Chattisgarh High Court
Kishnchand Khubchandani vs Smt. Prabha Agrawal on 19 March, 2025
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2025:CGHC:13042-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved on 28.01.2025
Pronounced on 19.03.2025
FA No. 382 of 2019
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
... Appellant
versus
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
---- Respondent
For Appellant : Mr. Anurag Singh and Mr. Sandeep Patel,
Advocates
For Respondent : Mr. A.D. Kuldeep, Advocate
KISHORE
KUMAR
DESHMUKH
Digitally signed by
DB: Hon'ble Smt. Justice Rajani Dubey and
KISHORE KUMAR
DESHMUKH
Date: 2025.03.20
11:20:21 +0530 Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
Per, Narendra Kumar Vyas, Judge
1. This is plaintiff's first appeal challenging the judgment and decree
dated 10.04.2019 passed by the learned Second Additional Judge to
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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/-.
2. For convenience plaintiff and defendant are referred to as it exist
before the learned trial Court.
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 :-
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 sale-
consideration 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.
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
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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.
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.
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.
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:-
1. Whether on 14.07.2011, the plaintiff has executed an agreement
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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?
2. Whether the plaintiff is entitled to receive Rs. 16,00,000/- from the
defendant?
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.
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
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this Court.
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}.
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.
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10. We have heard learned counsel for the parties and record of the
Court below with utmost satisfaction.
11. From the submission made by the parties the points emerged for
determination of this Court are:-
a. Whether the learned trial Court has committed illegality in not
relying upon the evidence of power of attorney holder while
dismissing the suit?
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 ?
Discussion and Finding on Point No. (a)
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.
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
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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.
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 :-
9. In Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. &
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:
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"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.
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.
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:
"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
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thatthe case set up by him is not correct...."
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.
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.
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.
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.
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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]
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.
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.
...........
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
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 cross-
examination 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.
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.
15. Again Hon'ble Supreme Court in case of Manisha Mahendra Gala
and Others vs. Shalini Bhagwan Avatramani and Others {2024
INSC 293} held as under :-
28. The law as understood earlier was that a General Power of
Attorney holder though can appear, plead and act on behalf of a
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 sub-
delegation.
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
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
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.
Discussion and Finding on Point No. (b)
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
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.
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 :-
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:-
"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
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 non-
existent. 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. [..]
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 opin-
ion of an handwriting expert and there need be no initial suspicion.
But, on the facts of a particular case, a court may require corrobora-
tion of a varying degree. There can be no hard and fast rule, but noth-
ing 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 handwrit-
ing expert should be to proceed cautiously, probe the reasons for the
opinion, consider all other relevant evidence and decide finally to ac-
cept or reject it.
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 opinion-
evidence 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 opin-
ion must be carefully probed and examined. All other relevant evi-
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 uncorrobo-
rated testimony of an handwriting expert may be accepted. There
cannot be any inflexible rule on a matter which, in the ultimate analy-
sis, 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."
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.
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
of the fact that she has executed agreement to sell the suit property
for sale consideration of Rs. 49,00,000/- with the plaintiff.
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.
22. The issue of burden of proof was subject matter of challenge before
the Hon'ble Supreme Court in the case of 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;-
11. 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: -
"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...."
In the middle of paragraph 15 of the impugned decree, again
the High Court observes:
-"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,...."
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.
23. Hon'ble Supreme Court in the case of Chairman Board of Trustees,
Sri Ram Mandir, Jagtial Karimanagar District, Andra Praesh vs.
S. Rajyalaxmi(dead) and others reported in 2019(2) SCC 338 has
held in paragraph-21 as under;-
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:
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
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.
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.
25. No order as to costs.
26. A decree be drawn up accordingly.
Sd/- Sd/-
(Rajani Dubey) (Narendra Kumar Vyas)
JUDGE JUDGE
Deshmukh
