High Court
Case Details
Neutral Citation No. - 2024:AHC:149914 Court No. - 36 Case :- SECOND APPEAL No. - 701 of 2024 Appellant :- Chhitani And 5 Others Respondent :- Govind Prasad (Deceased) And 7 Others Counsel for Appellant :- Manish Tandon,Yanendra Pandey Counsel for Respondent :- Daya Shankar Srivastava Hon'ble Kshitij Shailendra,J. 1. Heard Shri Yanendra Pandey along with Shri Manish Tandon, learned counsel for defendants-appellants and Shri Daya Shankar Srivastava, learned counsel for plaintiff-respondents. 2. This is defendants' second appeal arising out of concurrent judgments whereby suit for cancellation of two sale deeds dated 26.07.1988 and 06.08.1988 has been concurrently decreed. 3. The aforesaid sale deeds are said to have been executed pursuant to a registered power of attorney dated 11.01.1984 executed by plaintiff No. 2 in favour of defendant No. 1. Though, execution of power of attorney was not disputed by both the sides, during the course of trial, a dispute arose as regards its genuineness in the light of rival statements that certain language was inserted so as to confer right of sale upon the attorney. Whereas the plaintiffs' case was that the power of attorney was executed only for management of property with no right of sale attorned upon the attorney, the defence case was that the right of execution of sale deed having been specifically attorned and mentioned in the power of attorney, sale deeds were rightly executed.
Legal Reasoning
4. The trial court decreed the suit for cancellation of both the sale deeds. Civil Appeal No. 20 of 2015 was filed by the defendants against the trial court's judgment. Pending appeal, matter was remitted to the trial court only for the purposes of deciding issues No. 1 and 2 as regards genuineness of power of attorney and its contents. The trial court, after remand, by an order dated 31.01.2020, decided both the issues against the defendants and remitted the findings so recorded to the first Appellate Court. The first Appellate Court, after receiving the findings from the trial court, has affirmed the decree of cancellation of sale deeds by the impugned judgment and decree dated 09.11.2023.
Legal Reasoning
5. It is contended by learned counsel for the appellants that power of attorney being a genuinely executed document with specific mention of right to sell, no illegality was committed as regards sale and, therefore, the plaintiff's suit was bound to fail. It is vehemently argued that the trial court to whom issues No. 1 and 2 were remitted for recording findings, grossly erred in assuming itself as an expert by examining the contents of power of attorney. Submission is that before the trial court, two documents were on record; one paper No. 38 क, i.e. original power of attorney produced by the defendants side, which was kept in a sealed cover and the other was certified copy of power of attorney as paper No. 247. Submission is that the trial court, instead of appointing an expert to examine the validity/genuineness of the documents, acted itself as an expert and wrongly observed that certain language was inserted and, consequently, held paper No. 38 क as a manufactured document. It is further contended that Govind Prasad, plaintiff No. 1, who appeared as plaintiffs' witness, his cross-examination having not been completed, it was not readable in evidence and, hence, the plaintiffs' case was "not proved". The grounds of this appeal raise a challenge to the impugned decree on various parameters of the Evidence Act, such as Sections 64, 65, 68 and 97 thereof and it is contended that plaintiffs' case being not proved on all the parameters, both the courts below have grossly erred in drawing a decree for cancellation of sale deeds. 6. Per contra Shri Srivastava submits that certified copies of power of attorney were obtained twice prior to production of original document before the trial court. He carried the court to the findings recorded by both the courts to the effect that when certified copy being paper No. 247 was filed by the plaintiffs and it was contended that paragraph No. 3 of the power of attorney did not contain right to sell, defendants were given repeated opportunity to file another certified copy of the power of attorney dated 11.01.1984, but instead of doing so, they moved an application stating that since the certified copy had already been brought on record by the plaintiffs' side, they be relieved from filing certified copy of the same. Shri Srivastava submits that non-filing of the certified copy and accepting the one produced by the plaintiffs' side amounts to acceptance of validity and genuineness of the certified copy (paper No. 247) and once the said certified copy issued prior in point of time did not contain the recital regarding right to sell, no adverse inference can be drawn by this Court. As regards incomplete cross-examination of PW-1, Govind Prasad, it is contended that first Appellate Court has taken care of the said situation and has observed that while the cross examination was going on, an application 130 ग was filed by the defendants side and the matter was posted for disposal of the said application and, immediately after the said application was decided, a Misc. Civil Appeal was filed by the defendants and during the pendency thereof, PW-1 died and, for this reason, his cross examination could not be completed. It is further contended that no consent of Govind Prasad to sell property ever came on record either by means of any oral or documentary evidence and burden to dislodge the power of attorney and to explain the same beyond doubts was upon the defendants, who failed to discharge the same. 7. Having heard the learned counsel for the parties, I find that real dispute was with regard to power attorned or not attorned through the power of attorney. Photostat copy of the original document (paper No. 38 क) has been annexed along with stay application. Copy of certified copy of the power of attorney has also been annexed. The Court itself has seen both the documents. In the copy of paper No. 38 क, paragraph No. 3 contains additional wordings including the right to sell, which did not find mention in paper No. 247, which was a certified copy of the document. There is no dispute between the parties that certified copies were issued twice and both prior in point of time when paper No. 38 क was brought क was kept in a sealed cover, which was opened before the trial court as recorded in the order after remand. on record. Paper No. 38 8. The submission that court has acted as an expert does not appeal to this Court as it is not a case where either thumb impression or signatures on any document were being considered. It is a simple case where language contained in two documents was being read by the courts of law. Once the defendants did not file certified copy of the power of attorney despite orders of the court and sufficient opportunity having been granted to them and themselves made a prayer that they should be relieved from doing so in the light of paper No. 247 having already been brought on record, it leads to this Court to only one conclusion that defendants had directly or indirectly admitted the genuineness of paper No.247. Nothing remained further to examine in the facts of the case. 9. As far as non-completion of cross examination of Govind Prasad is concerned, the first Appellate Court has recorded that it was not a case where cross examination did not begin nor a case where witness avoided appearance before the court, rather it was a case where non-completion of cross-examination was attributable to the action of the defendants themselves. Although, this Court does not find any illegality in preferring a miscellaneous appeal by the defendants against any order as they were well within their rights to avail legal remedies, in the facts of the case, mere non- completion of cross-examination of Govind Prasad would not lead to a conclusion or inference that his cross examination will not be read under any circumstances. Provisions of Section 32 of Evidence Act can be applied in the instant case and this Court is of the view that the findings recorded by the first Appellate Court that the cross-examination of the witness who died subsequently, would be read upto the time when he was alive, cannot be said to suffer from any illegality. 10. As to who inserted additional words in the power of attorney and exactly at what point of time, this not being an issue directly involved in the case, this Court is to see in exercise of its second appellate jurisdiction the scope of interference in the findings recorded by the civil court and the first Appellate Court. It is a case where sale was challenged for want of power attorned upon the attorney and once this Court is convinced that the power to execute a sale deed in addition to manage the property was inserted subsequently and the Court is not in a position to ignore two certified copies of the same document issued prior in point of time which, in fact, were admitted by the defendants by moving an application they should be relieved from filing another certified copy in view of paper No. 247 already being on record, this Court is of the view that adverse interference under Section 114 [illustration-(g)] of the Evidence Act would apply in full force against the defendants, who otherwise failed to produce any witness to dislodge the case of the plaintiffs or to prove their defence. 11. This Court should not ignore that the case of rival parties has been examined and decided in favour of the plaintiffs not once, but thrice, i.e. initial decree of the trial court and again by the trial court after remand and, then, first Appellate Court in the last. Principles of burden of proof, in the opinion of the Court, have been rightly applied by both the courts below and their judgments are based upon proper appreciation of evidence on record. 12. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311, the Supreme Court came to the conclusion that the finding reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. In Thiagarajan v. Sri Venugopalaswamy B. Koil, (2004) 5 SCC 762, the Supreme Court has held that the High Court in its jurisdiction under Section 100 C.P.C. is not justified in interfering with the findings of fact and that it is the obligation of the courts of law to further clear intendment of the legislature and not frustrate it by excluding the same and where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible. 13. Similar view has been taken in Kondiba Dagadu Kadam vs Savitribai Sopan Gujar and others, (1999) 3 SCC 722 by observing that disturbance in findings of fact would be contrary to limitations imposed by section 100 C.P.C. The Supreme Court again reminded in Commissioner, Hindu Religious & Charitable Endowments vs. P. Shanmugama (2005) 9 SCC 232 that the High Court has no jurisdiction in second appeal to interfere with the findings of fact. The Apex Court, in State of Kerala v. Mohd. Kunhi (2005) 10 SCC 139 reiterated the same principle by observing that by such interference, the High Court would go beyond the scope of Section 100 of the Code of Civil Procedure. 14. In Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553, the Supreme Court observed that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. In Harjeet Singh v. Amrik Singh (2005) 12 SCC 270, the Apex Court, with anguish, observed that the High Court had no jurisdiction to interfere with the findings of fact arrived at by the trial Court and the lower appellate Court regarding readiness and willingness to perform part of contract in its jurisdiction under Section 100 C.P.C. 15. The view taken in the aforesaid decisions has been reiterated by the Apex Court in Gurdev Kaur and others vs. Kaki and others, 2007 (1) SCC 546. 16. In view of scope of re-appreciation of evidence being quite restricted in second appellate jurisdiction, the Court , following the ratio laid down in above decisions, does not find any error in the view taken by both the courts below. 17. No substantial question of law arises for consideration by this Court. 18. The second appeal has no force and is, accordingly, dismissed. Order Date :- 13.9.2024 Sazia