- (1.) Amrit Lal, appellant, filed a declaratory suit that he was the owner in possession of house No. 33 situate in Gali No. 4, Ferozepore Cantt, and sought consequential relief for the issuance of perpetual injunction restraining Phool Chand defendant-respondent from interfering with his possession.
(2.) The averment made in the plaint is that Kanhaya Lal deceased was his uncle and owner of the house in dispute. Kaloo Ram, the common ancestor, had two sons, namely Bipat Ram and Jhauo Ram, and Kanhaya Lal deceased is the son of Bipat Ram. Amrit Lal, plaintiff, is the grandson of Jhauo Ram. Admittedly, Kanhaya Lal was the owner of the house in dispute. He died on February 22, 1967. He had a son, named Tek Chand, who had pre-deceased him in the year 1947. Kanhaya Lal's wife also predeceased him and thus the plaintiff claimed the ownership of the house, in dispute, as his nephew. It is alleged in the plaint that during the life time of Kanhaya Lal, the plaintiff was in possession of the house, in dispute, and that after his death, the plaintiff came into possession of the house as its owner. It is also averred in the plaint that the plaintiff had performed the last rites of Kanhaya Lal deceased, who virtually treated the plaintiff as his heir. It is further alleged in the plaint that the defendant had filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, for ejectment of the plaintiff from the house, in dispute, on the ground that the plaintiff was a tenant under Kanhaya Lal and that Kanhaya Lal had executed a will in favour of the defendant by virtue of which the plaintiff had become the tenant of defendant on the death of Kanhaya Lal. It is further alleged that Kanhaya Lal never executed any valid will in favour of defendant and that if there be any, the same is forged. The defendant resisted the suit and raised many objections to the maintainability of the suit. It is averred that the defendant had earlier filed a suit for declaration against Smt. Padma Devi, widow of the son of Kanhaya Lal, on the basis of the will executed by Kanhaya Lal in his favour and that the suit was decreed. The defendant also denied the relationship of plaintiff with Kanhaya Lal and asserted that he has no locus standi to challenge the will executed by Kanhaya Lal in his favour. It is further pleaded that the plaintiff is in possession of only one Chaubara of the house in dispute, as tenant and that no cause of action arose to him to sue. The parties contested on the following issues :- 1. Whether the plaintiff is owner in possession of the suit property ? 2. Whether the plaintiff is the nephew of deceased Kanhaya Lal and is entitled to succeed to the suit property left by the deceased Kanhaya Lal ? 3 Whether Kanhaya Lal has executed a valid will in favour of the defendant as alleged ? 4. Whether the suit is properly valued for purposes of court-fee and jurisdiction ? 5. Whether the plaintiff is entitled to the injunction prayed for ? The trial Court decided issues Nos. 1, 2 and 5 against the plaintiff, issue No. 3 in favour of the defendant and issue No. 4 in favour of the plaintiff and consequently dismissed the suit. Dissatisfied by the judgment and decree of the trial Court, the plaintiff filed first appeal before the learned Additional District Judge, Ferozepore, who vide his judgment dated 24.12.1973, affirmed the findings of the trial Court on all the issues and dismissed the appeal. Hence, this second appeal.
(3.) In order to prove his case, the plaintiff examined Ramji Lal, P.W. 4, Baldev Mitter, P.W. 5, and himself as P.W. 6. All these witnesses have deposed that the plaintiff is in possession of the house, in dispute, and is living there as its owner. Admittedly the plaintiff was in possession of a portion of the house even during the life time of Kanhaya Lal and that the defendant is not in possession of any portion of the house, in dispute. It is settled law that whosoever is in possession of the property, his possession is good against the whole world except the real owner. The defendant claimed ownership of the house by virtue of will executed by Kanhaya Lal in his favour. Hence, issue No. 3 goes to the root of the case. It is, therefore, necessary to decide this issue first. Both the Courts below have decided this issue in favour of the defendant and found that Kanhaya Lal had executed a valid will in his favour. It is contended on behalf of plaintiff-appellant that the will, in question, is surrounded by suspicious and unnatural circumstances. The first suspicious circumstance is that the will is an unregistered one andis not scribed by a regular deed-writer - although Kanhaya Lal was living in Ferozepure Cantonment as also the defendant-yet the will was not scribed by a regular deed-writer, though the facility was available at Ferozepore. The will was not got registered. Secondly, no attesting witnesses or the scribe of the will have been produced in this case - the attesting witnesses Locan Chand and Hira Lal and the scribe Thakur Singh, of the will are not dead. The defendant-respondents produced a certified copy of the statement of Locan Chand (Exhibit D. 1), who was examined as P.W. 2 in the Court of Shri R.S. Sharma, Sub-Judge Ist Class, Ferozepore in Civil Suit No. 122 of 1972, Phool Chand V. Padma Vati. Shri Jagdish Raj Dhawra, Reader of the Court of Sub-Judge, was also produced as D.W. 1 to prove the statement of Locan Chand. The defendant also produced D.W. 4 Dharam Singh son of Thakur Singh, the scribe of the will, Dharam Singh deposed that he used to see this father reading and writing and as such he was in a position to say that the will was in the hand-writing of his father Thakur Singh who is since dead. He also recognised the signatures of his father Thakur Singh on the said will. It is against this that the plaintiff-respondent examined two Handwriting Experts who compared the disputed signatures of Kanhaya Lal on the disputed will with his proved signatures on the map Exhibit P.1. Both the Experts gave opinions in favour of their respective party. The Expert produced by the plaintiff-appellant opined that the signatures of Kanhaya Lal on the disputed will did not tally with his proved signatures while the Expert produced by the defendant-respondent opined that these signatures do tally. Except Locan Chand's statement, which was recorded in the earlier case, there is no evidence on the record to show that the will in question has been executed by Kanhaya Lal. Locan Chand's evidence in the earlier case was taken into consideration by the trial Court under Section 33 of the Evidence Act. This, to my mind is not permissible. Admittedly the plaintiff-appellant was not party to the earlier suit, i.e. Civil Suit No. 122 of 1972 Phool Chand V. Padma Vati in which statement of Locan Chand was recorded. Moreover, ex-parte proceedings against Smt. Padma Vati defendant in that case took place and finally ex-parte decree was passed. Locan Chand was not cross-examined in that case. The plaintiff-appellant cannot be construed as the representative-in-interest of Smt. Padma Vati, whose interest is antagonistic to that of the plaintiff-appellant. Section 33 of the Evidence Act is in the following terms :- "Evidence given by a witness in a judicial proceedings, or before any person authorised 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 proceedings the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable : Provided that the proceedings was between the same parties or their representatives in interest, that the adverse party in the first proceeding had the right and opportunity to cross-examine, that the questions in issue were substantially the same in the first as in the second proceeding. Explanation. - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Section." From the reading of this section, it is evident that the evidence of a witness in a judicial proceeding is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense. The proviso makes it clear that it is only relevant if the proceeding was between the same parties or their representatives-in-interest, the adverse party in the first proceeding had the right and opportunity to cross-examine and the questions in issue were substantially the same in the first as in the second proceeding. Admittedly, in this case the first and second conditions of the proviso are not satisfied. The previous suit cannot be considered inter parties or representatives-in-interest of plaintiff and defendant. Admittedly, the plaintiff was not a party to the previous suit nor is he representative-in-interest of Smt. Padma Vati, defendant in that suit-rather they were hostile to each other. The decree in the earlier suit was ex parte and it is not known whether the defendant was properly served or not. No such evidence was produced in the present suit. In Raj Mangal Misir and others V. Mathura Dubain and another, 38 Allahabad (Series) 1, a suit for sale upon a mortgage, in which it was alleged that no payment had been made on account of either principal or interest, was filed. In the original suit a decree was passed ex parte as against both defendants-one the widow of the alleged mortgagor, the other a transferee of the mortgaged property. The mortgage in suit was proved by the evidence of one Baldeo, a marginal witness who spoke to the signature of the mortgagor. The said decree was set aside at the instance of the first defendant and the case was re-heard. Meanwhile the witness Baldeo died. At the second hearing, the witness produced to prove the document failed to establish his acquaintance with the handwriting of Baldeo. The Court dismissed the plaintiff's claim. The appellate Court also upheld the decree of the trial Court. The plaintiff-appellants then filed an appeal to the High Court and urged before it that the evidence of Baldeo given at the first trial could be used as evidence under Section 33 of the Evidence Act. In this situation their Lordships of the Allahabad High Court held as under :- Section 33 of the Evidence Act provides, amongst other things, that the evidence given by a witness in a judicial proceedings is relevant for the purpose of proving in a subsequent judicial proceeding, or at a later stage of the same judicial proceeding the truth of the facts which it states when the witness is dead. It is under this Section that the appellants contend that the evidence of Baldeo should have been admitted by the Courts below. There is, however, a proviso to the Section that before the evidence of a deceased witness can be admitted, it must be shown that the adverse party in the first proceedings had the opportunity of cross-examination. So far as Musamat Mathura is concerned it is clear that she had no such opportunity, it having been found by the Court that she was never served with the process prior to the granting of the ex parte decree. It is contended that the defendant No. 2 did not apply to have the ex-parte decree set aside, it must be taken that he had an opportunity of cross-examining the witness. The affidavit of the process-server made in the absence of defendant No. 2, when the suit was first instituted, is relied on. In our opinion this is not sufficient. If it was intended to use the statement of Baldeo as evidence against defendant No. 2, it would at least have been necessary to prove, by the oral evidence of the witness who had served him with the process, the fact of service. It was not sufficient to refer to the ordinary affidavit of service made by the process-server. It is unnecessary to decide whether if the process-server had been produced, his evidence would have been sufficient to entitle the plaintiffs to put in the evidence of Baldeo, but it seems to us clear that without the evidence of the process server the evidence of Baldeo was not admissible against either of the defendants." The evidence in the above said circumstances was not admitted under Section 33 of the Indian Evidence Act. In Sundara Rajali V. Gopala Thevan and another, 1934 AIR(Mad) 100 it was held as under :- "A deposition on which there was no opportunity at all to cross-examine, is not admissible under Section 33." This was also a case of pronote. In Dal Bahadur Singh and others V. Bijai Bahadur Singh and others, 1930 AIR(PC) 79 their Lordships of the Privy Council have observed as under :- "The true reading of Section 33, is that the party had both the right and the opportunity of cross-examining. Mere opportunity to cross-examine is not sufficient. There must also be the right to do so." In Poonam Chand V. Motilal and others, 1954 AIR(Raj) 287, the observations made therein are similar to the earlier case. Their Lordships of the Division Bench have observed as follows :- "The second proviso to Section 33 protects the right of the 'adverse party in the first proceeding' and not the right of the person who produces and examines the witness. The object of this proviso seems to protect those parties against whom the previous proceedings might have gone ex parte, or those who could have no right or opportunity to cross-examine them for some reasons. It would also protect co-plaintiffs or co-defendants who may not have the right or opportunity to cross-examine the witness produced from their own side. But the person who himself examines a certain witness should not be permitted in a subsequent proceeding to raise an application that the statement should not be admitted because he had no right or opportunity to cross-examine him.";