1. Heard argument of learned counsel for the parties and perused the records.
2. In Original Suit No. 62/2006, plaint case in brief was that plaintiff had acquired ownership of disputed property detailed in plaint by unregistered agreement to sell from its former owner Murad Ali (father of defendants no. 3 and 4) and taken possession of this land and has been user of it as owner. Defendants have no right, title or interest in this property, but they are unauthorizedly trying to interfere in plaintiff's possession. Therefore, plaintiff had filed suit for permanent injunction restraining defendants.
3. In written-statement, defendant no.-1 denied plaint averments and further pleaded that plaintiff has no right or title in disputed property nor had he purchased it. Such unregistered purchase cannot confer any right to plaintiff. Plaintiff had never been in its user. In fact, defendants had purchased disputed property by registered sale-deed dated 11.1.2005/ 12.1.2005 from its owners defendant no.-2 Saeed Ali and Sammi Ali and acquired its possession as owner. Plaintiff has filed suit on the basis of incorrect facts, which is liable to be dismissed.
4. Defendants no. 2, 3 and 4 had not filed any written-statement in original suit, which proceeded ex-parte against them.
5. After affording opportunity of hearing to parties, the Court of Civil Judge (Senior Division), Auraiya had dismissed the suit by its judgment dated 11.2.2010. In this judgment, trial court had given finding that plaintiff's claim is based on ownership of disputed property through unregistered contract of sale, but such unregistered transaction cannot confer any right or title to her regarding immovable property. Trial court had also given finding that plaintiff's side had failed to prove its possession of disputed property. Trial court had also held that plaintiff had not examined herself in evidence for proof of her title, so her title or possession is not proved.
6. Against the judgment of trial court, Civil Appeal No. 9/2010 was preferred, which was heard and dismissed by the judgment dated 3.12.2011 of Additional District Judge, Ex-Cadre, Court No.-2, Auraiya. In this judgment, first appellate court had given finding that plaintiff is a lady which can move and do her work. Only she could have correct knowledge of facts relating to ownership, but she had not examined herself. This court had held that the knowledge available with plaintiff cannot be available to her power-of-attorney, therefore her case is not proved. First appellate court had also discussed the evidences of PW-1 Nathuram, the husband of plaintiff, and and given the finding that this witness had no knowledge of the boundaries of disputed land, he resides about 5 K.M. Away from disputed property and had no knowledge as to what construction or things are present on disputed property. Scrutinizing the oral testimony and other oral evidence of plaintiffs and defendants, the first appellate court had given specific finding that plaintiff had failed to prove her case of ownership or possession. With these findings, first appeal was dismissed.
7. Against the judgment of trial court as well as first appellate court, present second appeal has been preferred on behalf of plaintiff.
8. In this second appeal, following sole substantial question of law was framed by this Court at the time of admission of appeal:-
"Whether the view of the courts below that as appellant did not appear as witness and only her husband appeared as witness hence her case was not proved is erroneous in law in view of Section 120 of Evidence Act wherein it has been provided that husband or wife of a party in any suit shall be competent witness?"
9. Learned counsel for the appellant contended that lower courts had erroneously appreciated the evidences, especially the evidence of plaintiff's husband who had personal knowledge of the facts and could be a competent witness on behalf of her wife in light of provisions of Section 120 of Evidence Act. He contended that trial court and first appellate court had erroneously based their findings on the fact that plaintiff had not examined herself as good witness, and they should have accepted the plaintiff's case as proved on the basis of evidences of her husband.
10. Section 120 of Indian Evidence Act reads that "in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses". It is settled legal position that for the facts within his personal knowledge, the husband/wife of spouse can be a competent witness on behalf of his/her spouse, provided his testimony is found believable and had passes the test of cross-examination, as well as the scrutiny of the Court. In present matter, competency of PW-1 Nathuram being husband of the plaintiff-appellant as competent witness is not disputed for the facts, which are within his personal knowledge. In this matter, courts below had appreciated the evidences of witnesses other than husband of plaintiff, discussed their testimony one by one and given reasons as to why they found the testimony of husband of plaintiff not reliable. Lower courts had appreciated the testimony of PW-1 Nathuram, who is husband of plaintiff-appellant Siddh Sri and held that during cross-examination, this witness had admitted that he resides in his village Taiyapur, which is 5 K.M. away and does not reside in village of disputed property. Lower court had also found that this witness had no knowledge as to what constructions and things are present on disputed place and has no knowledge of boundaries of disputed property. With such appreciation and scrutiny of evidences, lower courts had held that this witness had also failed to prove the plaintiff's case as well as possession of plaintiff over disputed property. Therefore, this contention of learned counsel for the appellant is found incorrect and unacceptable that impugned judgment of lower courts are passed only on the fact that plaintiff had not examined herself and suppressed her evidences. In fact, both the lower courts had found that best evidence of transactions regarding alleged sale could be properly given only by plaintiff, who according to plaint had sole personal knowledge of it, and also that title could not be transferred from oral/ unregistered transaction; so she cannot be owner of disputed property on the basis of alleged transfer from its earlier owner. The testimony of plaintiff's husband and other examined witnesses could not prove plaintiff's case of ownership or possession or user of disputed property. Perusal of judgment of trial court as well as the first appellate court reveal that both the courts had properly appreciated all the available evidences before them and given separate and independent finding in support of their conclusions, which are concurrent to the effect that plaintiff-appellant had failed to prove its case. Accordingly, above mentioned substantial question of law is decided against appellant and in favour of respondents.
11. No other point was raised during argument before this Court. As discussed above, plaintiff-appellant has failed to prove her plaint case and the defendants' case was found believable. Therefore, both the courts below had decided the original suit and appeal against plaintiff-appellant by correct and acceptable judgment. Their judgments are confirmed.
12. Accordingly, this appeal is dismissed with cost.
Order Date :- 11.5.2016 SR