Babu Lal vs Manohari Devi and Others

Pratap Krishna Lohra, J—Appellant-defendant No. 1 has preferred this second appeal under Section 100 Code of Civil Procedure, 1908 (for short, ''CPC'') to challenge judgment and decree dated 19th October, 2011 passed by Additional District Judge, Sujangarh (for short, ''learned lower appellate Court''), whereby learned lower appellate Court has affirmed judgment and decree dated 08.04.2002 passed by Additional Civil Judge (Junior Division) Sujangarh (for short, ''learned trial Court'') decreeing the suit of the respondent-plaintiff for declaration and permanent injunction.

Respondent-plaintiff filed a suit for declaration and permanent injunction against appellant-defendant No. 1, Municipal Board, Bidasar and Smt. Durga Devi. During pendency of the suit, Smt. Durga Devi expired and therefore, her name was deleted. It is averred in the plaint that the plaintiff purchased a shop from appellant-defendant on 01.12.1992. It is also averred in the plaint that one narrow lane goes towards main market and appellant-defendant No. 1 and his mother are making construction illegally over the lane. It is further averred in the plaint that initially Municipal Board has initiated proceedings against appellant-defendant but, thereafter, on an application filed by the appellant, Municipal Board has taken decision to issue patta for the land in question in favour of appellant and has sent the matter to SDO for its approval. The respondent-plaintiff has pleaded in the plaint that if defendant will make construction illegally then her right of way, light and air will be adversely affected. With these pleadings respondent-plaintiff has prayed to declare the order of Municipal Board dated 12.08.1994 as illegal and void. The respondent-plaintiff also prayed for permanent injunction against the appellant.

The appellant-defendant No. 1 and respondent-Municipal Board have filed separate written statements and denied the averments contained in the plaint. The Municipal Board, in the return, has pleaded that the land in question is not a public way and it is a Kanchha (strip of land) which is used only by appellant-defendant No. 1. It is also averred that on 15.07.1994 appellant-defendant No. 1 filed an application before the Municipal Board to sale/allot the land in question to him. On the said application, the Municipal Board, in its meeting dated 29.07.1994, constituted a committee and, on the recommendation of the committee dated 12.08.1994, sent the file to SDO for its approval to sale/allot the land in question to appellant. The Municipal Board, in its return, has specifically pleaded that there is no illegality or irregularity because there is a provision of allotment of kachha (strip of land) to a person, who uses the kachha (strip of land) and, as per the law, decision was taken for sending the file to SDO for its approval. It is also averred that the plaintiff has no legal right over the land in question. It is also averred that the SDO is a necessary party, but the plaintiff has not arrayed it as party-defendant, therefore, the suit is not maintainable on the ground of non-joinder of necessary party.

Appellant-defendant No. 1, in its return, has pleaded that sale-deed dated 01.12.1992 was got corrected by executing a correction document and got registered the same and this fact is known to the plaintiff. It is also averred in the written statement that boundaries of the shop, which was sold to the plaintiff, were corrected by the correction deed. It is also pleaded, in the written statement, that when the shop was sold to the plaintiff, there was only a small window and ventilator in the eastern side of the shop and it was agreed orally between the parties that appellant-defendant will close the said window and ventilator. In the return, it is further averred that the Municipal Board, after making detailed inquiry, has taken decision to sale the kanchha (strip of land) to the appellant. It is further pleaded, in the return, that the plaintiff could have challenged the order of SDO by way of filing an appeal before the District Collector, but he did not do so, therefore, the order has attained finality. Appellant, therefore, craved that the suit is not maintainable and merits dismissal.

The learned trial Court, on the basis of pleadings of rival parties, framed seven issues for determination. Subsequently, an additional issue, Issue No. 8 is framed.

To support his case respondent-plaintiff has examined three witnesses and produced twelve documents, which were got exhibited. On the other hand, defendants examined six witnesses and produced seven documents, which were also exhibited.

At the final stage of trial, plaintiff submitted an application for amendment in the plaint and the said application was allowed by the learned trial Court on 02.11.2001.

Being aggrieved with the order dated 02.11.2001, the appellant-defendant filed a revision petition before this Hon''ble Court and the same was dismissed with the liberty to challenge the order at the time of filing of appeal against final judgment if occasion so arises.

After conclusion of the evidence of rival parties, learned trial Court decided Issues No. 1, 2, 3, 4, 5, 6 and 8 against the appellant-defendant and in favour of the respondent-plaintiff and decreed the suit.

Feeling dismayed with the judgment and decree of the learned trial Court, appellant-defendant No. 1 approached learned lower appellate Court and the learned lower appellate Court made endeavour to examine the matter afresh in the light of evidence and materials available on record. Learned lower appellate Court has also made endeavour to analyse the evidence available on record and finally concurred with the findings of learned trial Court by dismissing the appeal.

I have heard learned counsel for the parties and perused the impugned judgments of both the Courts below as well as record of the case.

Upon perusal of the impugned judgments, it is amply clear that both the Courts below have recorded a concurrent finding of fact against the appellant.

On critical analysis of the concurrent finding of fact, I am unable to find any infirmity or perversity in appreciation of evidence and materials available on record.

Learned counsel for the appellant has made an attempt to impress upon the Court that both the learned Courts below have not cared to examine the true purport of Order 3 Rules 1 & 2 CPC inasmuch as respondent-plaintiff has not appeared in the witness box and, on her behalf, her power of attorney has deposed on oath to prove the case. In support of this contention, learned counsel for the appellant has placed reliance on a decision of Hon''ble Apex Court in case of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, AIR 2005 SC 439 : (2005) 123 CompCas 154 : (2005) 3 CTC 128 : (2004) 10 JT 264 : (2005) 140 PLR 1 : (2004) 10 SCALE 244 : (2005) 2 SCC 217 : (2004) AIRSCW 7064 : (2005) 3 Supreme 275 .

Under Order 3 Rules 1 & 2 CPC, there is no absolute embargo that power of attorney cannot depose on behalf of principal. The only restriction on power of attorney holder is that power of attorney holder can depose only in respect of "acts" done by him in exercise of power granted by the instrument. 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 principal is liable to be cross-examined.

Hon''ble Apex Court in case of Janki Vashdeo Bhojwani (supra), while interpreting Order 3 Rules 1 & 2 CPC, has dilated on this aspect of the matter and has not completely discarded the deposition of power of attorney holder if his depositions are in respect of "acts" done by him in exercise of power granted by the instrument.

One more redeeming feature, in the instant case, is that power of attorney holder is husband of respondent-plaintiff and, as such, his deposition, on behalf of plaintiff-respondent, is free from any doubt and therefore rightly taken cognizance by both the Courts below. In this view of the matter, argument of learned counsel to make out a case involving substantial question of law appears to be quite alluring but not of substance and, therefore, merits rejection.

It is trite that jurisdiction under Section 100 CPC is to be exercised by this Court with great care and circumspection and normally this Court is not obliged to re-appreciate the evidence and materials available on record. Appreciation of evidence is only permissible when finding of fact is perverse or contrary to the evidence on record, or dehors the law. No such situation is available in the instant case. Moreover, I am unable to lay my hands on any substantial questions of law involved in the matter and the substantial questions of law proposed by the appellant are also not satisfying the requirement within the four corners of Section 100 CPC.

Resultantly, appeal fails and same is, hereby, dismissed summarily.