1. This instant writ petition has been filed under Article 226 and 227 of the Constitution of India with the following prayers as under:-

"It is therefore, most respectfully prayed that the writ petitioner may kindly be allowed by issuing a writ, order or direction by quashing and setting aside the judgment and decree dt. 13.10.2006 passed by the Board of Revenue by decreeing the suit in favour of the petitioner.

Cost of the litigation may also be awarded to the petitioner.

Any other appropriate writ, order or direction which this Hon'ble Court may deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner."

2. Brief facts of the case are that one Kesraram, petitioner Dropati's father, during his lifetime, married twice; firstly with Smt. Rukma, and out of their wedlock, one Natthuram was born and then he married Smt. Dakha and out of their wedlock, the petitioner i.e. Smt. Dropati was born. After the death of Kesraram's first wife i.e. Rukma, he married Smt. Dakha, who already had four offsprings from her first marriage with one Pemaram.

3. The petitioner herein filed a Revenue Suit in the Court of Sub Divisional Officer (SDO), Raisinghnagar, District Sri Ganganagar, under Sections 92-A and 53 of the Rajasthan Tenancy Act, 1995 (hereinafter referred to as "the Act of 1955"), for partition and permanent injunction on the ground that the petitioner is a legal heir of the deceased Kesaram and has right in 1/2 share of the agricultural land situated at Chak No. 51 NP Sq. No. 36 comprising of 24.10 Bigha, which was permanently allotted to father of the petitioner, who expired in the year 1988 leaving behind the disputed land in question for which, the petitioner filed a suit against her late step-brother namely Natthuram, who is the son of the petitioner's late father i.e. Kesraram from his previous marriage with Smt. Rukma. Nathuram also expired and thus, his legal representatives are party respondents in the writ petition as respondents Nos. 5 to 9.

4. The suit was registered as a Regular Suit No. 62/96 and the respondents were summoned by way of notices. In compliance of the notices, the respondents filed a detailed reply of the plaint by which, they denied the averments of the plaint and stated that the plaintiff is not the real daughter of late Shri Kesraram. They further stated that she is the daughter of Pemaram and Dakha but not born out of the second wedlock of Kesraram with Dakha, and also stated that late Natthuram was the only son of late Shri Kesraram and thus, only the wife and children of Nathuram have right in the aforesaid property and none other.

5. The learned trial court framed six issues and recorded the statements of PW1 Karnaram (brother of Kesraram) and PW2 Smt. Uma Devi, (step-sister of the petitioner-Plaintiff, born out of the wedlock of Dakha and her first husband Pemaram), who is also the power of attorney holder in the case filed on behalf of Dropati in the court of Sub Divisional Officer, Raisinghnagar, District Sriganganagar and in defence, the Respondents-defendants got examined Smt. Lichhma and Om Prakash as DW1 and DW2 respectively.

6. After hearing the arguments advanced by both the parties, the learned trial court decreed the suit in favour of the petitioner vide judgment/decree dated 21.12.2000. After passing of the decree, the disputed land in question was recorded in the name of the Plaintiff-petitioner. Thereafter, against the judgment/decree dated 21.12.2000, the respondents Nos. 5 to 9 preferred an appeal before the Revenue Appellate Authority, Sriganganagar, which was also dismissed vide order dated 10.07.2002, whereby the Revenue Appellate Authority affirmed the judgment/decree passed by the court below.

7. Thus, against the judgment/decree dated 21.12.2000 and the order dated 10.07.2002 passed by the Revenue Appellate Authority, the respondents Nos. 5 to 9 preferred the second appeal under Section 224(2) of the Act of 1955 before the Board of Revenue, Ajmer. The Board of Revenue allowed the appeal of the respondents Nos. 5 to 9 vide order dated 13.10.2006 stating therein that the Plaintiff-petitioner herself did not appear in the witness box, therefore, evidence deposed by her power of attorney i.e. Uma Devi, cannot be relied upon. The petitioner being aggrieved of the impugned judgment dated 13.10.2006, has filed this writ petition.

8. Learned counsel Mr. N.L. Joshi, representing the petitioner submitted that the learned Board Of Revenue has allowed the appeal of the respondents on technical grounds that the petitioner has not deposed and has not even given her statements to prove the facts as to when and where the petitioner Dropati was born which was necessary for the petitioner to prove and therefore, the order dated 13.10.2006 passed by the Board Of Revenue, Ajmer deserves to be quashed.

9. Learned counsel for the petitioner further submitted that the Power of attorney holder is a competent witness and his/her testimony cannot be disbelieved. Moreover, the power of attorney holder in the case at hand, is a step-sister of the petitioner who is fully conversant of the facts and circumstances of the case as to when and where the petitioner-Smt. Dropati was born and has knowledge about the history of her family, so she is a competent witness to be deposed on behalf of the petitioner. Merely on non appearance of the petitioner in the witness box, no adverse inference can be taken against the petitioner by the Board Of Revenue, thus, the impugned order is liable to be quashed and set aside qua the petitioner.

10. Learned counsel for the petitioner also submitted that the Board Of Revenue in its order dated 13.10.2006 observed that the courts below have considered the petitioner as the legal heir of late Shri Kesraram and thus, declared 1/2 share of the partition suit in name of the petitioner regarding the disputed land but it has not been proved as to when did Dakha marry Kesraram. The Board Of Revenue also stated that PW1 Karnaram (brother of Kesraram) in his deposition has not mentioned whether the petitioner is the legitimate daughter of late Shri Kesraram, but Karnaram (PW1), has clearly stated in his statements regarding the marriage of Kesraram with Dakha and regarding the petitioner being their daughter and the same has not been considered by the Board Of Revenue. Learned counsel for the petitioner further stated that there are two concurrent judgments in her favour passed by the Sub Divisional Officer and Revenue Appellate Authority and correct findings have been given by the respective courts of Sub Divisional Court and Revenue Appellate Authority which may be restored and also stated that it is not mandatory for the petitioner to come in the witness box, as the power of attorney holder is competent, thus, the Sub Divisional Court and Revenue Appellate Authority has rightly decided all the issues in favour of the petitioner.

11. The learned counsel for the petitioner also relied on the provisions of Section 224(2) of the Act of 1955 and Order III Rule 1 and 2 of the Civil Procedure Code 1908 (hereinafter referred to as "the Act of 1908". The Section 224(2) of the Act of 1955 is reproduced as hereunder:

"224. Appeals from appellate decrees -

(1) An appeal shall lie to the revenue appellate authority from a decree passed in appeal by a Collector.

(2) An appeal shall lie to the Board from a decree passed in appeal by a revenue appellate authority on any of the following grounds, namely

(i) the decision being contrary to law or to some usage having the force of law;

(ii) the decision having failed to determine some material issue of law or usage having the force of law;

(iii) a substantial error or defect in the procedure provided by or under this Act or by any other law for the time being in force, which may possibly have produced an error or defect in the decision of the case upon the merits, and

(iv) the decision being contrary to the weight of evidence on record where the lower appellate court has varied or reversed any finding of the trial court on a question of fact.

Order III Rule 1 and 2 of the Act of 1908 is reproduced as hereunder:

ORDER III Recognized Agents and Pleaders

1. Appearances, etc., may be in person, by recognized agent or by pleader.-Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2. Recognised agents.-The recognised agents of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts."

12. Learned counsel for the petitioner further relied on the judgment of the Hon'ble Apex Court in the case of S.Kesari Hanuman Goud versus Anjum Jehan & Ors (civil appeal No 2885-2887 of 2005). The relevant portion of the judgment is reproduced here as under:

"13. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to "act" on behalf of the principal. The word "acts" employed therein is confined only to "acts" done by the power-of-attorney holder, in exercise of the power granted to him by virtue of the instrument. The term "acts", would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined."

13. Learned counsel for the petitioner further relied on the judgment of the Coordinate bench of this Hon'ble High Court at Jaipur Bench in the case of Smt Shanta Meena versus Smt Kulshree & Anr (SBCWP 11415/2010). The relevant portion of the judgment is reproduced here as under:

"14. If the interpretation of Order III Rules 1 and 2 CPC is to mean that appearance of recognised agents or pleader is permissible for all purposes including deposition of statement in place of plaintiff then it would mean that the pleader can also depose statement for principal. The court should give interpretation to the provision which are not only harmonious but remain applicable in all situation with same interpretation. If interpretation of Order III Rule 1 and 2 CPC is that power of attorney can depose in place of principal in all circumstances then same interpretation will apply to the pleader, in view of the heading of the provision."

"15. In my opinion, the purpose of Order III Rule 1 CPC is not for appearance of recognised agent or pleader as witness in place of principal. They are authorised to appear as representative of the party to the extent it is permissible but not in the manner that they may replace the principal itself. If the power of attorney has acted in place of principal prior to filing of the suit, he can depose for principal but not in all circumstances. In the present matter, there is nothing on record that power of attorney was given prior to filing of suit to show same act of power of attorney, rather prior to filing of suit, in this case, power of attorney was given much after filing of the suit."

14. Learned counsel for the petitioner also submitted that the school certificate dated 01.11.1995 and Gram Panchayat certificate dated 22.03.1996 also proves the petitioner to be the daughter of Kesraram as well as the Voter List of the year 1983, 1988 and 1993, clearly indicates the name of Smt. Dakha as wife of Shri Kesraram, which proves the veracity of Smt. Dakha being legally wedded wife of late Shri Kesraram.

15. Per Contra, the learned counsel Mr. S.L. Jain representing the respondent, vehemently and fervently opposed the submissions advanced by the petitioner's counsel and submitted that the petitioners have not established and proved as to when did Dakha marry Kesraram and the same was also held by the Board of Revenue while allowing the appeal of the respondents vide order dated 13.10.2006. He also submitted that Karnaram who is Kesraram's brother, did not mention in his statements that Dropati is Kesraram's legitimate daughter. He further submitted that no one from Dakha's previous in-laws or her own family members, deposed regarding the petitioner being the daughter of late Shri Kesraram and not of Pemaram, hence, the petitioner has no right in the land in dispute.

16. Learned counsel for the respondents further submitted that the judgment passed by the Board Of Revenue is legal, valid, justified and within the four corners of law, which has no illegality, infirmity whatsoever warranting interference of this Hon'ble Court, and thus, the writ petition is not maintainable on the face of it and the petitioner is not likely to get any relief.

He also placed reliance on the judgment of the Hon'ble Apex Court in the case of Janki Vashdeo Bhojwani and another versus Indusind Bank Ltd., & Ors. reported in 2005 AIR SC 439, wherein, it is held that the power of attorney holder cannot depose in place and instead of the principal. He also submitted that the Board Of Revenue has rightly held that the petitioner was in the state to give depose. Even if she would not have been in a state to give statements, then also, her statements/evidence could have been taken through a court commissioner, as the statements/evidence of the petitioner were necessary as to when and where she was born and she must not have been deposed by a power of attorney holder.

17. Learned counsel for the respondent also submitted that Kesraram and Dakha solemnized in the year 1982 and in the Birth certificate of Dropati, the date of birth mentioned is 15.09.1968, and she took admission in school on 8.11.1978, thus, the birth certificate and the school register proves that she is not the daughter of Kesraram and as per the certificate issued by the Gram Panchayat also she is not a daughter of Kesraram.

18. Learned counsel for the respondent further submitted that the Revenue Appellate Authority, Raisinghnagar, has not considered statements of DW1 and DW2 i.e. Lichma w/o Natthuram and Om Prakash and thus, the order has wrongly been passed and also submitted that the Power of attorney holder cannot depose on her behalf, which is also against the provisions of order III rule 1 and 2 of the Code of 1908.

19. Learned counsel for the respondent also submitted that as per sections 101-104 of the Indian Evidence Act, 1872, the burden of proof is on the petitioner to prove the fact that she is the daughter of Kesraram which fact has not been proved by her and thus, she must depose all the facts known to her by herself and not through the power of attorney holder.

20. Heard learned counsel for the parties and perused the material available on record as well as the judgments cited at the bar.

21. This Court observes that the judgment which was relied upon by the learned counsel representing the petitioner in the case of S. Kesari Hanuman Goud Vs. Anjum & Ors. (supra), in which, the Hon'ble Apex Court observed that "the term "acts", would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined", does not support the case of the petitioner, as it has been held by the Hon'ble Apex Court that the Power of Attorney holder cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined and in the instant case only the petitioner can have the personal knowledge about the relationship between Shri Kesraram and Smt Dakha as well as the details about her place of birth.

22. This Court further observes that the Order III Rule 1 & 2 of Civil Procedure Code, 1908 empowers the power of attorney to act on behalf of the principal. The word "act" as laid down under Order III Rule 1 & 2 CPC restricts only to the extent of the acts, appearances and applications made by the power of attorney holder and thus, the term "acts" would not include deposing in place and instead of the principal. The order III Rule 1 and 2 of the civil procedure code 1908 is explicit and has no ambiguity therefore, it has to be read as it is laid down and it cannot be construed that "acts" also include that power of attorney holder can depose in place of the principal for the acts only the principal can have personal knowledge.

Furthermore, this Court observes that if the power of attorney holder has rendered some acts in pursuance of the power of attorney, he may depose for the principal in respect of such acts but he cannot depose for the acts done by the principal and not by the power of attorney holder. It is for the reason that the power of attorney holder cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. Order III Rule 1 & 2 Civil Procedure Code, 1908 is reproduced as under:-

"ORDER III Recognized Agents and Pleaders

1. Appearances, etc., may be in person, by recognized agent or by pleader.-Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2. Recognised agents.-The recognised agents of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts."

23. In the case at hand, it was for the petitioner to depose and prove the facts as to when and where the petitioner was born in order to demonstrate that she was the legitimate child of one Shri Kesraram and Smt Dakha and the power of attorney holder i.e. Uma Devi cannot be said to be having the personal knowledge about the relationship of the petitioner with Shri Kesraram and neither she can have the knowledge about the place and time of birth of the petitioner.

24. This Court also observes that the Hon'ble Apex Court in the case of Vidhyadhar Vs. Manikrao & Anr reported in1999(3) SSC 573 has held that "where a party to the suit does not appear into 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."

25. This Court further observes that as per the provisions of Order III Rule 1 & 2 of Civil Procedure Code, 1908, the petitioner does not have the right to appear as a witness or to depose statements on behalf of the petitioner for the reason that she is holding the power of attorney. Order III Rule 1 & 2 Civil Procedure Code, 1908 is reproduced as under:-

"ORDER III Recognized Agents and Pleaders

1. Appearances, etc., may be in person, by recognized agent or by pleader.-Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2. Recognised agents.-The recognised agents of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts."

26. This Court also finds that in the case of Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd & Ors., reported in2004 AIR SCW 7064, the Hon'ble Apex Court has held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. Relevant portion of the said judgment is reproduced here as under:-

"13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.

"14. Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside.

15. Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573 [LQ/SC/1999/267] observed at page 583 SCC 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".

16. In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree.

17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.

18. The aforesaid judgment was quoted with the approval in the case of case of Ram Prasad Vs. Hari Narain & Ors. AIR 1998 Raj. 185 [LQ/RajHC/1997/499] . It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.

19. In the case of Dr. Pradeep Mohanbay Vs. Minguel Carlos Dias reported in 2000 Vol.102 (1) Bom.L.R.908, the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness.

20. However, in the case of Humberto Luis & Anr. Vs. Floriano Armando Luis & Anr. reported in 2002 (2) Bom.C.R.754 on which the reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in order III Rule 2 of CPC cannot be construed to disentitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word "act" appearing in order III Rule 2 of CPC takes within its sweep "depose". We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra).

21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled."

27. This court in light of the judgment of Hon'ble Apex Court passed in Janki Vashdeo Bhojwani & Anr. (supra) observes that the general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. This fact cannot be denied that the petitioner was in a state to depose and despite the same has not deposed and such an act of the petitioner cannot be said to be lawful in light of the above mentioned precedents, particularly when the petitioner being the principal is having the personal knowledge about the relationship/ marriage if any between Shri Kesraram and Smt Dakha. Thus the writ petition is liable to be dismissed.

28. As an upshot of the discussion made herein above, the instant writ petition being bereft of merit, is dismissed.

29. Stay application as well as all other pending applications, if any, also stand disposed of.