1 2025:CGHC:50143-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal No. 485 of 2019 Judgment reserved on 08.09.2025 Judgment delivered on 08.10.2025 Judgment uploaded on 08.10.2025 1 - Pusauram Sahu S/o Late Mangluram Sahu Aged About 55 Years Nil 2 - Smt. Surja Bai Sahu, Wd/o Late Mangluram Sahu (Died) Through Lrs. 2.1 - Smt. Chinti Bai Sahu D/o Late Mangluram Sahu Aged About 68 Years R/o Village Devri, Tahsil Gunderdehi, District Balod Chhattisgarh., District : Balod, Chhattisgarh 2.2 - Smt. Rukhmani Bai D/o Mangluram Sahu Aged About 65 Years R/o Village Hirrukhapri, Tahsil Gunderdehi, District Balod Chhattisgarh., District : Balod, Chhattisgarh 2.3 - Smt. Kusma D/o Mangluram Sahu Aged About 58 Years R/o Village Ghughwa, Tahsil Patan, District Durg Chhattisgarh., District : Durg, Chhattisgarh 2.4 - Smt. Dashri Bai D/o Mangluram Sahu Aged About 56 Years R/o Machandur, Tahsil Patan, HARNEET KAUR Digitally signed by HARNEET KAUR Date: 2025.10.08 17:46:33 +0530 2 District Durg Chhattisgarh. (Plaintiff), District : Durg, Chhattisgarh … Appellants/Plaintiffs versus 1 - Sanjeet Vishwakarma S/o R.D. Vishwakarma Aged About 29 Years R/o Maroda Station Uttai Road, Durg, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 2 - Rupesh Kumar Sahu S/o Pusau Sahu Aged About 26 Years R/o Village Pataura, Tahsil Patan, District Durg Chhattisgarh., District : Durg, Chhattisgarh 3 - State Of Chhattisgarh Through Collector, Durg, District Durg Chhattisgarh. (Defendant), District : Durg, Chhattisgarh … Respondents/Defendants For Appellants :Mr. Parth Shrivastava, Advocate For Respondent 1 :Mr. Kshitij Sharma, Advocate For Respondent 3 :Mr. Ratan Pusty, G.A. DB- Hon'ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal C.A.V. Judgment Sanjay K. Agrawal, J. 1. Appellants/Plaintiffs have preferred this first appeal under Section 96 of the Code of Civil Procedure calling in question the legality, 3 validity and correctness of impugned judgment and decree dated 13/08/2019 passed by the 8th Additional District Judge, District Durg in Civil Suit No. 19-A/2013 whereby plaintiffs’ suit for declaration of agreement to sale dated 27/11/2012 executed by defendant No. 2 in favour of defendant No. 1 as null and void and for permanent injunction has been dismissed. (For the sake of convenience, the parties will hereinafter be referred to as per their status and ranking given in the plaint before the trial Court.) Facts of the Case 2. Plaintiffs filed a civil suit stating inter alia that defendant No. 2 is the son of plaintiff No. 1 and grandson of plaintiff No. 2 (who died during the pendency of the suit on 22/11/2013 and four legal heirs of hers were substituted and brought on record) and the suit land bearing Khasra No. 492 area 1.23 hectares situated at Village Patora, Tahsil Patan, District Durg was originally owned by plaintiffs No. 1 and 2, however, on 13/12/2012, defendant No. 1 published a general notice in the newspaper that 4 defendant No. 2 has executed agreement to sale dated 27/11/2012 in his favour with regard to suit land bearing Khasra No. 482, area 0.40 hectares situated at village Grag-Patoura, Patwari Halka No. 11, Tahsil Patan, District Durg, by authority of power of attorney dated 18/09/2012, for a sale consideration of Rs. 10,30,000/-, out of which, Rs. 7,00,000/- has been paid by defendant No. 1 to defendant No. 2. It is the case of the plaintiffs that they came to know about the said notice on 14/12/2012, a rebuttal/refutation notice was also published in the newspaper by them stating that the power of attorney dated 18/09/2012 is a fake and forged document and thus, the agreement to sale is void and not binding upon the plaintiffs. The plaintiffs also sent a legal notice on 17/12/2012 which was replied by defendant No. 1 on 20/12/2012 and a report was also made to S.P., Durg on 22/12/2012 and cancellation of power of attorney was also executed on 01/02/2013. Thereafter, the plaintiffs brought this civil suit against the defendants seeking declaration of agreement to sale dated 27/11/2012 as null and void and for permanent 5 injunction restraining defendant No. 1 from interfering with their possession. 3. Defendant No. 1 filed his written statement opposing the plaint averments stating thereby that the agreement to sale dated 27/11/2012 is not illegal and in fact, it was executed within the knowledge of the plaintiffs and the same was shown to plaintiff No. 1. He has further stated that plaintiffs, with a malafide intention of keeping the advance amount of Rs. 7,00,000/- and with an intention of not executing the sale deed have published the notice in the newspaper in connivance with defendant No. 2 whereas the said agreement to sale is binding on the plaintiffs as well as defendant No. 2. 4. Defendants No. 2 and 3 remained ex-parte before the trial Court. 5. Learned trial Court framed 4 issues and answered them as stated below :- वाद प्रश्न निष्कर्ष 1) क्या ग्राम पतोरा, तह० पाट, जिला दुर्ग में स्थित काष्तकारी धहा वादभूनिम ख० ० 492, रकबा 0.40 हे० के बाबत पुसउ साहू व् श्रीमती सूरा " प्रमाणि,त हीं " 6 बाई साहू के द्वारा अपे पुत्र प्रतितवादी क्र० -2 रुपेश कु मार साहू के ाम से निष्पानिदत आम मुख्त्यारामा निदांक 18/09/2012 फ; एवम कू टरति=त है ? ? 2) क्या प्रतितवादी क्र० - 2 द्वारा प्रतितवादी क्र० - 1 के पक्ष में उक्त फ; एवं कू टरति=त आम मुख्त्यारामा निदांक 18/09/2012 के आधार पर निष्पानिदत वादभूनिम का निवक्रय इकरारामा निदांक 27/11/2012 अवैध एवं शून्य है ? " प्रमाणि,त हीं " 3) क्या वादीर्ग,, प्रतितवादीर्ग, के निवरुद्ध उक्त वादभूनिम में अावश्यक हतक्षेप करे से ायी रूप से निर्षेतिधत निकए ाे के सम्बन्ध में ायी निर्षेधाज्ञा की तिIक्री प्राप्त करे के अतिधकारी है ? " ” हीं 4) सहायता एवं वाद व्यय ? " कं तिIका 34 ” के अुसार 6. In sum and substance, learned trial Court has recorded findings against the plaintiffs and has held that they have failed to prove that the power of attorney dated 18/09/2012 is a fake and forged document and they have further failed to prove that the agreement to sale dated 27/11/2012 executed by defendant No. 2 in favour of defendant No. 1, on the basis of the said power of attorney, is illegal and void and as 7 such, dismissed the suit holding that plaintiffs are not entitled for decree of declaration that agreement to sale dated 27/11/2012 as null and void and for permanent injunction, as claimed by them. Submission of the Parties 7. Mr. Submission of the Parties 7. Mr. Parth Shrivastava, learned counsel for the appellants/plaintiffs, would submit that the trial Court is absolutely unjustified in dismissing the suit of the plaintiffs by recording findings which are perverse and contrary to the record as the plaintiffs have duly proved that the power of attorney dated 18/09/2012 is a fake and forged document and consequently, the agreement to sale dated 27/11/2012 is illegal and void. He would further submit that the trial Court ought to have considered the report of the handwriting expert (Ex. P/14) namely Smt. Sunanda Dhenge (PW-2) who has clearly opined that the thumb impression on the power of attorney dated 18/09/2012 is different and does not match with the original thumb impression of plaintiff No. 1 Pusauram, as 8 such, the impugned judgment and decree passed by the trial Court is liable to be set aside. 8. Mr. Kshitij Sharma, learned counsel for respondent/defendant No. 1, would support the impugned judgment and decree passed by the trial Court and submit that defendant No. 1 had also filed civil suit No. 28A/13 seeking decree for specific performance of contract and permanent injunction wherein though the trial Court has clearly held that it has not been proved that the power of attorney is a fake and forged document and further the agreement to sale executed by defendant No. 2 in favour of defendant No. 2 has also not been proved to be illegal and void but proceeded to grant the decree of refund of sale consideration in favour of defendant No. 1 herein and refused to grant decree for specific performance of contract, which is subject matter of First Appeal No. 408/2019 preferred by the defendant No. 1 before this Court and since, the said findings recorded by the trial Court have neither been questioned by the plaintiffs herein by way of either filing an appeal or cross-objection, they have attained finality. As such, the trial Court has rightly 9 dismissed the suit filed by the plaintiffs by recording the findings which are strictly in accordance with law and therefore, the instant appeal is liable to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein- above and went through the record with utmost circumspection. Point for determination 10. The point for determination involved in this first appeal preferred by the appellants/plaintiffs is as follows :- “Whether the trial Court is justified in dismissing the suit filed by the plaintiffs holding that the power of attorney dated 18/09/2012 is neither fake nor forged and accordingly, the agreement to sale dated 27/11/2012 executed by defendant No. 2 in favour of defendant No. 1 is not illegal and void ?” Discussion and Analysis 11. The plaintiffs have taken the plea of fraud/forgery in case of registered instrument i.e., power of attorney dated 18/09/2012 10 alleging that the power of attorney has fraudulently been got executed by defendant No.2 who is the son of plaintiff No.1 and grandson of plaintiff No.2. The Supreme Court in the matter of Rattan Singh v. Nirmal Gill1 has held that a registered document prima facie would be valid in law and the onus of proof would be on a person who leads evidence to rebut the presumption. 12. Though the plaintiffs have led evidence to establish that the power of attorney is forged and fabricated, but, he had not initiated any action against defendant No.2 (power of attorney holder) and their son-in-law Hemshankar, witness to the power of attorney. Plaintiff No.1 has admitted in his cross-examination that he is still residing with his son/defendant No.2 and he has also admitted that he had appointed the lawyer for his son. In that view of the matter the trial Court has clearly recorded a finding that the plaintiffs and defendant No.2 are acting in collusion to defeat the claim of 1 (2021) 15 SCC 300 11 defendant No.1, who has also instituted suit for specific performance. The finding recorded by the trial Court that the plaintiffs are in collusion with defendant No.2 to defeat the claim of defendant No. 1 is the correct finding of fact based on evidence available on record. 13. The Supreme Court in the matter of Vidyadhar v. Manikrao and Anr. 2 has held 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. 14. In this regard, the finding recorded by the trial Court that defendant No. 2 did not enter into witness box though he is residing with the plaintiffs i.e. his father and grandmother goes against the plaintiffs. In that behalf, the trial Court has rightly drawn adverse inference against the plaintiffs stating that though they are residing along with defendant No. 2 and contesting the case together as the plaintiff No. 1 in his cross-examination has admitted that as he is sharing residence with his son i.e. 2 (1999) 3 SCC 573 12 defendant No. 2, he could be the best witness to depose with reference to the complete factum of the transaction leading to execution of power of attorney dated 18/09/2012 and agreement to sale dated 27/11/2012. As such, inference drawn by the trial Court against the plaintiffs is based on evidence available on record. Further, the finding of the trial Court that the subject instrument is registered instrument, thus, substantive evidence ought to have been brought on record to impeach the credibility of registered instrument i.e. power of attorney (Ex.P/1), is also correct finding of fact based on evidence available on record. The trial Court has disbelieved the opinion of the handwriting expert Smt. Sunanda Dhenge (PW-2). Since she has admitted that her opinion is based on the certified copy of power of attorney dated 18/09/2012 and she has not examined the original document, which could have been examined with the leave of that court, however, in that regard, no effort has been made to examine the original power of attorney. 15. In this regard, Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy (Dead) through Legal 13 Representatives and Another3 may be noticed herein profitably wherein it has been held that evidence of handwriting expert must be evaluated with caution and needs corroboration. 16. However, it may be noticed herein that defendant No. 1 herein had also filed Civil Suit No. 28A/13 wherein the trial Court has clearly recorded the finding that the power of attorney dated 18/09/2012 is neither fake nor a forged document and the agreement of sale dated 27/11/2012 executed by defendant No. 2 in favour of defendant No. 1, on the basis of said power of attorney, is legal document and after recording all the findings in favour of defendant No. 1, the trial Court dismissed his suit for specific performance of contract and only granted decree for refund of sale consideration, which has been challenged by the defendant No. 1 herein in First Appeal No. 408/2019, however, the said findings recorded by the trial Court with regard to power of attorney not being a fake and forged document as well as the agreement to sale being absolutely legal, have not been challenged by the plaintiffs 3 (2019) 14 SCC 220 14 herein by either filing a cross-objection or by way of appeal, therefore, the said findings recorded by the trial Court have attained finality and are binding upon the plaintiffs herein and first appeal filed by defendant No. 1 herein, being First Appeal No. 408/2019 (Sanjit Kumar Vishwakarma v. Rupesh Kumar Sahu & Others), which we have also decided today by passing a separate judgment. 17. Thus, in view of the aforesaid findings, we are of the considered opinion that the trial Court is absolutely justified in dismissing the suit filed by the plaintiffs. We do not find any merit in this appeal warranting interference in the impugned judgment and decree passed by the trial Court. 18. Accordingly, this first appeal is dismissed being devoid of merits. 19. A decree be drawn-up accordingly. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Harneet