Gujarat High Court
Bhupendra Shantilal Shah vs Fanny Rustomji Contractor on 6 May, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/FA/2592/2019 JUDGMENT DATED: 06/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2592 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 2592 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI SD/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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BHUPENDRA SHANTILAL SHAH
Versus
FANNY RUSTOMJI CONTRACTOR
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Appearance:
MR SALIL M THAKORE(5821) for the Appellant(s) No. 1,2
MR PERCY KAVINA, SR. ADVOCATE WITH MR AB MUNSHI (1238) for the
Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 3,4
RULE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/05/2022
ORAL JUDGMENT
1. The appellants are defendant Nos.2 & 3 of Special Civil Suit No.823 of 2011 filed before the 12th Additional Senior Page 1 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 Civil Judge, Vadodara with a plea that they are the bona fide purchasers of the suit property for valuable consideration and are lawful owners.
2. The present respondent No.1 had filed the suit claiming ownership of the disputed property against five defendants. The learned trial Court Judge was pleased to allow the suit on 03.05.2019 granting the relief prayed by the plaintiff declaring the sale deed dated 01.06.2010, in favour of the defendant Nos.2 & 3, present appellant, as illegal and therefore, declared it as void. Further the defendants were ordered not to execute any document of sale, mortgage or gift with defendant Nos.2 & 3 or with their agents or representatives, and further restrained from transferring or assigning the suit land or to create any third party interest or to create any hindrance in the possession and occupation of the suit property of the plaintiff.
3. The appellants as defendant Nos.2 & 3 of the suit have challenged the decree and judgment and have contended that respondent No.1, as plaintiff, ought to have sought further relief of possession and therefore, there could not be any declaration with respect to the sale deed, as the suit becomes barred by law. That, no Court would pass an order in futility since the respondent No.1 as the plaintiff had not made any prayer for recovery of possession, as in spite of declaration of the sale deed as illegal, the respondent no.1 would not get Page 2 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 back the property.
4. The appellants have also challenged the decree contending that the power of attorney executed by the plaintiff-respondent No.1 in favour of respondent No.2- defendant No.1 is in accordance with law and the learned trial Judge has erred in holding that the said power of attorney is not fulfilling the provision under section 85 of the Indian Evidence Act, 1872. Further, the appellants have raised the contention that the findings of the learned trial Judge of the documents and signatures being bogus are without any basis and not supported by any evidence, and the learned trial Judge has erred in not believing the banakhat and ought not to have declared the sale deed illegal.
5. The appellants have further raised the ground that the learned Judge has erred by not accepting the opinion of the hand-writing expert, to appreciate that the admitted signature of respondent No.1 in the registered sale deed No.3152 dated 27.07.1964 is same as on the documents of 1985.
6. The suit filed on 18.11.2011 is with the facts that plaintiff is the owner of the property situated at Akota, Taluka and District : Vadodara with revenue survey No.165, City Survey No.15, Sub-plot No.2, ad-measuring 780 square metres. The said property was purchased by her from the original Page 3 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 owner Adam M. Patel for a consideration of Rs.8,401/-. The sale deed was executed on 27.07.1964, and, on the basis of the sale transaction the revenue change entry No.878 was made on 20.02.1966. The plaintiff thus claims that, since then, she is the owner and in possession of the said plot no.2. The plaintiff claims that she had been paying the revenues of the suit property and after the purchase of the land, had constructed a compound wall, while with the passage of time the wall deteriorated and thereafter, installed fence around the plot.
7. The husband of the plaintiff - Rustomji Contractor died in the year 2002-03 and her son - Sohrab since 1977 is in London and second son Jahengir being a Senior Engineer was at Germany with some construction company and has been staying at Mumbai for the last many years. Her married daughter is staying at Vadodara since the last 60 years. It was the case of the plaintiff that both the sons were residing out of India and there was no necessity of constructing any house on the suit land. She states that her husband had purchased the land in her name for constructing a house for her sons.
8. The sale deed No.7093 dated 01.06.2010 was executed by Akshay Ranjit Ashar - defendant No.1, as the power of attorney holder of the plaintiff. As per the case of the present appellants, an agreement of sale in favour of the mother of Page 4 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 defendant No.1 Lilaben Ranjit Ashar was executed on 23.01.1985 by plaintiff and the possession of the suit property was handed over to Lilaben by a separate possession receipt. Money receipts were executed by the plaintiff receiving the cash money of Rs.1,50,000/-, Rs.50,000/-, Rs.60,000/- and Rs.50,000/- dated 20.09.1984, 28.11.1984, 20.01.1985 and 23.01.1985 respectively. Since the agreement of sale was in the name of the mother of defendant No.1, plaintiff executed a power of attorney on the very same day in favour of defendant No.1. The appellants had pleaded that on the basis of the power of attorney executed by the plaintiff in favour of defendant No.1, a notarized banakhat / agreement to sell was executed on 12.06.2003 in their favour. Further, have stated that a 'samjuti karar', agreement of understanding, was drawn on 01.06.2010 and defendant No.1 as heir of Lilaben Ranjitbhai Ashar had signed as confirming party.
9. The plaintiff filed the suit on the cause of action drawn from 23.01.1985 stating that the power of attorney is bogus and forged and further cause arose on 01.06.2010 when sale deed was executed in favour of defendant Nos.2 & 3 by defendant No.1 and on 22.04.2005 when the agreement of sale was drawn in the name of defendant No.4.
10. The plaintiff before the trial Court contended that she had not known defendant No.1 and had never seen him nor Page 5 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 had any reason to execute the power of attorney in his favour of the suit plot. She had no reason to even sell the plot.
11. The plaintiff has denied the money receipts and had alleged that all the receipts are forged and bogus, further alleged that the son of Lilaben Ranjit Ashar, defendant No.1, had misused back-dated stamp paper, a rubber stamp was prepared with forged signature of the Executive Magistrate and the power of attorney dated 23.01.1985 was concocted. She had never given any authority to defendant No.1, and has alleged that the defendant No.1 had taken undue advantage of the death of Lilaben Ranjit Asher and in the name of the mother, false and forged receipts have been created.
12. The plaintiff states that there were two name boards on the land to display her ownership. On 05.08.2010 her son - Sohrab's friend Bharat Patel, staying near the suit land, while passing near the land, saw a new board fixed on the land reflecting the names of Bhupendra S. Shah and Ashok C. Gujjar as the owners of the land. The said friend informed the plaintiff's son at London and on coming to know about the said fact, the plaintiff had sent her son-in-law along with the photographer on 05.01.2010, but the private security of defendant Nos.2 and 3 had not allowed them to enter the land nor permitted them to take photographs, so thereafter on 08.08.2010 she filed a written complaint with J.P. Nagar Police Page 6 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 Station, and on 11.08.2010, had given a complaint to the Police Commissioner regarding the said incident and had also informed the District Collector, Vadodara and Municipal Commissioner by registered post A.D.
13. On 21.09.2010 the plaintiff had applied to the Sub Registrar for the copy of the power of attorney, produced along with sale deed No.7094/2010 registered on 01.06.2010. She was informed by letter dated 30.09.2010 that the said copy of power of attorney produced at the time of registration could not be found in their office. The plaintiff thus states that thereafter she had asked for the copy of the Property Card of the suit land and she found that her name was bracketed and name of defendant Nos.2 & 3 were introduced in the Property Card. Thus, she filed CTS Appeal No.148 of 2010 before the Deputy Collector, Vadodara. The appeal was dismissed by order dated 30.09.2010 and aggrieved by the said order, she had moved the Collector by filing a revision application.
14. Against defendant No.4 in the suit, plaintiff alleges that he along with defendant Nos.2 & 3 had created one banakhat dated 22.04.2005 in connivance with a Notary Public and on the basis of that banakhat defendant No.4 had filed Special Civil Suit No.518 of 2018 against her and defendant Nos.2 & 3 before the Civil Judge (S.D.), Vadodara for specific performance of the contract. The plaintiff alleged that the Page 7 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 summons of the suit on her behalf was referred to be served through defendant No.3 with the purpose that the summons would not be served to her, she alleges that defendant Nos.2 to 4 in connivance were making an attempt to receive the decree. But she then appeared in the suit by filing reply and necessary documents. In context with this pleading, along with other reliefs, the plaintiff also prayed for declaring the said banakhat dated 22.04.2005 as void.
15. During the course of the proceedings of the suit, plaintiff moved Exhibit-77 for amendment in the plaint which came to be allowed on 26.11.2013. By way of amendment, the plaintiff contended that the defendant No.1 had forged her signature and had committed fraud and had created a forged power of attorney on 23.01.1985 and on the basis of the power of attorney had executed the sale deed in favour of defendant Nos.2 & 3. Referring to the revenue proceedings, the plaintiff had stated that the photo-copy of the power of attorney at Mark-4/8, which shows as "before the Executive Magistrate"
with the seal and signature of the Executive Magistrate on 23.01.1985 is not legal, since it is not executed and authenticated in accordance with the provisions of section 85 of the Indian Evidence Act and therefore, cannot be admissible and since the power of attorney is illegal and invalid, the sale deed in favour of defendant Nos.2 & 3 is not legal and valid and therefore, on the basis of illegal sale deed defendant Nos.2 Page 8 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 & 3 had not received any valid possession. Further, has contended that the change entry No.511 dated 17.06.2010 in the property card of City Survey No.2052 has been illegally mutated.
16. The plaintiff in the suit had claimed the relief, contending that the power of attorney dated 23.01.2985 was forged and on that basis had prayed for cancellation of the sale deed dated 01.06.2010 executed by the defendant No.1 in favour of defendant Nos.2 & 3. The pleading of the plaintiff is directed towards defendant No.1 in relation to the power of attorney, while against defendant Nos.2 & 3, cancellation has been prayed for the sale deed.
17. The defendant No.1 had failed to appear in the suit. Initially, the process of summons and notice was made to be served through RPAD at the residential address of defendant No.1 at Mumbai. The acknowledgment receipt was not filed in the Court; however, a prayer was made for serving him through public notice in daily newspaper circulated at Mumbai, contending that the true address of defendant No.1 could not be found. The said application Exh.43 was allowed and the general notice was ordered to be published in the newspaper - Mumbai Samachar in Mumbai City for the appearance of defendant No.1 inviting objections, if any, in respect of the case of the plaintiff. Inspite of summons and notice served by Page 9 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 public notice, defendant No.1 failed to appear, so by order dated 23.08.2012 below Exh.1, the case was ordered to be proceeded ex-parte against defendant No.1. No reply was filed by defendant No.1 nor any documents were produced by him.
18. Defendant Nos.2 & 3 by their reply at Exh.41, denied the case of the plaintiff contending, that in connivance with Bharat K. Patel a false claim has been made by the plaintiff by suppressing material facts since the price of the properties have escalated. The plaintiff had no possession on the suit land as possession was handed over to the mother of defendant No.1 and power of attorney was executed by the plaintiff in favour of defendant No.1, son of Lilaben Ranjit Ashar. The defendant Nos.2 & 3 have not disputed the sale transaction in favour of the plaintiff executed by Azambhai Mohd. Patel on 27.07.1964. The defendants denied the existence of compound wall, stating that on three sides of the land there are adjoining houses and there are compound walls of those adjoining owners.
19. The defendant Nos.2 & 3 alleges that plaintiff's husband's acquaintance - Bharat K. Patel had friendly terms with one criminal lawyer, later on they came to know, that one higher police officer was interested in the suit property.
20. Defendant Nos.2 & 3 pleads that Lilaben Ranjit Ashar who was residing at Mumbai had purchased the property from Page 10 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 the plaintiff by paying 25 times the value of the purchase price of Rs.8401/- and in four receipts with a revenue stamp affixed on it, the plaintiff accepted the total amount putting her signature thereon. Plaintiff had executed banakhat / agreement to sell with possession of the open plot by executing stamped agreement in presence of the Executive Magistrate. Defendants claim that plaintiff had put her signature on all the documents, four receipts, agreement to sell, power of attorney and possession receipt before the Executive Magistrate and therefore, from 23.01.1985, the plaintiff is not in possession of the suit property and on 01.06.2010, the power of attorney holder - defendant No.1 after execution of sale deed had entrusted the actual physical possession of the land, thereafter, they had expended money for the construction plan, which was sanctioned by the Corporation and for the construction, the land was levelled and name boards were put on the land. The defendant Nos.2 & 3 also claims that witness - Jayaben Kantilal Amin had admitted the signature on the agreement to sell in her statement before the J.P. Road Police Station. Thereafter, in her subsequent reply she had given contrary facts which bears mention in the judgment passed by the Sessions Court. The defendants claim to be the bona fide purchasers. The money receipts, agreement to sell, power of attorney, possession receipt are all in writing and on the basis of those, the sale deed was executed by defendant No.1 as power of attorney of the plaintiff. The defendant has also Page 11 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 taken the plea that the signature on all the four documents would match the signature of the plaintiff in the sale-deed of the year 1964, showing her ownership, the defendants have alleged that thereafter intentionally the plaitiff has made changes in her signatures.
21. The original of the documents referred by the defendant Nos.2 & 3 have not been produced on record. Those documents were not referred by the plaintiff in her examination in chief, nor any attempt has been made during the course of cross examination of the plaintiff, to refer any of such original documents. In the cross examination the plaintiff was shown her signature at Exh.133, the sale-deed of the year 1964. The plaintiff has not specifically admitted her signature thereon nor she has admitted her signature below Exh.1. It appears that the plaintiff has made an attempt to deny her signature lest it would lead to comparison of admitted signatures. Original documents relied by defendant Nos.2 & 3 were not produced by any of the contesting parties.
22. As per the record, pursuant to the police complaint filed by the plaintiff the charge-sheet was filed against defendant Nos.1 to 3. Defendant No.1 did not face the criminal trial. He had remained as an absconder. His charge-sheet was separated while defendant Nos.2 & 3 were acquitted by the criminal Court.
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23. Learned advocate Mr. Salil M. Thakore for the appellants sought to submit that the suit of the plaintiff was hit by the provisions of section 34 of the Specific Relief Act. Plaintiff had lost her possession in the year 1985 on executing agreement to sell and the possession receipt in favour of the mother of defendant No.1. Mr. Thakore submitted that the entire consideration money was paid. The original receipts for the money was also executed by the plaintiff and no dispute has been raised for the agreement to sell and the possession receipt. The only contest by the plaintiff is about the power of attorney and the money receipt alleging as forged. Mr. Thakore contends that all of the documents were executed before the Executive Magistrate, and on the basis of agreement to sell dated 23.01.1985, the defendant No.1 would be protected under the provisions of section 53A of the Transfer of Property Act.
23.1 Learned advocate Mr. Thakore submitted that in the complaint before the police, the plaintiff had produced photo- copies of all the disputed documents. She has not disclosed the source of receipt of those documents. In the complaint dated 11.08.2010 she has detailed the documents. The FIR against the defendants was registered on 15.02.2011 wherein, Mr. Thakore submitted, that the Court did not find any case of forgery by the appellants and therefore, were acquitted. Mr. Page 13 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 Thakore submitted that deliberate attempt has been made of not serving the notice and summons to defendant No.1, the RPAD acknowledgment slip has not been produced on record and if defendant No.1 fails to appear, it creates doubts against the plaintiff. Further defendant No.1 as power of attorney has remained as an absconder in the criminal proceedings which further adds to the doubt, the public notice in a daily newspaper was given on the premise that the earlier address of defendant No.1 is not known.
23.2 Learned advocate Mr. Thakore, against the conduct of the plaintiff, contended that the agreement of sale and the possession receipt were not disputed. In the year 1964, the plaintiff had executed the document with her full signature and similar signature has been put on the agreement to sell, possession receipt, power of attorney and the money receipts, thereafter she had made attempt to change her signature. Mr. Thakore stated that the plaintiff had never volunteered to give her specimen signature for expert examination. The originals are not available on record, according to Mr. Thakore, it was the duty of the plaintiff to produce the original of the disputed documents. Thus, submitted that the onus had never shifted from the plaintiff to the defendants and the case of the plaintiff would fail if she could not prove her case and can never rely upon the weakness of the defendants.
Page 14 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 23.3 Learned advocate Mr. Thakore submitted that the trial Court Judge was not pleased to rely on the expert opinion placed on record, who was also examined as witness, only on the ground that the opinion was given on photo-copies and not originals.
23.4 Learned advocate Mr. Thakore referring to the provisions of Order 6 Rule 4 of C.P.C. preferred to submit that if the plaintiff alleges fraud, then necessary particulars were required to be given and were to be stated in the plaint. He states that there is no specific allegation of forgery. Mr. Thakore submitted that the plaintiff had not denied the signatures on the power of attorney, the only contention raised was under
section 85 of the Indian Evidence Act doubting its execution and authenticity. Mr. Thakore submitted that section 85 of the Indian Evidence Act is regarding the presumption to be drawn by the Court if the power of attorney was executed and authenticated before the authority so mentioned, but the said provision does not declare the power of attorney as invalid. Placing reliance on section 66 of the Indian Evidence Act, Mr. Thakore sought to canvass that secondary evidence becomes admissible even if no notice has been issued if in a case a person in possession of the document is out of reach, thus, Mr. Thakore submitted, that defendant Nos.2 & 3 were not required to issue any notice to defendant No.1, as was found absconding in the criminal trial and substituted service was Page 15 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 directed against the defendant No.1 in the suit proceedings. Mr. Thakore submitted that the photo-copies are accepted by the order of the Court, non-production of power of attorney would not prove it as bogus and forged.
24. Learned advocate Mr. Thakore referred to the following judgments:
(a) Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another v. Sri Seetaram Rice Mill, (2012) 2 SCC 108.
(b) Vinay Krishna v. Keshav Chandra and another, AIR 1993 SC 957.
(c) Ram Saran and another v. Smt. Ganga Devi, AIR 1972 SC 2685.
(d) Mehar Chand Das v. Lal Babu Siddique and ors., AIR 2007 SC 1499.
(e) Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148.
(f) Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and others, (2017) 3 SCC 702.Page 16 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022
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(h) Anilabala Debi v. Madhabendu Narain Roy, AIR 1942 Cal 245.
(i) Kumud Ranjan Banerjee v. Manabendra Banerjee, AIR 1974 Calcutta 342.
(j) Giribala Choudhury and others v. Ushangini Deb, AIR 1955 Assam 177.
(k) Samad Dar v. Mohamed Ismail Tantrary, AIR 1983 Jammu and Kashmir 59.
(l) Anirudha Padhan v. Chhai Padhan and others, AIR 1981 Orissa 74.
(m) Mahant Indra Narain Das v. Mahant Ganga Ram Das and another, AIR 1955 Allahabad 683.
(n) Unreported decision of this Court rendered in Special Civil Application No.2319 of 2019 dated 05.02.2019.
(o) Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, (1996) 4 SCC 490.
(p) K. Lubna and others v. Beevi and others, (2020) 2 SCC 524.
25. Learned Senior Advocate Mr. Percy Kavina urged that there is a difference between a case pleaded on forgery and non-existing documents. Possession follows title and it is the case of the plaintiff that antecedent claimed to the sale deed in the name of defendant Nos.2 & 3 were non-existent. The documents under which the defendants claim possession are Page 17 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 non-est and illegal and therefore, Mr. Kavina submitted that there was no necessity on the part of the plaintiff to ask for possession. Mr. Kavina submitted that defendant No.1 had no disposing power. Hence, the sale deed in question is void. It is a categoric case of the plaintiff that she had never executed such documents and thus, there would not be any case to claim any signatures being forged. Learned Senior Advocate Mr. Kavina further stated that the learned trial Court Judge ought not to have exhibited the photo copies of the disputed documents and further submitted that the plaintiff could not ask for cancellation of those documents which never existed. Further, law does not permit the plaintiff to challenge the interim orders on conjoint reading of section 105 with Order 41 Rule 22 of C.P.C. Mr. Kavina further stated that law does not recognize the acceptance of photo copies in evidence. No attempt has been made for issuing the notice under section 66 of the Indian Evidence Act, the original of the Power of Attorney has not been produced, the plaintiff has clearly disputed the said document in her evidence in examination-in- chief alleging that back-dated stamp has been used by creating the seal and signature. Plaintiff in her evidence has challenged the Executive Magistrate power to authenticate and execute such document. Learned Senior Advocate Mr. Kavina stated that section 85 of the Indian Evidence Act does not permit any such document to be executed before the Executive Magistrate and any sale deed on the basis of such illegal power of Page 18 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 attorney also does not convey any valid title. Placing reliance on section 3 of Cr.P.C. and section 3(32) of the General Clauses Act, 1897, he submitted that the term 'Magistrate' used under section 85 of Evidence Act would only include a person exercising powers of a Magistrate under the Cr.P.C. and Section 3 of Cr.P.C. clarifies that without any qualifying words, 'Magistrate' shall be construed as those performing judicial work.
25.1 Learned Senior Advocate Mr. Kavina drew attention of the Court to The Criminal Procedure (Identification) Act, 2022, No.11 of 2022, which was published in the Gazette of India on 18.04.2022, to submit that the term 'Magistrate' means, - (i) in relation to a metropolitan area, the Metropolitan Magistrate;
(ii) in relation to any other area, the Judicial Magistrate of the first class; or (iii) in relation to ordering someone to give security for his good behaviour or maintaining peace, the Executive Magistrate. Thus, Executive Magistrate would be a person having the function under Chapter 8 of the Cr.P.C. ordering someone to give security for the good behaviour and maintaining peace. Section 85 of Evidence Act does not recognize Executive Magistrate, so the disputed power of attorney would not draw any presumption, since it has not been executed and authenticated by the Magistrate empowered to do so.
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26. Mr. Kavina relied on the judgment of Apex Court in case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs & others, AIR 2008 SC 2033, to contend that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. Mr. Kavina submitted that it is now for the Court to work out as to who is in possession. He stated that the plaintiff had taken serious disputes to the photo copies. The defendant No.1 is not related to the plaintiff nor any confidence has been shown. The functional method of discharging the burden of proof has not been adopted by the defendants.
27. Referring to the judgments in (i) Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequiera (Dead) Through LRS., (2012) 5 SCC 370, (ii) in Munshi Ram and others v. Delhi Administration, AIR 1968 SC 702 and (iii) in Puran Singh and others v. The State of Punjab, AIR 1975 SC 1674, Mr. Kavina contended that a person in permissive possession must give detailed particulars in his pleadings and details of subsequent conduct which establish his right to continue possession and a trespasser claiming a right on the property must be in actual possession of the property either for a sufficiently long period and the possession must be to the knowledge either express or implied of the owner, without any Page 20 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 attempt of concealment, nature of possession of the trespassers, would have to be decided on the facts and circumstances of the case. Mr. Kavina submitted that the defendants have failed to discharge their burden and when the plaintiff has specifically pleaded about the non-existing documents and has proved the fact and when originals have not been brought on record by defendant Nos.2 & 3 nor proved in accordance with law, the case of the plaintiff has to be believed.
28. On considering the submissions of both the sides, the question which falls for consideration would be whether in the facts and circumstances of the case, it could be considered that the suit of the plaintiff is barred in law by application of section 34 of the Specific Reliefs Act, 1963 on the ground that no relief of possession of suit property been prayed. The learned trial Court Judge had framed the issues below Exhibit-
116. The issue Nos.1 to 3 were dealt together. The plaintiff was called upon to prove that defendant No.1 had created a bogus and forged receipts showing the sale consideration of the disputed property. The back dated stamp papers were used for creating a forged and bogus power of attorney dated 23.01.1985 with a forged and false signature of the Executive Magistrate and to prove that the disputed power of attorney was not exhibited and authenticated under section 85 of the Evidence Act, with the burden to prove that Bharat K. Patel on seeing the defendant's name board on the suit property had Page 21 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 informed the plaintiff. The said issues were answered in the affirmative. Issue No.4 laid the burden on the plaintiff to prove whether defendant Nos.1 to 4 in connivance with each other had created the bogus power of attorney and had executed the sale deed of the disputed plot. Through issue No.7 defendant Nos.2 and 3 were called upon to prove that the sale deed dated 01.06.2010 by plaintiff's power of attorney is legal, and defendant No.4 had the burden to prove vide issue No.9 that the agreement to sale dated 22.04.2005 was legal. The learned trial Court Judge while dealing three issues together, answered issue No.4 in the affirmative while issue Nos.7 and 9 were declared as negative.
29. The learned trial Court Judge while dealing with the referred issue, has considered the provisions of sections 101 and 102 of the Evidence Act. It is observed that as per the evidence of the plaintiff, she had accepted that her suit was for a declaration in respect of the sale deed in favour of defendant Nos.2 & 3. Prior to the filing of the suit, she had come to know that names of defendant Nos.2 & 3 were entered in the property card of the suit property, and defendants had sought permission for construction on the suit land. She had accepted that the FIR was against five persons and that accused were acquitted. She has denied any monetary transaction or any written transactions with defendant No.1 on 23.01.1985. The plaintiff had deposed before the trial Court Page 22 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 that she had no knowledge of the sale deed executed in favour of defendant Nos.2 and 3 nor of any power of attorney of Akshay Ranjit Ashar. The plaintiff stated that all the four receipts are forged and bogus and that back dated stamp was used for creating power of attorney in the name of Executive Magistrate, on 23.01.1985. Further, gave evidence that taking undue advantage of the death of Lilaben Ranjit Ashar, her son
- Akshay Ranjit Ashar has created bogus and forged receipts in the name of his mother.
30. The defendant No.2 examined himself at Exhibit-149. He referred to the sale deed No.7093 dated 01.06.2010 contending that after paying the sale consideration of Rs.20 Lacs, the sale- deed was executed along with possession. The sale deed was by the power of attorney of the plaintiff executed in the presence of the witnesses and he had deposed that the physical possession of the plot was handed over to them at the time of the sale deed and since then defendant Nos.2 & 3 are the owners of the suit land. The defendant in his evidence stated that the power of attorney dated 23.01.1985 was before the Executive Magistrate and was attested by Notary - P.V. Joshi on 15.10.2010 and according to the defendant, after receiving possession, the fencing was done by him and he had put the security person.
31. The defendant No.2 in cross-examination at Exhibit-149 Page 23 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 stated that defendant No.1 was known to his partner, who got him acquainted to defendant No.1. Defendant deposed that prior to the sale transaction, defendant No.1 had shown him all the documents of the suit land from the year 1985 and all the original documents were seen by him. To specify the same, he even deposed that two days prior to the sale deed, he had seen all those documents. In the cross-examination, defendant states that the original documents were retained by defendant No.1 and photo copies were given to them. He has admitted that since suit he had not tried to receive the original documents by serving notice to defendant No.1. He has accepted in his deposition that the documents at Exhibit-208 to 214 were photo-copies and has also accepted that the originals were not produced in the suit nor had they produced any certified copies of documents and nor the documents at Exhibits-208 to 214 are certified copies.
31.1 In the cross-examination, the defendant No.2 had accepted in his evidence that to the agreement of sale produced at Exhibit-215, no public notice was given in daily newspaper and no title clearance certificate was obtained nor any public notice was given prior to the sale deed dated 01.06.2010. As per his evidence, as agreed he had given on piecemeal basis Rs.65 Lacs to defendant No.1. After the sale deed, he gave public notice through Advocate Mr. Mukesh Shah for the title clearance certificate. On 25.06.2012 Page 24 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 permission was given by the Vadodara Municipal Corporation for construction on the suit land and the plaintiff aggrieved by the same, had registered her objections. The said defendant No.2 stated in his evidence that defendant No.1 was declared as an absconder as was not found during the investigation towards the FIR registered at DCB Police Station and the criminal case is still pending against the defendant No.1. The evidence of plaintiff and defendant No.2 so recorded shows that the plaintiff has disputed the power of attorney and all the documents of the year 1985 in the name of the mother of defendant No.1. Except the sale deed of the plaintiff dated 27.07.1964 with the change entry No.878 in the revenue record and the name of the plaintiff in property card, other documents and transactions are disputed. The name of defendant Nos.2 & 3 were entered on the basis of the sale deed No.7093 dated 01.06.2010 in the property card, after the sale deed, the permission for development was sought for.
31.2 According to the evidence of defendant No.2, he had seen all the original documents of the year 1985 two days prior to the sale deed dated 01.06.2010. Those documents were shown to him by defendant No.1. This evidence of defendant No.2 suggests that all the original documents of the year 1985 are in the custody of defendant No.1 who had chosen not to file his appearance or reply in the suit nor has he preferred to produce the originals of the documents in the trial. He had Page 25 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 also remained absconding in the criminal trial, which is still pending. The civil suit was ordered to be conducted ex-parte against him. At the same time, when the documents were produced by the defendants, the plaintiff had taken objection to the photo copies. The defendant Nos.2 & 3 had moved the Court by application Exhibit-148 making a prayer to exhibit those documents, which he had referred in his examination-in- chief. The plaintiff's advocate has raised his objection against exhibiting the documents; however, the learned trial Judge in the order has observed that the documents vide Marks 42/1 to 42/10 are those which have been disputed by the plaintiff and those documents are required to be corroborated by other evidence and further, defendant No.1 has not appeared and has not represented his case and has not produced any documents. So the documents Mark - 42/1 to 42/10 were given tentative exhibits.
31.3 Although section 73 of the Evidence Act specifically empowers the Court to compare the disputed writings with the specimen admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of a mere comparison, more so, when the quality of evidence in respect of specimen admitted writing is not of high standard. Normally, the Court should not take upon itself the responsibility of comparing the disputed signature with that of admitted signature, no doubt, the Court Page 26 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 is competent to compare the disputed signature with the admitted signature in view of section 73 of the Evidence Act. But in case of doubt, it is incumbent on it to leave the matter to the opinion of the expert.
31.4 In Murarilal v. State of M.P., AIR 1980 SC 531, the Apex Court observed as under in paras - 6, 11 & 12;
"6. Expert testimony is made relevant by s. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person `specially skilled' `in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to s. 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (s. 3) tells us that `a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under s. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that s. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the Page 27 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystalized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Page 28 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh (supra) were cases where the Court itself compared the writings."
31.5 The hand-writing expert Jaykumar Jagdishkumar Dave is examined at Exhibit-245. The learned trial Court Judge has rightly rejected his report as his opinion was based on photo copies and not the originals. The report based on photo copies cannot be used as a corroborate piece of evidence. The admitted and proved signatures were not before the expert and photo copies without any relation of his source is not permissible to be denied as secondary evidence. Further, the evidence of hand-writing expert is only opinion and cannot be considered as conclusive. Thus, relying on the Murarilal judgment (supra), the expert opinion cannot be relied upon.
Page 29 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 Further, the learned trial Court Judge did not have the opportunity to exercise his power under Section 73 of the Evidence Act when no original documents were on record.
32. Sections 101 and 103 of the Indian Evidence Act lays down the principle as to burden of proof, which reads thus:
"101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
"103. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
32.1 In a civil proceeding, the normal rule which governs is that a fact can be stated to be established if it is proved by a preponderance of probabilities and when a person as a plaintiff or as a defendant in a suit desires the Court to give judgment as to any legal right or liability on the facts which he asserts then he would be required to prove that those facts existed and when a person has to prove the existence of any fact as laid down in section 101, it is stated that the burden of proof lies on that person. The defendant Nos.2 & 3 claim their right by way of sale deed dated 01.06.2010. According to defendant Page 30 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 Nos.2 & 3, the power of attorney of the plaintiff executed the sale deed and put them in possession, in his deposition defendant No.2 admitted that two days prior to the execution of the sale deed, he had seen all the original documents of the year 1985. The original power of attorney, the agreement of sale as claimed to be in favour of the mother of defendant No.1, the money receipts, the possession receipts, the originals of all are admitted by defendant Nos.2 & 3 in the possession of defendant No.1. The defendant No.1 has failed to produce the originals on record. The defendant Nos.2 & 3 are the persons who claimed their legal right on the suit property by way of sale deed. They claimed to be the bona fide purchasers of the suit property. Thus, in accordance with the provisions of section 101, the burden would be on defendant Nos.2 & 3 and the initial burden was for them to be discharged. The question whether burden of proof has been discharged by the parties at lis would depend upon the facts and circumstances of the case. If the facts are admitted or otherwise sufficient material is brought on record so as to enable the Court to arrive at a definite conclusion, it is ideal to contend that the party on whom the burden of proof lay, will still be liable to produce direct evidence to establish facts.
33. Learned advocate Mr. Thakore submitted that by placing on record the photo copies of documents to support the sale transactions in favour of defendant No.2 they have sufficiently Page 31 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 discharged the burden, since, according to learned advocate Mr. Thakore, the burden was on the plaintiff to prove that the power of attorney in favour of defendant No.1 was never executed before the Executive Magistrate and thus, placing reliance on the fact that defendant No.1 had absented himself during the suit and was declared absconder in the criminal proceedings and the fact that in the suit, the summons was served through a public notice and suit was ordered to be proceeded ex-parte against him, Mr. Thakore submitted that the case of defendant Nos.2 & 3 would fall under Incident-6 of section 66 of the Indian Evidence Act, where if a person in whose possession the documents are, is out of reach, no notice shall be required, and when the secondary evidence are acknowledged by plaintiff, the law does not require defendant Nos.2 & 3 to give any notice to defendant No.1 for production of the original documents. Thus, stated that sufficient evidence was laid by way of secondary evidence to prove the existence and execution of disputed documents.
34. In the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752, the Apex Court observed as under:
"The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the Page 32 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular."
35. When the defendant Nos.2 & 3 sought to admit the documents by moving an application Exhibit-148, the plaintiff had raised the objection and the learned trial Judge therefore was pleased to give tentative exhibits to all those photo copies. Thus, as per the proposition in the above-referred judgment, even if a document is marked as an exhibit, the objection as to the admissibility is not excluded and it is available to be raised even at later stage or even in appeal or revision. Here, at the relevant time, the plaintiff had raised her objection, and had given evidence to the effect that alleged power of attorney is not executed and authenticated in accordance with law. The plaintiff, therefore, had raised her objection not only to the admissibility of the documentary evidence but also to the mode Page 33 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 and method of proof.
35.1 In the said judgment, it has been observed in paras-30 and 33 as under:
"30. In the present case, the trial Court and the first appellate Court have noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of the two Courts below, the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. The High Court, in exercise of its limited jurisdiction under Section 100 of CPC, ought not to have entered into the evaluation of evidence afresh. The High Court has interfered with a pure and simple finding of fact based on appreciation of oral and documentary evidence which the High Court ought not to have done.
33. The offshoot of the above discussion is that no question of law much less a substantial question of law arose in the case worth being gone into the by the High Court in exercise of its second appellate jurisdiction under Section 100 of the CPC. The High Court was bound by the findings of fact arrived at by the two courts below and should not have entered into the exercise of re-appreciating and evaluating the evidence. The findings of facts arrived at by the courts below did Page 34 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 not suffer from any perversity. There was no non-reading or misreading of the evidence. A high degree of preponderance of probability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. The judgment of the High Court cannot be sustained and has to be set aside."
36. The defendant Nos.2 & 3 have failed to prove that they are bona fide purchasers. The plaintiff and defendant Nos.2 & 3 are residents of Vadodara. Defendant Nos.2 & 3 are residents since birth. The suit property is at Vadodara. In spite of the above facts, the defendant Nos.2 & 3 had failed to inquire from the plaintiff about the power of attorney and all the documents of 1985 which they relied upon to claim their title. Even no public notice was given prior to the execution of sale deed. The plaintiff claimed that she came to know about the name board of defendant Nos.2 & 3 on the suit property when it was first time seen by Bharat K. Patel. The defendant Nos.2 & 3 failed to verify from the plaintiff about the execution and authenticity of the power of attorney so claimed by them. The very conduct of the defendant Nos.2 & 3 are not bona fide. The name of the plaintiff was running in the revenue records and even in the property card of the plot. The defendant No.1 has not come forward to give any evidence with regard to the documents on which defendant Nos.2 & 3 have placed reliance nor there is evidence of defendant No.1 in context of the sale Page 35 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 deed executed in favour of defendant Nos.2 & 3. The sale consideration as stated by defendant Nos.2 & 3 has not reached the plaintiff. The sale consideration is not proved by the defendants.
37. Though the burden of proving fraud lies on the persons alleging it, fraud is not capable of being established by positive and tangible proof. It is therefore, sufficient if the evidence given is such as may lead to an inference that fraud must have been committed. In Subhra Mukherjee v. Bharat Coking Coal Ltd., (2000) 3 SCC 312, para-13 reads thus:
"There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No.1 discloses that it is in two parts; the first part says, whether the transaction, in question, is bona fide and genuine one which has to be proved by the appellants. It is only when this has been done that the respondent has to dislodge it by proving that it is a sham and fictitious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitious."
37.1 Here, in the present case, it was for defendant Nos.1, 2 and 3 to prove that the documents and transaction in question were bona fide and genuine. Thus, only when the defendants could have proved so, then the plaintiff was to dislodge them Page 36 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 by proving that it were sham, bogus and fictitious. The case before the trial Court was for appreciation of facts and circumstances where none of the parties have preferred to produce or bring on record the original documents. Defendant No.1, in whose custody those disputed documents were stated to be by defendant Nos.2 & 3, had failed to produce them. The defendant Nos.2 & 3 wanted the trial Court to decide their right, title on the suit land by way of the sale deed. Defendant Nos.2 & 3 had failed to prove the existence of power of attorney which they say was executed by plaintiff in favour of the defendant No.2 and was authenticated by the Executive Magistrate. The defendant Nos.2 & 3 were required to give notice under section 66 of the Evidence Act. Defendant Nos.2 & 3 could not have remained silent spectators, to have waited for defendant No.1 to produce the original documents on his own. The power of attorney original is not on record. As per the plaintiff, no such document exist. Defendant Nos.2 & 3 could not have merely relied on the photo copy of the power of attorney. Under section 85 of the Evidence Act, presumption as to the power of attorney could have been drawn only on the original document. The plaintiff had very specifically pleaded that back-dated stamp paper were used, the seal and signature in the name of Executive Magistrate on the alleged power of attorney, were forged. The fraud so pleaded was of having prepared fake power of attorney, for the purpose of deception. The law is clear on the point that if a party calls Page 37 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 upon other to produce a document as evidence and on being produced, inspects them, the document should be taken as evidence by both the parties without proof and should be admitted in toto. The notice contemplated in section 163 of Evidence Act is a notice to be given under section 66 of the Evidence Act. Similarly, the notice envisaged by section 89 of the Evidence Act is also the notice referred to in sections 66, 163 and 164 of the Evidence Act. The notice requires the party to produce the document which is in his possession or power. If the party fails to produce the documents despite the notice, the party at whose instance the notice has been issued is entitled to adduce secondary evidence of the contents of the document. Section 89 of the Evidence Act allows the Court to presume that every document called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law. This benefit of law could have been availed by defendant Nos.2 & 3.
38. Section 65 of the Evidence Act provides for permitting the parties to adduce secondary evidence. However, such course is subject to a large number of limitations. In a case where the original documents are not produced at any time nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contens of a document is inadmissible until the non-
Page 38 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. This view finds support from the cases of H. Siddique A. Ramalingam, (2011) 4 SCC 240; Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457; State of Rajasthan v. Khemraj, AIR 2000 SC 1759; Life Insurance Corporation of India v. Ram Pal Singh Bisen, (2010) 4 SCC 491 and M. Chandra v. M. Thangmuthu, (2010) 9 SCC 712.
39. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. The court has an obligation to decide the question of admissibility of a document in secondary evidence.
40. Learned Advocate Mr. Thakore would contend that defendant Nos.2 and 3 were not required to issue notice for production of document to defendant No.1 since he was out of reach of defendant Nos.2 & 3. Advocate Thakore relied on condition No.6 to substantiate his condition of non-issuance of notice. Section 66 of the Evidence Act reads as under:
"66. Rules as to notice to produce.--Secondary evidence of the contents of the documents referred to in section 65, clause (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the Page 39 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 document is, [or to his attorney or pleader], such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
--
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:--
(1) when the document to be proved is itself a notice; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it; (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court."
41. Generally, a person is considered 'out of reach' if he is beyond the capacity of someone to reach him. The said phrase is used for saying that someone cannot have or do something because they do not have enough money or skill. To demonstrate the contention, reliance is placed on the instances of defendant No.1 having remained absconding in trial. The suit was ordered to be proceeded ex-parte and that the summons / notice of the suit came to be served through public notice. This contention of defendant Nos.2 & 3 cannot be accepted. A person may be 'out of reach' for an individual or Page 40 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 certain people, but may be within reach of some. The person who claims of another being 'out of reach' has to prove these facts on his own. Why defendant No.1 had not preferred to face the criminal trial and had not preferred to reply the suit would be for the defendant No.1 to answer, but it would be necessary for defendant Nos.2 & 3 to know when they have put up the case that they had purchased the suit property from him they have to make the attempts to prove that defendant No.1 is out of their reach. An argument was raised by learned advocate Mr. Thakore that while giving a complaint to the Police Commissioner, the plaintiff had given the copy of the disputed document including the copy of the power of attorney. According to learned advocate Mr. Thakore, the plaintiff has not disclosed the source of receiving the said documents. The evidence on record proves that defendant No.1 had seen all the original documents two days prior to the execution of sale-deed in their favour. In the sale-deed, the residential address of defendant No.1 is shown at Mumbai. Even the address of mother of defendant No.1 in disputed document is admitted by defendant as of Mumbai. The defendant, in his examination-in-chief, has stated that defendant No.1 has gone to foreign country. The whereabouts of defendant No.1 is known to defendant Nos.2 & 3. In their written statement, they have stated that defendant No.1 has business in foreign country. The burden is on defendant Nos.2 & 3 to prove that defendant No.1 is out of their reach, which Page 41 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 they miserably failed to prove.
42. Section 103 of the Evidence Act lays down the burden of proof as to any particular fact on that person who wishes the Court to believe in its existence unless it is provided by a law that the proof of that fact shall lie on any particular person. Section 104 of the Evidence Act is about burden of proving fact to be proved to make evidence admissible. The provision accordingly says that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
43. Now, when defendant No.2 has failed to produce the original documents, presumption under section 114 III(g) of the Evidence Act could be drawn, that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The plaintiff has also stated in the evidence that she had applied for the certified copy of the power of attorney from the Sub-Registrar Office where the sale-deed was registered in favour of defendant Nos.2 & 3 but she was replied that it was non-available. A registering authority under the Registration Act has to verify if the power of attorney empowers the agent to sell the property.
44. In Narayan Govind Gavate v. State of Maharashtra, Page 42 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 (1977) SCC 133, the Supreme Court has dealt with burden of proof in para - 93 as under:
"The principle is stated in section 102 from the point of view of what has been sometimes called the burden of leading or introducing evidence which is placed on the party initiating a proceeding. It says:
"102. The burden of proof in a suit or pro- ceeding lies on that person who would fail if no evidence at all were given on either side". In practice, this lesser burden is discharged by merely showing that there is evidence in the case which supports the case set up by the party which comes to Court first, irrespective of the side which has led that evidence. An outright dismissal in limine of a suit or proceeding for want of evidence is thus often avoided. But, the burden of establishing or general burden of proof is heavier. Sometimes, evidence coming from the side of the respondents, in the form of either their admissions or conduct or failure to controvert, may strengthen or tend to support a petitioner's or plaintiff's case so much that the heavier burden of proving or establishing a case, as distinguished from the mere duty of introducing or showing the existence of some evidence on record stated in section 102, is itself discharged. Sufficiency of evidence to discharge the onus probandi is not, apart from instances of blatant perversity in assessing evi- dence, examined by this Court as a rule in appeals by special leave granted under Article 136 of the Constitution. It has been held that the question whether an onus probandi has been discharged is one of fact (see: AIR 1930 P.C. p. 90). It is generally so."
45. Chapter VI of the Specific Relief Act, 1963 is with the Page 43 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 topic of declaratory decrees. Section 34 of the Act deals with the discretion of the Court as to declaration of status or right. Section 34 thus reads:
"34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
46. In a suit under this section (i) the plaintiff must be a person entitled to any legal character or to any right as to any property; (ii) the defendant must be a person denying or interested to deny the plaintiff's title to such character or right; (iii) the declaration sued for must be declaration that the plaintiff is entitled to a legal character as to a right to property and (iv) where the plaintiff is able to seek further relief than a mere declaration of title, he must seek such relief. If any of the first three condition is not fulfilled, the suit should be dismissed. If those conditions are fulfilled, but Page 44 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 the fourth is not, the Court shall not make the declaration sued for.
47. Prior to the Specific Relief Act, 1877, the Courts had no power to make a merely declaratory decree independently of section 15 of Civil Procedure Code, 1859, which relates to Declaratory Suit. It provides that no suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the Civil Courts to make binding declarations of right without granting consequential relief. The power to make such decree rested entirely upon that section. It might have been thought that since the enactment of section 42 of the Specific Relief Act, 1877, the power of the Courts in India to make merely a declaratory decree rested entirely upon section 42, now section 34 of Specific Relief Act and that the Courts had no power to make such decree independently of that section. However, it is now settled that the provisions of this section are not exhaustive as to grant of declaratory decree.
48. The conflict of opinion as to whether the section is exhaustive of the circumstances in which declaration may be granted can be taken as finally settled by the decision of the Hon'ble Supreme Court in Vemareddi Ramaraghava Reddy v. Kanduru Seshu Reddy, AIR 1967 SC 436 and reaffirmed later in Supreme General Films Exchange Ltd. v. His Highness Page 45 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 Maharaj Sri Brijnath Singhji Deo of Mahiar in AIR 1975 SC 1810.
49. In Supreme General Films Exchange Ltd. v His Highness Maharaja Sir Brijnath Singhji Deo of Mahiar, AIR 1975 SC 1810, it was held as under:
"The result is that Section 42 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42. We, think that the circumstances in which a declaratory decree under Section 42 should be awarded is a matter of discretion depending upon the facts of each case. No doubt a complete stranger whose interest is not affected by another's legal character or who has no interest in another's property could not get a declaration under Section 42 with reference to the legal character or the property involved."
50. In the case relied upon by learned Advocate Mr. Thakore in Vinay Krishna v. Keshav Chandra and another, AIR 1993 SC 957, the suit was for declaration of share in property, where plaintiff was not in exclusive possession of property because two other persons and also tenants were in occupation. The plaintiff failed to claim relief for possession and it was held that discretion of Court in granting decree for declaration was barred. It was therein observed that mere prayer in plaint of Page 46 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 such other relief be granted to plaintiff, without specific plea of possession, is not sufficient.
51. In Ram Saran and another v. Smt. Ganga Devi reported in AIR 1972 SC 2685, it was concluded that where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those property but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable.
52. In the case of Mehar Chand Das v. Lal Babu Siddique and others, AIR 2007 SC 1499 too it was held that mere suit for declaration without claiming relief of possession is not tenable.
53. Same view was expressed in Union of India v. Ibrahimuddin and another, (2012) 8 SCC 148 wherein it was held that suit seeking declaration of title of ownership of properties without seeking possession when plaintiff not in possession was held not maintainable.
54. In Samad Dar v. Mohammad Ismail Tantray, AIR 1983 Jammu and Kashmir 59 the Court held as incompetent a suit for declaration of sale-deed as null and void where the possession of the suit property was with the defendant but no relief for possession was sought for in the suit.
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55. In Anuthula Sudhakar v. P. Buchi Reddy (Dead) By Lrs & Ors., AIR 2008 SC 2033, it has been observed in para-17 as under:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a Page 48 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
56. In Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (Dead) Through LRS., (2012) 5 SCC 370, the Apex Court observed in paras-61 to 75 as under:
"61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.
62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.Page 49 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022
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63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.
64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts.
65. A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.
66. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put Page 50 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.
69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.
70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property; (b) title of the property;
(c) who is in possession of the title documents;
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the Page 51 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.
72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.
73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial.
Judges are expected to carefully examine the pleadings Page 52 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 and documents before framing of issues in a given case.
75. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence."
57. In Munshi Ram and others V. Delhi Administration, AIR 1968 SC 702, the Apex Court observed in para-13 as under:
"13. ....It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary Page 53 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 force."
58. In Pural Singh and others V. The State of Punjab, AIR 1975 SC 1674, the Apex Court observed as under:
"(11) ...
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence."
59. The defendant Nos.2 & 3 have placed heavy reliance on the evidence in cross-examination of the plaintiff. It has come in evidence that she was informed by Shri Bharat K. Patel that builders have occupied the suit property and such information was given one year prior to the suit. This evidence follows by the evidence that therefore she had registered a complaint before the J.P. Road Police Station on 09.08.2010. The complaint is at Exhibit-140 while Exhibit-141 is the complaint addressed to Police Commissioner against five persons. Plaintiff says that she had given complaint Exhibit-141 as MOU of the suit property was found to be in circulation, which was given to her by Shri Bharat K. Patel, while she does not recollect the persons named in the MOU. The evidence of plaintiff, thus, Page 54 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 suggests that Shri Bharat K. Patel informed her, that builders have occupied her property. Defendant Nos.2 & 3 had put a Public Caution Notice Board on the suit property, which is open land with wire fencing. Merely putting up a board would not lead to an inference that the defendant Nos.2 & 3 were in settled possession when the owner of the property was not in the knowledge of such possession.
60. In Rama Gowda (Dead) by LRS. v. M. Varadappa Naidu (Dead) by LRS and Another, 2004 (1) SCC 769, while dealing with the concept of "settled possession" it was observed in para-9 as under:
"9. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession..."
61. The plan sanctioned by the Municipal Commissioner got cancelled. The change entry in the property is challenged. There is nothing further done on the land in the form of any construction, the wire fencing is claimed by the plaintiff to have been got done by her. The defendant Nos.2 & 3 have not produced any document to show that after the sale-deed, the Page 55 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 wire-fencing was done at their expense.
62. The defendant Nos.2 & 3 could not prove the agreement of sale as stated to have been executed between the plaintiff and mother of defendant No.1. The handing over of possession by plaintiff to the mother of defendant No.1 is not proved. Hence, the fact that the possession of the suit property was not with the plaintiff since 1985 remained disproved as the relevant original documents were not produced nor proved. The defendant Nos.2 & 3 had claimed the possession from 01.06.2010, i.e. the date of sale-deed but the execution and authenticity of the power of attorney was not proved during the course of trial. Section 85 of the Evidence Act could not give any support to the defendants since the original power of attorney was not produced on record nor any attempt was made to call for the originals from defendant No.1. The factum of dispossession from 1985 since remained unproved and when defendant Nos.2 & 3 have failed to prove on record that defendant No.1 through his mother was holding the possession and as power of attorney of the plaintiff had handed over the physical possession of the open land, it cannot be believed that the plaintiff was dispossessed. Mere stray incident of putting the name board or security person on the suit land would not prove actual physical possession of defendant Nos.2 & 3. When the originals of sale-deed and documents are not on record and are not proved, they are to be treated as non-existent. Thus, it Page 56 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 is to be concluded that the suit of the plaintiff was not barred by Section 34 of the Specific Reliefs Act, 1963 as the defendants have failed to prove dispossession of the land of the plaintiff. Thus, to the reasons given above, the judgment and decree of the learned trial Court Judge requires no interference by this Court. The maxim "De Non Apparentibus Et Non Existentibus Eadem Est Ratio" means that which does not appear will not be presumed to exist. This maxim applies where a party seeks to rely upon any deeds or writings which are not produced in Court and the loss of which is not accounted for or supplied in the manner in which the law prescribed; for, in this case, they should be treated as against such party as if non-existent. Hence, the appeal deserves to be dismissed.
63. In the result, the appeal is dismissed. Interim relief, if any, stands vacated. Consequently, the civil application stands disposed of.
SD/-
(GITA GOPI, J) FURTHER ORDER After the judgment was pronounced, learned advocate Mr. Salil Thakore for the appellants requested to stay the judgment for a period of eight weeks in order to approach the higher forum. Considering the facts of the case, the operation Page 57 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022 C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 of this judgment shall remain stayed for a period of six weeks from today.
SD/-
(GITA GOPI, J) PRAVIN KARUNAN Page 58 of 58 Downloaded on : Mon May 09 20:35:30 IST 2022