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2010 DIGILAW 697 (KAR)

M. T. Siddashetty v. P. H. Gowda

2010-06-08

S.ABDUL NAZEER

body2010
Judgment Abdul Nazeer, J This appeal is directed against the judgment and decree in O.S.No.556/2005 dated 19.11.2009 on the file of the XII Addl. City Civil Judge at Bangalore. The appellants were the defendants No.1 and 2 in the suit and the 1st respondent was the plaintiff. The 2nd respondent was the 3rd defendant. For the sake of convenience the parties are referred to their respective ranking before the Trial Court. 2. In the suit, the plaintiff contended that defendant No.1 was the owner of the eastern portion of the property bearing site No.36, formed in sy.No.152/2 & 153/2 situated at Kethamaranahalli village, Manjunath Nagar, West of Chord Road, Bangalore, which is morefully described in the schedule to the plaint and hereinafter referred to as ‘suit schedule property’. The new number assigned to the suit schedule property was No.300 in the records of the Bruhat Bangalore Mahanagara Palike. The defendants No.1 and 2 were in possession and enjoyment of the suit schedule property. The plaintiff purchased the said property under a deed of Sale dated 13.12.2002 from the 1st defendant and his sons. The suit schedule property consists of 5 tenaments. Two portions of the said property are under the occupation of defendants No.1 and 2 and other portions are in occupation of certain other persons, the possession of which is said to have been given by the 1st defendant. After the execution of the sale deed dated 13.12.2002, symbolic possession of the property was given to the plaintiff. The 1st defendant promised the plaintiff that he would evict all the tenants from the suit schedule property and handover vacant possession of the same to the plaintiff. After the execution of the sale deed dated 13.12.2002, the plaintiff realized that the 1st defendant had not obtained necessary title deed from the BDA. Therefore, plaintiff filed an application requesting the BDA to re-convey the land in his favour. Accordingly, BDA executed the sale deed on 31.1.2004 in his favour. Thus, the plaintiff is the absolute owner of the suit schedule property. Since the defendants failed to vacate the suit schedule property, he filed the suit for possession of the property and to direct them to pay damages in a sum of Rs.1,20,000/- as well as future damages at the rate of Rs.5,000/- per month from the date of suit till handing over possession of the property. 3. Since the defendants failed to vacate the suit schedule property, he filed the suit for possession of the property and to direct them to pay damages in a sum of Rs.1,20,000/- as well as future damages at the rate of Rs.5,000/- per month from the date of suit till handing over possession of the property. 3. After service of suit summons, the defendants No.1 and 2 have appeared through their learned counsel and filed their written statement denying the plaint averments. It is contended that the plaintiff had entered into an agreement dated 13.12.2003 agreeing to purchase the entire property. On the date of execution of the sale deed dated 13.12.2002 the plaintiff paid only a sum of Rs.4,21,000/-. He has failed to pay the balance of sale consideration of Rs.2,00,000/-, which the reflected in the subsequent agreement. Unless and until the plaintiff pays the balance of Rs.2,00,000/- the defendants are not liable to vacate the suit schedule property. 4. On the basis of the above pleadings, the Court below has framed the following issues: “1. Whether the plaintiff is the owner of the suit property? 2. Whether the defendant is in possession of the suit property with permission of the plaintiff? 3. Whether plaintiff is entitled for possession of the property from the defendants? 4. Whether plaintiff is entitled to rent by way of damages at the rate of Rs.1,20,000/- from the defendants? 5. Whether plaintiff is entitled to Rs.5,000/- per month from the date of suit, till delivery of vacant possession of the suit property to the plaintiff? 6. What order or decree? 5. The plaintiff got examined himself as PW1 and Ex.P1 to Ex.P13 have been marked in his evidence. The defendant got himself examined as DW1 and a witness K.P. Govindaraju was examined as DW2. Ex.D1 to Ex.D4 have been marked in their evidence. The Court below on appreciation of the materials on record has decreed the suit in the following terms: “The suit is decreed with costs. The defendants or anybody claiming on their behalf are directed to vacate and handover vacant possession of the suit premises to plaintiff within two months from the date of this order. The defendants 1 and 2 are further directed to pay a sum of Rs.1,20,000/- to the plaintiff by way of damages. The defendants or anybody claiming on their behalf are directed to vacate and handover vacant possession of the suit premises to plaintiff within two months from the date of this order. The defendants 1 and 2 are further directed to pay a sum of Rs.1,20,000/- to the plaintiff by way of damages. The defendants are further directed to pay a sum of Rs.5,000/- p.m. from the date of suit, till handing over of the vacant possession of the suit property. Draw a decree accordingly.” 6. I have heard the Learned Counsel for the parties. 7. Sri. M.B. Hiremath, Learned Advocate appearing for the appellants would contend that having regard to the agreement at Ex.D2, the plaintiff is not entitled for delivery of possession of the suit schedule property since he has failed to pay a sum of Rs.2,00,000/- as agreed between the parties. It is further argued that total sale consideration was Rs.6,21,000/-, Out of which a sum of Rs.4,21,000/-has been paid when the sale deed Ex.P3 was executed by the 1st defendant and his sons in favour of the plaintiff. Unless and until plaintiff pays the said amount in terms of the agreement Ex.P2, defendants are not liable to vacate the suit schedule property. 8. On the other hand, Sri G.K. Krishnamurthy, Learned Counsel appearing for the respondent No.1 submits that the defendant No.1 and his children have executed a sale deed in respect of the suit schedule property in favour of the plaintiff as per Ex.P3. After the execution of the sale deed, the plaintiff realized that the land in question is a revenue land. The BDA has re-convey the property. Therefore, he made an application to the BDA for execution of a sale deed. Accordingly, the BDA executed a sale deed as per Ex.P4 dated 31.1.2004. After the purchase of the property as above, the khatha of the property was transferred in favour of the plaintiff. Thus, the plaintiff is the absolute owner of the property. After the execution of the sale deed dated 13.12.2002 symbolic possession was given to the plaintiff by the 1st defendant. Some portion of the property was in possession of the 1st defendant and his family members. He further submits that during the pendency of the suit, the 1st defendant has inducted some other persons into different portions of the suit schedule property. Some portion of the property was in possession of the 1st defendant and his family members. He further submits that during the pendency of the suit, the 1st defendant has inducted some other persons into different portions of the suit schedule property. There is no agreement as alleged by the 1st defendant as per Ex.D2 The defendant No.1 has admitted in his evidence that the original of Ex.D2 is in his custody. However he has failed to produce the same. Ex.D2 is a Xerox copy, which is not admissible in evidence. Therefore, the said document cannot be relied on by him. He further submits that pursuant to the interim order, the 1st defendant has deposited a sum of Rs.1,20,000/- in this appeal. The plaintiff is entitled to withdraw the same. He prays for dismissal of the appeal. 9. Having regard to the contentions urged, the question for consideration is whether the judgment and decree impugned herein requires interference? 10. The suit filed by the plaintiff was for possession on the basis of title. Execution of the sale deed Ex.P3 dated 13.12.2002 by the 1st defendant and his sons in favour of the plaintiff is not in dispute. The execution of the sale deed by the BDA in respect of the suit schedule property at Ex.P4 in favour of the plaintiff is also not in dispute. The only contention of the learned counsel for the appellant is that on the date of the execution of the Ex.P3, an a agreement at Ex.D2 was entered into between the parties, wherein it is stated that the plaintiff is entitled for possession of the property subject to his paying a sum of Rs.2,00,000/- to the 1st defendant. Execution of ExD2 is denied by the plaintiff PW2 in his evidence has stated that the original agreement (Ex.D2) is with his Counsel and he will produce the same before the Court if necessary. However, he has failed to produce the said agreement in the suit. 11. Section 61 of the Indian Evidence Act, 1872 (for short ‘the Act’) states that the contents of the document may be proved either by primary evidence or by secondary evidence. Primary evidence means the document itself produced for inspection of the Court. It is the best or highest evidence. 11. Section 61 of the Indian Evidence Act, 1872 (for short ‘the Act’) states that the contents of the document may be proved either by primary evidence or by secondary evidence. Primary evidence means the document itself produced for inspection of the Court. It is the best or highest evidence. In other words, it is that kind of proof which, in the eye of law, affords the greatest certainty of the fact in question. Until it is shown that the production of this evidence is out of the party’s power, no other proof of the fact is in general admitted. Section 63 of the Act defines the secondary evidence, which includes amongst others copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies. Thus, the copies made from the original by mechanical processes, which ensures their accuracy, eg. copies by photography, lithography, cyclostyle, carbon and the copies mentioned in Explanation II to Section 62 of the Act are secondary evidence Illustration (a) of Section 63 states that a photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. Section 65 of the Act provides for the procedure for production of secondary evidence. Section 65(c) states that secondary evidence may be given of the existence, condition or contents of a document when the original has been destroyed or lost or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time. The existence and execution of the document must of course be proved. Secondary evidence is not admitted mechanically or as a matter of course. If the primary evidence is not available for the reason set out in Section 65 of the Act, only then secondary evidence is admissible. However, before the secondary evidence is adduced, a proper foundation has to be laid for not producing the primary evidence. Only after non-production of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced. 12. In SMT. J.Yashoda vs. SMT K. Shobha Rani AIR 2007 SC 1721 , the Apex Court was considering marking of the photocopies of the documents in the evidence. Only after non-production of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced. 12. In SMT. J.Yashoda vs. SMT K. Shobha Rani AIR 2007 SC 1721 , the Apex Court was considering marking of the photocopies of the documents in the evidence. The Court has held that the secondary evidence as a general rule is admissible only in the absence of the primary evidence. The secondary evidence is an evidence, which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. It has been held as under: “9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under, Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without nonproduction of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.” 13. In the present case, P.W.1 has clearly admitted that original of Ex.D2 is available with his lawyer and he will produce the same before the Court if necessary. Ex.D2 is a Xerox copy of the agreement dated 13.2.2002. The plaintiff has denied the execution of Ex.D2. Therefore, the first defendant ought to have produced its original in order to establish that such an agreement was entered into between the parties when he admits that the original is with his lawyer and further states that he will produce the same if necessary. The plaintiff has denied the execution of Ex.D2. Therefore, the first defendant ought to have produced its original in order to establish that such an agreement was entered into between the parties when he admits that the original is with his lawyer and further states that he will produce the same if necessary. Therefore, the Court below was right in holding that Ex.D2 cannot be given due weightage. 14. The Court below has clearly held that plaintiff is the owner of the suit schedule property having acquired valid title under the registered sale deeds Ex.P3 and Ex.P4. The said findings recorded by the Court below is on appreciation of the evidence on record and there is no perversity, illegality or irregularity whatsoever in those findings. There is no merit in this appeal. It is accordingly dismissed. The parties are directed to beat their own costs. Draw the decree accordingly.