The competence of witnesses in civil proceedings under the Indian Evidence Act and the presumption of correctness of a case if a party fails to appear as a witness.

JUDGMENT

Parthivjyoti Saikia, J. - Heard the learned counsel, Mr. A. Dhar appearing for the appellant. Also heard Ms. R. Choudhury, learned counsel for the respondents.

2. This is a regular second appeal directed against the judgment of the First Appellate Court that was passed in T.A. No. 57 of 2011 by Civil Judge, karimganj.

3. Ramendra Narayan Das (the respondent No. 3 herein) filed the T.S. No. 75 of 2007 against Late Nilima Das Gupta (the respondent No. 1 herein), Kulchuma Bibi (respondent No. 2 herein) and Md. Abdur Rouf (the appellant herein) for declaration of his right, title and interest over a plot of land measuring 16 Katas along with a C.I. sheet roofed house standing thereon. This land originally belonged to 3(three) persons namely Md. Motosin Ali, Halima Begum and Md. Assaddar Ali. They sold the land to the respondent No. 3. A registered sale deed was also executed on 24.01.2007. Since then, the respondent No. 3 has been peacefully occupying the said land. He also constructed his residential house over that land. Plaintiff was an employee of the State of Assam and because of his duties, he had to stay away from his house. It is alleged that late Nilima Das Gupta intended to sell the aforesaid land to the respondent Kulchuma Bibi. Thereafter, late Nilima Das Gupta and Kulchuma Bibi tried to dispossess the respondent No. 3 of the land. Therefore, the respondent No. 3 filed the suit before the Court of the Munsiff seeking declaration of his right, title and interest over the said properties.

4. It may be stated that the present appellant was impleaded at a subsequent stage of the suit.

5. Nilima Das Gupta has filed a written statement and a counter-claim seeking a declaration of her Right, Title and Interest over the said property and for cancellation of the sale deed dated 24.01.2007.

6. The present appellant also filed a written statement along with a counter-claim seeking a declaration of his right, title and interest over the said land.

7. Kulchuma Bibi did not contest the case. Therefore, the case proceeded ex-parte against her. The respondent No. 3, Respondent No. 2 and the appellant examined some witnesses. They also exhibited some documents. On conclusion of the trial, the Court of the Munsiff dismissed the suit of the respondent No. 3 and also dismissed the counter-claim of the respondent No. 1, Nilima Das Gupta. The Counter-claim of the appellant Abdur Rouf was decreed. Therefore, the respondent No. 1, late Nilima Das Gupta filed the appeal, being, T.A. No. 57 of 2011. In that appeal, the present appellant Abdur Rouf, the respondent No. 3, Ramendra Narayan Das and Kulchuma Bibi were made respondents. The First Appellate Court allowed the appeal and decreed the counter-claim filed by Nilima Das Gupta and the counter-claim filed by Abdur Rouf was dismissed. Hence, the present appeal has been filed.

8. The Court of the Munsiff dismissed the counter claim of Nilima Das Gupta because she did not appear before the Court and offered herself for cross-examination. In her place, her son deposed on her behalf. The Trial Court opined that since she failed to offer herself for cross-examination, it could be presumed that she had set up a false case. The aforesaid view of the Munsiff was based upon a ratio laid down by the Supreme Court in the case of Vidhyadhar v Manik Rao reported in (1999) 3 SCC 573. The Trial Court did not rely upon the evidence of the son of Nilima Das Gupta who examined himself as D.W. 5. No power of Attorney was given to DW 5 to depose on behalf of Nilima Das Gupta. This time, the Trial Court relied upon the decision of the Supreme Court that was rendered in Janki Vashdeo Bhojwani v. Indusind Bank Limited, (2005) 2 SCC 217, which held that since there is no Power of Attorney, the DW-5 is not entitled to give evidence on behalf of his mother. The appellate Court simply held that D.W. 5 is entitled to give evidence on behalf of his mother.

9. I have given my anxious consideration to the submissions made b