B. S. NAOARAJA RAO v. M. K. KRISHNA RAO — 1982 DIGILAW 260 (KAR)

G. N. SABHAHIT, J. ( 1 ) THIS appeal by the defendant is directed against the judgment and decree dated 27-9-1978 passed by the Prl. Civil Judge, bangalore Dist. , Bangalore, in RA No. 68 of 1977, on his file, allowing the appeal of the plaintiff, on reversing the judgment and decree dt. 6-7-1977 passed by the munsiff, Ramanagaram, in OS No. 58 of 1976, on his file dismissing the suit of the plaintiff. ( 2 ) THE suit schedule property, according to the plaintiff, originally belonged to one Narasinga Rao. Narasinga Rao had two sons by name Subba Rao and Neelakanta Rao. Subba Rao released his rights in the property under a registered document Ext. P-1 dt. 1009 1910 in favour of neelakanta Rao with a stipulation that neelakanta Rao should get the property redeemed as it was mortgaged earlier. Thereafter, Neelakanta Rao got the property released and thus Neelakanta Rao became the owner of the property. The said Neelakanta Rao died leaving his only daughter Shakambari Bai who died tn the year 1957 as mentioned in the plaint. The plaintiff is the husband of late Shakambari Bai and the father of deceased ramachandra Rao. Ramachandra Rao was the only son of the present plaintiff by shakambari Bai and he died according to the plaintiff about 40 years prior to his deposition before the Court, i. e. , in about the year 1933. Thereafter, the present plaintiff, who is his father, succeeded to the suit property as owner. The suit property was managed by his brother Ambaji rao and it is his case that the suit property was let in favour of the defendant's father Srinivasa Rao on a monthly rental of Rs. 3 which was raised to Rs. 5. Thereafter, however, the present defendant started claiming title in himself and the municipal Authorities, who heard both the plaintiff and the defendant, directed them under Ext. D 10 to settle their dispute regarding title in a civil Court and, accordingly, the present suit was instituted at OS no. 58 of 1976 before the Munsiff, Ramanagaram, for declaration of title of the plaintiff and for possession as also for mesne profits. ( 3 ) THE suit was resisted by the defendant on the ground that the suit property never belonged to the plaintiff, that shakambari Bai was not bis wife and that Ramachandra Rao was not his son. 58 of 1976 before the Munsiff, Ramanagaram, for declaration of title of the plaintiff and for possession as also for mesne profits. ( 3 ) THE suit was resisted by the defendant on the ground that the suit property never belonged to the plaintiff, that shakambari Bai was not bis wife and that Ramachandra Rao was not his son. He was put to strict proof of his title. According to the defendant, he was the owner of the suit property and he never paid rent to anybody. He paid Municipal taxes and hence he contended that the suit was not maintainable against him. Alternatively, he contended that the suit was barred under Art. 142 of the Limitation Act. ( 4 ) THE trial Court raised the following issues as arising from the pleadings : (1) Whether the plaintiff proves his title to the suit schedule property as absolute owner ?or (2) Whether the plaintiff further proves that the defendant is a tenant under him in respect of the suit property on a monthly rental of Rs. 5, as alleged ? or whether the derendant further proves that neither he nor his father was a tenant in respect of the suit property and he is residing there in his own right ? (3) Whether the suit is not maintainable as contended in para 11 of the written statement ? (4) Is the suit as brought has no cause of action ? (5) Is the suit brought by the plaintiff barred by limitation ? (6) Whether the suit is not properly valued and the Court-fee paid thereon is insufficient ? (7) Whether the plaintiff is entitled for declaration ? (8) Whether the plaintiff is entitled for possession ? (9) Whether the plaintiff is entitled for past mesne profits of Rs. 180 ? (10) Whether the plaintiff is entitled for future mesne profits under Or. XX, r. 12 of the CPC ? (11) To what reliefs the parties are entitled ? ( 5 ) THE learned Munsiff, appreciating the evidence on record, answered Issue no. 1 in the negative, Issue No. 2 in the negative and against the plaintiff and in favour of the defendant and he answered issue Nos. 3 and 4 in the negative while answering Issue No. 5 in the affirmative. He answered Issues Nos. ( 5 ) THE learned Munsiff, appreciating the evidence on record, answered Issue no. 1 in the negative, Issue No. 2 in the negative and against the plaintiff and in favour of the defendant and he answered issue Nos. 3 and 4 in the negative while answering Issue No. 5 in the affirmative. He answered Issues Nos. 6 to 10 in the negative and in that view, he dismissed the suit of the plaintiff, directing the parties to bear their own costs. Aggrieved by the said judgment and decree, the plaintiff went up in appeal before the Prl. Civil Judge, Bangalore Dist. , Bangalore, in RA No. 68 01 1977, on his file. The learned Civil Judge on hearing the arguments addressed before him, raised the following points as arising for his consideration in the appeal : (1) Whether the appellant/plaintiff has proved his title to the suit schedule property ? (2) Whether the appellant/plaintiff has proved before Court that Srinivasa rao was a tenant in respect of the suit property till his death and thereafter the present defendant has continued to remain in possession of the property as tenant ? (3) What order ? ( 6 ) THE learned Civil Judge, reassessing the evidence on record, answered that the plaintiff proved his title to the suit property under point No. 1. He answered point No. 2 in the affirmative and. In that view he allowed the appeal, set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff as prayed for. Aggrieved by the same, the defendant has come op with the above second appeal before this Court. ( 7 ) DURING the pendency of this appeal, the original defendant dled and his legal representatives were brought on record. ( 8 ) THE learned counsel appearing for the appellant strenuonsly urged before me that the Court below was dot justified in holding that the plaintiff proved his title to the suit property. He further submitted that even in case it was held that the plaintiff proved his title, the Court below should have further held that the title was lost by adverse possession. He further submitted that there is variation between the pleadings and the proof, especially with regard to the death of Shakambari bai. He further submitted that the Court below was not justified in relying on Ext. He further submitted that there is variation between the pleadings and the proof, especially with regard to the death of Shakambari bai. He further submitted that the Court below was not justified in relying on Ext. P 4," which was of a dubious nature, which was not proved in accordance with law. Further, according to him, even assuming that Narasinga Rao was the owner of the property and after his death, his two sons namely, Subba Rao and neelakanta Rao, were the owners, Fxt. P-1, the release deed was not legally proved in the sense that the contents of the deed were not proved by adducing evidence aliunde. Further, he submitted that the learned Civil Judge has held that the defendant continued as a tenant and, hence, he was not justified in decreeing the suit as prayed for ordering dispossession of the tenant, since the provisions of the Rent Control Act came in the way for awarding possession. ( 9 ) AS against that, the learned counsel appearing for the legal representatives of the original plaintiff /respondent argued supporting the judgment and decree of the learned Civil Judge, the first appellate court. ( 10 ) THE points, therefore, that arise for my consideration in this appeal are : (1) Whether the Court below was justified in holding that the plaintiff proved his title ? (2) Whether the Court below was justified in holding that the defendant failed to establish adverse possession ? (3) Whether the Court below was justified in relying on Exts. P-1, P 3 and P-4 ? (4) Whether the judgment and decree of the first appellate Court require interference ? ( 11 ) IT may, at once, be observed that the jurisdiction of this Court, sitting in second appeal is very much restricted. When the Court below gives a finding on a question of fact, it becomes final, unless it is showh that the procedure adopted and the application of law were erroneous. ( 12 ) THE Supreme Court of India, in the case of Afsar Shaik v. Soleman Bibi (1 ). speaking on this aspect, has ruled in para 18 of the judgment thus :". . . The scope of the powers of the high Court to interfere in second appeal with judgments and decrees of Courts below is indicated in Ss. 100, 101 and 103 of the CPC. Broadly, the effect of ss. speaking on this aspect, has ruled in para 18 of the judgment thus :". . . The scope of the powers of the high Court to interfere in second appeal with judgments and decrees of Courts below is indicated in Ss. 100, 101 and 103 of the CPC. Broadly, the effect of ss. 100 and 101, read together, is that a second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of fact. The High court has no jurisdiction to entertain a second appeal on the 'ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be'. . . . . . " ( 13 ) THE finding on a question of title is essentially a finding of fact and, hence, prima facie, this Court is bound by the finding given on a question of fact by the first appellate Court, which is the final court in matters of fact finding. Even so, since the learned counsel appearing for the appellant submitted that the finding arrived at was not in accordance with law, it is necessary to consider that aspect in some detail. ( 14 ) THE learned counsel for the appellant first of all submitted that Ext. P 1, the release deed, though it is dt. 10 9-1910 and the suit was instituted in the year 1976 and as such, it was an ancient document, the presumption that arises under S. 90 of the Evidence Act, could only be confined to the proper execution that the document was duly executed and attested by the persons by whom it purports to be executed and attested Hence he submitted that unless its contents are proved by cvidenes aliunde, it could not be looked into. For this proposition, he relied upon a division Bench decision of the Calcutta high Court in the case, Kotiswar Mukherjee v. Pareshnath Mukherjee (2 ). It is laid down therein that the language used in S. 90 of the Evidence Act indicat. es that the presumption raised is a permissive one and that though it is not obligatory on a Court to raise the presumption, it is a matter of judicial discretion whether the Court will make the presumption or call upon the party to offer other proof. es that the presumption raised is a permissive one and that though it is not obligatory on a Court to raise the presumption, it is a matter of judicial discretion whether the Court will make the presumption or call upon the party to offer other proof. It is further stated that s. 90 of the Evidence Act makes it clear that the presumption which is to be raised relates only to the signature, execution or attestation of a document and that it does not involve any presumption that the contents of the document are true or that it had been noted upon and further that such allegation has to be proved on adducing proper and relevant evidence. ( 15 ) THERE can be no dispute about this proposition of law. But it is also necessary to bear in mind that S. 90 of the Evidence Act is incorporated in the Statute for the obvious reason that it would be difficult to adduce evidence as time passes by. In due course of time, the witnesses and the attestors may die or became unable to give their evidence. It is in order to get over this difficulty that S. 90 of the evidence Act is incorporated in the said act. Hence, on the same reason, it may be proper to hold that it would not be possible to adduce evidence of the persons concerned in the case of an ancient document to prove the contents and that the circumstances probabiiising the contents brought on record would be sufficient to prove the contents and the fact that it was acted upon. (Vide : Banga Chandradhar biswas v. Jagat Kishore Ackarjya (3) ). ( 16 ) IN the instant case, both Subba Rao and Neelakanta Rao are no more. In the circumstances, the only circumstance probabiiising of the contents of the document ext. P 1 is Ext. P 3. Ext. P 1 clearly states that Subba Rao had mortgaged the property and it was up to Neelakanta Rao to redeem the mortgage. We have on record ext. P-3 dt. 11-5-1912 which speaks of redemption of the suit property. That probabilises on the peculiar facts of the case that Ext. P-1 was a real and genuine document and it goes to prove the contents of Ext. P-1. We have on record ext. P-3 dt. 11-5-1912 which speaks of redemption of the suit property. That probabilises on the peculiar facts of the case that Ext. P-1 was a real and genuine document and it goes to prove the contents of Ext. P-1. It may further be noted as rightly pointed out by the learned Civil judge that the number given by the Municipality to the suit premises is changed from time to time. The boundary on the northern side remains the same, namely, 'high Road', though the boundaries on other sides are also differently mentioned because different persons occupied the property all around. Hence, I have no hesitation to hold, agreeing with the learned civil Judge, that Ext. P 3 proves the contents of Ext. P-l and read together they make it clear that the suit property became the exclusive property of Neelakanta rao. After the death of Neelakanta Rao, it was inherited by Shakambari Bai. Shakambari Bai married the present plaintiff and though it was denied in the written statement that there was such relationship between the plaintiff and Shakambari Bai, the defendant in his evidence has clearly admitted that Shakambari Bai was the wife of the present plaintiff and further that Ramachandra Rao was their son. That being so. the suit property which was of the exclusive ownership of Neelakanta rao and which was inherited by Shakambari Bai, was inherited by the present plaintiff after the death of Shakambari bai. That is the finding of the learned civil Judge and there is nothing illegal or erroneous about it. ( 17 ) IT is true that it is stated by mistake obviously in the plaint that Shakambari bai died in the year 1957. That has been explained by the plaintiff in his evidence that it is not correct. But, the learned civil Judge while taking it down in english has no doubt stated that he told it as false it could only mean that it is not correct and that he has held that Shakambari Bai died in or about the year 1935 and when she died her son Ramachandra rao was about two years old. Ext. P-5 is the birth certificate of this Ramachandra Rao. That shows the date of birth of ramachandra Rao as 3-4-1933'. Ext. P-5 is the birth certificate of this Ramachandra Rao. That shows the date of birth of ramachandra Rao as 3-4-1933'. When ramachandra Rao was about two years at the time of the death of his mother, the probable date of the death of his mother would be 1935 which coincides with the date given by the plaintiff in his deposition and renders his version probable. In Ext. P 5, the name of the father is shown as 'srikanta Rao, Assistant School Teacher and the date of birth is shown as 3-4-1933'. It was registered on 27-6-1933. ( 18 ) BUT, the learned counsel appearing for the appellant pointed out that the name of the mother is not shown in this ext. P 5. That loses all importance because the defendant himself has admitted in the deposition that Shakambari Bai was the wife of Srikanta Rao and Ramachan- dra Rao was their son. The other objection raised with regard to Ext. P 5 is that the place of birth is shown to be 'police road' and the learned counsel who appeared before the learned Civil judge explained that Police Roat and Siddikatte are adjacent localities That is a matter of geographical knowledge and the learned civil Judge has believed it. I have no reason to differ. Therefore, by reading ext. P 5 with the evidence of the plaintiff and the defendant, I am satisfied that ramachandra Rao was born on 3-4-1933 and that he was the son of Srikanta Rao by Shakambari Bat. Obviously, therefore, ramachandra Rao inherited the property of Shakambari Bai. But, since he died on 27-6-1957 according to Ext. P 4, the property was inherited by his father. That is the finding of the learned Civil Judge, I have no reason to differ. ( 19 ) IT was no doubt argued before me that in Ext. P 4 the name of the father was first shown as 'srikanta Rao', but, subsequently, struck off and it was not got corrected even though the certificate was with the plaintiff for a number of years. The plaintiff has given explanation that he being a Teacher, was busy and hence, he could not take it back and get it corrected. But, apart from the certificate, there is the evidence of the father himself. The plaintiff has given explanation that he being a Teacher, was busy and hence, he could not take it back and get it corrected. But, apart from the certificate, there is the evidence of the father himself. The best persons who could give evidence with regard to the birth or death of a child are the parents and Srikanta Rao in his evidence has stated that his son died about eleven years before his retirement and he retired in the year 1960. That corroborates Ext. P 4. It is no doubt true that mere production of a certificate of birth or death is not sufficient to prove the date of birth or death. The person concerned has to enter the witness box and swear that that certificate relatcs to his son or daughter. In the instant case, Srikanta rao has stepped into the witness box and sworn that the certificates Exts. P 4 and p-5 relate to his son Ramachandra Rao. There is no reason to doubt it especially so when the contention that Ramachandra rao was not the son of Srikanta Rao is waived by the defendant himself in his deposition. Hence, the ruling rendered by this Court in the case, Thimrnakku v. Bandlu Rangappa (4), would not be relevant to the facts of the present case and 1 am satisfied that Ramachandra Rao was born on 3 4 1933 and he died on 27 6 1957. ( 20 ) IT may also be noted further that at the time when the earlier suit was instituted at OS No. 424 of 1941 42. as per ext. D 1, the age of Ramachandra Rao is shown as nine years. That was during the undisputed times. That again probabilises that Ramachandra Rao was born in 1933 as shown in Ext. P 5. Hence, agreeing with the learned Civil Judge, I have no hesitation to hold that Ramachandra Rao died in about 1957 and, after his death. Srikanta Rao became the heir to the property, namely, the suit property ( 21 ) THE learned counsel appearing for the appallant also contended that the suit property itself is not properly identified as the numbers are changed very often. The learned Civil Judge has discussed this aspect at length and he has shown that earlier in Ext. Srikanta Rao became the heir to the property, namely, the suit property ( 21 ) THE learned counsel appearing for the appallant also contended that the suit property itself is not properly identified as the numbers are changed very often. The learned Civil Judge has discussed this aspect at length and he has shown that earlier in Ext. P~9, at any rate, the number was mentioned as 135' and in some of the tax receipts produced by the plaintiff the same number is mentioned. Besides, while showing the boundaries in all the concerned deeds, the northern boundary is shown at 'the road'. That being a fixed boundary unchanging, has remained the same. The boundaries on other sides have changed because different persons resided in different houses from time to time. In that way, he has come to the conclusion that the house in question is the same as the one which Shakambari Bai inherited from her father and which Ramachandra Rao inherited from Shakambari Bai and which was in turn inherited by the present plaintiff. I have no reason to differ. That being so, I am satisfied that the learned civil Judge was justified in holding that the suit property belongs to the plaintiff by inheritance. ( 22 ) THE learned Civil Judge has rightly pointed out that the learned Munsiff was not justified in applying Art. 142 to the facts of the case and in holding that the plaintiff did not establish his possession within twelve years prior to the institution of the suit. After the amendment of the limitation Act in 1963, it is Art. 65 that applies. When the suit is brought for possession on title, it is for the defendant to plead and prove that he has perfected his title by adverse possession. As rightly pointed out by the learned Civil Judge, the first time that he denied the title of the plaintiff and claimed title in himself is when he made an application to the Municipality in the year 1967. The suit is instituted in the year 1976. Therefore, the learned Civil Judge is perfectly justified in holding that the defendant has miserably failed to establish adverse possession. The suit is instituted in the year 1976. Therefore, the learned Civil Judge is perfectly justified in holding that the defendant has miserably failed to establish adverse possession. ( 23 ) THE next question for my consideration would be whether the defendant is the tenant under the plaintiff and, if so, the learned Civil Judge was justified in ordering eviction as the provisions of the rent Control Act applied to the area. ( 24 ) IT is true that while answering point No. 2, the learned Civil Judge has stated that the father of the defendant was inducted as tenant and his son also continued in that capacity. But, even so, the facts on record would clearly establish, as also the contention taken in the written statement, that the defendant never claimed to be the tenant under the plaintiff ; he has denied the title of the plaintiff and it is for that reason that the Municipality referred the parties to file the suit for declaration of title. Ext. D 10 makes that position clear. That states : "with reference to their applications dt. 1-12-1967 and 6-12-1967, requesting the change of khata of Assessment No. 683/393, in their favour, respectively, sriyuths M. K. Srikanta Rao and B. S. Nagaraja Rao, are informed to approach the Court of law to prove the right over the property first and then approach this office for effecting the change of khata as this is a question of purely civil nature". That clearly establishes that as early as in 1967 itself, the defendant did not claim to be a tenant under the plaintiff and even denied the title of the plaintiff; and thereby forfeited the tenancy in respect of the suit house, if any, and, hence, there was no bar for the learned Civil Judge to order eviction of the suit property in favour of the plaintiff as in such a case the provisions of the Rent Control Act are not attracted. ( 25 ) IN the result, I am of the considered view that there are no grounds to interfere with the judgment and decree rendered by the learned Civil Judge and the present appeal is devoid of merits and I dismiss the same. In the peculiar facts of the case, I make no order as to costs of this appeal. --- *** --- .