Andhra HC (Pre-Telangana)
Konda Rama Krishna Reddy vs Bayana Sesha Reddy (Died) And Ors. on 26 July, 2006
Equivalent citations: 2006(6)ALD360
JUDGMENT V.V.S. Rao, J.
1. The plaintiff in O.S. No. 59 of 1986 on the file of the Court of the District Munsif, Badvel, is the appellant. The suit was filed by one Kanchamreddi Seshamma. While the suit was pending, she died and her nephew, Konda Ramakrishna Reddi, came on record as sole plaintiff, who is the appellant herein. The suit was filed for declaration of title over the suit schedule land admeasuring about Ac.0.10 cents. The trial Court decreed the suit on 28.4.1990. On an appeal by the defendants, however, the Court of the Subordinate Judge, Rajampet, by judgment dated 8.11.1994 in A.S.No. 10 of 1990 reversed the judgment and decree of the trial Court and dismissed the suit.
2. Late Seshamma filed the suit alleging that her husband, Kanchamreddi Nagi Reddi, made an application for assignment of the suit schedule land belonging to the Government to him. The Tahasildar, Badvel, conducted enquiry, obtained no objection from the Gram Panchayat-Porumamilla, and issued patta assigning the land to Nagi Reddi. Nagi Reddi put up a hut and resided for some time. Later he let out the hut to local authority for running elementary school. After the death of Nagi Reddi, thirty five years prior to filing of the suit, his wife Seshamma, inherited the same. The present plaintiff being the adopted son of her brother, Seshamma gifted the property under a Will to the plaintiff. The mother of Seshamma and the mother of the first defendant- Byna Sesha Reddy, being sisters, the first defendant used to collect the rent on behalf of Seshamma and issue receipts. In 1974 there was a fire accident and the hut was destroyed. The second defendant who resides on the eastern side of the suit site (backyard) occupied the suit land and in spite of requests, did not deliver vacant possession. Therefore, the suit was filed for declaration of title and delivery of possession.
3. The second defendant-Obulamma filed written statement and the first defendant filed a memo adopting the said written statement. The case of the second defendant is that she constructed the hut in the suit schedule property and leased out the same to elementary school and that the first defendant was paying house tax from 1945-1946 to 1976-1977. She also stated that late Nagi Reddi never paid any tax and was never in possession. She alleged that the first defendant handed over the site to the second defendant, and in 1974, after the hut was burnt, the second defendant alone put a cattle shed without any objection from any quarter. She also claimed that for over a period of forty five years she is in possession and therefore she perfected her title by adverse possession.
4. The trial Court framed three issues: (1) Whether the plaintiff is entitled for declaration of title to the suit schedule property? (2) Whether the plaintiff is entitled for recovery of possession of the property? and (3) Whether the second defendant perfected the title to the suit schedule property by adverse possession? An additional issue was also framed as to whether the registered Will dated 12.3.1986 in favour of the plaintiff is true, valid and binding. The plaintiff examined himself as P.W.I and marked Exs.A-1 to A-8. He also examined P.Ws.2 to 4 to prove his case. The first defendant examined himself as D.W.I and marked Ex.B-1, and Exs.C-1 and C-2, being the Commissioner's Report and plan, were marked by the Court. Ex.A-8 is the Will dated 12.3.1986 executed by late Seshamma in favour of the plaintiff. Ex.A-6 is the copy of the resolution by the Gram Panchayat and Ex.A-7, though marked as D.K.T patta in favour of late Nagi Reddi, is the extract of Assignment Register. Exs.A-1 and A-2 are the application made by Nagi Reddi and the endorsement made by the Tahasildar respectively. Ex.B-1 is the house tax register produced by the defendants. Be it noted that though the first defendant did not file a detailed written statement, he came to the box as D.W.I. But the second defendant who filed written statement did not come to the box to prove her case, especially, as rebuttal case that no assignment was made in favour of late Nagi Reddi or regarding her allegation that Nagi Reddi was never in possession of the property or that she alone was in possession of the property for over forty five years.
5. On consideration of the oral and documentary evidence, the trial Court found that the first defendant was originally assigned the suit site on condition that the assignee should construct the house within six months, and as he did not comply with the condition, assignment was cancelled and the land was assigned to Nagi Reddi after considering his application, Ex.A-1, and resolution of the Gram Panchayat-Ex.A-6. Dealing with Exs.A-1 to A-7, the trial Court came to the conclusion that Ex.A-7-patta proves that Nagi Reddi, the husband of Seshamma (original plaintiff) was assigned the land. The trial Court also applied the presumption under Section 90 of the Indian Evidence Act, 1872 (for short 'the Evidence Act'), observing that Ex.A-7, being thirty years old, the genuineness of the same has to be presumed. The case of the second defendant was rejected by the trial Court observing that she did not produce any evidence to show that she has a title, and also found that the first defendant was collecting rent from the elementary school on behalf of Seshamma. For this purpose, the trial Court relied on the evidence of P.W.2 and P.W.3, who at the relevant time were working as Head Master and Teacher in the elementary school run in the hut raised in the suit schedule property. Ex.B-1-house tax receipt was rejected by the trial Court observing that the column in which the name and particulars of the owner have to be mentioned is vacant. The plea of the second defendant that she perfected her title by adverse possession was rejected observing that she failed to prove as to how she came into possession of the land when admittedly the suit schedule property forms backyard of her property.
6. In the appeal, the appellate Court rejected Exs.A-6 and A-7 on the ground that the presumption under Section 90 of the Evidence Act is not applicable to such documents and that they cannot be believed.
7. Learned Counsel for the appellant/ plaintiff mainly relies on Exs.A-6 and A-7 in support of the contention that the suit schedule land was assigned to late Nagi Reddi, which was let out to the elementary school and that after the death of Nagi Reddy, the first defendant was collecting rent on behalf of Seshamma. He would submit that the second defendant with the connivance of the first defendant encroached upon the suit schedule land, and therefore the plaintiff is entitled for declaration of title and possession under Ex.A-8-Will. Learned Counsel for the defendants/ respondents submits that unless and until a document is shown to have come from proper custody, a presumption under Section 90 of the Evidence Act cannot be drawn as to its genuineness even if it is thirty years old. He submits that even if the conditions mentioned in Section 90 of the Evidence Act are complied with, still it is purely within the discretion of the Court to apply such presumption. According to the learned Counsel, Ex.A-6-resolution and Ex.A-7-extract of assignment register were produced by P.W.I and in the absence of any proof that they were issued by the Office of Tahasildar, the presumption under Section 90 of the Evidence Act cannot be applied. He placed strong reliance on the decisions reported in Ramaswami Goundan v. Subbaraya Goundan AIR (35) 1948 Mad. 388, C. Audilakshmamma v. A. Rama Rao , P. Lakshmaiah v. P. Venkateswarlu , Lakhi Baruah v. Padma Kanta Kalita and Suryadevara Pullayya v. Suryadevara Satyanarayana .
8. The substantial question of law that arises for consideration is whether a copy of the resolution signed by the President of the Gram Panchayat and the extract of the Assignment Register signed by the Village Munsif, Village Karanam and Tahasildar, but not properly stamped, can be treated as public document, in which event alone, certified copies can be received as evidence. The further corollary question is whether Section 90 of the Evidence Act is applicable to such documents.
9. There cannot be any doubt that unless and until a document is proved to be thirty years old, and unless and until such document is proved to be genuine, the presumption under Section 90 of the Evidence Act cannot be drawn in relation to such document. In Lakhi Baruah v. Padma Kanta Kalita (supra), the Supreme Court explained this principle in the following manner:
Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of Court that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.
10. In Suryadevara Pullayya v. Suryadevara Satyanarayana (supra), I have considered this aspect of the matter. Having regard to the definition of the term "may presume" under Section 4 of the Evidence Act, I have held that where a document is produced to be thirty years old and a request is made to the Court to draw a presumption regarding the genuineness there of, unless and until, such document is disproved by the opposite party, the Court is bound to apply the presumption under Section 90 of the Evidence Act. The relevant observations made by this Court in Suryadevara Pullayya v. Suryadevara Satyanarayana (supra) read as under:
The learned Counsel for the appellants submits that having regard to the words "may presume" used in Section 90 of the Evidence Act, the Court should use proper discretion in presuming the document to be proved. It is no doubt true that when something may be presumed, it is for the Court to come to the conclusion that it is proved or call upon the party relying on the document to prove it. Having regard to the language of Section 4 of the Evidence Act, it is, however, not possible to agree with the learned Counsel for the appellants that in every case the Court is bound to call upon the party relying on the document to prove it. On the other hand, when once a document which is thirty years old is produced and the party relying on the same insists upon the presumption as to its proof under Section 90 of the Evidence Act, the party who opposes such presumption has to disprove it. If he fails in the attempt to disprove, nothing remains to be done and the Court shall have to presume the proof and validity of the document. In a case where the party opposing a document disproves by convincing evidence, then the Court is bound to call upon the other party to prove it.
11. This Court has perused Exs.A-6 and A-7 from the original record. Ex.A-7 is not the true copy or the certified copy. It is the original copy of extract of resolution signed by the then President of Porumamilla Gram Panchayat, which would show that Nagi Reddy made an application for assignment of land in Porumamilla. The Gram Panchayat noticed the same and did not raise any objection. Based on such resolution, it is the case of the plaintiff that the Tahasildar assigned Ac.0.10 cents of land to late Nagi Reddi. To prove this, P.W.I produced the extract of assignment register. Ex.A-7 is the extract of the register containing the particulars of the applicant, the particulars of the land applied for, particulars of the assignment and also conditions. In the last column the signature of the Tahasildar is found who appears to have made an endorsement that the assignee has to construct a residential premises within a period of six months. The same is signed by the Village Karanam, Surya Narayana Rao, and also Village Munsif, Tippa Reddy. The appellate Court rejected the document on the ground that it does not contain the seal of the Tahasildar's Office and that it contains the seal relating to the Office of the Sub-Treasury. The appellate Court surmised that none of the Officials connected with the issue of Ex.A-7 affixed the seal of Tahasidar's Office, and therefore, it is not genuine. There was no warrant to surmise in the said fashion. As rightly pointed out by the learned Counsel for the appellant a suggestion was made to P.W.I that Ex.A-7 is not genuine. No suggestion was made with regard to the signatures of Village Karanam, Village Munsif or Tahasildar or other aspects of Ex.A-7. Indeed, the Counsel for the defendants proceeded as if Ex.A-7 is a patta. It is only the appellate Court who came to the conclusion in the manner as indicated hereinabove. The question before the appellate Court was whether the presumption under Section 90 of the Evidence Act can be applied to infer the genuineness of these two documents.
12. Section 90 of the Evidence Act does not only refer to the documents which are registered or which are produced from proper custody, but also applies to all the documents. Before applying the presumption regarding the signature and every part of such document, the Court has to convince itself that it has come from the proper custody and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed or attested. Therefore, the presumption under Section 90 of the Evidence Act can even be applied for all the documents whether they are attested, whether they are certified and/or whether they are registered documents. The discretion is with the Court to apply such presumption. The appellate Court misdirected itself on this aspect. There was no objection from any quarter that it was the extract of the assignment register insofar as Ex.A-7 is concerned. Even if the rubber stamp appearing on Ex,A-7 is that of Sub Treasury, the same cannot be a ground to reject the same. In the opinion of this Court, Exs.A-6 and A-7 are the documents, which have been proved by P.W.I, and there is no reason not to apply the presumption regarding the signatures and contents of Exs.A-6 and A-7.
13. Insofar as the adverse possession is concerned, it is in the evidence of P.Ws.2 and 3 that till the elementary school hut was burnt in 1974, the first defendant was collecting the rent and paying to late Seshamma. In the absence of any plea and proof that as to when the second defendant came into possession of the property after 1974, it must be held that there was no proper plea of adverse possession. The suit was filed by late Seshamma on 30.12.1985 within the statutory period of twelve years and the question of adverse possession does not arise.
14. In the result, for the above reasons, the second appeal is allowed, and the judgment of the appellate Court is set aside, confirming the judgment and decree passed by the trial Court. There shall be no order as to costs.