Shakuntla & Ors. v. Chander & Anr.

Present: Mr.Anil Rathee, Advocate for the appellants. Mr. Raj Kumar Gupta, Advocate for respondent No.1. None for respondent No.2. L. N. MITTAL, J (ORAL) This is second appeal by legal representatives of Dilbag Singh-defendant No.1, having remained unsuccessful in both the Courts below. Smt. Chander-respondent No.1 filed suit against Dilbag Singh-defendant No.1 and Partap Singh-defendant-respondent No.2 alleging that the plaintiff is owner and in joint possession to the extent of half share of 31 kanals 9 marlas land. Defendant No.2 is real brother of the plaintiff. Defendant No.2 forged power of attorney dated 04.05.1994 on behalf of plaintiff by impersonation and on the basis thereof, sold 21 kanals 11 marlas land out of the aforesaid land to defendant No.1-Dilbag Singh vide sale deed dated 10.05.1994. The said sale regarding half share of the plaintiff is null and void. The plaintiff challenged the aforesaid power of attorney, sale deed and consequent mutation in the suit and also sought permanent RSA No.2339 of 2008 -2- injunction restraining the defendants from interfering in joint possession of the plaintiff over the land of her share and from alienating the same in any manner. Defendant No.2 was proceeded ex parte in the trial Court. Defendant No.1 contested the suit and controverted the plaint allegations and inter alia pleaded that defendant No.1 is bona fide purchaser of the suit land for consideration. Various other pleas were also raised. Learned Civil Judge (Junior Division), Rohtak vide judgment and decree dated 10.02.2005 decreed the plaintiff's suit declaring the power of attorney, sale deed and mutation to be null and void to the extent of share of the plaintiff and not binding on her. Defendants have also been restrained from interfering in peaceful possession of the plaintiff over her share in the suit land. First appeal preferred by defendant No.1 (who was substituted by his legal representatives during pendency of the first appeal) has been dismissed by learned Additional District Judge, Rohtak vide judgment and decree dated 12.04.2008. Feeling aggrieved, legal representatives of defendant No.1 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Along with the appeal, appellants have moved CM No.6944-C of 2008 for additional evidence, to place on record statements made by some witnesses in criminal case against Partap Singh-defendant No.2 and his wife, and one Dharambir (witness of RSA No.2339 of 2008 -3- the power of attorney), who died during the pendency of the trial, along with copy of judgment of learned Judicial Magistrate Ist Class, Rohtak acquitting the said accused giving benefit of doubt. Learned counsel for the appellants contended that the aforesaid proposed additional evidence demolishes whole case of the plaintiff and is, therefore, required to be admitted in second appeal. The contention cannot be accepted. There is no explanation why the statements of the witnesses recorded in the criminal case were not produced in the trial Court, although the said statements had been recorded much before the decision of the suit by the trial Court. Judgment dated 16.01.2008 in the criminal case had also been announced during pendency of the first appeal, but was not produced in first appeal. In addition to it, statement of plaintiff-Chander recorded as PW-1 in the criminal case cannot be admitted as additional evidence because the plaintiff while appearing in the suit as PW-1 was not confronted with the said statement, although plaintiff appeared in the civil suit as witness after her statement in criminal case had already been recorded. There is also no reason why Ram Dhari, Document Writer, who scribed the power of attorney, himself could not be examined as witness in the civil suit. Similarly, Satish Kumar, Clerk of Office of SDM, Rohtak, who appeared as PW-4 in the criminal case could be examined as witness in civil case also if his evidence was relevant. Even otherwise, statement of scribe Ram Dhari recorded in criminal case is irrelevant because he has not stated that he personally knew the executant of the power of RSA No.2339 of 2008 -4- attorney. Same is the position of testimony of Satish Kumar, Clerk examined in the criminal case. Judgment of acquittal passed by the criminal Court is also irrelevant because the same cannot be used as evidence in the civil case. In the criminal case, accused were acquitted giving benefit of doubt and, therefore, it cannot be said that plaintiff's case in the civil suit is also not proved. From the aforesaid discussion, it is manifest that application for additional evidence is completely misconceived and devoid of any merit and the same is accordingly dismissed. Learned counsel for the appellants contended that plaintiff-respondent No.1 is not in possession of the suit land and, therefore, suit for declaration and injunction alone cannot be decreed. It was contended that plaintiff admitted that she is not residing in the village in which the suit land is situated (which is her parental village) and rather she is residing in the village of her husband. However, merely on this basis, it cannot be said that plaintiff cannot be in joint possession of the suit land in which she is co-sharer to the extent of half share. Learned counsel for the appellants also contended that defendant No.1 is bona fide purchaser of the suit land for consideration. This contention also cannot be accepted because the plaintiff never authorized defendant No.2 to represent himself to be general attorney of the plaintiff. If defendant No.2 forged the power of attorney and on the basis of forged power of attorney, sold the land of plaintiff's share also, the plaintiff cannot be deprived of her land. It has been proved by the plaintiff by cogent evidence that the RSA No.2339 of 2008 -5- power of attorney was not executed by her. She has herself appeared in the witness-box and deposed that she did not execute the aforesaid power of attorney. She has also examined finger print expert, who has proved that the power of attorney does not bear the thumb impressions of the plaintiff. Science of comparison of finger print is a perfect science. No finger print expert has been examined by defendant No.1 in his defence to rebut the aforesaid evidence of the plaintiff or to depict that the power of attorney bears thumb impressions of the plaintiff. It is thus fully proved that power of attorney in question was not executed by the plaintiff. Consequently, sale of share of the plaintiff in the suit land by defendant No.2 is also null and void. At the time of motion hearing, learned counsel for the appellants contended that plaintiff-respondent No.1 was admittedly not in possession of the suit land and inspite thereof, relief of possession was not claimed. On the basis of this contention, notice of motion was ordered to be issued. However, during the course of arguments today, learned counsel for the appellants failed to point out any admission by plaintiff-respondent No.1 that she was out of possession of the suit land. In fact, learned counsel for the appellants conceded that no such admission was made by the plaintiff. It is thus apparent that order of notice of motion was obtained by making factually incorrect contention. Both the Courts below have arrived at concurrent finding in favour of the plaintiff on appreciation of evidence. The said finding is fully justified and is not shown to be perverse or illegal in any RSA No.2339 of 2008 -6- manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed. ( L. N. MITTAL ) JUDGE

07.05.2010. A. Kaundal