MANU/MP/2279/2022Equivalent Citation: 2023(1)MPLJ515

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

First Appeal No. 584 of 2021
Decided On: 22.08.2022
Appellants: Avinash Kumar Ray
Vs.
Respondent: Kumari Chhaya Ray and Ors.
Hon'ble Judges/Coram:
Arun Kumar Sharma, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Sushil Kumar Tiwari, Advocate
For Respondents/Defendant: Manish Tiwari and Imtiaz Husain, Advocates
Case Note:
Property - Possession - Whether order of trial court by which civil suit no.
40A/14 filed by appellant/plaintiff has been dismissed whereas civil suit no.
39A/14 filed by respondents herein (Dr. K and two others) has been allowed
in part is legal? - Held, from evidence of respondents 2 and 3 it is also evident
that this fact was well within knowledge of respondents no. 2 and 3 that
property which they are going to purchase is sub-judice in competent court of
law and interim injunction is also granted with regard to property in dispute -
Despite of fact that lis is pending between parties, respondent no. 1 had sold
property to respondents no. 2 and 3 - It is also pertinent to mention here that
respondents no. 2 and 3 had purchased property in dispute having knowledge
of lis or dispute between parties - Thus, it is crystal clear that property in
question was sold during pendency of civil suit and under this circumstances,
provisions of Section 52 of TP Act is fully applicable and in such
circumstances, property in question sold by respondent no.1 to respondents
no. 2 and 3 is itself void, ineffective and also against interest and right of
appellant - On aforesaid discussion, case of appellant/plaintiff is supported by
Section 60 (b) of Easements Act and in respect of adverse inference under
Section 114 of Evidence Act against defendants due to non-entry of principal
plaintiff/respondent no.1 herein - Law is very settled that principle of
admission of opposite party would be best evidence and then no need to prove
otherwise - This appeal is allowed - Impugned judgment and decree passed by
District Judge, Jabalpur is hereby set aside - Consequently, civil suit no. 39-
A/14 filed by respondents herein instituted against appellant is hereby
rejected and civil suit no. 40-A/14 filed by appellant herein instituted against
respondents is hereby allowed. [37],[38]
ORDER
Arun Kumar Sharma, J.
1. With the consent of the parties, this appeal is finally heard.
This first appeal under Section 96 of the Code of Civil Procedure has been filed by the
appellant/plaintiff against the common judgment and decree dated 02-08-2021 passed

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by learned 19th District Judge, Jabalpur, in Regular Civil Suit No. 40-A/14 parties being
Avinash Kumar Rai vs. Dr. Kumari Chhaya Rai and two others and also in regular Civil
Suit No. 39-A/14 parties being Dr. Kumari Chhaya Rai and two others vs. Avinash
Kumar Rai, whereby the civil suit no. 40A/14 filed by the appellant/plaintiff has been
dismissed whereas the civil suit no. 39A/14 filed by the respondents herein (Dr. Kumari
Chhaya Rai and two others) has been allowed in part and the decreed the suit according
to para 63 of its impugned judgment.
2 . The factual assertions as would unveil, are that the parties had filed two different
suits against each other with regard to the same property. Since the property in dispute
and subject matter of the case were common, therefore, learned trial court tried
aforesaid two suits together. However, the civil suit no. 40-A/14 filed by the appellant
herein was dismissed and the civil suit no. 39A/14 filed by the respondents herein was
allowed in part and passed the decree according to para 63 of its judgment. Dr. Ku.
Chhaya Rai and two others were defendants in the civil suit no. 40A/14 instituted on
1.6.2009 by the plaintiff Avinash Kumar Rai/appellant herein and Avinash Kumar Rai
was defendant in the civil suit no. 39A/14 filed on 25.6.2009 by the plaintiffs Dr. Ku.
Chhaya Rai and two others/respondents herein. Avinash Kumar Rai and Dr. Kumari
Chhaya Rai are real brother and sister. Both the suits were ordered to be consolidated
for analogous hearing by the trial Court by order dated 06-07-2011.
3 . It is pertinent to mention here that the question of maintainability of this present
appeal arising out of the common judgment and decree has already been dealt with
earlier vide order dated 24-11-2021 on the preliminary objection of respondents no. 2 &
3 vide I.A. No. 7253/2021.
4. The facts of the case succinctly stated are that the appellant/plaintiff Avinash filed a
civil suit no. 40A/14 for declaration to the effect that the appellant is in continuous
possession over the disputed portion of the disputed house since 1966 and the portion
in which he made a pakka construction for his family, the respondents are not entitled
to dispossess the appellant, and also for permanent injunction that the respondents be
restrained from transferring and alienating and selling the disputed property to anyone
else and also from damaging the disputed portion of the house. Further declaration was
sought that sale deed dated 30.09.2010 registered on 4.10.2010 executed by
respondent no. 1 Dr. Ku. Chhaya Rai in favour of the respondents no. 2 and 3 namely
Pradeep Chouksey and Smt. Pushpa Devi Chouksey being illegal be declared null and
void and the same is not binding upon the appellant Avinash Kumar Rai.
5. The defendants/respondents herein Dr. Kumari Chhaya Rai and two others also filed
a civil suit no. 39A/14 for mandatory injunction seeking eviction of Avinash Rai from
the suit premises and also for recovery of mesne profits and further Avinash be
restrained from interfering in the peaceful possession of the respondents and also for
issuing permanent injunction against Avinash to the effect that he be restrained from
dispossessing Dr. Kumar Chhaya Rai.
6 . Appellant Avinash averred in the plaint instituted on 01-06-2009 that House No.
1411 (old No. 796) situated at Dr. Barad Road, Napier Town, Jabalpur and marked as
ka, kha, ga, gha, da, cha in red color in the map which hereinafter shall be referred as
'disputed house', that he is the brother of the respondent no. 1 Dr. Kumari Chhaya Rai
and was residing peacefully along with his family on a part of the disputed property
since 1966 and made a pakka house (permanent construction) with the consent and due
permission as a licensee of Dr. Kumari Chhaya Rai/respondent no. 1. As the respondent
no. 1 is not having her own family because she did not perform marriage, therefore, she

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was residing with the appellant's family in the disputed property and the petitioner
being real brother was taking care of his sister Dr. Ku. Chhaya Rai. According to her, he
paid all electricity bills, telephone bills, property taxes and all other miscellaneous
expensive. The appellant was under impression that she would not compel him to reside
apart from the disputed portion of the house. The appellant/plaintiff invested his money
on its pakka construction and other required maintenance work and because the plaintiff
made a pakka house in the shape of permanent construction and therefore, the disputed
house is belonging to him and licensee granted by respondent/defendant no. 1 is
irrevocable. The defendant no. 1 is estoppel by her conduct in seeking possession over
the property in question. Further pleaded that the respondent no. 1 expressed her desire
that since she is not having any family of her own, therefore, she proposed to transfer
the disputed property to the appellant Avinash and in the remaining portion, she will
make a Trust in the memory of her father from the consideration of the disputed
property agreed to be sold to the appellant. The appellant accepted the proposal offered
by respondent no. 1. According to her will, he gave Rs. 1,50,000/- to her by transaction
dated 18-06-2008. This amount was obtained by her in lieu of transferring the disputed
portion of the house in favour of the appellant and therefore, the defendant no. 1 had
no right to transfer the property to anyone-else. Because the defendant no. 1 was
interested to make a Trust in her area (except the disputed area of plaintiff), the
appellant gave a part payment to her to sell the area which she was having in her own
possession to the appellant/plaintiff and thus, the defendant no. 1 had also no right to
sell the said area to any other person. But, due to provocation by someone, the
defendant no. 1 started creating troubles and endeavored to dispossess the appellant
from the disputed property and roped false allegations for taking the possession
belonging to the appellant/plaintiff, resulting which, on 24-05-2009 she caused damage
to the disputed property with the help of antisocial elements and in this regard, a report
was lodged by the appellant/plaintiff on 24-05-2009 in Police station Omti and Mahila
Thana as well. While, the appellant/plaintiff is in peaceful possession over disputed
house since 1966 and without following due procedure of law, his possession cannot be
removed from the part portion of disputed house or cannot be alienated to any other.
But, during the pendency of the civil suit, the respondent/defendant no. 1 sold the
disputed property to the defendants no. 2 & 3 by sale deed dated 30-09-2010 and the
same was registered on 04-10-2010.
6.1. From time to time, the plaint was amended and prayed for grant of relief according
to prayer of relief clause and on 1-6-2009 certain prayers were made that the
appellant/plaintiff be declared possessor-ship since 1966, decree of permanent
injunction against the defendants be passed and also prayed for a decree of declaration
that the plaintiff has constructed a pakka house and therefore the license granted by the
defendant no. 1 is irrevocable. Further prayed that the defendant no. 1 be restrained not
to transfer or alienate the disputed property to anyone else and not to cause any
damage to the disputed property and not to dispossess the plaintiff/appellant and his
family from the disputed property. Further pleaded that the registered sale dead dated
30-09-2010 which registered on 04-10-2010 be declared void, ineffective and not
binding on appellant/plaintiff and also prayed for decree of permanent injunction
against the defendant no. 2 & 3 as well.
7 . The respondent/defendant no. 1 filed her written statement and broadly denied the
averments of the plaint and contended that she never gave any assurance to the
appellant that she will not compel to dispossess him from the disputed portion of the
house and there was only one condition that until and unless the appellant purchases
his own house, he may reside with his family in the disputed house. But, now the
plaintiff has purchased his own house, even then he is residing with his family and the

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plaintiffs son who is an advocate is continuing his office in the disputed portion. The
defendant no. 1 is running a Yoga Center in the disputed house and wanted to make a
trust thereon but the appellant disliked her desire and his wish was that the house be
not given to any institute and the same be recorded in his name which was not accepted
by her and since then, the plaintiff and his family got angry with her and harassing her.
While, there was no any conversation in between them to give any portion of disputed
house and he never gave Rs. 1,50,000/- or any other amount and in fact, he gave the
amount of income of her own agriculture product. Further pleaded that on 30-09-2010
she had sold the disputed property to defendants no. 2 & 3 and given the possession.
She had terminated the licensee of the plaintiff and filed a suit against him for recovery
of possession. The defendant no. 1 has also denied the other facts of plaint regarding
her volition in the name of her late father and that is not connected with the sale of
property. She never executed any agreement of sale in his favor nor received any
amount from the appellant and on compelling circumstances due to act of the plaintiff,
she had to purchase a separate house and reside therein. The son of plaintiff tried to
take possession of the garage of her house, a report of which was made to the Police
Station and thus, the plaintiff/appellant herein filed a suit on the false and frivolous
grounds.
8. The defendants no. 2 & 3 have filed their written statement and pleaded that in the
disputed portion, the plaintiff was licensee of defendant no. 1 and the same was
terminated and she filed a separate suit for his removal. The defendant no. 1 is the sole
owner and occupied the property on the basis of Will written by her late father and with
regard to disputed house, oral permission was given by defendant no. 1. Defendant no.
1 herself had made the construction and the portion in which the appellant was residing
was already a constructed house and the same was given to the plaintiff as her licensee
and there was no question to make any construction by the appellant/plaintiff. Further
stated that they purchased the disputed property on 30-09-2010 registered on 04-10-
2010 and therefore, no question arises to grant permanent injunction against the
defendant no. 1 and ultimately they prayed for rejection of plaintiffs plaint.
9. The respondent no. 1 was the principal plaintiff in civil suit no. 39A/14 and the said
suit was filed on the ground that her father late Shri Kirtibhanu Rai was the original
owner of the disputed property and he during this life time gave the disputed house to
her by registered sale deed dated 21.01.1977 and after the death of her father i.e. on
14.9.1984, she became the sole owner of the house in dispute and her name was
recorded in the record of the Municipal Corporation, and paying all kinds of tax of her
house. The plaintiff Avinash who is defendant no. 1 in her case was maintaining the
agriculture land and actually he gave the income of her own agriculture. She was
unmarried and alone and therefore, she used to take help of the plaintiff and in the year
1984 she accorded oral permission to the appellant for staying in her disputed house till
the occupation of his own house. Further stated that she wanted to make a trust and her
wish was to entrust the property to the trust which was not likewise the plaintiff and he
pressurized her to give the disputed house to him saying that he had paid the amount
for that to her and had lodged a false report in the police station that she tried to
remove him forcefully and ultimately the plaintiff had filed a suit against her. She
averred in her plaint that she received a summon in the civil suit that she terminated his
licensee vide notice date 4.9.2009 and prayed to hand over the possession. But the
plaintiff failed to do so, resulting which she filed a suit for declaration and mandatory
injunction and permanent injunction as well as the decree of the mesne profit against
the appellant herein in civil suit no. 39A/14. In support of her plaint, she filed the
documents available on record. 10. The appellant/plaintiff filed written statement in civil
suit no. 39-A/2014 and specifically denied her case and in paragraphs no. 6 and 9 by

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specific pleadings denied the acceptance of alleged notice of termination of his licensee.
No rebuttal and admissible evidence of principal plaintiff of civil suit no. 39A/14 in that
regard has been adduced by the respondents i.e. plaintiffs of civil suit no. 39A/14, by
which they could prove their case for granting the decree on the material and facts
which were in the personal knowledge of Dr. Kumari Chhaya Rai.
1 1 . The defendants no. 2 and 3 were also impleaded as plaintiffs in civil suit no.
39A/14 and they filed their written statements and supporting documents. On the basis
of pleadings and documents, the learned court below framed as many as 16 issues
according to para 22 of the impugned judgment and recorded the evidence of the
respective parties. However, the learned court below has passed the impugned
judgment and decree on 2.8.2021 whereby dismissed the suit of the appellant/plaintiff
vide civil suit no. 40A/14 but decreed the civil suit no. 39A/14 filed by the
respondents/defendants and accordingly, passed the decree according to operative para
63 of the impugned judgment and directed the appellant/plaintiff to hand over the
vacant possession of the disputed house to the defendants no. 2 and 3 within two
months and not granted the decree of permanent injunction but decreed the suit that
the appellant/plaintiff shall pay the mesne profit at the rate of 100/- per day to the
defendants from 14.6.2009 to 25.6.2009 and further till the date of deliver of
possession.
12. Learned counsel for the appellant submits that the trial court has committed gross
error of law in passing the impugned judgment and decree in favour of the
respondents/defendants rather to have dismissed their suit and failed to consider that
there is no specific denial of the defendants in respect of the specific averments made
by the appellant in his plaint by oral and documentary evidence. Further submitted that
the appellant has proved his case by oral and documentary evidence and his continuous
possession over the property in dispute since 1966 has been admitted by the
respondents and even the respondent/defendant no. 1 who is principal plaintiff in the
civil suit no. 39A/14 has specifically admitted the continuous possession of the
appellant/plaintiff since 1966 and from cross-examination of the plaintiff on behalf of
respondent no. 1, it is crystal clear that by putting the certain questions in the cross-
examination of the plaintiff, even the defendant no. 1 herself has proved his case while
on other hand the plaintiff himself has adduced the best evidence and evidence of the
others plaintiffs witnesses who proved that there was continuous permission, consent
and agreement of the defendant no. 1 whereby according to her own wish and
willingness, she had given the possession on the portion of the disputed house for
staying the appellant and his family members as she was not having her own family and
wanted to continue the appellant/plaintiff on portion of the disputed house.
13. Further contended that respondent no. 1 who is the principal plaintiff in civil suit
no. 39A/14 and defendant no. 1 in civil suit no. 40A/14 permitted his brother/appellant
herein to construct a house on disputed portion of the house belonging to him and
therefore, licensee granted by her is irrevocable and the respondent no. 1 is estoppel by
her conduct for seeking possession of the land in question. Further contended that no
cogent and reliable documents and oral rebuttal evidence has been adduced by the
defendant no. 1 or the defendants no. 2 and 3 who came in picture later on during the
pendency of the civil suit when they purchased the property vide sale deed dated
30.9.2010 registered on 4.10.2010 and therefore, findings of trial court on the issues
decided against the appellant/plaintiff while dismissing his civil suit, are not sustainable
and liable to be set-aside.
14. Further contended that looking to Section 60 (b) of the Easements Act, his license

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cannot be terminated and the license either in oral or in document, is irrevocable.
Further invited the attention of this court that there is a grave illegality and perversity in
the impugned judgment and decree because the respondent no. 1 who is principal
plaintiff in civil suit no. 39A/14 has not adduced her own evidence to prove her case
and therefore, the facts and documents which averted in her plaint have not been
proved at all which were in the best knowledge of defendant no. 1 herself that the oral
permission/license was given to the appellant/plaintiff to remain continue in the
disputed portion of the house until occupancy of his own house. She did not take any
pain to enter into witness box to prove her own case or give any rebuttal evidence in
the case of the appellant/plaintiff resulting which neither she could be examined nor
cross examined by any of the party.
1 5 . There is no case of defendant no. 1 that she was unable to attend the court
proceeding or give her evidence in the court or for some any other reason she had
appointed any power of attorney holder to depose on her behalf. Therefore, the adverse
inference can be drawn that she has not proved that the suit property was not given to
the appellant/plaintiff or she had not given any kind of assurance/permission/license
and the appellant/plaintiff was not her licensee or she had terminated licensee. In the
absence of her evidence it cannot be presumed that she had proved her case on the
basis of facts and averments' of her plaint (CS No. 39A/14) and written statement in
civil suit no. 40A/14 which were in her best knowledge. Thus, the trial court has
committed gross error of law in granting the decree in favour of the defendants and the
learned trial court itself constituted the case in their favour which was not proved by
them. The learned trial court has committed gross error of law in relying the statement
of DW-1 on behalf of defendant no. 1/principal plaintiff. The evidence of defendant no.
2 goes to indicate that he deposed about the facts which were not in his knowledge and
the facts which were in the knowledge of the defendant no. 1/principal plaintiff (in civil
suit no. 39A/14 and defendant no. 1 in civil suit no. 40A/14). The evidence of
defendant no. 2 cannot be read as the defendant no. 1 who did not come in the witness
box and no any kind of her examination or cross examination has been done in the case
and therefore, the court cannot make out a new case which was pleaded by the party.
Further argued that there is admission of possession of the appellant/plaintiff since
1966 and there is clear admission of defendant no. 1 with regard to granting permission
which is crystal clear from her written statement and the plaint of her own case. The
civil suit was filed by the appellant/plaintiff earlier back and when she received the
summons then she issued a notice in illegal manner malafidely. In the plaint and the
evidence it is pleaded that the notice was issued in illegal manner with mala fide
intention. Merely mentioning of receiving of notice and about its illegality, it cannot be
presumed that the termination of the licensee was accepted until and unless the proof of
its contents by adducing the best evidence of termination of its license which was in the
knowledge of defendant no. 1 but in the present case no any kind of evidence has been
adduced by defendant n. 1 or other defendants about the facts which were in her
knowledge or any evidence in regard to transaction, conversation and execution of Ex.
P/1 in between the appellant/plaintiff and defendant no. 1. The appellant/plaintiff has
proved the document Ex. P/33 regarding his continuous uninterrupted possession since
1966 and by way of his own evidence, and by the evidence of his witnesses PW 2 to PW
4, have clearly proved his case. During the course of arguments, learned counsel has
invited the attention of this court that no civil suit has been filed by defendants no. 2
and 3 and they never terminated the license of the appellant/plaintiff which could only
have been proved by adducing the principal plaintiff/defendant no. 1 namely Dr. Kumari
Chhaya Rai. Defendants no. 2 and 3 have not prayed the relief of mesne profit and
without leading the evidence of defendant no. 1 the decree of mesne profit cannot be
granted in favour of defendants no. 2 and 3 on the basis of their unreliable and

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inadmissible evidence and lastly argued that the admission of defendants could be the
best evidence and adverse inference can be drawn against the respondents/defendants
and admission made by the opposite party can be believed by other party and there is
no need to prove otherwise.
16. Further submitted that during the pendency of civil suit even after the temporary
injunction granted in favour of the appellant/plaintiff by the learned trial court, the suit
property cannot be alienated or transferred to any other one principle of Lis pendens is
applicable in the present case, because admittedly during the pendency of the civil suit,
the defendant no. 1 sold the disputed property to the defendants no. 2 and 3 and on the
aforesaid submission, he prayed for setting aside the impugned judgment and decree
granted in favour of respondents/defendants in their civil suit no. 39A/14 and prayed
for allowing of his civil suit no. 40A/14 as prayed in the plaint including the amended
prayer clause.
1 7 . In order to buttress his contentions, he placed reliance on the decisions of the
Hon'ble Apex court rendered in the case of Mulraj vs. Murti Raghonathji Maharaj,
MANU/SC/0338/1967 : AIR 1967 SC 1386 {relevant para 11) and Sri. Gangai Vinayagar
Temple and another vs. Meenakshi Ammal and others MANU/SC/0926/2014 : (2015) 3
SCC 624 {relevant para 27} and of the Kerala High Court in the case of O.P. Prakash vs.
M.U. Chacko and another, MANU/KE/2639/2015 {relevant para 13 and 15} and of this
Court rendered in the case of R.P. Shrivastava vs. Smt. Sheela Devi and others,
MANU/MP/0972/2007 : 2007 (4) MPL J 102 {relevant para 11 and 14}; Bhagwati Devi
vs. Jameela Begam and others, MANU/MP/0325/2013 : 2013 (2) MPL J 371 {relevant
para 11 to 14}; Rambilas vs. Jagatram, MANU/MP/0379/1999 : 2000 (2) MPL J 170;
Narmada Prasad vs. Bedilal Burman, MANU/MP/2236/2019 : 2020 (1) MPL J 217
{relevant para 9 and 11}; Babulal (dead) through L.Rs. Smt. Krishnabai vs. Kalooram
and others, 2012 RN 1 {relevant para 15}, Bhogiram and others vs. Sher Singh and
others, MANU/MP/0626/2019 : 2020 (2) RN 306 {relevant para 15 and 26}; Pandru vs.
Dharam Singh, MANU/MP/0928/2010 : 2010 (3) MPL J 477 {relevant para 13 and 15};
and prayed that the present appeal be allowed and the civil suit filed by the appellant be
decreed according to the prayer clause including the amended prayer clause.
18. Learned counsel for the defendants no. 2 and 3/respondents no. 2 and 3 herein has
supported the findings of impugned judgment and decree and submitted that learned
trial Court has not committed any illegality and perversity in passing the impugned
judgment and decree which is based on proper appreciation of pleadings, documents
and evidence available on record and submitted that the interference is not warranted in
the well reasoned impugned judgment and decree. In order to substantiate his
contentions, he relied upon the judgments of the Hon'ble Apex Court in the case of
Gowri vs. Shanthi and another, MANU/SC/0258/2014 : (2014) 11 SCC 664, Balkrishna
S. Dalwale (D) by L.Rs. vs. Vithabai C. Rathod (D) by L.Rs. and others,
MANU/SC/0858/2010 : AIR 2010 SC (Supp) 76 and In re R. Gundu Rao
MANU/TN/0625/1957 : AIR 1960 Madras 57, Maniram Saikia vs. Hira Bordoloi and
others, MANU/GH/0009/1990 : AIR 1990 Gauhati 32, Maiianna alias Appaiah v. Smt.
Muninanjamma alias Nanjamma, MANU/KA/0314/2001 : AIR 2001 Karnataka 205, and
further relied on the judgments of this court in the case of Ganpat Rao vs. Ashok Rao
and others, MANU/MP/0222/2004 : 2004 (3) MPL J 571 and prayed that this appeal is
bereft of merit and the same be dismissed.
19. Heard the arguments of learned counsel for both the parties at length and perused
the impugned judgment and material available on record and the case law cited by
learned counsel for both the parties. This court is much impressed with the law laid

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down in the cases cited by learned counsel for the appellant.
2 0 . This court in Awadh Bihari Asati and others v. Shyam Bihari Asati and others
MANU/MP/0949/2003 : 2004 (1) MPL J 225 has held that it is well settled that admission
made by the opposite party is the best evidence on which other party can rely upon.
Similar view has also been taken by Hon'ble the Apex court in Ahmedsaheb v. Sayed
Ismail, MANU/SC/0594/2012 : AIR 2012 SC 3320 in which it has been observed that it
is needless to emphasize that admission of a party in the proceedings either in the
pleadings or oral is the best evidence and the same does not need any further
corroboration.
21. It is settled position of law that in the absence of the pleadings, no evidence can be
looked into and also vice versa in the absence of any proof or evidence on record mere
on the basis of the pleadings and documents of the parties as placed on record, no
inference can be drawn to adjudicate the matter. The provision of Order 6, Rule 2 of the
Code of Civil Procedure is very specific on this point that evidence cannot be looked into
beyond the pleadings as per various interpretations of the different Courts. It shows
that pleadings cannot take the place of proof until it is not proved by reliable evidence
by examining the witnesses.
22. The documents produced by the plaintiff as sale deed and other papers are not the
public documents. So without proper proof on record, they could not have been relied
upon by the Courts below.
2 3 . Beside this, the parties are also bound to prove those facts which they know.
According to the pleadings of the plaint, the respondent no. 1/plaintiff had knowledge
about the dispute as pleaded by her and she herself has not entered in witness box to
prove such facts in support of her pleadings as such she have not discharged her
burden to prove her case as per provision of Sections 101 and 102 of the Evidence Act.
In that absence of it, there are sufficient circumstances to draw an adverse inference
against the respondents. This view is fully fortified on a decided case in the matter of
Martand Pundharinath Chaudhari v. Budhabai Krishnarao Deshmukh reported in
MANU/MH/0063/1930 : AIR 1931 Bombay 97 in which it is held as under:"
It is the bounden duty of a party personally knowing the facts and
circumstances to give evidence in his own behalf and to submit to cross-
examination and his non-appearance as a witness would be the strongest
possible circumstances which will go to discredit the truth of his case
MANU/PR/0049/1927 : AIR 1927 P.C. 230, Rel on.' (Placitinum).
2 4 . The aforesaid question was answered by this Court also in the matter of Gulla
Kharagit Carpenter v. Harsingh Nandkishore Rawat reported in MANU/MP/0042/1970 :
1970 MPLJ 586 : AIR 1970 M.P. 225 in which it was held as under:"
When a material fact is within the knowledge of a party and he does not go into
the witness box without any plausible reason, an adverse inference must be
drawn against him. A presumption must be drawn against a party who having
knowledge of the fact in dispute does not go into the witness box, particularly
when a prima facie case has been made out against him.
25. In view of the aforesaid principle, on examining the case at hand, non-entrance of
the respondent no. 1-plaintiff in witness box to prove her case as per pleadings are
sufficient circumstances to draw an adverse inference against her that she has no case
against the appellant-defendant but by ignoring this principle the case was considered

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by the lower court on pleadings of the plaint and formal evidence of the defendants no.
2 and 3, is not sustainable under the law as such in the absence of evidence of principal
plaintiff, the suit should have been dismissed.
26. The Apex Court in the case of S. Kesari Hanuman Goud vs. Anjum Jehan and others
MANU/SC/0356/2013 : (2013) 12 SCC 64 in para 23 has held that. It is a settled legal
proposition that the power of attorney holder cannot depose in place of the principal.
Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney
to 'act' on behalf of the principal. The word acts employed therein is confined only to
'acts' done by the power-of-attorney holder, in exercise of the power granted to him by
virtue of 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 preferred
any 'acts' in pursuance of the power of attorney, he may depose for the principal in
respect of such acts, but he cannot depose for the principal for acts done by the
principal, and not by him. Similarly, he cannot depose for the principal in respect of a
matter, as regards which, only the principal can have personal knowledge and in respect
of which, the principal is entitled to be cross-examined.
27. In Man Kaur (dead) by Lrs vs. Hartar Singh Sangha MANU/SC/0789/2010 : (2010)
10 SCC 512 the Hon'ble Apex Court has held the legal position as to who should give
evidence in regard to matters involving personal knowledge can be summarized as
follows:-
(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 authorized 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.

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 (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
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 recognized 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.
2 8 . In Janki Vashdeo Bhojwani and another vs. IndusInd Bank Ltd. and others
MANU/SC/1030/2004 : (2005) 2 SCC 217 the same view is also expressed in the
following manner:-
12. In the context of the directions given by this Court, shifting the burden of
proving on the appellants that they have a share in the property, it was
obligatory on the appellants to have entered the box and discharged the burden
by themselves. The question whether the appellants have any independent
source of income and have contributed towards the purchase of the property
from their own independent income can be only answered by the appellants
themselves and not by a mere holder of power of attorney from them. The
power of attorney holder does not have the personal knowledge of the matter of
the appellants and therefore he can neither depose on his personal knowledge
nor can he be cross-examined on those facts which are to the personal
knowledge of the principal.
13. Order 3 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.
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

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 recorded by the Tribunal in this respect is set aside.
15. Apart from what has been stated, this Court in the case of Vidhyadhar vs.
Manikrao and Another, MANU/SC/0172/1999 : (1999) 3 SCC 573 observed at
page 583 SCC that "where a party to the suit does not appear in the witness-
box and states his own case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise that the 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.
1 7 . On the question of power of attorney, the High Courts have divergent
views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan,
MANU/RH/0397/1985 : 1986 2WLL 713 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 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 the approval in the case of Ram
Prasad Vs. Hari Narain & Ors. MANU/RH/0233/1998 : AIR 1998 Raj. 185. It was
held that the word "acts" used in Rule 2 of Order III of the 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 be 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 the CPC.
19. In the case of Dr. Pradeep Mohanbay Vs. Minguel Carlos Dias reported in
MANU/MH/0485/1999 : 2000 Vol. 102 (1) Bom.L.R. 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.
29. In view of the aforesaid discussion and the principle of law laid down as regard to
who can depose on behalf of the original principal plaintiff has been regarding the facts,
documents and material which are in the personal knowledge of the principal plaintiff
and the facts, documents and material were not in the personal knowledge of the
witness who came in the witness box and the principal plaintiff did not come in the
witness box to prove her own case.
30. On perusal of the plaint, documents and evidence available on record, it is evident
that there is an admission that the defendant no. 2 had no knowledge about any kind of
acts or transaction or execution of the documents prior to the year 2010. The admission
would be best evidence and thus, in view of the aforesaid admission, the other party is
not required to adduce and prove the case because the plaintiff is bound on her own
admission and presumption can be drawn against the plaintiff. In Awadh Bihari Asati
and others v. Shyam Bihari Asati and others MANU/MP/0949/2003 : 2004 (1) MPL J 225

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it has been held that it is well settled that admission made by the opposite party is the
best evidence on which other party can rely upon. Similar view has also been taken by
Hon'ble the Apex court in Ahmedsaheb v. Sayed Ismail, MANU/SC/0594/2012 : AIR
2012 SC 3320 in which it has been observed that it is needless to emphasize that
admission of a party in the proceedings either in the pleadings or oral is the best
evidence and the same does not need any further corroboration.
31. In Moolchand vs. Radha Sharan and another, MANU/MP/1043/2005 : 2006 (2) MPL J
600 on the basis of the principles enumerated in paragraphs 9 to 12 and on the basis of
the principle laid down in the case of Gulla Kharagit Carpenter Vs. Harsingh
Nandkishore Rawat, MANU/MP/0042/1970 : 1970 MPL J 586 : AIR 1970 MP 225 and in
Martand Pundharinath Chaudhari vs. Budhabai Krishnarao Deshmukh
MANU/MH/0063/1930 : AIR 1931 Bombay 97, in which it has been held that non-
entrance of the respondents '" plaintiffs in witness box to prove their case as per
pleadings are sufficient circumstances to draw an adverse inference against them that
they have no case against the appellant but by ignoring this principle the case was
considered on merits only on pleadings of parties which is not sustainable under the
law as such in the absence of evidence the suit should have been decreed.
32. The principle laid down in the aforesaid case laws is fully applicable in the present
case and in absence of non-entrance of principal plaintiff Dr. Kumari Chhaya Rai in the
witness box to prove her case as per plaint and the documents executed much prior to
the year 2010; in which, in absence of evidence of principal, the opportunity to cross
examine her has not been given to the appellant/plaintiff.
33. In view of the aforesaid submissions of both the parties, and the law laid down on
the aforesaid decisions, it is seen that in the plaint of the appellant/plaintiff, there was
specific pleadings of construction in the permanent nature with due permission of
defendant no. 1 Dr. Kumari Chhaya Rai and looking to other specific pleadings including
the amended pleadings of the plaint and prayer clause as well, it is crystal clear that the
plaintiff/appellant has adduced the specific pleading with regard to the permission for
making construction in the permanent nature and there is admission that during the
pendency of the civil suit, the disputed property has been sold to the defendants no. 2
and 3 by sale deed dated 30.9.2010 registered on 4.10.2010. It is evident that no
rebuttal evidence has been adduced by the defendant no. 1 i.e. principal plaintiff in civil
suit no. 39A/14 who is respondent no. 1/defendant no. 1 in the civil suit no. 40A/14 as
she did not appear in the witness box and no explanation has been given by oral or
documentary evidence that at the relevant time she was unable to attend the court and
had given the power to defendants no. 2 and 3 to depose the evidence of facts which
were within her personal knowledge. It is evident from the record that no counter civil
suit has been filed by the defendants no. 2 and 3 to grant any relief in their favour and
admittedly, they entered as plaintiffs no. 2 and 3 on or after 4.10.2010 and they had no
nexus in between the defendant no. 1 and defendants no. 2 and 3 about any kind of
earlier transaction, execution of documents in between the appellant/plaintiff and
defendant no. 1 or any kind of fact of giving the permission or termination of licensee
ever and therefore, in absence of evidence of best personal knowledge regarding the
facts on which decree has been granted in favour of the defendants no. 2 and 3, the
evidence of defendants no. 2 and 3 as the case may be, is not admissible in the eyes of
law.
3 4 . Apart from above, it is evident from the record that the appellant/plaintiff has
adduced the documentary evidence and the evidence with regard to permanent
construction and transaction in between the plaintiff and defendant no. 1 regarding the

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wishes of selling the disputed property to the appellant/plaintiff according to Ex. P/1
admitted by the defendants themselves. From para 11 of the plaintiff namely Avinash
Rai, the documents Ex. P/1 to P/38 have been proved and in para 14 a question as
regard to Ex. P/1 on behalf of the defendants no. 2 and 3 was put up which has been
accepted by this witness and thus, by putting this question, the execution of Ex. P/1 has
not been specifically denied by the defendants. This witness has proved as to how and
on what manner he made the permanent construction on the disputed property which
was within the knowledge of defendant no. 1 and she gave permission for that.
Surprisingly, on behalf of the defendant no. 1, in para 22 of cross examination of this
witness, the possession of the appellant/plaintiff since the year 1966 has been proved
and from this para also, a letter indicating the yearning of the defendant no. 1 to give
the disputed property to the appellant/plaintiff has been proved. On perusal of evidence
of plaintiff's witness Phoolchand Patel (PW-4), the work of pakka construction in
between the year 1986-87 has come on record. He also deposed about the
interest/longing of defendant no. 1 for giving the property voluntarily to the
appellant/plaintiff and receiving an amount of Rs. 2,50,000/- through two different
cheques and by cash also, as she was keenly interested to make a trust and for that
against the disputed property she had taken the money. In cross examination of para 4
he admitted that pakka construction was made in the portion of Avinash Rai and apart
from that, he admitted that there was oral agreement to sell the property having area
3000 sq. ft. to the appellant/plaintiff Avinash at the rate of Rs. 1000/- sq. ft. His further
evidence of Para 7 reveals that he had a witness of the act done in between the
appellant and defendant no. 1 and specifically in para 8 he admitted that the
construction of disputed house was made by the plaintiff. The evidence of other
plaintiff's witness namely Suresh Singh Chouhan who constructed the pakka house on
behalf of plaintiff in the year 1986-87 and had obtained the costs of Rs. 2,50,000/-,
stated that the construction was made in the presence of sister of plaintiff namely Dr.
Kumari Chhaya Rai. In the cross examination of para 4 to 9 reveals that no any other
rebuttal or contrary evidence came on his deposition that he was not the witness of
construction of pakka house and in para 11 and 14 of his evidence, the construction of
pakka/permanent house and work of its maintenance was accepted. Ramakant Tripathi
(PW-3) who was independent witness also proved possession of the plaintiff/appellant.
This witness has also proved the agreement and transaction in between the appellant
and defendant no. 1. and again in cross-examination on behalf of defendant no. 1, the
possession of the appellant/plaintiff has been proved.
35. On the other hand, on behalf of defendants, only the evidence of defendant no. 2
namely Pradeep Chouksey has been adduced. On perusal of his evidence, vide para 1 to
11 it is quite evident and crystal clear that almost about in all evidence he deposed
about the fact which was in the personal knowledge of defendant no. 1 who is principal
plaintiff of civil suit no. 39A/14. This witness first time came in picture when he
purchased the disputed property during the pendency of civil suit on 30.9.2010 and he
had no knowledge about all other earlier facts prior to 30.9.2010 or the date of
registration of sale deed on 4.10.2010. From para 13 of his deposition it is evident that
he had knowledge about the notice published in the daily newspaper Dainik Bhaskar
about the pendency of the civil suit with regard to the property in dispute and
temporary injunction granted by the learned court below. It may be seen that the civil
suit was filed on 1.6.2009 and publication was made on 21.10.2009. Para 15 which is
most important in the present case, this witness admitted that he was not known to Dr.
Kumari Chhaya Rai prior to 30.6.2010 vide Ex. P/34 and he had no knowledge about
any kind of conversation or transaction or permission for grant of oral license or
termination of licensee ever done in between the appellant/plaintiff and defendant no. 1
prior to 30.9.2010 and admitted that he had no knowledge about the facts which were

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in the personal knowledge of defendant no. 1 and in para 16 he admitted the
possession of appellant/plaintiff namely Avinash Rai. From para 16, 17 and 21 it reveals
that this defendant had prior knowledge about pendency of the civil suit and temporary
injunction was granted, even then the defendants no. 2 and 3 had purchased the
property in question, which is barred by the principle of Lis pendens under Section 52
of the Transfer of Property Act. In para 23 again he admitted the possession of
appellant and nature of construction. In para 25 he admitted that he had no knowledge
about termination of licensee and personally he had not issued any notice about that.
He is not power of attorney holder of defendant no. 1 and defendant no. 1 has not
authorized him to depose on her behalf. In para 27 he admitted that he never filed any
separate civil suit or any counter plaint for declaring him to be owner of the property;
recovery of possession and for grant of mesne profit. Looking to his evidence and
conduct of defendant no. 2 there is no doubt that he was not authorized to depose
about the facts or documents which were in the personal knowledge of defendant no. 1
which were the basic foundation of the civil suit no. 39A/14 in which the impugned
judgment and decree has been passed and this witness has not proved any documents
as regard to the termination of oral licensee or as regard to the rebuttal evidence
against the appellant/plaintiff.
36. The learned court below has overlooked and not appreciated the specific pleadings
and prayer clause of appellant/plaintiff, his documentary and oral evidence as stated
herein-above on its proper perspective and merely on the basis of technicalities i.e.
some very minor omissions which are not in material in nature and are not destroying
the case of the appellant/plaintiff, held that the appellant/plaintiff has not proved the
case and absolutely failed to consider that the defendants are duty bound to prove their
own case i.e. civil suit no. 39A/14, on which basis, they sought relief from the court of
law. The learned court below has failed to appreciate that the case of the appellant was
fully covered under Section 60 (b) of the Easements Act and under the provisions of law
laid down on the decisions cited by the appellants/plaintiff and decisions of this court
rendered in the case of SA No. 1342/18 decided on 9.5.2022 regarding the principle
whether the evidence of witness who had no knowledge about the facts of principle
plaintiff is authorized to depose on behalf of the principal plaintiff or whether the
evidence of such witness is admissible according to the principle enumerated by this
court relying the decisions of Apex Court in number of cases.
3 7 . It is axiomatic from the evidence of the respondents no. 2 and 3 that they
purchased the property in dispute during the pendency of the civil suit and interim
injunction was also granted by the lower court with regard to the disputed property.
From the evidence of the respondents 2 and 3 it is also evident that this fact was well
within the knowledge of the respondents no. 2 and 3 that the property which they are
going to purchase is sub-judice in the competent court of law and interim injunction is
also granted with regard to the property in dispute. Despite of the fact that the lis is
pending between the parties, the respondent no. 1 had sold the property to the
respondents no. 2 and 3. It is also pertinent to mention here that the respondents no. 2
and 3 had purchased the property in dispute having knowledge of the lis or dispute
between the parties. Thus, it is crystal clear that the property in question was sold
during the pendency of the civil suit and under this circumstances, the provisions of
Section 52 of the Transfer of Property Act is fully applicable and in such circumstances,
the property in question sold by the respondent no. 1 to the respondents no. 2 and 3 on
30.9.2010 registered on 4.10.2010 is itself void, ineffective and also against the interest
and right of the appellant.
38. On the aforesaid discussion, the case of the appellant/plaintiff is supported by the

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other decisions cited herein-above in respect of Section 60 (b) of Easements Act and in
respect of adverse inference under Section 114 of the Evidence Act against the
defendants due to non-entry of principal plaintiff/respondent no. 1 herein. The law is
very settled that the principle of admission of opposite party would be the best evidence
and then no need to prove otherwise. This appeal is allowed. Impugned judgment and
decree dated 02-08-2021 passed by learned 19th District Judge, Jabalpur is hereby set-
aside. Consequently, the civil suit no. 39-A/14 filed by the respondents herein instituted
on 25.6.2009 against the appellant is hereby rejected and the civil suit no. 40-A/14
filed by the appellant herein instituted on 1.6.2009 against the respondents is hereby
allowed.
39. Office is directed to prepare a decree as per the prayer clause of the plaint as well
as amended prayer clause made by the appellant herein in his civil suit no. 40-A/14
parties being Avinash Kumar Rai vs. Dr. Kumari Chhaya Rai and others). All pending IAs
stand disposed of.
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