Kishnchand Khubchandani Vs Smt. Prabha Agrawal

¶1

1

¶2

2025:CGHC:13042-DB

¶3

NAFR

¶4

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶5

Reserved on 28.01.2025 Pronounced on 19.03.2025

¶6

FA No. 382 of 2019

¶7

1 - Kishnchand Khubchandani S/o - Late Sewakram Khubchandani Aged About 63 Years R/o - Kelkarpara(Naharpara), Raipur,tahsil And District Raipur Chhattisgarh Through Its Power Of Attorney Namely Shri Manohar Lal Malgani, S/o - Late Chetumal Malgani, Aged About 47 Years, At Present R/o House No. B-11, Krishna Nagar, Gudiyari, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

¶8

... Appellant

¶9

versus

¶10

1 - Smt. Prabha Agrawal W/o - G.C. Agrawal, Aged About 57 Years R/o - Laxmi Niwas, Near House Of Ashok Kundu, Behind Church, Sector-3, Ekta Nagar, Raipur, Tahsil And District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

¶11

---- Respondent

¶12

For Appellant : Mr. Anurag Singh and Mr. Sandeep Patel, Advocates For Respondent : Mr. A.D. Kuldeep, Advocate

¶13

KISHORE KUMAR DESHMUKH

¶14

Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.03.20 11:20:21 +0530

¶15

DB: Hon'ble Smt. Justice Rajani Dubey and

¶16

Shri Justice Narendra Kumar Vyas

¶17

C.A.V. JUDGMENT

¶18

Per, Narendra Kumar Vyas, Judge

¶19

1. This is plaintiff’s first appeal challenging the judgment and decree

¶20

dated 10.04.2019 passed by the learned Second Additional Judge to

¶21

2

¶22

the Court of First Additional District Judge, Raipur (C.G.) in Civil Suit No. 60B/2014 by which the learned trial Court has dismissed the suit for recovery of Rs. 16,00,000/-.

¶23

2. For convenience plaintiff and defendant are referred to as it exist before the learned trial Court.

¶24

3. The brief facts as reflected from the record are that the plaintiff filed civil suit for recovery of Rs. 16,00,000/- from the defendant mainly contending that :-

¶25

A. The defendant, claiming herself to be owner and in possession of a house constructed over Khasra No. 505/80, area measuring 1800 Sq. feet situated at Gogaon, Sant Kabirdas Ward No.3, Raipur (hereinafter referred as ‘suit property’), has executed an agreement to sell the suit property on 14.07.2011 for saleconsideration of ₹49,00,000/- with the plaintiff. It is the case of the plaintiff that at the time of execution of said agreement, the defendant has requested for payment of Rs. 18,00,000/- as advance. The terms of the agreement clearly provide that the suit property is free from all encumbrance. It is the case of the plaintiff that the defendant has received Rs. 12,00,000/- on 14.07.2011 and assured that whenever she will show the original records of the property to the plaintiff then additional advance of Rs.6,00,000/- will be received by her.

¶26

B. It is also the case of the plaintiff that the suit property is mortgaged with Bank of Baroda and this fact has also been admitted by the defendant but she has assured that whenever she will have the original document of the property, then only she will claim the

¶27

3

¶28

amount of Rs. 6,00,000/-. It has also been contended that the defendant neither obtained No Dues Certificate from the bank nor shown original documents pertaining to the suit property.

¶29

C. The defendant has not performed her part of contract and when it was revealed to the plaintiff that sale deed could not be executed then plaintiff sent registered notice on 21.04.2014 and claimed refund of advance amount with interest which comes to Rs. 16,00,000/-. It is pertinent to mention here that the suit was filed through power of attorney holder of the plaintiff.

¶30

4. The defendant filed her written statement denying the allegations made in the plaint mainly contending that she has neither executed the agreement dated 14.07.2011 for selling her house nor received 12,00,000/- as earnest money from the plaintiff and it is concocted document, therefore, all the facts are denied as false and fabricated. It has also been contended that the suit has been filed through the power of attorney holder, as such the suit is not maintainable. It has been further contended that the plaintiff has not sent any notice to the defendant as there is no agreement with the plaintiff, therefore, no question of obtaining money from the plaintiff is arisen, it is a false and imaginary case. It has been specifically denied that any agreement on 14.07.2011 has been executed between them and have prayed for dismissal of the suit.

¶31

5. The learned trial Court on the pleadings of the parties framed as many as 4 issues. Issue No. 1 and 2 are relevant for adjudication of this appeal therefore, they are being extracted below:-

¶32

Whether on 14.07.2011, the plaintiff has executed an agreement

¶33

4

¶34

with the defendant for purchase of the suit property for total sale consideration of Rs. 49,00,000/- and on the basis of said agreement the defendant has received Rs. 12,00,000/- from the plaintiff?

¶35

Whether the plaintiff is entitled to receive Rs. 16,00,000/- from the defendant?

¶36

6. The plaintiff to substantiate his case has examined 3 witnesses namely Ramesh Gupta (PW/1), Manohar Malgani (PW/2) and Mahesh Vishwani (PW/3) and exhibited 13 documents namely Ex.P1 Certificate of Handwriting Expert, Ex.P2 Sale Agreement, Ex.P3&4 Vakalatnama, Ex.P5 Written Statement, Ex.P6 Enquiry Report, Ex.P7 to 11 Photographs, Ex.P12,13 Observation Sheet, Ex.P14 Power of Attorney, Ex.P15 Notice, Ex.P16 Postal Receipts and Ex.P17 Closed Envelop with endorsement that the recipient Prabha Agrawal has refused to take the envelop. The defendant examined herself as DW-1 and not exhibited any document.

¶37

7. The learned Trial Court on appreciation of oral and documentary evidence available on record passed the impugned judgment dated 10.04.2019 by recording its finding that there was no agreement between the plaintiff and defendant and the plaintiff is unable to prove his case by recording cogent evidence. Learned Trial Court has dismissed the suit also on the count that the plaintiff did not enter into the witness box to state the facts which are well within his knowledge, as such also he is unable to prove his case. Accordingly, it has dismissed the suit. Being aggrieved with this judgment and decree dated 10.04.2019, the plaintiff has preferred the first appeal before

¶38

5

¶39

this Court.

¶40

8. Learned counsel for the appellant vehemently criticized the judgment and decree passed by the learned trial Court by contending that the learned trial court failed to appreciate that the appellant had proved execution of the agreement by leading cogent evidence. The learned trial Court has committed illegality in ignoring the evidence of the Handwriting Expert and signature of the respondent on the sale agreement which was found proved. Therefore, the finding recorded by the learned trial Court is perverse and would pray for setting aside the impugned judgment and decree. It has also been contended that the learned trial Court failed to appreciate Ex.P/6 to P/13 as well as the evidence of the defendant Prabha Agrawal who has failed to establish that the signature on the said agreement is forged one. As such it should have been held by the trial Court that the agreement was duly executed between the parties and should have allowed the suit. To substantiate his submission he relied upon the judgment of the Hon’ble Supreme Court in case of Aloka Bose vs. Parmatma Devi and Others {(2009) 2 SCC 582}.

¶41

9. On the other hand, learned counsel for the respondent would submit that the judgment and decree passed by the learned trial Court is legal and justified and does not warrant interference by this Court. It has also been contended that the plaintiff has not entered into the witness box, only the power of attorney holder has been examined therefore, learned trial Court has not committed any illegality in disbelieving the evidence of power of attorney holder and would pray for dismissal of the appeal.

¶42

6

¶43

10. We have heard learned counsel for the parties and record of the Court below with utmost satisfaction.

¶44

11. From the submission made by the parties the points emerged for determination of this Court are:-

¶45

a. Whether the learned trial Court has committed illegality in not relying upon the evidence of power of attorney holder while dismissing the suit?

¶46

b. Whether the finding recorded by the trial Court that the plaintiff was unable to prove his case by recording cogent evidence, suffers from perversity and illegality ?

¶47

Discussion and Finding on Point No. (a)

¶48

12. The plaintiff has examined power of attorney holder Manohar Lal Malgani (PW/2) who in his examination-in-chief has reiterated the stand taken by the plaintiff and in the cross examination he has admitted the fact that agreement (Ex.P/2) was not executed on 12.07.2011 but it was executed 14.07.2011. The witness has also admitted that in Ex.P/2 neither the signature of typist, drafts man nor the seller is available and in the column which was required for seller’s signature that space is also blank. He has also admitted that the plaintiff has given the money to him and voluntarily stated that I and Kishanchand have given that money to defendant. He has also admitted that original copy of the agreement is with Kishanchand Khopchandani. He has also admitted that the power of attorney is not registered power of attorney.

¶49

13. From the evidence it is quite vivid that the power of attorney holder was not aware when the plaintiff Kishanchand has given the said

¶50

7

¶51

money to the defendant. As such, it is incumbent upon the plaintiff to appear before the trial Court and give evidence regarding payment of money to the defendant as it is within his special knowledge which cannot be deposed by the power of attorney holder. Even otherwise, from perusal of the power of attorney Ex. P/14 it is quite vivid that power of attorney was executed on 14.04.2014 just before filing of the suit, as such it is quite vivid that the fact of money transaction was not within the knowledge of the power of attorney holder. Accordingly, the finding recorded by the learned trial Court in paragraph No. 13 of the judgment that the power of attorney holder may depose for the principal in support of such act but he cannot depose for principal for acts done by the principal not by him which only the principal can have personal knowledge in respect of the principal and he is entitled to be cross-examined.

¶52

14. The issue with regard to the evidence to be given by the power of attorney in respect of principal and its limitation has come up for consideration before the Hon’ble Supreme Court in case of Rajesh Kumar vs. Anand Kumar & Ors. {2024 LiveLaw (SC) 407} wherein Hon’ble Supreme Court has held as under :-

¶53

9. In Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. &

¶54

Ors {(2005) 2 SCC 217} , it is held that a Power of Attorney Holder cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which the principal is liable to be cross-examined. It is also held that if the principal to the suit does not appear in the witness box, a presumption would arise that the case set up by him is not correct. This Court has discussed the legal position in the following words in paras 13 to 22:

¶55

8

¶56

“13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order 3 Rules 1 and 2 CPC confines only to respect of “acts” done by the power-of-attorney holder in exercise of power granted by 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 rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.

¶57

14. Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr Bhojwani to represent them and the Tribunal erred in allowing the power-of-attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside.

¶58

15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao [(1999)3 SCC 573] observed at SCC pp. 583-84, para 17 that:

¶59

“17. Where a party to the suit does not appear in the witness box and states his own case on oathand does not offer himself to be cross-examined by the other side, a presumption would arise

¶60

9

¶61

thatthe case set up by him is not correct….”

¶62

16. In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of decree.

¶63

17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan [(1986) 2 WLN 713 (Raj)] 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.

¶64

18. The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Narain [AIR 1998 Raj 185 : (1998) 3 Cur CC 183] . It was held that the word “acts” used in Rule 2 of Order 3 CPC does not include the act of power-of attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC.

¶65

19. In the case of Pradeep Mohanbay (Dr.) v. Minguel Carlos Dias [(2000) 1 Bom LR 908] the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness.

¶66

10

¶67

20. However, in the case of Humberto Luis v. Floriano Armando Luis [(2002) 2 Bom CR 754] on which reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in Order 3 Rule 2 CPC cannot be construed to disentitle the power-of-attorney holder to depose on behalf of his principal. The High Court further held that the word “act” appearing in Order 3 Rule 2 CPC takes within its sweep “depose”. We are unable to agree with this view taken by the Bombay High Court in Floriano Armando[(2002) 2 Bom CR 754]

¶68

21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri [(1986) 2 WLN 713 (Raj)] followed and reiterated in the case of Ram Prasad [AIR 1998Raj 185 : (1998) 3 Cur CC 183] is the correct view. The view taken in the case of Floriano ArmandoLuis [(2002) 2 Bom CR 754] cannot be said to have laid down a correct law and is accordingly overruled.

¶69

22. In the view that we have taken, we hold that the appellants have failed to discharge the burden that they have contributed towards the purchase of property at 38, Koregaon Park, Punefrom any independent source of income and failed to prove that they were co-owners of the property at 38, Koregaon Park, Pune. This being the core question, on this score alone, the appeal is liable to be dismissed.

¶70

12. Having noticed the three judgments of this Court in Janki Vashdeo Bhojwani (supra), Man Kaur (supra) & A.C. Narayanan (supra), we are of the view that in view of Section 12 of the Specific Relief Act, 1963, in a suit for specific performance wherein the plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, a Power of Attorney Holder is not

¶71

11

¶72

entitled to depose in place and instead of the (2014) 11 SCC 790 plaintiff (principal). In other words, if the Power of Attorney Holder has rendered some ‘acts’ in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the act done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined. If a plaintiff, in a suit for specific performance is required to prove that he was always ready and willing to perform his part of the contract, it is necessary for him to step into the witness box and depose the said fact and subject himself to crossexamination on that issue. A plaintiff cannot examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. The term ‘readiness and willingness’ refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness.

¶73

13. In the light of above settled legal position, we are of the view that in the instant case, the plaintiff/appellant has failed to enter into the witness box and subject himself to cross-examination, he has not been able to prove the pre- requisites of Section 12 of the Specific Relief Act,1963 and more so, when the original agreement contained a definite time for registration of sale deed which was later on extended but the suit was filed on the last date of limitation calculated on the basis of the last extended time.

¶74

15. Again Hon’ble Supreme Court in case of Manisha Mahendra Gala

¶75

and Others vs. Shalini Bhagwan Avatramani and Others {2024 INSC 293} held as under :-

¶76

28. The law as understood earlier was that a General Power of Attorney holder though can appear, plead and act on behalf of a

¶77

12

¶78

party here presents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd. {(2005) 2 SCC 217}, this Court held that the Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence. However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani (supra) in A.C Narayan vs. State of Maharashtra {(2014) 11 SCC 790} concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani (supra) and clarified that Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any subdelegation.

¶79

29. It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene. The aforesaid Power of Attorney holder PW-1 had clearly deposed that he is giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the Gala’s. He was not having any authority to act as the

¶80

13

¶81

Power of Attorney of the Gala’s at the time his statement was recorded. He was granted Power of Attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Gala’s have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted

¶82

16. In light of the above factual and legal position it is quite vivid that the power of attorney was executed on 14.04.2014, the holder cannot depose the evidence which is well within the specific knowledge of the plaintiff therefore, the finding of the learned trial Court so far as power of attorney holder is concerned that he cannot lead evidence which is within the knowledge of principal, is legal and justified and does not warrant interference by this Court. Accordingly, Point No. (a) is answered against the plaintiff.

¶83

Discussion and Finding on Point No. (b)

¶84

17. The plaintiff’s witness Mahesh Vishnani (PW/3) who was examined by way of affidavit as provided under Order 18 Rule 4 CPC has supported the case of the plaintiff but in the cross-examination he has admitted that there was no direct talk with regard to sale of the property between the plaintiff and defendant, negotiation was continued through Dashrath Dewangan. He has also admitted that the plaintiff has given money to Manohar and not given money to the defendant. He voluntarily says that at that time, the plaintiff was also sitting there. He has also admitted that he is making statement due to the information given by the plaintiff. The plaintiff has also examined the handwriting expert to prove that in the agreement signature of the defendant was available on the basis of opinion given by the expert. But eventually, it is well settled position of law that opinion of the hand

¶85

14

¶86

writing expert as per Section 45 of the Evidence Act is very poor piece of evidence unless supported by cogent evidence adduced by the plaintiff to substantiate the opinion of the expert.

¶87

18. The evidentiary value of the Hand Writing Expert has come up for consideration before the Hon’ble Supreme Court in case of C. Kamalakkannan vs. State of Tamil Nadu Rep. by Inspector of Police C.B.C.I.D. Chennai {2025 LIveLaw (SC) 287} and Hon’ble Supreme Court in paragraph No. 12 has held as under :-

¶88

12. The locus classicus on this issue is Murari Lal v. State of M.P. {(1980) 1 SCC 704}, wherein this Court laid down the principles with regard to the extent to which reliance can be placed on the evidence of an expert witness and when corroboration of such evidence may be sought. The relevant paragraphs are extracted hereinbelow:-

¶89

“4. We will first consider the argument, a stale argument often heard, particularly in Criminal Courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said 8 (1980) 1 SCC 704. Criminal Appeal @ SLP(Crl.) No. 3044 of 2021 on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses — the quality of credibility or incredibility being one which an expert shares with all other witnesses — but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect

¶90

15

¶91

opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. [..]

¶92

6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person “specially skilled” “in questions as to identity of handwriting” is expressly made a relevant fact……… So, corroboration may not invariably be Criminal Appeal @ SLP(Crl.) No. 3044 of 2021 insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.

¶93

11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinionevidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evi-

¶94

16

¶95

dence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.”

¶96

19. From the above stated legal position and also considering the entire evidence, opinion of the handwriting expert, it is quite vivid that the plaintiff has not placed any cogent evidence to prove that on execution of agreement by the defendant, the plaintiff has given Rs. 12,00,000/- as advance, thus, the learned trial Court has not committed any illegality in not relying upon the opinion of the handwriting expert Ex.P/6 to P/13 and rightly dismissed the suit.

¶97

20. The plaintiff has not placed any material on record to demonstrate that he has given money to the tune of Rs. 12,00,000/- to the defendant by placing on record the source of fund, manner in which the fund has been transferred to the defendant. In absence of any such cogent evidence placed on record, it cannot be said that the trial Court has committed illegality in recording its finding that the plaintiff has given amount of Rs. 12,00,000/- to the defendant which was incumbent upon the plaintiff to place on record in view of the specific denial by the defendant in her evidence with regard to execution of agreement or receiving of Rs. 12,00,000/- in advance and also denial

¶98

17

¶99

of the fact that she has executed agreement to sell the suit property for sale consideration of Rs. 49,00,000/- with the plaintiff.

¶100

21. Even otherwise it is well settled legal position that initial onus is always upon the plaintiff to prove the fact and if he discharges that onus and makes out a case which entitles him to a relief, then onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. In this case nothing has been discharged by the plaintiff. The plaintiff has not proved by adducing cogent evidence on record that he has paid the advance of Rs. 12,00,000/- to the defendant.

¶101

22. The issue of burden of proof was subject matter of challenge before the Hon’ble Supreme Court in the case o f State of Madhya Pradesh vs. Nomi Singh and another (2015) 14 SCC 450 and the Hon’ble Supreme Court has held in paragraph-11 and 12 as under;-

¶102

It is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case. On perusal of the impugned order passed by the High Court, this Court finds that the High Court has wrongly shifted burden of proof on the defendants. In the middle of paragraph 12, while giving its reasons to disagree with the decree passed by the courts below, the High Court has observed as under: -

¶103

"It was respondent-defendant who has challenged the possession of plaintiff and his father on the ground of khasra entries, therefore, burden of proving the fact that allegations made by the defendant are correct, is on the defendant, in which defendant has failed. Further it has been admitted before the Court that entry of plaintiffs in the khasra record is as encroacher, but no such khasra entries have been produced by them.…"

¶104

18

¶105

In the middle of paragraph 15 of the impugned decree, again the High Court observes:

¶106

-"Further the defendant has failed to prove the possession of plaintiff and his father was that of an encroacher. Defendant has further failed to prove the khasra Nos. 1950 to 1952 to be wrong or that patta given to the plaintiffs, was only for one year,.…"

¶107

12. The above observations made by the High Court, show that it has erroneously placed onus of proof of title and possession of the plaintiffs, on defendant. The High Court has completely ignored the fact that the plaintiff after losing case in the first round from trial court, got amended the plaint and took plea of adverse possession, on which matter was remanded to the trial court, and after hearing parties suit was again dismissed, which was upheld by the first appellate court. The above approach of the High Court is against the law laid down by this Court, and in our opinion, it erred in law in reversing the decree passed by the trial court and that of the first appellate court by shifting burden of proof on the defendant.

¶108

23. Hon'ble Supreme Court in the case of Chairman Board of Trustees,

¶109

Sri Ram Mandir, Jagtial Karimanagar District, Andra Praesh vs.

¶110

S. Rajyalaxmi(dead) and others reported in 2019(2) SCC 338 has held in paragraph-21 as under;-

¶111

21- It is an established position of law that the burden to proof ownership over the suit property is on the plaintiff. (See Corporation of City of Bangalore vs. Zulekha Bai and Ors. (2008). This court in the case of Parimal vs. Veena (2011) 3SCC 545, held that:

¶112

19. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on

¶113

19

¶114

that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.

¶115

24. From the above stated factual and legal position, it is quite vivid that plaintiff has failed to prove his case and the learned trial Court has rightly recorded the finding that the power of attorney holder cannot depose the facts which is well within the knowledge of the plaintiff only. The plaintiff has been unable to prove his case that he has given Rs. 12,00,000/- as advance by adducing cogent evidence and accordingly it has dismissed the suit which does not suffer from perversity and illegality warranting interference by this Court. Accordingly, the first appeal deserves to be and it is dismissed.

¶116

25. No order as to costs.

¶117

26. A decree be drawn up accordingly.

¶118

Sd/Sd/-

¶119

(Rajani Dubey) (Narendra Kumar Vyas) JUDGE JUDGE

¶120

Deshmukh

Kishnchand Khubchandani v. Smt. Prabha Agrawal

Case brief

What is this about?

What did the court decide?

Kishnchand Khubchandani v. Smt. Prabha Agrawal

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sudhir Kumar Agrawal Vs Union of India

Bhikham Patel Vs State of Chhattisgarh

Memwati Mehra Vs Ramavtar Gupta

Mohd. Sajid Vs Tabassum Afroj

Trilokchandra Siadara Vs Smt. Vidyawati Kashyap

Santosh Kumar Sahu Vs Govind Bhai Patel