Triveni Pandey vs Ganga Prasad

Sanjay Yadav, J—Heard on admission.

This is plaintiff''s (since dead, through her legal representatives) Second Appeal directed against Judgment and Decree dated 23.09.2000 passed in Civil Appeal No. 67-A/1999 affirming the Judgment and Decree dated 17.03.1998 passed in Civil Suit No. 92-A/1999.

Plaintiffs brought an action for possession, declaration of title and for mesne profit in respect of the property bearing Khasra No. 170 area 1.10 acre, Khasra No. 173/2 area 5.37 acre, Khasra No. 170 area 1.10 acre, Khasra No. 173/2 area 5.37 acre, Khasra No. 175 area 3.06 acre and Khasra No. 177 area, area 3.07 acre on the plea that suit property was purchased by her husband in the year 1969 for consideration Rs. 6,500/- but was forcibly dispossessed in the year 1970, accordingly brought the suit.

Defendant denied the plaint allegation contending inter alia that the suit land belonged to one Dilip Singh who in 1961 mortgaged it with Co-Operative Bank, Chhindwara, in lieu of the loan of Rs. 500. Since Dilip Singh defaulted, one of the portion of mortgaged property was put to auction on 19.3.1969 it was auctioned for Rs. 1,100. That Balkishan defendant No. 1''s father was indebted to the tune of Rs. 4,160 and in order to pay back the loan borrowed money from plaintiff''s husband and kept the sale deed with him as a security for due repayment. The sale on 16.6.1969 was not an outright sale. Defendants also objected to the maintainability of the suit on the strength of the provisions of M.P. Samaj Ke Kamjor Vargon Ke Krishibhumi Dharakon Ke Udhar Dene Walon Ki Bhumi Hadapne Sambandhi Kuchakron Se Paritraman Tatha Vimukti Adhiniyam, 1970.

Trial Court framed following nine issues-

The trial Court while declining to consider the evidence PW-1 (Moolchand) PW-2 (Ramdatt Pandey) PW-4 (Dilip Singh) and PW-5 (Anand Rao) as having expired were not available for cross-examination. The trial Court declined to extend benefit of Section 33 of Evidence Act, 1872, on the finding that between the period from 1977 to 1988 it was the plaintiff who had sought multiple amendment in the plaint because of which the evidence of these witnesses could not be completed.

Section 33 of the Evidence Act, provides that the Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding. For the purpose of proving the truth of the facts contained therein if certain conditions mentioned in the Section are satisfied. These are five in number viz., (i) when the witness is dead; (ii) when he cannot be found, (iii) when he is incapable of giving evidence; (iv) when he is kept out of the way by the adverse party; and (v) when his presence cannot be obtained without an amount of delay or expense that, the Court considers unreasonable.

In the case at hand as evident from the facts on record, because of long adjournments which in turn was at the instance of the plaintiff himself that after examination-in-chief of these witnesses they could not be cross-examined. Section 138 of Evidence Act envisages that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. It further stipulates that the examination and cross-examination must relate to the relevant facts, but the cross-examination need not be confined to the facts that witness testified on his examination-in-chief. The objects of cross-examination as stated in POWELL (10th Edition pg 463) are to impeach the accuracy, credibility, and the general value of the evidence given in-chief; to shift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party.

In the case at hand, evident it is that for the period from between 1977 to 1988 the matter dragged on because of various applications filed by the plaintiff seeking amendment in the plaint. As a result whereof four plaintiff''s witnesses who though had tendered the evidence in-chief were not cross-examined though the defendant was ever willing to cross-examine them.

In these facts non consideration of evidence cannot be faulted with and the discretion exercised by the trial Court being judicious, no interference is warranted.

Furthermore, as regard to the defence that the sale was nominal to cover the loan by way of security, the trial Court on the anvil of law laid down in Smt. Gangabai Gilda Vs. Smt. Chhabubai Gandhi, AIR 1982 SC 20 : (1981) 3 SCALE 1753 : (1982) 1 SCC 4 : (1982) 1 SCR 1176 : (1982) 14 UJ 1 , went on to examine the evidence led by the defendant to extricate the fact as to whether the sale was a nominal one. And, on the findings recorded in paragraphs 20 to 26 held that the defendants through their evidence could establish that the land was transferred in lieu of security towards loan. The trial Court then went on to examine the plaintiff''s evidence to find out whether the sale was an outright sale. However, through analysis of the evidence led by Plaintiff''s witnesses and as evident from the findings in paragraphs 28 to 31 the plaintiff failed to establish the sale to be an outright sale.

Similarly as regard to possession also, on the basis of plaintiff''s evidence the trial Court found the defendants to be in possession right through from 1964 and not only from 1970. In paragraph 33 the trial Court found-

These are the findings of facts.

The Appellate Court also after reappreciating entire evidence on record concurred with the findings recorded by trial Court.

These being concurrent finding of facts, no substantial question of law arises for consideration. Consequently, Appeal fails and is dismissed. No costs.