Smt. Swayamprabha & Anr. Vs. Jayantha & Ors.
EmailAppeal: Civil Appeal No. 204 of 1988
Petitioner: Smt. Swayamprabha & Anr.
Respondent: Jayantha & Ors.
Apeal: Civil Appeal No. 204 of 1988
Judges: B.N. KIRPAL, M.B. SHAH & R.C. LAHOTI, JJ.
Date of Judgment: Mar 02, 2000
Head Note:
EVIDENCE
Evidence Act, 1872
Sections 63, 65 – Secondary evidence – Suit for possession – Defendant taking plea of adverse possession – Reliance upon office copies of two notices, sent by lawyer of defendant – Lawyer already dead – Clerk of another lawyer examined – Objection taken at proper time – Clerk unable to prove the authorship of notices – Effects. Held that the notices were not proved and they had to be excluded from consideration. Once excluded, plea of adverse possession fails and as such plaintiffs become entitled to decree of possession.
Held:
The objection which was raised by the Counsel for the Appellants to the said documents being taken in evidence before the trial court was well founded. DW 5 has clearly stated that he had never seen Vittal Naik writing any document or letter. He was at no point of time employed by Vittal Naik and he has not even identi-fied the signatures or initials of Vittal Naik and, in fact, he categorically admits that he could not say whether the said initials on Exhs. D-13 and D-14 were of Vittal Naik. This being so, the said documents could not have been taken in evidence and have, therefore, to be excluded from any consideration whatsoev-er. Once the said documents are excluded, it must follow logical-ly that the defendants failed to prove their plea of adverse possession. The concurrent finding of fact being that Sitharama Pandit was not the real owner of the land and the real owner of the land was the mother of the Appellants and/or her husband, the father of the Appellants, it must follow that the Appellants were entitled to the decree prayed for. (Paras 10 & 11)
JUDGEMENT:
ORDER
1. The Appellants had filed a suit for possession of property which is a land measuring one acre and 68 cents situated at Mudabettu village.
2. The case of the Appellants was that this land was purchased in the name of their mother by registered sale deed on 24th Septem-ber, 1943. The money for this was provided by the Appellants’ father, namely, Ramchandra. Ramchandra was living in Bombay and the mother of the Appellants died in 1950. The Appellants were living in the village with Defendant no.1 who
was stated to be the de facto guardian of the Appellants.
3. It appears that in 1951 a civil suit was instituted by Ramchandra against Defendant no. 1, namely, Sitharama Pandit. During the pendency of the said suit Shri Ramchandra was murdered on 10th June, 1952. In this suit the Appellants were brought on record on 13th August, 1952. This suit was for claim of money and is stated to
have been decreed in the year 1953. Two documents which were exhibited in the said suit were Exhibits D-13 and D-14 which are stated to be replies which were sent by the lawyers of Sitharama Pandit. The notice was stated to have been issued on behalf of Ramchandra.
4. The Appellants who were minors at the time of father’s death filed the present suit on 1st, December, 1969 for possession of the suit properties. Sitharama Pandit was Defendant no.1 and he was in physical occupation of the land in question. In the writ-ten statement which was filed, the main plea which was taken by Sitharama Pandit was that he was the real owner of the land in question and the land had been bought benami in the name of Kalyani who was the mother of the Appellants.
5. In the written statement, it was also pleaded by Defendant no.1 that “without prejudice to any of the contentions made above, the plaintiffs’ claims to possession and delivery of the plaint properties, are barred by limitation, adverse possession and prescription. The defendant has been in possession and enjoyment of the plaint C Schedule lands in his own right and in negation of and adverse to the alleged rights of the plaintiffs, no-toriously and uninterruptedly for over the statutory periods.” On the basis of the pleadings the trial court framed the following issues :
1. Whether the Defendant proves that property purchased by Kalyani Bai
under registered sale dated 24-12-1943 is benami for the defendant and that he is the true owner of the property ?
2. Whether the Defendant proves that he has effected improve-ment in ‘C’ Schedule property and if so, whether he is entitled to the value thereof ?
3. Whether the plaintiffs prove that the defendant is in pos-session of ‘B’ Schedule moveables and if so whether the defendant is liable to deliver the same to the plaintiffs ?
4. Whether the Defendant proves that the plaintiffs have acqui-esced by their conduct the title of the Defendant to the plaint property ?
5. Whether the plaintiffs prove that the purchase of the muli right by the Defendant under the registered sale deed dated 29-11-1956 is from out of the income belonging to the plaintiffs in the hands of the Defendants ?
6. Whether the plaintiff prove that the defendant was in man-agement of
the plaint property in his fiduciary capacity?
7. Whether the plaintiff prove that the Defendant is liable to render accounts
to the plaintiffs and if so from which period ?
8. What is the correct income of ‘C’ Schedule property ?
9. Whether the plaintiffs prove that the defendant is liable to surrender possession ?
10. Whether the plaintiffs prove that the defendant is liable to pay mesne profits and if so from what date ?
11. Whether the Defendant proves that the suit is barred by limitation, adverse possession and prescription ?
12. Whether the Defendant proves that the suit has not been properly valued for court fees and jurisdiction ?
13. To what relief ?
6. During the pendency of the suit Sitharama Pandit died on 6th January, 1972. Thereafter his legal representatives were brought on record. At the time of trial two documents which were the office copies of the replies to the notice stated to have been sent on behalf of Sitharama Pandit by his lawyer Vittal Naik, were sought to be exhibited. The Counsel for the Appellants herein objected to their being exhibited because the original documents were not produced and they were not proved by the author of the document who had in fact, died. The Counsel for the Defendant stated that those documents may only be marked for the purpose of identification and he would examine somebody else for proof of the documents. The initials on the documents marked as Ext. D-13 and Ext. D-14 were sought to be proved by DW 5 who was the clerk of another lawyer and not the clerk of Shri Vittal Naik.
7. The trial court came to the conclusion that the plea of benami which was taken by defendant was incorrect and the property belonged to Kalyani and /or her husband. It also rejected the plea of adverse possession and the suit was decreed.
8. The High Court reversed the judgment of the trial court by relying upon Exhibits D-13 and D-14 and came to the conclusion that Sitharama Pandit had set up hostile title in 1951 and, there-fore, had perfected his title by adverse possession and that the suit which was filed by the Appellants more than
three years after they attained the majority was barred by time. Hence this appeal.
9. The High Court did uphold the finding that Sitharama Pandit was not the real owner of the land in question and, in fact, the finding of the trial court was affirmed with regard to the owner-ship being of the Appellants’ parent.
10. DW 5 in his evidence has stated in cross-examination “I cannot say whether the initials at Ex. D-13 (a) and D-14 (a) are of Vittal Naik ; (witness volunteers) but they must be his.” Apart from the evidence of DW 5 there is no other witness who was examined to prove the contents of the said documents. As we see, the objection which was raised by the Counsel for the Appellants to the said documents being taken in evidence before the trial court was well founded. DW 5 has clearly stated that he had never seen Vittal Naik writing any document or letter. He was at no point of time employed by Vittal Naik and he has not even identi-fied the signatures or initials of Vittal Naik and, in fact, he categorically admits that he could not say whether the said initials on Exhs. D-13 and D-14 were of Vittal Naik. This being so, the said documents could not have been taken in evidence and have, therefore, to be excluded from any consideration whatsoev-er.
11. Once the said documents are excluded, it must follow logical-ly that the Defendants failed to prove their plea of adverse possession. The concurrent finding of fact being that Sitharama Pandit was not the real owner of the land and the real owner of the land was the mother of the Appellants and/or her husband, the father of the Appellants, it must follow that the Appellants were entitled to the decree prayed for.
12. For these reasons, we allow this appeal, set aside the judg-ment of the High Court and restore the decree of the
trial court. There will be no order as to costs.
13. Counsel for the Appellants states that there is some error in the decree drawn up by the trial court. He is at liberty to move the trial court for any correction in accordance with law.
1. The Appellants had filed a suit for possession of property which is a land measuring one acre and 68 cents situated at Mudabettu village.
2. The case of the Appellants was that this land was purchased in the name of their mother by registered sale deed on 24th Septem-ber, 1943. The money for this was provided by the Appellants’ father, namely, Ramchandra. Ramchandra was living in Bombay and the mother of the Appellants died in 1950. The Appellants were living in the village with Defendant no.1 who
was stated to be the de facto guardian of the Appellants.
3. It appears that in 1951 a civil suit was instituted by Ramchandra against Defendant no. 1, namely, Sitharama Pandit. During the pendency of the said suit Shri Ramchandra was murdered on 10th June, 1952. In this suit the Appellants were brought on record on 13th August, 1952. This suit was for claim of money and is stated to
have been decreed in the year 1953. Two documents which were exhibited in the said suit were Exhibits D-13 and D-14 which are stated to be replies which were sent by the lawyers of Sitharama Pandit. The notice was stated to have been issued on behalf of Ramchandra.
4. The Appellants who were minors at the time of father’s death filed the present suit on 1st, December, 1969 for possession of the suit properties. Sitharama Pandit was Defendant no.1 and he was in physical occupation of the land in question. In the writ-ten statement which was filed, the main plea which was taken by Sitharama Pandit was that he was the real owner of the land in question and the land had been bought benami in the name of Kalyani who was the mother of the Appellants.
5. In the written statement, it was also pleaded by Defendant no.1 that “without prejudice to any of the contentions made above, the plaintiffs’ claims to possession and delivery of the plaint properties, are barred by limitation, adverse possession and prescription. The defendant has been in possession and enjoyment of the plaint C Schedule lands in his own right and in negation of and adverse to the alleged rights of the plaintiffs, no-toriously and uninterruptedly for over the statutory periods.” On the basis of the pleadings the trial court framed the following issues :
1. Whether the Defendant proves that property purchased by Kalyani Bai
under registered sale dated 24-12-1943 is benami for the defendant and that he is the true owner of the property ?
2. Whether the Defendant proves that he has effected improve-ment in ‘C’ Schedule property and if so, whether he is entitled to the value thereof ?
3. Whether the plaintiffs prove that the defendant is in pos-session of ‘B’ Schedule moveables and if so whether the defendant is liable to deliver the same to the plaintiffs ?
4. Whether the Defendant proves that the plaintiffs have acqui-esced by their conduct the title of the Defendant to the plaint property ?
5. Whether the plaintiffs prove that the purchase of the muli right by the Defendant under the registered sale deed dated 29-11-1956 is from out of the income belonging to the plaintiffs in the hands of the Defendants ?
6. Whether the plaintiff prove that the defendant was in man-agement of
the plaint property in his fiduciary capacity?
7. Whether the plaintiff prove that the Defendant is liable to render accounts
to the plaintiffs and if so from which period ?
8. What is the correct income of ‘C’ Schedule property ?
9. Whether the plaintiffs prove that the defendant is liable to surrender possession ?
10. Whether the plaintiffs prove that the defendant is liable to pay mesne profits and if so from what date ?
11. Whether the Defendant proves that the suit is barred by limitation, adverse possession and prescription ?
12. Whether the Defendant proves that the suit has not been properly valued for court fees and jurisdiction ?
13. To what relief ?
6. During the pendency of the suit Sitharama Pandit died on 6th January, 1972. Thereafter his legal representatives were brought on record. At the time of trial two documents which were the office copies of the replies to the notice stated to have been sent on behalf of Sitharama Pandit by his lawyer Vittal Naik, were sought to be exhibited. The Counsel for the Appellants herein objected to their being exhibited because the original documents were not produced and they were not proved by the author of the document who had in fact, died. The Counsel for the Defendant stated that those documents may only be marked for the purpose of identification and he would examine somebody else for proof of the documents. The initials on the documents marked as Ext. D-13 and Ext. D-14 were sought to be proved by DW 5 who was the clerk of another lawyer and not the clerk of Shri Vittal Naik.
7. The trial court came to the conclusion that the plea of benami which was taken by defendant was incorrect and the property belonged to Kalyani and /or her husband. It also rejected the plea of adverse possession and the suit was decreed.
8. The High Court reversed the judgment of the trial court by relying upon Exhibits D-13 and D-14 and came to the conclusion that Sitharama Pandit had set up hostile title in 1951 and, there-fore, had perfected his title by adverse possession and that the suit which was filed by the Appellants more than
three years after they attained the majority was barred by time. Hence this appeal.
9. The High Court did uphold the finding that Sitharama Pandit was not the real owner of the land in question and, in fact, the finding of the trial court was affirmed with regard to the owner-ship being of the Appellants’ parent.
10. DW 5 in his evidence has stated in cross-examination “I cannot say whether the initials at Ex. D-13 (a) and D-14 (a) are of Vittal Naik ; (witness volunteers) but they must be his.” Apart from the evidence of DW 5 there is no other witness who was examined to prove the contents of the said documents. As we see, the objection which was raised by the Counsel for the Appellants to the said documents being taken in evidence before the trial court was well founded. DW 5 has clearly stated that he had never seen Vittal Naik writing any document or letter. He was at no point of time employed by Vittal Naik and he has not even identi-fied the signatures or initials of Vittal Naik and, in fact, he categorically admits that he could not say whether the said initials on Exhs. D-13 and D-14 were of Vittal Naik. This being so, the said documents could not have been taken in evidence and have, therefore, to be excluded from any consideration whatsoev-er.
11. Once the said documents are excluded, it must follow logical-ly that the Defendants failed to prove their plea of adverse possession. The concurrent finding of fact being that Sitharama Pandit was not the real owner of the land and the real owner of the land was the mother of the Appellants and/or her husband, the father of the Appellants, it must follow that the Appellants were entitled to the decree prayed for.
12. For these reasons, we allow this appeal, set aside the judg-ment of the High Court and restore the decree of the
trial court. There will be no order as to costs.
13. Counsel for the Appellants states that there is some error in the decree drawn up by the trial court. He is at liberty to move the trial court for any correction in accordance with law.
