Munni Devi & Anr. v. Mahi Pal Singh

1. This appeal has been filed challenging the judgment dated 24.12.2018 passed by the learned Senior Civil Judge in RCA NO. 4/2016 titled Smt. Munni Devi & Anr. vs. Shri Mahi Pal Singh. By 2020:DHC:162 RSA 2/2020 Page 2 the Impugned Judgment, the learned Appellate Court has dismissed the appeal filed by the appellants herein.

2. The appellants herein had filed the Suit bearing no. 384/2009 claiming themselves to be the owners of the property bearing no. D- 599, Amar Colony, Illaqa Shahdara, Delhi-94 by way of an Agreement to Sell, General Power of Attorney (GPA) and a Receipt, all dated 16.11.1989, and marked as Exhibit PW-1/3 to PW-1/5 respectively. It is further the case of the appellants that the Suit Property had been given on license for the occupation of respondent herein, who is the brother-in-law of the appellants.

3. The learned Trial Court as also the Appellate Court have dismissed the Suit of the appellants holding that the appellants were unable to prove EX PW-1/3 to EX PW-1/5. The learned Appellate Court has held that as neither the plaintiffs/appellants nor any of the attesting witnesses of the above documents had appeared as witnesses in the trial and instead only the Power of Attorney Holder of the plaintiffs/appellants namely Mr.Pawan Kumar had appeared as a witness, the said documents remained unproved.

4. The learned Appellate Court further held that as the documents namely the Agreement to sell and the General Power of Attorney are not signed by the beneficiaries, there is a doubt on their veracity.

5. The learned Appellate Court further, relied upon Section 54 of the Transfer of Property Act, 1882 and held that the said document even otherwise do not create a title in favour of the appellants. RSA 2/2020 Page 3

6. As far as the receipt is concerned, the learned Appellate Court had held that the same does not specify the object of the consideration amount nor records that it has any connection with the alleged Agreement to Sell or the GPA.

7. Based on the above, the learned Appellate Court has confirmed the finding of the learned Trial Court that the appellants have failed to prove their title over the Suit Property.

8. The learned Appellate Court has further confirmed the finding of the learned Trial Court on the aspect that the appellants have failed to prove the relationship of the licensor and the licensee.

9. The learned counsel for the appellants submits that the findings of the Appellate Court are liable to be set aside by this Court inasmuch as the learned Appellate Court has failed to consider that the PW-1, that is, the Power of Attorney Holder of the plaintiffs, in his examination in chief had clearly stated that the Agreement to Sell and the GPA were executed in his presence. The said documents were therefore, duly proved on record. He further submits that merely because the Agreement to Sell was not signed by the beneficiaries, the veracity of the same could not be doubted. Relying upon the judgment of the Supreme Court in Alka Bose vs. Parmatma Devi and Ors., MANU/SC/8475/2008, he submits that the Agreement to Sell need not be signed by the Vendee. He further submits that the Agreement to Sell does not require attestation, mere non examination of the attesting witness would again be of no consequence. In support, he relies upon the judgment of the Supreme Court in Hans Raji vs. Yosodanand, RSA 2/2020 Page 4 MANU/SC/0208/1996 and of this Court in Ramesh Chand Sharma vs. R.S. Aggarwal, MANU/DE/0380/1982.

10. As far as the GPA is concerned, placing reliance on the judgment of the this Court in Kamla Rani and Ors. vs. Texmaco Ltd. and Ors., MANU/DE/7343/2007, he submits that as the General Power of Attorney was duly notarized, in terms of Section 85 of the Indian Evidence Act, 1872, there is a presumption of its due execution and authentication and, therefore, the onus of proving otherwise was on the defendant/respondent herein which he failed to discharge. He submits that in view of the above submissions, the findings of the learned Appellate Court cannot be sustained.

11. As far as the relationship of the licensor or licensee is concerned, he submits that the respondent has failed to produce any evidence in support of his submission that the construction of the property had been conducted by the respondent. Infact, relying upon the suggestion given to the PW-1, he submits that the construction of the property was made when the respondent, as per his own case, was in the village.

12. I have considered the submissions made by the learned counsel for the appellants, however, find no merit in the same. It is to be noted that the appellants/plaintiffs themselves did not came to the witness box in support of their claim. The learned Appellate Court has found this to be one of the main ground for disbelieving the case of the appellants/plaintiffs and mere statement of PW-1 in his examination in chief to state that these documents were executed in his presence, in RSA 2/2020 Page 5 my opinion, would not suffice or negate the effect of the plaintiffs not entering the witness box to prove their case.

13. The Supreme Court in judgment dated 01.10.2019 passed in Civil Appeal No(s) 2869-70/2010, titled Mohinder Kaur v. Sant Paul Singh, has held as under: “6. In Janki Vashdeo (supra), it was held that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows: