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2016 DIGILAW 348 (KAR)

Tulasi Bai v. K. Pushkar Rao

2016-04-12

A.N.VENUGOPALA GOWDA

body2016
JUDGMENT : A.N. Venugopala Gowda, J. 1. Sri. K. Pushkar Rao, the predecessor of the respondents filed O.S. No. 406/2009 against the appellants/defendants, in the Court of Senior Civil Judge at Mysore, to pass a decree for partition and separate possession of his half share in and upon the plaint schedule property and for grant of other reliefs. The suit having been decreed by the II Additional Senior Civil Judge, Mysore, R.A. No. 349/2013 was filed in the District Court at Mysore. The appeal having been dismissed by the VII Additional District Judge at Mysore, this second appeal was filed. 2. The facts of the case are as follows: Sri K. Pushkar Rao and the predecessor of the defendants late Srinivasa Rao were brothers. The suit schedule property belonged to one Valiambi and her children and it was sold in favour of the plaintiff and his brother Srinivasa Rao. Plaintiff and Srinivasa Rao being minors, at the relevant point of time, the purchase was made by their grandmother Gunabiamma, as the guardian. Plaintiff created mortgage of the plaint schedule property in the name and in favour of defendant No. 9 After the death of Srinivasa Rao, the plaintiff called upon the defendants to effect partition and separate possession. Partition having not been effected the suit was instituted 4th defendant, for himself and on behalf of other defendants, filed written statement. Plaintiff filed a rejoinder statement. The trial Court framed the following issues and additional issues: 1. Whether the plaintiff proves that the suit schedule property at a given point of time belonged to Smt. Valiambi and her children and they have sold the same in favour of plaintiff and his brother as per the Registered Sale Deed dated 17-12-1945? 2. Whether the plaintiff proves that he and his brother are joint owners in joint possession and enjoyment of suit schedule property? 3. Whether the Defendants prove that the suit is properly valued and Court fee paid is not sufficient? 4. Whether the plaintiff is entitled for 1/2 share over the suit schedule property? 5. What Order or Decree? Additional Issue 1. Whether the defendants prove that the suit is bad for non-joinder of necessary parties? During trial, plaintiff's Power of Attorney Holder deposed as PW-1 and the documents produced were marked as Exs. P1 to P7. 4. Whether the plaintiff is entitled for 1/2 share over the suit schedule property? 5. What Order or Decree? Additional Issue 1. Whether the defendants prove that the suit is bad for non-joinder of necessary parties? During trial, plaintiff's Power of Attorney Holder deposed as PW-1 and the documents produced were marked as Exs. P1 to P7. The defendants did not adduce any evidence in support of their pleading in the written statement. The Trial Court, answered issue Nos. 1, 2 and 4 in the affirmative, issue Nos. 3 and additional issue No. 1 in the negative and consequently, the suit was decreed, entitling the plaintiff to half share in the suit schedule property. Liberty was reserved to the plaintiff to seek determination of the mesne profits in a separate enquiry. 3. In the appeal preferred by the defendants, the Lower Appellate Court raised the following points for consideration :- 1. Whether the impugned judgment and decree of the lower court is opposed to law, facts and circumstances of the case and interference of this court is necessary? 2. What Order? Considering the rival contentions and the record of the suit and after independent assessment of the evidence, the appeal was dismissed. 4. Sri. B.V. Badrinath, learned advocate, firstly contended that the evidence of the Power of Attorney Holder - PW-1, being no evidence in the eye of law, having regard to the ratio of decision in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, (2005) 2 SCC 217 : ( AIR 2005 SC 439 ), Courts below have committed error in decreeing the suit and dismissing the appeal respectively. Secondly, Ex.P2-Sale Deed dated 17-12-1945 has not been proved, since PW-1 has no personal knowledge and hence, decreeing of the suit and dismissal of the appeal being illegal, interference is called for. Thirdly, the Court below are unjustified in throwing the burden on the defendants, when there is no burden cast on them to prove the same. 5. Suit was decreed on 19-03-2011. Miscellaneous Petition No. 142/2011 having been filed, the said Judgment and Decree was set aside on 31-10-2011 and suit was restored to the Trial Court. Even thereafter, the defendants have not adduced the evidence, despite burden of proof with regard to issue No. 3 and additional issue No. 1 having been cast on them. 6. Suit was decreed on 19-03-2011. Miscellaneous Petition No. 142/2011 having been filed, the said Judgment and Decree was set aside on 31-10-2011 and suit was restored to the Trial Court. Even thereafter, the defendants have not adduced the evidence, despite burden of proof with regard to issue No. 3 and additional issue No. 1 having been cast on them. 6. Smt. Gunabiamma, for and on behalf of the plaintiff and his brother Srinivasa Rao, purchased the suit schedule property on 17-12-1945 vide Ex. P2, from Valiambi and her children. On the date of said purchase, plaintiff and his brother Srinivasa Rao were minors. Hence, they were represented by Smt. Gunabiamma as the guardian. 7. PW1 has deposed on the basis of Ex.P2, which document is more than thirty years old. There is no dispute about the contents of Ex. P2. The document being more than 30 years old, coming from proper custody, presumption under S. 90 of the Evidence Act is attracted. Ex. P2 showing the purchase of suit schedule property in the joint names of the plaintiff and late Srinivasa Rao has to be treated as clinching evidence. 8. In Janki Vashdeo Bhojwani ( AIR 2005 SC 439 ) (supra), the question for consideration was, whether the Power of Attorney Holder, who deposed, was competent to depose about the facts, which the parties were directed to prove by the Apex Court, by an earlier order. It is in the context, Apex Court has held as under: "12. In the context of the directions given by this Court, shifting the burden of proving on to the appellants that they have a share in the property, it was obligator on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed toward the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power-of-attorney holder does not have personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal." (Underlining is mine for Emphasis.) 9. The power-of-attorney holder does not have personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal." (Underlining is mine for Emphasis.) 9. The principle of law laid down in the aforesaid judgment is nothing but a rule on hearsay evidence. The competence of a person to testify as a witness is governed by S. 118 of the Evidence Act. Whether a Power of Attorney holder has personal knowledge about the matter in controversy is a question which can be thrashed out by cross-examining such person and if found that Power of Attorney Holder has no personal knowledge about the facts in controversy, the evidentiary value of the deposition of such witness is required to be determined. 10. In the present case, the case of the plaintiff is dependent on Ex.P2. By producing the said document, which is more than thirty years old, the case of the plaintiff has been duly established. PW-1 has not spoken anything personal. He has deposed with regard to the plaintiff's claim, based on Ex.P2, which being a registered document also more than thirty years old, has been proved by application of principle under S. 90 of the Evidence Act. 11. Both Courts below, having taken into consideration the evidence of PW-1 and the exhibited documents and there being no evidence adduced by the defendants, have concurrently found that the plaintiff is entitled to half share in the suit property. The evidence of PW-1 is not liable to be discarded, as he has not deposed anything hearsay. 12. From Ex. P2, it is clear that the deceased plaintiff was a co-owner/co-sharer in the suit schedule property and unless exclusion and ouster are pleaded and proved, which is not the case here, is entitled for partition. 13. Having regard to the evidence placed on record of the suit, I am satisfied that the findings entered by the two Courts below cannot be said to be unreasonable or perverse. In exercise of the jurisdiction under S. 100, CPC, re-appreciation of evidence and substitution of conclusions in place of those entered by the Courts below is not permissible, since there is neither any omission of material evidence or misreading of the evidence by either of the Court below. 14. In exercise of the jurisdiction under S. 100, CPC, re-appreciation of evidence and substitution of conclusions in place of those entered by the Courts below is not permissible, since there is neither any omission of material evidence or misreading of the evidence by either of the Court below. 14. The findings of fact entered by the Courts below being pure findings of fact, no substantial question of law arises for consideration. In the result, the second appeal, sans substantial question of law, being not entertain able, is rejected. Appeal dismissed.