Himachal Pradesh High Court
Smt. Bindi Devi And Others vs Jagat Ram on 19 March, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
1
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 77 of 2009
Date of decision: 19th March, 2021
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Smt. Bindi Devi and others ...Appellants
Versus
Jagat Ram ...Respondent
______________________________________________________
Coram:
Jyotsna Rewal Dua, Judge
Whether approved for reporting1 :
For the Petitioners:
r YES
Mr.G.R. Palsra, Advocate.
For the Respondents: Mr.Sunil Chauhan, Advocate.
_____________________________________________________ _
Jyotsna Rewal Dua,J.
The appellants are successors of original defendants.
They have suffered two concurrent decrees of learned Courts below, which have been assailed by them in the instant regular second appeal.
2. Facts 2(i) A Civil Suit was filed by the respondent for declaration that a General Power of Attorney (in short GPA) dated 22.12.1997 allegedly executed by him in favour of defendant No. 1 was fictitious, void and illegal. Sale deed dated 23.01.1998 registered on 01.04.1998 on the basis of this very GPA by 1 Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 2defendant No. 1 in favour of his son/defendant No. 2 qua the share of plaintiff in the suit land, total measuring 17-11-8 bighas situated in mauza Dadwas, illaqua Neeru, Sub Tehsil Bali Chowki, District .
Mandi was also null, void, illegal and inoperative. Consequential relief of permanent prohibitory injunction was also prayed for restraining the defendants from preventing the plaintiff from use and enjoyment of the suit property to the extent of his share and in the alternative, a decree for joint possession to the extent of ½ share in the suit land in case of plaintiff's ouster from joint possession in the suit land was prayed. Compensation/mesne profit for wrongful enjoyment and usurption of yield of plaintiff's ½ share in the suit land till delivery of its joint possession was also sought.
The foundational facts set forth in the plaint are that the plaintiff and defendant No. 1 were cousin brothers and joint owners of the suit land. Defendant No. 2 was son of defendant No.
1. In order to wrongfully grab ½ share of the plaintiff in the joint suit land, defendant No. 1 prepared a false and fictitious GPA of the plaintiff in his favour. On the basis of this fraudulent GPA, defendant No. 1 executed a sale deed in favour of his son/defendant No. 2 on 23.01.1998, registered on 01.04.1998. The fact came to the knowledge of the plaintiff on 16.04.1998, ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 3 immediately whereafter he represented to the concerned revenue authorities for not attesting the mutation on the basis of the sale deed and also reported the matter to the police against the .
defendants.
2(ii) Stand of the defendants was that GPA was voluntarily executed by the plaintiff in favour of defendant No. 1. On the strength of GPA, defendant No. 1 executed the sale deed in favour of his son-defendant No. 2. In the amended written statement, a further plea was taken that defendant No. 1 had purchased 17 bighas of land (suit land). The parties were enjoying deep cordial relations with each other. After purchasing the suit land in village Dadwas, defendant No. 1 got plaintiff's name entered to the extent of ½ share in the suit land. There was an understanding between defendant No.1 and plaintiff that defendant No.1 would procure nautor land in plaintiff's name whereafter the suit land in its entirety would belong to the defendants. Defendant No. 1 managed to procure 10 bighas of nautor land in favour of plaintiff and for this reason, the GPA was executed by plaintiff in favour of defendant No. 1 with respect to the suit land.
2(iii) Evidence was led by the parties. Learned trial Court as well as the first appellate Court after considering the pleadings and the evidence adduced by the parties held that GPA dated ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 4 22.12.1997 was fictitious, fraudulent, illegal and, therefore, inoperative. The suit of the plaintiff was decreed in entirety.
Aggrieved, defendants have preferred the instant regular second .
appeal.
3. This second appeal was admitted on 04.03.2009 on the following two substantial questions of law :-
"1. Whether the trial court has wrongly dismissed the application of the appellants/defendants Under Order 8 Rule 1 (3) of Civil Procedure Code for production of agreement dated 7.4.1996 executed by respondent/plaintiff in favour of appellant No. 1 which has materially prejudiced the case of the appellants ?
2. Whether the first appellate court has also wrongly dismissed the application of the appellants Under Order 41 Rule 27 of Civil Procedure Code for production of additional evidence of agreement dated 7.4.1996 which has also materially prejudiced the case of the appellant ?"
Both the above questions pertain to an agreement dated 07.04.1996. Being inter-related, these are being considered together for decision :-
3(i) By means of an application moved before the learned trial Court under Order 8 Rule 1A(3) of the Code of Civil Procedure, the defendant No.1 wanted to produce in evidence ; (a) the photocopy of the agreement dated 07.04.1996, allegedly executed between him and the plaintiff ; (b) certified copy of mutation No. 144 dated 14.05.1965 and (c) photocopy of the GPA. Vide a reasoned order passed on 10.11.2004, learned trial Court turned down the prayer in respect of ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 5 production of photocopy of agreement dated 07.04.1996. The certified copy of mutation No. 144 and the photocopy of registered GPA were accepted being public documents. Suit of the plaintiff .
was eventually decreed. Alongwith their appeal preferred before the learned first appellate Court, defendants moved an application under Order 41 Rule 27 CPC for additional evidence in respect of that very agreement. This application was also turned down on 11.04.2008.
3(ii) For considering the substantial questions of law raised by the appellants/defendants in the instant appeal, with the assistance of learned counsel for the parties, I have gone through the record, which reflects that :-
3(ii)(a) The order passed by learned trial Court on 10.11.2004 rejecting the prayer of the applicants/defendants/appellants under Order 8 Rule 1A(3) of the Code of Civil Procedure in respect of agreement dated 07.04.1996 was not challenged by them any further at the relevant time. The suit of the plaintiff was decreed on 07.11.2006.
3(ii)(b) The suit was filed by the plaintiff on 30.03.2000. The original written statement was filed on 23.07.2001. In this written statement, there was no averment in respect of any written agreement executed on 07.04.1996 between the ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 6 plaintiff and defendant No.1 regarding former's relinquishing/surrendering/transferring his rights over the suit land in favour of defendant No.1.
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3(ii)(c) The amended written statement on behalf of defendant No. 1 was filed on 21.08.2003. Here also, no defence was taken that pursuant to any written agreement executed between the two, the defendant No. 1 had procured 10 bighas of nautor land in village Dadwas in favour of plaintiff and because of this fact the plaintiff had to relinquish/surrender/transfer his ½ share in the suit land in favour of defendant No. 1. There is no whisper in the amended written statement about any such written agreement dated 07.04.1996 executed between the plaintiff and defendant No. 1.
3(ii)(d) The evidence of the plaintiff was recorded in the year 2004. Defendant No. 1-Nokh Singh stepped into the witness box on 20.07.2004. His examination-in-chief was deferred midway. It is at this stage that the defendant No. 1 moved the application under Order 8 Rule 1A(3) CPC to produce additional documents viz. photo copy of agreement dated 07.04.1996, certified copy of mutation No. 144 and photo copy of registered GPA. The grounds for late production of the documents as put forth in the application were that the documents were in the file of Shri D.D. Thakur, Advocate-the original counsel representing the ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 7 defendants, whereas the defendants had later on engaged Shri R.K. Sharma, Advocate, as their new counsel who was not aware about the existence of documents. The application was contested by the .
plaintiff. Eventually, vide order dated 10.11.2004, the same was turned down in respect of production of agreement dated 07.04.1996. The other two documents being public documents were allowed to be produced. The order dated 10.11.2004 was not assailed by the defendants at the relevant time. After the plaintiff's suit was decreed on 07.11.2006, the defendants filed first appeal alongwith an application under Order 41 Rule 27 CPC in respect of same agreement dated 07.04.1996. This application was rejected on 11.04.2008. The first appeal was also dismissed on 07.11.2008.
3(ii)(e) Both substantial questions of law are based on the interim orders ; first, passed by learned trial Court under Order 8 Rule 1A(3) CPC and the second, passed by learned first appellate Court under Order 41 Rule 27 CPC. Principles relating to Section 100 CPC were summarized by Hon'ble Apex Court in Civil Appeal Nos. 2843-2844 of 2010, titled as Nazir Mohamed Vs. J. Kamala and others decided on 27th August, 2020, as under :-
"37. (i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 8
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
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(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered 5 AIR 1963 SC 302 on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule.
Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
38. With the greatest of respect to the High Court, neither of the two questions framed by the High Court is a question of law, far less a substantial question of law. There was no controversy before the High Court with regard to interpretation or legal effect of any document nor any wrong application of a principle of law, in construing a document, or otherwise, which might have given rise to a question of law. There was no debatable issue before the High Court which was not covered by settled principles of law and/or precedents.
39. It is nobody's case that the decision rendered by the First Appellate Court on any material question, violated any settled question of law or was vitiated by perversity. It is nobody's case that the evidence taken as a whole does not reasonably support the finding of the First Appellate Court, or that the First Appellate Court interpreted the evidence on record in an absurd and/or capricious manner. It is also nobody's case that the First Appellate Court arrived at its decision ignoring or acting contrary to any settled legal principle."
In rejecting the application, the learned trial Court noticed the fact evident from the record, that Shri D.D. Thakur, the original counsel of the defendan No. 1, had not withdrawn from the case. Shri R.K.Sharma, Advocate, had also appeared on behalf of the ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 9 defendants on 07.05.2004 and 09.06.2004 when the case was fixed for the evidence of plaintiff. In fact, record also shows that amended written statement was filed through Shri R.K. Sharma, .
Advocate, on 21.08.2003 wherein a new defence was taken that plaintiff was to be provided nautor land by defendant No. 1 in lieu of which, plaintiff was to part with his ½ share in the suit land in favour of defendant No.1. There was no mention in the amended written statement filed through Shri R.K. Sharma, Advocate, about any written agreement executed between the parties in this regard.
The evidence of the plaintiff was already over when the application under Order 8 Rule 1A(3) CPC was moved. If there was such an agreement dated 07.04.1996 in existence and in possession of defendants, then it was incumbent upon them to have at least made a reference to it in their amended written statement. After closure of his evidence, in the facts and circumstances of the case, the plaintiff could not have been taken by surprise by production of a photocopy of an altogether new document, which would have prejudiced his case. It was not the case of the defendants that they were not in possession of the agreement, sought to be produced by them after closure of plaintiff's evidence. There was no cogent explanation in the application for the delay in moving the application/production of the document. The defendants were ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 10 required to be diligent in contesting the case. Having failed to do so, their application for production of the agreement in question was rightly turned down by the learned trial Court on 10.11.2004.
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Lacunas, if any in their defence, could not be removed in this manner. As already noticed above, the order dated 10.11.2004 was not challenged by the defendants by filing revision petition etc. It was only at the time of filing of first appeal against the judgment and decree passed by the learned trial Court that they moved another application under Order 41 Rule 27 CPC for additional evidence in respect of original agreement dated 07.04.1996. It was a noval attempt on the part of the defendants to produce the same agreement before the learned appellate Court by taking resort to a different provision of law. The document was neither a public document nor it was necessary for pronouncing the judgment. The application under Order 41 Rule 27 CPC was justly dismissed by the learned first appellate Court on 11.04.2008.
For the aforesaid reasons, in my considered view, the application of defendant No. 1 under Order 8 Rule 1A(3) of the CPC for production of additional document i.e. agreement dated 07.10.1996 was rightly rejected by the learned trial Court on 10.11.2004. For the same reason, defendants' application under Order 41 Rule 27 of the CPC for production of this very document ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 11 alongwith their first appeal was rightly rejected by the learned first appellate Court vide order dated 11.04.2008. The substantial questions of law are answered accordingly.
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4. Having answered the questions of law framed in the appeal, it may also be prudent to notice that both the learned Courts below after independently examining the pleadings and the evidence adduced by the parties, decreed the suit filed by the plaintiff. It has been concurrently held that GPA allegedly executed by the plaintiff in favour of defendant No. 1 was fraudulent and not binding upon the plaintiff. Consequential reliefs flowing thereafter were also granted. The evidence adduced in this regard by the plaintiff is being succinctly referred to hereinafter.
4(a) Plaintiff appeared as PW-1 and deposed that he did not execute any power of attorney on 22.12.1997 in favour of defendant No.1. He further asserted that he did not visit Mandi on 22.12.1997 for executing the power of attorney in favour of defendant No.1 (the day it was alleged to have been executed by him in Mandi). He has denied that the same was read over to him by its scribe or that he put his signature in presence of witnesses or that witnesses put their signatures on it in his presence or that witnesses were known to him. His case was that power of attorney was falsely made up.
::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 12PW-2 Satya Prakash supported plaintiff's stand by stating that plaintiff was employed as a Dak Runner. On 22.12.1997, plaintiff had taken Dak from 'Thachi' to 'Som .
Nachan' and from 'Som Nachan' to 'Thachi'.
PW-3 Dole Ram stated that he worked as labourer in the house of plaintiff from the year 1997 till January, 1998 and that during the period of his employment, plaintiff never visited Mandi.
No suggestion was given to this witness on behalf of the defendants that plaintiff had visited Mandi on 22.12.1997. Plaintiff was thus able to establish on record that he did not visit Mandi for executing alleged power of attorney on 22.12.1997.
4(b) To discharge the onus upon them in respect of valid execution of GPA, the defendants examined scribe as DW-3. The attesting witnesses of GPA (Ex. DA) were Ramesh Chand (DW-7), Narain Singh (DW-9) alongwith Ghanshyam, Advocate, (DW-4).
The scribe while appearing as DW-3 did not prove at all that plaintiff was present at the time of execution of GPA. He stated that two persons had visited him on 22.12.1997 and one of them gave his name as Jagat Ram (plaintiff). However, he further elaborated that he did not recognize the persons who visited him ;
he did not personally know Jagat Ram; he could not recognize or identify the persons; He could not re-collect that plaintiff had ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 13 disclosed his name as Jagat Ram or that plaintiff was Jagat Ram who had visited him on 22.12.1997 for the purpose of scribing the GPA. DW-4 Advocate Ghanshyam also stated that he did not know .
Jagat Ram (plaintiff) personally and further that Jagat Ram was identified by him at the instance of one Om Parkash-defendant No2. Therefore, testimonies of DWs 3 and 4 do not establish presence of plaintiff at the time of execution of GPA. Out of the two attesting witnesses, Ramesh Chand (DW-7) did not support the case of the defendants and was declared hostile. In nutshell, his statement was that he had signed a document at the instance of an Advocate. He denied the suggestion that contents of GPA (Ex.DA) were read over to the testator. He did not state about execution of GPA by the plaintiff. He also denied that the Sub Registrar had explained the contents of document Ex.DA to the plaintiff. The other attesting witness Narain Singh (DW-9) deposed that he could not state whether plaintiff was present or not at the time of execution of GPA as parties were not known to him and further that he signed the GPA at the instance of Advocate. The Sub Registrar was not examined by the defendants to prove the execution of GPA.
The questions of law framed and answered, actually do not arise for consideration in view of above referred concurrent ::: Downloaded on - 20/03/2021 20:17:08 :::HCHP 14 findings of facts recorded by the learned Courts below. The sum total of evidence which comes out is that defendants failed to prove that plaintiff had executed the GPA on 22.12.1997. There are so .
many material contradictions in the statements of all the defendants' witnesses in respect of mode and manner of alleged execution and registration of GPA dated 22.12.1997 (Ex.DA). The identity of the plaintiff being executant of the alleged GPA has also not been established on record. The Courts below, therefore, rightly concurrently held that the GPA (Ex.DA) dated 22.12.1997 is a fictitious and fraudulent document and decreed the suit of the plaintiff. There is no reason to interfere with concurrent findings of facts recorded by learned Courts below.
For the foregoing reasons, this second appeal lacks merit and the same is accordingly dismissed. The pending applications, if any, also stand disposed off.
19th March, 2021 (K) Jyotsna Rewal Dua,
Judge
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