordinate Bench of this Court in Murat Ram vs. Bhadar Singh, 2014(1) Himachal Law Report 664. As the judgment (supra) pertains to a case, where the pleadings and evidence show that the original plaintiff was depued, whereas in the instant case the facts are different. The plaintiffs failed to prove the ingredients of fraud, coercion and undue influence allegations of otherwise, so virtually it can be held that the plaintiffs have only pleaded that the gift deeds are the result of fraud, coercion and undue influence upon the original plaintiff. In fact the plaintiffs failed to give lateral support to their pleadings. The judgment (supra) is not applicable to the facts of the present case. ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP
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26. After combined and harmonious reading of the evidence and law, as discussed hereinabove, this Court answers substantial question of law No. 1 holding that the learned Court below have properly appreciated the oral and documentary .
evidence, including gift deeds, Ex. DA and Ex. DB and Ex. PW- 5/A (relinquishment deed), so the findings are in accordance with law. Substantial question No. 2 answered holding that the learned First Appellate Court has examined the factual matrix of the case correctly and further there is nothing to come to the conclusion that the learned First Appellate Court did not appreciate the facts correctly and the findings are vitiated. So the material has been considered in its proper perspective and the findings have not been vitiated. This Court finds that the findings are in accordance with law, so the substantial question of law answered accordingly. Substantial question No. 3 answered holding that the plaintiffs have failed to prove the ingredients of fraud, coercion and undue influence and also failed to prove that the gift deeds were the result of fraud, coercion and undue influence. The plaintiffs have also failed to prove that the plaintiffs were in possession of the suit property, so the plaintiffs are not entitled to the relief of injunction in view of gift deeds executed by the original plaintiffs, which are found to be genuinely executed. So, the substantial question No. 3 is answered accordingly.
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27. In view of what has been discussed hereinabove, this Court finds that the findings arrived at by the learned Courts below are reasoned, after appreciating the evidence, which has come on record, to its true and correct perspective.
.
The learned Courts below have also applied the law to the facts of the present case correctly.
28. The net result of the above discussion is that the appeal, which sans merits, deserves dismissal and is accordingly dismissed. However, taking into consideration the facts and circumstances of the case, the parties are left to bear their own costs.
(Chander Bhusan Barowalia) Judge 10th December, 2019 (virender) ::: Downloaded on - 13/12/2019 20:29:54 :::HCHP