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1996 DIGILAW 139 (KAR)

T. ANTHONIDAS ALIAS T. A. DAS v. S. P. MARIYAPPA

1996-02-26

J.ESWARA PRASAD

body1996
J. ESWARA PRASAD, J. ( 1 ) THE First Additional Munsiff, Shimoga, is the appellant. The suit is filed by the respondent for recovery of Rs. 3,960/- towards arrears of rents due from 15-12-1979 to 15-9-1982. The suit was resisted by the appellant contending that the rent was not Rs. 120/- as claimed by the respondent and that the rent was only rs. 50/- per month and that there were no arrears. The Trial court dismissed the suit. The appeal filed by the respondent was partly allowed to the extent of costs by the Additional Civil judge, Shimoga, in Regular Appeal No. 76 of 1987. The learned judge upheld the findings of the Trial Court, except with regard to Exhibit P-1, lease deed. It was held that Exhibit P-l was executed by the appellant. ( 2 ) THE learned Counsel for the appellant confines his arguments to the correctness of the finding of the Appellate court with regard to Exhibit P-l. He contends that the attestor of Exhibit P-l is not examined and hence, the provisions of section 68 of the Evidence Act are not complied with and that the finding with regard to Exhibit P-1 cannot be sustained. ( 3 ) EXHIBIT P-l is an unregistered lease deed for a period of 11 months. Apart from examining himself as P. W. 1, the respondent examined two witnesses as P. W. 2 and P. W. 3. The appellant denied execution of Exhibit P-l and contended that Exhibit P-1 was fabricated on his signed papers. The learned Judge accepted the evidence of P. W. 1 and P. W. 2 and rejected the evidence of the appellant in holding that the respondent proved the execution of Exhibit P-l and that the appellant failed to prove that Exhibit P-l was concocted on signed papers. His finding is a finding of fact that is based on appreciation of evidence and cannot be interfered within second appeal. ( 4 ) THE contention of the learned Counsel for the appellant based on Section 68 of Evidence Act has to be rejected for the reason that Section 68 comes into play only if the document is required by law to be attested. Only when the document is required by law to be attested, at least one attesting witness has to be called for the purpose of proving its execution, under section 68. Only when the document is required by law to be attested, at least one attesting witness has to be called for the purpose of proving its execution, under section 68. There is no law requiring attestation of an unregistered lease deed. ( 5 ) SECTION 107 of the Transfer of Property Act deals with the procedure as to how leases have to be made. Section 107 does not require attestation of a lease not exceeding one year. When the lease deed in Exhibit P-l requires no attestation, Section 68 of the Evidence Act will not be applicable. Exhibit P-1 could be proved by examining the scribe as done in this case. The learned judge was not in error in not rejecting Exhibit P-l, for the non- examination of an attestor. ( 6 ) FOR all the aforesaid reasons, the appeal fails and is dismissed. --- *** --- .