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2012 DIGILAW 239 (KAR)

Thimma Naika v. Papanna @ Kempegowda

2012-03-15

RAM MOHAN REDDY

body2012
Judgment : 1. This is a plaintiff’s second appeal aggrieved by the dismissal of O.S. No. 25/98 on the file of the Civil Judge (Jr.Dn), Hunsur, and the dismissal of R.A. No. 83/02 on the file of the Civil Judge (Sr.Dn.) & JMFC, Hunsur. 2. Appellant instituted O.S. 25/98 on 19/3/1998 arragning the 1st respondent as defendant for a direction to the defendant to execute an amended or rectification deed incorporating the correct Sy. No. as 23/2, the extent as 2 acres 15 guntas, and the boundaries on the East and West, as described in the schedule to the mortgage deed dated 29/1/1970, by deleting Sy. No. 72/2, extent 3 acres 3 guntas, in the sale deed executed and registered on 8/2/1971 by one Kempegowda, S/o Kempwgowda. 3. The defendant described as Papanna @ Kempegowda, S/o. Kempegowda and Honga Eramma, on notice entered appearance, resisted the suit by filing written statement interalia denying the execution of the sale deed dated 8/2/1971 conveying 3 acres 3 guntas in Sy. No. 72/2 in favour of the plaintiff and the mortgage deed dated 29/1/1970 in favour of Sanna Naika in respect of 2 acres 15 guntas of land in Sy. No. 23/2. Defendant however admitted that he was the owner of land measuring 3 acres 3 guntas in Sy. No. 72/2 and land measuring 2 acres and 15 guntas in Sy. No. 23/2, the suit schedule (i) and (ii) properties. In the premise of pleadings of parties, the trial court framed 3 issues. The first relating to proof of execution of the sale deed dated 8/2/1971; the second, over proof of the plaintiff having obtained possession of the mortgage schedule property from Sanna Naika in the year 1971 after redeeming the mortgage; the third, cast a burden on the plaintiff to prove that the schedule in the sale deed dated 8/2/1971 executed by the defendant contained incorrect survey number and extent. Parties entered trial whence plaintiff was examined as PW-1 and two other witnesses as PWs, 2 & 3 and marked documents Ex.P1 to P9. For the defendants, two witnesses were examined as DWs. 1 & 2 and marked documents Ex.D1 to D5. 4. The trial court having regard to the material on record and the evidence, both oral and documentary, observed that the sale deed dated 8/2/1971 Ex.P1, conveying 3 acres 3 guntas of land in Sy. For the defendants, two witnesses were examined as DWs. 1 & 2 and marked documents Ex.D1 to D5. 4. The trial court having regard to the material on record and the evidence, both oral and documentary, observed that the sale deed dated 8/2/1971 Ex.P1, conveying 3 acres 3 guntas of land in Sy. No. 72/2 though said to be executed by Kempegowda, S/o Kempegowda, there was no proof that the defendant Papanna @ Kempegowda, S/o Kempegowda executed the sale deed, while Ex.P2, mortgage deed dated 29/1/1970 said to be executed by Kempegowda, S/o Kempegowda in favour of Sanna Naika, in respect of land measuring 2 acres 15 guntas in Sy. No. 23/2, too was not proved to have been executed by the defendant. In addition, the trial court opined that the plaintiff, in the absence of a probable explanation, could not have kept silent for 27 long years from the date of execution of the sale deed. Ex.P1, to institute the suit for rectification of the schedule in the sale deed. The trial court further observed that PW2 was admittedly a relative of the plaintiff and in cross-examination admitted ignorance and did not know as to who was in possession of the suit item No. (ii) property, while PW3 too admitted ignorance over the measurements and survey number of the property in the possession of the plaintiff, and in the absence of corroboration, declined to accept the oral testimony of the plaintiff’s witnesses as credible evidence, to dismiss the suit by judgment and decree dated 8/11/2002. 5. The Additional Civil Judge (Sr.Dn) & JMFC, Hunsur, on a re-appreciation of the evidence on record, concurred with the reasons, findings and conclusions arrived at by the trial court to dismiss the appeal by judgment and decree dated 6/11/2009. 6. Although learned Counsel for the appellant submits that Kempegowda, S/o Kempegowda is none other than the defendant Papanna @ Kempegowda, S/o Kempegowda and Honga Eramma, the executant of Ex.P1 sale deed and Ex.P2 mortgage deed, was proved and regard being had to the covenants in the sale deed Ex.P1 that the vendor Papanna @ Kempegowda executed a mortgage deed in favour of Sanna Naika from whom the purchaser/plaintiff was required to take possession after redeeming the mortgage, the courts below were not justified in dismissing the suit. I am afraid, is unacceptable. 7. I am afraid, is unacceptable. 7. Having examined the judgment and decree of the courts below, undoubtedly the courts recorded findings of fact that the sale deed dt. 8/2/1971 Ex.P1 was not to be proved to be executed by Papanna @ Kempegowda, S/o Kempegowda. So also the courts below recorded findings that there was no material to establish that the defendants executed the mortgage deed Ex P2 in favour of one Sanna Naika. 8. Sec 68 of the Evidence Act, 1872, provided for proof of document required by law to be attested, where under the proviso states that it will not be necessary to call an attesting witness in proof of execution of any document other than a Will, which is registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed, is specifically denied, meaning thereby that if a document is by law required to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so, however, in the event of there being an attesting witness alive and capable of giving evidence, regard being had to the definition of the word “Attested” in Sec. 3 of the Transfer of Property Act. 9. Admittedly the defendant in his written statement denied the execution of the sale deed Ex.P1 and the mortgage deed Ex.P2 and therefore the onus probandi did lie upon the plaintiff to satisfy the court’s conscience that the defendant subscribed his signature and mark on Ex.P1 sale deed and Ex.P2 mortgage deed. Though there are two attesting witnesses to the documents, none of whom have been examined and the factum of their non-availability also is not satisfactorily proved. Moreover Sanna Naika, the alleged mortgagee when not examined to establish the factum of the mortgagee having put the plaintiff in possession of the suit schedule item No. (ii), the courts below were fully justified in law, in drawing conclusions over failure to prove execution of Ex.P1 and Ex.P2 by the defendant. So also the plaintiff faltered in establishing a material fact that Kempegowda, S/o Kempegowda, was the very defendant by name Papanna @ Kempegowda, S/o Kempegowda, the executant, both in the sale deed as well as the mortgage deed. So also the plaintiff faltered in establishing a material fact that Kempegowda, S/o Kempegowda, was the very defendant by name Papanna @ Kempegowda, S/o Kempegowda, the executant, both in the sale deed as well as the mortgage deed. Regard being had to the fact that the suit was instituted 27 years after the execution of Ex.P1, sale deed, it is highly improbable that the mistake would have come to light after such a belated period. 10. Appellant has filed an application under Order 41 Rule 27 CPC to produce additional evidence of documents being none other than the voter’s list dated 15/4/2009 issued by the Tahsildar; the residence proof certificate dated 16/12/2009 issued by the Grama Panchayat and a photocopy of an unregistered partition deed dated 6/1/2003. In the affidavit accompanying the application, it is stated that the appellant could not produce the documents at the time of evidence as they were not readily available there at. According to the deponent, these documents are essential to decide the dispute between the parties. Learned Counsel for the appellant submits that the appellant obtained the documents at the time of filing the second appeal, where under the voters list records the name of Kempegowda and his father’s name as Kempegowda, though does not throw light over the due execution of Ex.P1 and P2. 11. It is no doubt true that in the voter’s list dated 15/4/2009, the name of one Kempegowda, S/o Kempegowda, is mentioned and a copy of it is issued on 11/12, without mentioning the year in which it is issued, while the 2nd document being the resident certificate issued by the Secretary of the Grama Panchayat describes that one Jayarama Naika’s wife is Savithramma and resides at Mylambur Village, while the copy of the unregistered partition deed is amongst the appellant and his children in respect of the immovable properties, amongst others, in Sy. No. 23/2. 12. No. 23/2. 12. Sub-rule (1) of Rule 27 Order 41 states that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court, while if the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or if the Appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the court may allow such evidence or document to be produced or witness to be examined. 13. It is well established that under Order 41 Rule 27 of CPC, additional evidence cannot be permitted to fill any lacuna or gaps in evidence, or to patch up the omissions in the court of appeal, but restricted to the purpose of pronouncement of judgment in a particular way, as held by the Apex Court in N.KAMALAM VERSUS AYYASWAMI (2001) 7 SCC 503 . Again in CHAPALA CHINNABBAYI VERSUS NARELA SETTI ANUSUYAMA AIR 2006 AP 142 , the Andhra Pradesh High Court observed that evidence relating to subsequent events or happenings which are relevant for the disposal of the second appeal, may be permitted. 14. In the instant case, the averments in the affidavit do not disclose satisfactory reasons for the inability of the appellant to secure at the earliest point of time a copy of a public record being the voter’s list disclosing one Kempegowda, S/o Kempegowda, a resident of the village. So also the subsequent events disclosing that one Savithramma, the wife of Jayarama Naika is a resident of a village, apparently is not a party to the proceedings before the trial court, hence not in the direction of determination of the dispute between the parties. So also the subsequent events disclosing that one Savithramma, the wife of Jayarama Naika is a resident of a village, apparently is not a party to the proceedings before the trial court, hence not in the direction of determination of the dispute between the parties. Yet again, the unregistered partition deed as between the appellant and the members of his family executed on 6/1/2003 not being a subsequent event in the direction of pronouncing judgment in a particular way, the exercise of discretion is uncalled for and the application is liable to be rejected, more importantly, the claim for production of additional evidence is made almost 12 years after the institution of the suit and eight years after the filing of the first appeal before the Lower Appellate Court. 15. In the circumstances, the application for production of additional documents, is rejected. In the result, as no substantial question of law arises for decision making, the appeal is dismissed.