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2011 DIGILAW 1073 (KAR)

Maramma v. Siddappa

2011-11-03

H.N.NAGAMOHAN DAS

body2011
JUDGMENT H.N. NAGAMOHAN DAS, J.—This second appeal is directed against the judgment and decree dated 10.1.2005 in O.S. No. 431/1995 passed by the II Additional Civil Judge (Senior Division) Mysore and confirmed by the judgment and decree dared 20.3.2008 in R.A. No. 9/2005 passed by the Fast Track Court I at Mysore. 2. Appellants arc the defendants and respondents are the plaintiffs before the Trial Court in O.S. No. 431/1995. In this judgment for convenience the parties are referred to their status before the trial Court. 3. Plaintiffs contend that their father late Mahantaiah during his life time acquired the plaint schedule properties under two registered sale deeds dated 1.9.1944 and 11.9.1944. Plaintiffs’ father Mahantaiah was in possession and enjoyment of the plaint schedule properties and after his demise-the plaintiffs being the legal representatives have succeeded to the plaint schedule properties and they are in possession and enjoyment of the same. On the basis of illegal entry of names of defendants in the RTC they are trying to interfere with the plaintiffs’ possession and enjoyment of the plaint schedule properties. Therefore, the plaintiffs filed O.S. No. 431/1.995 for declaration of title and permanent injunction. In the alternative they have prayed for recovery of possession of plaint. schedule properties from the defendants. 4. Defendant Nos. 1 to 3 entered appearance before the Trial Court and filed written statement inter alia contending that the plaint schedule properties originally belongs to their grandfather Chennabasappa and he was in possession and enjoyment of the same. Chennabasappa during his life time transferred the plaint schedule properties in favour of Basavaiah-father of defendant No. 1. It is further contended that defendant No. 1 is married 10 one Chennaveeraiah and out of this wedlock defendant Nos. 2 and 3 are-born. Father of defendant No. i Basavaiah transferred the plaint schedule properties in favour of Chennaveeraiah — husband of defendant No. 1. Consequently Chennaveeraiah was personally cultivating the plaint schedule properties till his death. After the demise of Chennaveeraiah defendant Nos. 1 to 3 as his legal representatives are in possession and enjoyment of the plaint schedule properties on their own right. The revenue records relating to the plaint schedule properties are in the name of defendant Nos. 1 to 3. On these grounds defendant Nos. 1 to 3 opposed the claim of plaintiffs. 5. During the pendency of the proceedings before the Trial Court defendant Nos. The revenue records relating to the plaint schedule properties are in the name of defendant Nos. 1 to 3. On these grounds defendant Nos. 1 to 3 opposed the claim of plaintiffs. 5. During the pendency of the proceedings before the Trial Court defendant Nos. 1 to 3 sold a portion of the plaint schedule property in favour of defendant No. 4. In view of this development, defendant No. 4 was impleaded as a party to the proceedings, Defendant No. 4 filed separate written statement inter alia contending that he is a bona fide purchaser for valuable consideration and he is in possession and enjoyment of a portion of the plaint schedule property. On the basis of pleadings the Trial Court framed the following issues and additional issues for its consideration, (i) Whether the plaintiffs prove that the suit schedule properties were purchased by late Mahanthaiah under registered sale deeds dated 1.9.1944 and 11.9.1944 and after his death, they are in possession and enjoyment of the same? (ii) Whether the plaintiffs prove that Chennaveeraiah got the entry in respect of the properties in the revenue records unauthorisedly? (iii) Whether the plaintiffs are entitled for the relief of declaration and permanent injunction sought by them? (iv) What order’? Additional issue date 31.7.2011 (i) Whether 4th defendant proves that he is a bona fide purchaser of the suit property for valuable consideration? Additional issue framed on 19.9.2002 (i) whether plaintiff proves that in the alternative he is entitled for possession of suit property? Additional issue framed on 19.9.2002 (i) Whether defendants 1 and 2 prove that the relief for possession of suit property is barred by time? 6. Before the Trial. Court plaintiffs examined 4 witnesses as P.W. 1 to P.W.4 and not marked Ex. P1 to Ex. P14. The defendants examined 4 witnesses as D.W. 1 to D.W. 4 and got marked Ex. D1 to Ex. D41. The Trial Court on appreciation of the pleadings, oral and documentary evidence held that the plaintiffs’ father acquired the plaint schedule properties under two registered sale deeds as per Ex. P.2 and Ex. P3 and he was in possession and enjoyment of the same. After the demise of Mahantaiah the plaintiffs being the legal representatives have succeeded to the plaint schedule properties and they are entitled for declaration of title. P.2 and Ex. P3 and he was in possession and enjoyment of the same. After the demise of Mahantaiah the plaintiffs being the legal representatives have succeeded to the plaint schedule properties and they are entitled for declaration of title. On the basis of illegal entry of defendants’ name in the RTC they came in possession of plaint schedule properties and, therefore, granted a decree for recovery of possession. Consequently under the impugned judgment the Trial Court decreed the suit of plaintiff for declaration of title and recovery of possession. 7. Aggrieved by this judgment and decree of the Trial Court. the defendants filed an appeal, in R.A. No. 9/2005 on the file of the first Appellate Court. After hearing arguments the first Appellate Court, framed the following points for its consideration. (i) Whether the Trial Court committed any error in appreciating the evidence on record both oral as well as documentary? (ii) Whether the Trial Court committed any error in reiving on the documents like Ex. P2 and Ex. P3 in discerning the plaintiffs title to the property? (iii) Whether the Trial Court committed any error in discerning the defendants to hand over the possession of the suit schedule properties in favour of the plaintiffs’? (iv) Whether the Trial Court failed to appreciate that the defendant No. 4 was bona fide purchaser of the part of the schedule property, and that he is entitled to protect his possession as well as title? (v) What order? 8. On reappreciation of the entire material on record the first Appellate Court passed the impugned judgment dismissing the appeal and confirming the judgment of the Trial Court. Hence, this second appeal. 9. This Court by order dated 17.12.2008 admitted the appeal to consider the following substantial question of law. “Whether the Courts below were justified in acting upon the certified copies Ex. P2 and P3 in the absence of the original of the same being produced and could the Courts have drawn a presumption under Section. 90 of the Evidence Act having regard to the position in law as has been held in the case reported in AIR 1958 AP 720 ?” 10. I heard arguments on both the side and perused the entire appeal records. 11. Plaintiffs contend that their father Mahantaiah acquired the plaint schedule properties under two registered sale deeds dated 1.9.1944 and 11.9.1944. I heard arguments on both the side and perused the entire appeal records. 11. Plaintiffs contend that their father Mahantaiah acquired the plaint schedule properties under two registered sale deeds dated 1.9.1944 and 11.9.1944. P.W.I in his evidence specifically stated that the originals of two sale deeds are eaten by mice and as such the criminals are not available. By laving this foundation for loss of originals P,W. 1 produced the certified copies of two sale deeds and they are marked as Ex. P2 and Ex. P3, On this evidence of P.W.S there is no cross-examination. Ex. P2 and Ex. P3 are the certified copies of the original sale deeds dated 1.9.1944 and 11.9.1944 obtained from the office of Sub-Registrar. Section 63 of the Evidence Act specifies what is meant by secondary evidence. The certified copies obtained from the office of Sub-Registrar is a secondary evidence. Section 65 of the Act specifies as to when secondary evidence can be produced. The Conns below had taken in to consideration Ex. P2 and Ex. P3 and the same is in accordance with Section 63 and 65 of the Act, There is no illegality in this approach of the Courts below. 12. Section 90 of the Evidence Act (for short ‘the Act’) speaks about rising a presumption about the execution and attestation of a document which is 30 years old. The Supreme Court in the case of Sri. Lakhi Baruah and others vs. Sri. Padma Kanta Kalita and others, AIR 1996 SC 1253 held as under: “17. The position since the aforesaid Privy Council decisions being followed by later decisions of different High Courts is that presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old; but if a foundation is laid for the admission of secondary evidence under Section 65 of the Evidence Act by proof” of loss or destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine.” 13. Learned Single Judge of this Court, in the case of Shivaji vs. Parvathibai and others, ILR 2007 Kar. 5062, following the law laid down by the Apex Court in Lakhi Baruah’s case held as under: “12. Learned Single Judge of this Court, in the case of Shivaji vs. Parvathibai and others, ILR 2007 Kar. 5062, following the law laid down by the Apex Court in Lakhi Baruah’s case held as under: “12. In Lakhi Baruah and others case (supra), referring to Section 90 of the Evidence Act, the Apex Court has held that presumption under Section 90 does not apply to a copy or certified copy even though thirty years old. But, if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act by proof of loss or destruction of the original document and the copy of which is thirty years old is produced from, proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine.” 14. In the instant case a foundation is laid in the evidence of P.W. 1 for loss of original sale deeds. The certified copies of these two sale deeds obtained from the office of the Sub-Registrar are produced and marked as Ex. P2 and Ex. P3 as secondary evidence. These two sale deeds are more than 30 years old. Therefore, the Courts below rightly raised a presumption under Section 90 of the Act in relation to the execution and authentication of these two documents, The presumption so raised by the Courts below is in accordance with the law laid down by the Apex Court and this Court. The law laid down by the Andhra Pradesh High Court in the case Putti Lakshmayya and others vs. Garlapati Tirupathamnia and others, AIR 1958 AP 720 is no more a good law. 15. It is seen from the record that Ex. P4 to Ex. P7 are the RTC extracts for the year 1975-76 to 1982-83 specifying the name of Mahantaiah-father of plaintiffs; as the owner in possession of plaint schedule properties. A combined reading of Ex. P2 and Ex. P3 the sale deeds. Ex. P4 to Ex. P7 the RTC extracts and the oral testimony of P.W. l. P.W. 2 and P.W.4 establishes the fact that plaintiffs’ father Mahantaiah was the owner in possession and enjoyment of the plaint schedule properties till his demise. 16. On the other hand the defendants produced Ex. D3 to Ex. D9, Ex. D10 to Ex. D17 and Ex. D30 to Ex. P7 the RTC extracts and the oral testimony of P.W. l. P.W. 2 and P.W.4 establishes the fact that plaintiffs’ father Mahantaiah was the owner in possession and enjoyment of the plaint schedule properties till his demise. 16. On the other hand the defendants produced Ex. D3 to Ex. D9, Ex. D10 to Ex. D17 and Ex. D30 to Ex. D35 the RTC extracts specifying the name of Chennaveeraiah and Maramma-defendant No. 1 as the owners in possession of plaint schedule properties from the year 1992. No order passed by the Tahsildar to enter the names of defendants in the RTC extract is produced. No document is produced to show how the defendants have acquired title to the plaint schedule properties. These revenue entries are questioned before the appropriate authorities and they in turn directed the parties to work out their remedy before the civil Court. In the circumstances both the Courts below refused to raise a presumption on the1 basis of entry of names of defendants in the revenue records. Again these circumstances are to be taken into consideration to raise a presumption under Section 90 of the Evidence Act. These circumstances go in favour of the plaintiffs and against the defendants. 17. Accordingly, I answer the question of law framed above in affirmative. Consequently the appeal is hereby dismissed.