1 ( 2025:HHC:20091 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.293 of 2023 Date of Decision : 26.06.2025 Nirmala …… Appellant Versus Vikrant Singh and others ……Respondents Coram: The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 No For the appellant : Mr. Servedaman Rathore, Advocate. For the respondent : Mr. Rupinder Singh, Advocate, for respondents No.1 to 3. Mr. Vipin Bhatia, Advocate, for respondent No.4. Bipin Chander Negi, Judge (oral) The appellant, by filing this appeal under Section 100 of the Code of Civil Procedure (for short, 'the CPC'), has assailed the judgment and decree dated 02.09.2023, passed by learned Additional District Judge, Sirmaur District at Nahan, Himachal Pradesh, in Civil Appeal 41-N/13 of 2022. By the said judgment and decree, lower Appellate Court has upheld the judgment and decree dated 27.04.2022, passed by learned Civil Judge, Nahan District Sirmaur, Himachal Pradesh, in Civil Suit No.33/1 of 2019. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 ( 2025:HHC:20091 ) 2. The material facts necessary for adjudication of the present second appeal are that one Smt. Savitri Devi, the plaintiff’s maternal grandmother, was the owner in possession of the suit land comprising Khasra Nos. 235, 236, and 237. The plaintiff’s mother, Smt. Darshni Devi, inherited the suit land from Smt. Savitri Devi, and upon her death, the plaintiff inherited the same as ancestral property. The plaintiff claimed to be in peaceful, continuous, and uninterrupted possession of the suit land without any hindrance. However, she alleged that one Husan Singh, the predecessor-in-interest of the defendants, fraudulently became a co-owner to the extent of half share in the suit land based on a fabricated gift deed dated 19.6.1972 executed by Smt. Savitri Devi. Though Smt. Darshni Devi had earlier challenged the gift deed, she could not succeed, and the suit land remained jointly held, with the plaintiff retaining half share. 3. The plaintiff further pleaded that she was in cultivating possession of portions of the suit land, including Khasra Nos. 235, 236, 237, 801/58, and 780/3 to the extent of her half share. On 10.02.2019, when she was cultivating the land, defendants No. 1 and 2 allegedly attempted to obstruct her and threatened her labourers. Again, on 13.02.2019, the defendants allegedly started enclosing the best portion of the land with barbed wire and threatened to dispossess her. The plaintiff claimed that she requested the defendants not to interfere until partition was finalized. She also challenged the partition effected on 9.2.2017, wherein mutation No. 922 was sanctioned, allotting her only 11-19-00 Bighas while the land in her possession was allotted to the defendants. She contended that the 3 ( 2025:HHC:20091 ) defendants were attempting to illegally dispossess her under the guise of the partition, compelling her to file the suit. 4. The defendants contested the suit, raising preliminary objections regarding maintainability, cause of action, estoppel, suppression of material facts, and applicability of Order 2 Rule 2 CPC. On merits, they admitted that Smt. Savitri Devi was the original owner and that the plaintiff inherited the land through her mother. However, they asserted that the gift deed dated 19.6.1972 in favour of Husan Singh was genuine and had been upheld in earlier litigation, including a civil suit filed by the plaintiff, which was dismissed up to the High Court in RSA No. 354 of 1999. They claimed that the joint land had been partitioned by metes and bounds, with specific portions allotted to them, and denied any interference with the plaintiff’s possession. 5. The plaintiff filed a replication reiterating her claims and denying the defendants’ assertions. 6. The trial Court framed the following issues for determination on 03.10.2019: 1. Whether plaintiff is joint owner in possession of the suit land, as alleged? OPP. 2. Whether defendants, who are also joint owners, are interfering in the suit land, as alleged? OPP. 3. If Issue Nos.1 and 2 are proved in affirmative, whether plaintiff is entitled to relief of permanent prohibitory injunction against the defendants, as prayed for? OPP. 4. Whether suit of the plaintiff is not maintainable, as alleged? OPD. 4 ( 2025:HHC:20091 ) 5. Whether plaintiff is estopped by her own act, conduct and acquiescence from filing the suit, as alleged? OPD. 6. Whether present suit is hit by the provision of Order 39 Rules 1 & 2 of CPC? OPD. 7. Whether the suit of the plaintiff deserves dismissal with special costs under Section 35-A of the CPC? OPD. 8. Relief. 7. The plaintiff’s husband and attorney, Jagdev Singh, testified as PW-1, affirming her case and submitting documentary evidence, including a certified copy of the Jamabandi for 2013-14 (Ext. PW-1/B). The defendants examined Ankush (DW-1), who supported their case and proved mutation No. 922 (Ext. DW-1/B) regarding the partition. 8. The trial court decided issues No. 1 to 3, 5, and 6 against the plaintiff, held issue No. 4 in favour of the defendants, and partly allowed issue No. 7, dismissing the suit on the grounds that the plaintiff failed to prove her possession or interference by the defendants. Aggrieved, the plaintiff filed the first appeal contending that the trial court had failed to properly appreciate the facts, oral and documentary evidence, and the applicable law, leading to an erroneous conclusion. She argued that the court had acted on conjectures and surmises, overlooked material facts pleaded in the suit, and unjustly dismissed her application under Order 26 Rule 9 CPC without valid reasons. She prayed for the appeal to be allowed, the impugned judgment and decree set aside, and her suit decreed with costs. However, the first appellate court dismissed the appeal, upholding the trial court’s findings. 5 ( 2025:HHC:20091 ) 9. Dissatisfied with the dismissal of the first appeal, the plaintiff has now filed the present second appeal, reiterating her grievances and seeking reconsideration of the findings on the grounds of misappreciation of evidence and erroneous application of law 10. Heard the parties, perused the impugned judgments. In the present case the plaintiff had filed the suit through her husband and attorney, PW-1 Jagdev Singh Jaswal, without entering the witness-box herself. The trial court rightly noted that PW-1 displayed ignorance regarding crucial facts, including the preparation of the field book and attestation of mutation No. 922 (Ext. DW-1/B), which recorded the partition of the suit land. His inability to depose on material aspects rendered his testimony insufficient to prove the plaintiff's case. The Supreme Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (2005) 2 SCC 217, has held that that a power of attorney holder cannot depose in place of the principal for matters requiring personal knowledge. This principle was previously relied upon in Vidhyadhar v. Manikrao (1999) 3 SCC 573 and Shambudutt Shastri v. State of Rajasthan (1986) 2 WLL 713, establishing that a party must personally testify to prove their case. The plaintiff's failure to appear in the witness-box warrants an adverse inference against her claims. 11. The evidence further demonstrates that the plaintiff failed to prove her settled possession over the entire suit land. The validity of the gift deed dated 19.06.1972, executed by her grandmother in favour of the defendants' predecessor, was upheld up to the High Court in RSA No. 354 of 1999, wherein it was conclusively held that possession had been delivered to 6 ( 2025:HHC:20091 ) the defendants. The plaintiff's pleadings were also contradictory, as she admitted cultivating only a portion of the land, implicitly acknowledging the defendants' share. In light of the partition and the defendants' established ownership, the trial Court rightly denied the injunction. The findings are based on a proper appreciation of evidence and law, leaving no grounds for interference in this second appeal. 12. In view of above discussion, I find no question of law, much less a substantial question of law. Therefore, the present appeal is dismissed being devoid of merits, so also, pending miscellaneous application(s), if any. (Bipin Chander Negi) May 26, 2025 (KS) Judge