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1986 DIGILAW 354 (KAR)

BICHAMMA v. NAGREDDY

1986-08-29

M.S.NESARGI, R.G.DESAI

body1986
NESARGI, J. ( 1 ) THE defendants in O. S. No. 105 of 1971 on the file of the Civil Judge, bidar, have, in this appeal, challenged the legality and correctness of the decree dated 16-12-1975 decreeing the suit of the respondents-plaintiffs. ( 2 ) SURVEY Nos. 70 and 79 of Mailoor village, Bidar Taluk, were of the ownership of one Sangamma. This sangamma is the mother of defendant-1 appellant-1 Bichamma ; appellant-2- defendant-2 Bheemreddy is the son of bichamma and appellant-3-defendant-3 manikreddy is the son-in-law of Bichamma. When Sangamma was alive, she had executed a registered deed of power of attorney in favour of Ramareddy on 9-11-1957 (Exhibit P-3 ). ( 3 ) THE plaintiffs case is this Ramareddy (not examined) executed a lease deed as per Ex. P-9 on 19-1-1960 in favour of the plaintiffs granting permanent lease of these two lands to them and they entered into possession. Later on Ramareddy colluded with the defendants after the death of Sangamma and therefore disputes arose. ( 4 ) IT is an undisputed fact that proceedings under Section 145 of the code of Criminal procedure were instituted in Case No. 217 of 1968 on the fife of the First Class Magistrate Court, bidar and the two lands were attached. A Receiver was appointed. The Receiver got the lands cultivated on 'ek salt' basis. The lease amount collected was being deposited in the Court. Ultimately the Magistrate concluded the proceeding and held that the appellants defendants were in possession. ( 5 ) IT is also on record that in the years 1963-64 the names of the appellants were entered in the pahani patrak and therefore the plaintiffs instituted a case in the Court of the Tahsildar, Bidar in RRT No. 872/63-64 and the Tahsildar, bidar, decided in favour of the plaintiffs on 13. 8-1963. Nextly it is undisputed that this order was set aside, an order of remand was made and the matter is still pending decision. ( 6 ) IN view of the fact that the first Class Magistrate had decided the proceedings under S. 145 of the Code of Criminal Procedure against the plaintiffs on 24-4-1970, the plaintiffs filed a criminal Revision Petition in this Court and this Court dismissed the revision petition confirming the order passed by the First Class Magistrate. ( 6 ) IN view of the fact that the first Class Magistrate had decided the proceedings under S. 145 of the Code of Criminal Procedure against the plaintiffs on 24-4-1970, the plaintiffs filed a criminal Revision Petition in this Court and this Court dismissed the revision petition confirming the order passed by the First Class Magistrate. ( 7 ) AS the order passed by the First class Magistrate on 24-4-1970 came to be confirmed by this Court, the plaintiffs have filed the present suit. ( 8 ) THE reliefs sought for by the plaintiffs are that it be declared that the plaintiffs are the possessors of the suit lands; possession of the suit lands be restored to them; the defendants be restrained perpetually from taking possession of the suit lands; the accounts of the lavani amount be settled and the plaintiffs be given the entire lavani amount deposite in the criminal Court and the costs of the suit be awarded to the plaintiffs. ( 9 ) IT is made clear that possession sought for is from the Receiver as the receiver was still continuing to execute his work in view of the fact that when the Magistrate directed the Receiver to hand over possession to the defendants, the plaintiffs got the order stayed. ( 10 ) THE defendants have contested the suit by challenging the execution of the power of attorney Exhibit P-3 by sangamma in favour of Ramareddy; execution of the lease deed Exhibit P-9 by Ramareddy and the fact that the plaintiffs have never been in possession of the suit lands. ( 11 ) THE facts narrated in the preceding paragraphs and the reliefs prayed for by the respondents-plaintiffs make it abundantly clear that the plaintiffs have not sought for declaration of right, title or interest in the suit lands but have only sought for a declaration that they are possessors of the suit lands and for consequential relief of possession from the Receiver. In this view of the matter, the question whether the plaintiffs are the lessees of the suit lands does not arise for consideration and therefore the bar under Section 132 of the Karnataka land Reforms Act and the application of section 133 of the Karnataka Land reforms Act will not arise for consideration. In this view of the matter, the question whether the plaintiffs are the lessees of the suit lands does not arise for consideration and therefore the bar under Section 132 of the Karnataka land Reforms Act and the application of section 133 of the Karnataka Land reforms Act will not arise for consideration. ( 12 ) THE plaintiffs have relied on exhibit P-4 which is said to be the certified copy of the statement of Ramareddy in RRT proceeding ; Exhibit P-5 which is said to be the certified copy of the statement of Bichamma in the said proceeding and Exhibit P-9 the unregistered deed purporting to be lease deed granting perpetual lease in favour of the plaintiffs by Ramareddy as power of attorney holder of Sangamma. The learned Civil Judge has held that in view of Section 114 of the Indian Evidence act adverse inference has to be drawn because of the fact that defendant-1 bichamma had not entered the witness box. He has held that Exhibit P-4 the certified copy of the statement of Ramareddy in the RRT proceeding is admissible in evidence under Section 33 of the evidence Act. On what basis he has admitted in evidence Exhibit P-5 is not known. Exhibit P-5 is nothing but a prior statement said to have been made by bichamma in the RRT proceeding. It is plain that Section 145 of the Indian evidence Act would be attracted. When that is so, Exhib:t P-5 could have been used only to contradict the statement of bichamma who had never entered the witness box. Hence Exhibit P-5 is clearly inadmissible in evidence, ft has been illegally admitted in evidence. The same reasoning holds good in respect of Exhibit P-4 the certified copy of the statement of Ramareddy in RRT proceeding. ( 13 ) EXHIBIT P-9 is an unregistered document. By Exhibit P-9 Ramareddy purports to grant perpetual lease to the plaintiffs. In effect it is a narration of facts by Ramareddy. If it had been registered, it would have been before a proper authority. In that case, it could have been used only under Section 145 of the indian Evidence Act for contradicting the statement of Ramaraddy. If it had been registered, it would have created legal rights in favour of the plaintiffs. If it had been registered, it would have been before a proper authority. In that case, it could have been used only under Section 145 of the indian Evidence Act for contradicting the statement of Ramaraddy. If it had been registered, it would have created legal rights in favour of the plaintiffs. As it has not been registered, no such legal right can be said to have been created in favour of the plaintiffs. Therefore, it would be inadmissible in evidence to establish such a right. We have already pointed out that the plaintiffs have not sought for declaration of such a right in their favour. In view of these circumstances, we fail to understand how, as reasoned by the trial Court, this unregistered document, marked Exhibit p-9, will be admissible in evidence under the proviso to S. 49 of the Registration act. ( 14 ) IN view of the foregoing reasons, Exhibits P-4, P-5 and P-9 will have to be left out of consideration. That leaves the Court with the oral evidence of P. Ws. 2 and 4 on the question of possession of the suit lands by the plaintiffs. ( 15 ) THE First Class Magistrate, after holding an enquiry in accordance with the provisions of law, concluded that the possession was with the defendants as on the date of the preliminary order. That conclusion was confirmed by this Court when the criminal revision petition filed by the plaintiffs came to be dismissed. That order has become final. Under such circumstances, the remedy open for the plaintiffs was to seek declaration of their title and pray for a decree for possession as a consequential relief. They have not done so. They have sought for declaration that they are possessors of the suit lands. In other words, what they have prayed for is to declare that the orders passed by the High Court and therefore by the First class Magistrate in the proceedings under Sec. 145 of the Code of Criminal procedure are not correct and legal. Prayer for such a relief cannot, in law. be considered unless on the grounds of fraud. Allegations of fraud have not been made out in the suit. Therefore, this relief as prayed for cannot be granted. Prayer for such a relief cannot, in law. be considered unless on the grounds of fraud. Allegations of fraud have not been made out in the suit. Therefore, this relief as prayed for cannot be granted. When the support of the contents of Exhibits P-4, P-5 and P-9 is taken away and the entries in the Record of rights extracts are still pending consideration before the competent authorities, this oral evidence will have no legs to stand. In fact in paragraph 17 of the judgment, the trial Court has reasoned that the oral evidence of P. W. 2 is supported by Exs. P-4, P-5 and P-9 and therefore it places reliance on that evidence. If the prop of Exs. P-4, P-5 and p-9 to the evidence of P. W. 2 is taken away as against that evidence, the order passed by this Court in the criminal revision petition will be final. Therefore we conclude that the plaintiffs have failed to establish satisfactorily that they were in possession of the suit lands as on the date of suit and as such they are entitled to restoration of possession from the Receiver. ( 16 ) IN the result, this appeal is allowed, the judgmant and decree passed by the Civil Judge, Bidar, in O. S. No. 105 of 1971 are set aside and the plaintiffs, suit is dismissed. No order as to costs throughout. --- *** --- .