Second Appeal No.333 of 2007

3rd July, 2014

Petitioner Counsel: Mr. N.B. KALWAGHE
Respondent Counsel: Mr. P.C. MADKHOLKAR

Cases Cited:
Janaki Vashdev Bhowani & Anr. Vs. Indusind Bank Ltd. & Ors., AIR 2005 SC 439 [Para 7]
Vidhyadhar Vs. Manikrao & Anr., (1999) 3 SCC 573 [Para 7,9]
Srimathi Ramadas Vs. K V Ramachandra Nambiar, Dt.3.12.2012 [Para 9]
Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar & Ors., 1999(3) ALL MR 467 (S.C.) =AIR 1999 SC 2213 [Para 11]
Santosh Hazari Vs. Purushottam Tiwari, 2014 ALL SCR (O.C.C.) 103 =(2001) 3 SCC 179 [Para 12]
Hero Vinoth (Minor) Vs. Seshammal, 2006(3) ALL MR 129 (S.C.) =(2006) 5 SCC 545 [Para 13]

JUDGMENT

JUDGMENT :- This Second appeal is filed by the appellant (Original Defendant) against the Judgment and Order, dated 7.4.2007 passed by the Principal District Judge, Buldana in Regular Civil Appeal No.35 of 2005, which was dismissed. The said appeal arose from the Judgment and Order, dated 23.2.2005 passed by Civil Judge (Jr.Dn.), Mehkar, District Buldana (the trial Court) in Regular Civil Suit No.224 of 1996. The suit was decreed restraining the defendants from obstructing possession.

2. Brief facts are :-

The suit was instituted on 30.12.1996 in respect of the suit land Gat No.38, admeasuring 9 H. 99 R. situated at village Pen Takli, Taluka Mehkar, District Buldana. Written Statement was filed on 8.8.2003 at Exh.30. Regular Civil Suit No.224 of 1996 was instituted by the respondents- plaintiffs on 30.12.1996 for permanent injunction against the appellants-defendants seeking to restrain them from obstructing possession in respect of the suit land Gat No. 38, admeasuring 9 H, 99 R situated at village Pen Takli, Taluka Mehkar, District Buldana. The plaintiffs pleaded that they are owners along with their sisters and in possession of the land block No.38, admeasuring 9 H, 99 R at village Pen Takli, Taluka Mehkar, District Buldana and the defendants have no concern. The appellants claimed their possession on the basis of the Thoka Patrak i.e. Tenancy agreement and an agreement of sale executed by respondent no. 3 in favour of appellant nos. 1 and 3. It is case of the plaintiffs in the trial Court that the defendants had in December 1996, unauthorisedly took away 40 to 50 bags of Jowar seeds and fodder and complaint was made against the defendants at Sakhar Kherda Police station. (Defendant no.3 Tejrao Ingle had admitted this fact in his cross-examination). Written statement was filed on 8.8.2003 by the defendants denying the plaintiffs' contentions (at Exh.30). At the trial, the plaintiffs did not enter in the witness box personally to depose, but evidence of the Power of Attorney was tendered. The case of the plaintiffs that the Power of Attorney was executed in favour of Ramgeeta ( PW-1 ) was not established by the evidence. Ramgeeta (PW-1) had no knowledge, hence her evidence ought to have been discarded on the ground that the case of the plaintiffs remained unproved. At the trial, the plaintiffs did not enter in the witness box personally but evidence of the power of attorney was tendered. The case of the plaintiffs is that the Power of Attorney was executed in favour of Ramgeeta ( PW-1 ) was not established by the evidence. Said Ramgeeta had no personal knowledge, hence her evidence ought to have been discarded by the Courts below.

3. The prayer in the suit was for perpetual injunction to restrain the defendants from obstructing possession of the plaintiffs.

4. Trial Court findings were that the plaintiffs proved their ownership and possession over the suit property and obstruction by the defendants to their possession over the suit property and the plaintiffs were held entitled to the reliefs prayed. Trial Court noted that there was no any denial of the ownership of the plaintiffs. In fact, in Written Statement (Exh. 30), the defendants had admitted ownership of the plaintiffs and their sisters.

5. The first Appellate Court's findings concurrent with the trial Court were that the plaintiffs are in possession of the suit property and the defendants are trying to obstruct their possession over the suit property. The first Appellate Court held that Ramgeeta (P.W.-1) is wife of plaintiff no.2 as also Power of Attorney holder.

6. The Second Appeal was admitted on 16.7.2007 on the following substantial question of law :

i) Whether the Court ought to have dismissed the suit of the plaintiffs in respect of two hectares of land which was allegedly agreed to be purchased by the defendants ?

ii) Whether the suit could have been decreed on oral evidence of the Power of Attorney holder when none of the plaintiffs entered in the witness box ?

My answers for the following reasons are i) No ii)Suit was rightly decreed on the basis of available evidence on record of the trial Court.

7. On behalf of the appellants, it is submitted that blank stamp papers were obtained. It is urged that Power of Attorney holder cannot depose for the Principal for acts done by the Principal and not by her. Ramgeetabai (PW-1) was not party to the suit. She deposed on behalf of respondent no. 2 as his Power of Attorney holder, but the Power of Attorney was not proved. She had no personal knowledge about the facts and as to what had transpired between the appellants and the respondents. Hence, both the Courts were wrong to consider her evidence as evidence of respondent no. 2. In view of Order III, Rule 2 of the Code of Civil procedure and Section 118 of the Evidence Act, the act of respondent no.2 cannot be considered as inclusive of the act of the Power of Attorney holder. The facts within their personal knowledge could have been deposed by respondents nos. 1 and 2 only. Reference is made to the ruling in Janaki Vashdev Bhowani and another .vs. Indusind Bank Ltd. and Ors. reported in AIR 2005 SC 439 (Para 12). It is submitted that, in the absence of the opportunity to cross examine the plaintiffs, the suit could not have been decreed by the trial Court. The learned Counsel made a reference to the ruling reported in (1999) 3 SCC 573, Vidhyadhar .vs. Manikrao and another (Para 16) as crossexamination cannot be avoided by the Principal. It is submitted that respondent nos. 1 and 2 could not have avoided duty to depose as onus was upon them to prove their case. Furthermore the suit was for permanent injunction simplicitor and no further relief was sought i.e. declaration in respect of the agreement to sell and the Thoka Patrak etc. about right, title and interest in respect of the suit property. The suit, therefore, was not tenable.

8. On behalf of the respondents, it is contended that the concurrent findings of facts ought not to be disturbed in view of Section 100 of the Code of Civil Procedure. It is contended that the Second Appeal is liable to be dismissed in the absence of any substantial question of law.

9. True it is, if a party to the suit does not step into the witness box to depose about his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. A party to the suit knowing facts of the case is duty bound to depose and offer himself to be cross-examined, failing which the party withholding himself from appearing as witness to depose as to facts within his personal knowledge would run the risk of his case being discredited on that ground. At the same time, it must be borne in mind that Order III, Rule 1 of the Code of Civil Procedure normally allow appearances by the recognised agent of the party in the Court on behalf of such party unless, according to specified law, the party is required to appear in person as required/directed by the Court. A person holding Power of Attorney is, if authorised to appear on behalf of the Principal, can appear in the Court, apply or act on behalf of the party as authorised in the Power of Attorney. But, the Power of Attorney holder cannot depose about such acts within personal knowledge of the Principal about which the Principal alone can have personal knowledge. If the Power of Attorney holder did some acts pursuant to execution of the Power of Attorney, he can depose in respect of acts done by him. Legal position in respect of Power of Attorney as a witness is explained by Justice L. Narayana Swamy of Karnataka High Court in the case of Srimathi Ramadas vs K V Ramachandra Nambiar, decided on 3rd December, 2012 wherein it is observed as follows "The Supreme Court in (2010) 10 SCC 512 has referred the judgment reported in (1999) 3 SCC 573 to the effect" where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct" and (2008) 8 SCC 536 where it is held, the power of attorney who does not have personal knowledge cannot be examined. Para-18 reads as follows:

1. "18. We may now summarize for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(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.

(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 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.".

10. Conclusion is that, in view of the rule that best evidence is required to be produced by the party to support its case in the suit, if Power of Attorney has personal knowledge of the acts done, he or she can certainly step into witness box to depose as to commission of such acts, else the Principal cannot withhold himself from deposing in respect of the acts done by him or which are within his personal knowledge; in other words, for such acts done by him for which he is required to step in to witness box and must offer himself to be cross-examined.

11. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213 : [1999(3) ALL MR 467 (S.C.)], the Apex Court held as under:-

" It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before an appeal can be maintained and no Court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable grounds".

12. In Santosh Hazari Vs. Purushottam Tiwari, (2001) 3 SCC 179 : [2014 ALL SCR (O.C.C.) 103], a three judge Bench of the Supreme Court observed that: "A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

13. In Hero Vinoth (Minor) Vs. Seshammal (2006) 5 SCC 545 : [2006(3) ALL MR 129 (S.C.)], the Supreme Court has observed that:

"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. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

14. Having considered the legal position in the light of Order III, Rules 1 and 2 of the Code of Civil Procedure in respect of the act done by the holder of the Power of Attorney in exercise of power granted by the instrument, the Power of Attorney holder can depose as a witness to that extent which he or she knows about the case and not for the acts personally done by the Principal of which he alone can have personal knowledge. Co-owner in possession according to law is entitled to enjoy joint property and merely because portion of such property is sold, such purchaser would not be entitled to dispossess the co-owner in enjoyment of the joint property unless such purchaser follow due process of law to claim joint possession or share on partition and separate possession. In other words, the purchaser of the portion of the joint property cannot disturb possession of the co-sharer of joint property without following due process of law. For the reasons stated above and having answered the substantial questions of law as formulated while the appeal was admitted, accordingly, I do not find any cogent and valid reason to interfere with the concurrent findings recorded by the Courts below. Hence, the Second Appeal has to fail. In the result, the Second Appeal is dismissed with costs.

Appeal dismissed.