Madhya Pradesh High Court
Kanchanlal vs Smt. Geetabai on 29 August, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 29th OF AUGUST, 2023
FIRST APPEAL No. 487 of 2010
BETWEEN:-
KANCHANLAL S/O HEMRAJJI PATIDAR, AGED
ABOUT 70 YEARS, OCCUPATION: AGRICULTURE
GRAM RUNJI
GAUTAMPURA,TEH.DEPALPUR,DISTT.INDORE
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI PIYUSH SHRIVASTAVA, ADVOCATE )
AND
1. SMT.GEETABAI AND ANR. W/O PARMANAND
BRAHMAN, AGED ABOUT 55 YEARS,
OCCUPATION: AGRICULTURE GRAM
PALDUNA,TEH.BADNAGAR,DISTT.UJJAIN
(MADHYA PRADESH)
2. DISTRICT COLLECTOR THE STATE OF
MADHYA PRADESH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SAMEER ATHAWALE, ADVOCATE FOR RESPONDENT NO.1 )
FIRST APPEAL No. 202 of 2003
BETWEEN:-
KANCHANLAL S/O HEMRAJ PATIDAR, AGED
ABOUT 49 YEARS, OCCUPATION: AGRICULTURE
GRAM RUNJI GAUTAMPURA TEHSIL DEPALPUR
(MADHYA PRADESH)
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2
.....APPELLANT
(BY SHRI PIYUSH SHRIVASTAVA, ADVOCATE)
AND
1. SMT. GEETABAI W/O PARMANAND
BRAHMAN, AGED ABOUT 45 YEARS,
OCCUPATION: HOUSE WIFE GRA PALDUNA
TEHSIL BADNAGAR (MADHYA PRADESH)
2. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SAMEER ATHAWALE, ADVOCATE FOR RESPONDENT NO.1)
___________________________________________________________________________________________
Reserved on : 21/06/2023
Pronounced on : 29/08/2023
_____________________________________________________
These appeals coming on for judgement/order this day, the
court passed the following:
JUDGEMENT
Heard finally.
1] This judgement shall also govern the disposal of F.A. No.202
of 2003 as both the appeals have arisen out of the common
judgment dated 02.01.2003. For the sake of convenience, the facts
as narrated in F.A.No.487/2010 are being taken into consideration.
2] This appeal has been preferred by the appellant/defendant,
under Section 96 of CPC against the judgement and decree dated
02.01.2003, passed by XI Additional District Judge, Indore in Civil
Suit No.3-A/2002 (OLD No.11A/98), filed by the
respondent/plaintiff Gitabai d/o. Heeralal whereby, the plaintiff's
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suit regarding declaration and possession has been decreed, whereas,
suit No.63A/2000, filed by appellant Kanchanlal for specific
performance of contract has been partly decreed.
3] In F.A.No.202/2003, a cross objection has also been filed by the
respondent Geetabai against the damages which is directed to pay to
the Appellant Kanchanlal.
4] Also heard on I.A.No.2872/2010, which is an application
u/s.5 of the Limitations Act, 1963 for condonation of 2574 days
delay in filing the F.A.No.487/2010.
5] Shri Piyush Shrivastava, learned counsel for the appellant has
submitted that as both the cases were decided by a common
judgement and decree, and he was earlier advised to file only one
appeal against the common judgement hence only one First Appeal
No.202/2003 was filed by him, however, when the said appeal came
for hearing, he engaged some other counsel to argue the same and
the said counsel, after going through the file advised the appellant
to file a separate appeal in respect of civil suit no.3A/2002, thus, the
delay of 2574 days has occurred which deserves to be condoned.
6] The Application is opposed by the counsel for the respondent
and it is submitted that no case for condoning the excessive delay of
2574 days is made out, as the appellant was well aware of the legal
implication of the case, and the appeal is also liable to be dismissed
on this short ground only.
7] Heard. On perusal of the record it is found that two suits have
been decided by a common judgement dated 02.01.2003, and in
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such circumstances, if only one appeal was filed by the appellant
against the impugned judgement, he cannot be blamed for the
advice which he received from his counsel. In such circumstances,
the delay of 2574 days deserves to be condoned as the appellant
was already in court challenging the judgement dated 02.01.2003,
and there was no reason for him not to challenge the same in a
separate appeal in connection with the present suit no.3A/2002.
Accordingly, the delay of 2574 days in filing the appeal is hereby
condoned.
8] In brief, the facts of the case are that the disputed agricultural
land at Survey No.1349/2 (1.383 Hect), Village Runji, Gautampura
was recorded in the name of Hiralal (Father of Gitabai), and after
death of Hiralal, land was to be recorded in the name of Gitabai and
her mother Reshambai, but only Reshambai's name was entered into
the revenue records. A Dispute arose between the mother Reshambai
and her daughter Geetabai, and after various rounds of litigation, name
of Gitabai was directed to be included in the revenue records.
Similarly, in a civil suit C. S.No.92A/95, decided on 29.08.1996, filed
by Geetabai against her mother Reshambai, Gitabai was declared co-
owner of the land.
9] The case of the plaintiff Geetabai was that her parents have
already died, as her father died in the year 1993, and mother, in the
year 1997, whereas, the disputed, which belonged Heeralal, the father
of Geetabai, was is in possession of appellant/defendant Kanchanlal.
Appellant Kanchanlal also got an agreement dated 14.06.1994,
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executed in his favour from Reshmabi in respect of the disputed land,
and got his name recorded in revenue records. Plaintiff Gitabai
challenged the entry before revenue courts, and civil suit No.3-
A/2002 (old No.11A/1998) was filed by the respondent/plaintiff
Geetabai for declaration and possession of the disputed land. In the
written statement, it was stated by Kanchanlal that after death of
Hiralal, name of Reshambai was mutated in the revenue records. And
Reshambai, to save the land from auction by the Bank, and for
performing last rites of Hiralal, took a loan of Rs.85,000/- from
defendant Kanchanlal, and executed agreement to sell dated
14.06.1994 in his favour.
10] Subsequently, on 24.07.1999, civil suit No.63-A/2000 was
also filed by appellant Kanchanlal Patidar for specific performance
of contract, and in the alternative, it was also prayed that the
compensation be awarded to him with interest. Civil suit No.63-
A/2000, which was filed on 24.07.1999, was subsequently clubbed
along with civil suit No.3-A/2002(old No.11A/1998), and both suits
were decided together vide the impugned judgement and decree
dated 02.01.2003.
11] So far as the suit for specific performance of contract filed by
Kanchanlal is concerned, it is stated that Geetabai's father, Late
Heeralal obtained a loan from Bhoomi Vikas Bank for the purposes of
digging a well in his land and to purchase a pump, by keeping his land
mortgaged in the said Bank, but he could not repay the loan in his
lifetime, and after his death, his daughter Geetabai refused to repay
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the loan and also refused to accept the land of Late Heeralal, hence,
the burden fell on her mother Reshambai to repay the loan, as the land
was mutated in her name, hence, Reshambai asked Kanchanlal to pay
the loan, and on an assurance that Reshambai would execute the sale
deed in favour of Kanchanlal, he repaid the loan of Rs.49,448/- in the
bank, paid a sum of Rs.6,000/- to Reshambai when he got released her
land from one Gopal Patidar, and a sum of Rs.2,670/- was also paid to
the Electricity Board, and Reshambai also received a sum of
Rs.7,382/- from Kanchanlal and thus, in all, she received Rs.85,500/-
from Kanchanlal. The agreement in this behalf executed on
14.06.1994, was executed in front of the witnesses Mohanlal and Pw/2
Nandkishore, where Reshambai agreed to sell the land to Kanchanlal.
Since Geetabai is the only legal heir of Reshambai, and her name has
been mutated in the revenue record in place of Reshambai, hence, it
was stated in the plaint by appellantKanchanlal that the agreement was
also binding on Geetabai, and as she is not executing the sale deed in
his favour, hence, a notice was also issued to her, to which a false
reply was sent by her. Hence, the civil suit for specific performance of
contract was filed by Kanchanlal, and in the alternative, it was also
prayed that if the sale deed is not executed in his favour, the amount
may be directed to be returned to the appellant/plaintiff Kanchanlal
along with interest.
12] The written statement was filed by Geetabai contending that the
land in question was her ancestral property, and did not belong to
Heeralal, and the mother of Geetabai, Reshambai was an illiterate
woman and had never received any amount from the plaintiff
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Kanchanlal, and her last rites were also performed by Geetabai only,
and taking advantage of Reshambai's ignorance, the agreement dated
14.06.1994 was executed, which is not binding on Geetabai. It was
also stated that the initial suit was filed by Geetabai herself, and only
as an afterthought, this suit has been filed by Kanchanlal. Thus, it was
also prayed that since the plaintiff Kanchanlal is in unauthorized
possession of the suit property since 1998, he is also not entitled to
claim any amount from Geetabai.
13] Vide the impugned judgement dated 02.01.2003, the learned
judge of the trial court has decided both the suits and while the suit
No.3-A/2002(old No.11A/1998) for declaration and possession, filed
by Geetabai has been decreed, the suit no.63A/2000 filed by appellant
for specific performance of contract has been partly allowed to the
extent that the defendant Geetabai has been directed to remit an
amount of Rs.42,750/- to the plaintiff.
14] The appeal has been preferred on the ground that the learned
Judge of the Trial Court has erred in relying upon the testimony of
Pw/2 Gopal s/o.Gitabai who is also the power of attorney holder of
Gitabai. In support of this contention Shri Piyush Shristrava has also
relied upon the decision rendered by the Supreme Court in the case of
Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and
others reported as 2005(1) MPLJ 421 and in the case of Himmatlal
and others vs. Rajratan Concept and others reported as 2018(3)
MPLJ 235.
15] It is also submitted by Shri Shrivastava that trial Court has erred
in disbelieving the document Ex.P/1, which is the agreement to sell
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executed by the mother of the defendant, and also by not relying upon
the evidence adduced by Kanchanlal/plaintiff in the Trial Court, and
holding that the Ex.P/1 is only document of some transaction of
money.
16] Counsel for the respondent, on the other hand, has opposed the
prayer and it is submitted that no case for interference is made out,
and as challenged in the cross objections, the amount of Rs.42,750/- as
has been directed to be paid by the defendant to the plaintiff is also
liable to be set aside as Ex.P/1 itself has been held not to be proved,
and only on the basis of surmises, the decree has been passed. Thus, it
is submitted that the judgement and decree so far as they relate to
payment of the aforesaid amount of Rs.42,750/-,, the same are liable
to be set aside, and no further interference is called for.
17] Heard counsel for the parties and perused the record.
18] The record reveals that a common judgement has been passed in
Civil Suit No.63-A/2000, as also Civil Suit No.3-A/2002. Both these
suits were consolidated by the District Judge, Indore in MJC
No.171/2001 vide order dated 26.09.2001,and have been decided by
the impugned judgement and decree dated 02.01.2003. Trial Court
framed 9 issues in C.S.No.63A/2000 and 7 issues in C.S.No.3A/2002
(Old No.11A/98).
19] It is also found that the case of specific performance of contract
revolves around Ex.P/1, which is an agreement to sell between
Kanchanlal and Reshambai, the mother of respondent No.1.It is also
found that the earlier Civil Suit No.3-A/2002 (Old No.11A/98) was
filed by respondent/plaintiff Geetabai on 29.01.1998, whereas,
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Kanchanlal filed the suit for specific performance of contract dated
14.06.1994, on 24.01.1999.
20] The Trial Court has held that Gitabai, after death of Hiralal &
Reshambai, is entitled to possession of the land as the land was given
to Kanchanlal as bataidar only. It is also held by the trial court that
Kanchanlal must have given some amount to Reshambai, and as a
security, the document Ex.P/1 was written, and thus, has awarded a
sum of Rs.42,750/- (half of the amount mentioned in Ex.P/1) to
Kanchanlal as damages.
21] On perusal of the deposition of PW-1 Kanchanlal in Civil Suit
No.63-A/2000, it is found that in his cross-examination he has
admitted that in the agreement, which was executed between him and
the deceased Reshambai, the survey number has not been mentioned.
He has also admitted that on which date he has given the sum of
Rs.20,000/- and Rs.6,000/- to Reshambai, he is not aware of. He has
also stated that he has paid the electricity bill of Rs.2,670/- however,
he has not filed the receipt of the same. He has also stated that he has
deposited the dues of Reshambai in Zila Sehkari Bhumi Vikas Bank,
but he also has no record of the same, and this fact has also not been
stated in the agreement that he has paid the amount of Bank as also the
electricity charges. He has also admitted that after the execution of the
said agreement, within one year Reshambai died that during that time
he had asked her to execute the sale deed, but he has admitted that no
notice in this regard was issued to Reshambai as she did not object to
the execution of registry. He has also admitted that there was no direct
agreement between him and Gitabai. Record also shows that Gitabai
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was the co-sharer of the suit land. In such circumstances, firstly, as the
agreement itself is dubious, and secondly, Gitabai being the co-owner
of the suit land, and not a party to the agreement, the agreement itself
could not have been acted upon.
22] It is also found that so far as the issue regarding limitation is
concerned, it has been decided against the appellant Kanchanlal, and it
is held that the suit has been filed beyond the period of limitation, as
admittedly, the agreement Ex.P/1 was executed on 14.06.1994,
whereas, the notice for specific performance of contract has been
issued on 26.10.1998 i.e., after a period of more than 4 years. The
Trial Court has also found that merely by issuance of the notice Ex.P/2
dated 26.10.1998, the cause of action cannot be said to have arisen to
the appellant, and the Court has found that after the
respondent/defendant Gitabai filed her suit on 29.01.1998, the plaintiff
has filed his suit for specific performance of contract, and the same
has been held to be barred by limitation. This court is also of the view
that according to Article 54 of the Limitation Act, the suit for specific
performance of contract can be brought within three years from the
date fixed for the performance, or, if no such date is fixed, when the
plaintiff has notice that performance is refused. It is also found in the
Ex.P/1, there is no reference that Reshambai would execute the sale
deed as and when desired by the plaintiff Kanchanlal. In such
circumstances, it was incumbent upon the plaintiff to institute the suit
for specific performance of contract within three years from the date
of execution of the agreement i.e., 14.06.1994, whereas, Reshambai
died in the year 1997, and till that time, he did not file the suit, and
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there is nothing on record to know whether Reshambai agreed or not
in executing the sale deed during her lifetime, and the suit against
Gitabai has been filed only on 24.07.1999, for specific performance of
contract dated 14.06.1994, which is much beyond the period of
limitation of three years.
23] Thus, considering the fact that when the Court has already,
rightly held that the suit filed by Kanchanlal is barred by limitation,
it was not open to the Court to allow the suit towards damages of
Rs.42,750/-, as once it was held that the suit was barred by
limitation, there was no occasion for the Court to dwell upon that
question of damages, and even otherwise also, it has already been
held by this court also that the agreement entered into between the
plaintiff and Reshambai Ex.P/1 beign vague, cannot be said to be
binding on her daughter Gitabai.
24] So far as the suit filed by Gitabai is concerned, the evidence led
in this behalf comprises of the deposition of PW-2 Gopal, who is the
Power of Attorney holder of plaintiff Gitabai. He has supported the
averments made in the plaint, and has also proved the documents, viz.,
judgement in the civil suit No.52-A/1995 Ex.P/3, which was decided
ex-parte in favour of Gitabai on 29.09.1999, in which Gitabai has
been held to be the half-sharer of the disputed lands and house. Pw/2
Gopal has also proved Ex.P/6 which is an order dated 23.03.1995
passed by the Additional Commissioner, Indore, in an appeal preferred
by Reshambai against Gitabai, against the order passed by the SDO
dated 31.12.1993, while dismissing the appeal it is mentioned that the
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name of deceased Hiralal has been rightly deleted and in his place,
name of his wife Reshambai as also his daughter Gitabai have rightly
been ordered to be mutated by SDO.
25] So far as the contention of Shri Piyush Shrivastava, learned
counsel for the appellant, regarding the admissibility of the evidence
of Pw/2 Gopal is concerned, who is the power of attorney holder of
his mother Gitabai, and reliance has also been placed on the decision
rendered by the Supreme Court in the case of Janki Vashdeo
Bhojwani and another (supra), in which it is held by the Supreme
Court that a power of attorney cannot depose on behalf of the
principal. The relevant paras of the same read as under:-
"13. Order III, Rules 1 and 2 CPC, empowers the holder of power
of attorney to "act" on behalf of the principal. In our view the
word "acts" employed in Order III, Rules 1 and 2 CPC, confines
only in 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 to 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 which only the principal can have a personal knowledge
and in respect of which the principal is entitled to be cross-
examined."
26] In rebuttal, Shri Sameer Athawale has relied upon the
decision in the case of Man Kaur (Dead) by Lrs vs. Hartar Singh
Sangha reported as (2010) 10 SCC 512. The relevant paras of
which read as under:-
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"18. We may now summarise 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 authorised 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
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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 recognised 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."
(emphasis supplied)
27] A perusal of the both the aforesaid decisions makes it clear
that a power of attorney holder cannot depose on behalf of the
principal for the acts done by the principal or transactions or
dealings of the principal, of which principal alone has personal
knowledge. Thus, the evidence adduced by plaintiff Gitabai
through her son PW/2 Gopal cannot be considered at all, as
apparently, Gopal has purely acted on the basis of the power of
attorney given by his mother, the plaintiff Geetabai for all the acts
which were done by her, and thus, his deposition is liable to be
discarded, and in thus, the suit filed by Gitabai also fails.
28] Resultantly, the appeal F.A.No.487/2020, filed by the
appellant Kanchanlal against the judgement and decree passed
in Civil Suit No.3A/2002 (old No.11A/1998) in the case of
Gitabai vs. Kanchanlal is hereby allowed and the said judgment
and decree is set aside.
29] Similarly, F.A.No.202/2003, arising out of the Civil Suit
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No.63A/2000 (Kancanlal vs. Gitabai) is also hereby dismissed,
whereas, the cross objections filed by the Respondent/defendant
Gitabai in respect of decree of damages to Kanchanlal are
hereby allowed, and the decree of damages against Geetabai is
hereby set aside.
30] Resultantly, the appeals stand disposed of.
31] Office is directed to prepare the decree accordingly.
32] Signed copy of the judgment be placed in connected appeal.
Sd/-
(SUBODH ABHYANKAR)
JUDGE
Bahar
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