Karnataka High Court
Shri. Angadi Basappa vs Hanumantha Reddy on 29 November, 2012
Author: Subhash B.Adi
Bench: Subhash B Adi
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 29TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE SUBHASH B ADI
RSA NO.987/2003 (PAR)
BETWEEN:
SHRI.ANGADI BASAPPA,
S/O LATE ANGADI DODDAPPA
SINCE DECEASED BY HIS LRS
1a. ANGADI SIDDARAMAPPA,
S/O ANGADI BASAPPA,
AGED ABOUT 50 YEARS, OCC: AGRICULTURIST,
R/O THORANAGALLU VILLAGE,
SANDUR TALUK, BELLARY.
1b. ANGADI SRISHAILAPPA,
S/O ANGADI BASAPPA,
AGED ABOUT 39 YEARS, OCC: AGRICULTURIST,
R/O THORANAGALLU VILLAGE,
SANDUR TALUK, BELLARY.
... APPELLANTS
(BY SRI.SMT.VEENA HEGDE, ADV)
AND:
1. HANUMANTHA REDDY,
SINCE DECEASED BY HIS LRS.
1A. SMT. VENKAMMA,
W/O LATE HANUMANTHA REDDY,
MAJOR, KUREKUPPA VILLAGE,
1B. SHRI DODDARANGA REDDY,
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S/O LATE HANUMANTHA REDDY,
MAJOR, R/O KUREKUPPA VILLAGE,
1C. SANNARANGA REDDY,
S/O LATE HANUMANTHA REDDY,
MAJOR, R/O KUREKUPPA VILLAGE,
2. HARISHCHANDRA REDDY,
S/O LATE HALEGOWDARA TIMMANA GOUD,
MAJOR, OCC: AGRICULTURIST,
R/O KUREKUPPA VILLAGE,
SANDUR TALUK, BELLARY DISTRICT.
3. VENKATESH REDDY,
S/O LATE HALEGOWDARA TIMMANA GOUD,
MAJOR, OCC: AGRICULTURIST,
R/O KUREKUPPA VILLAGE,
SANDUR TALUK, BELLARY DISTRICT.
4. CHANNAVEERA REDDY,
S/O LATE HALEGOWDARA TIMMANA GOUD,
MAJOR, OCC: AGRICULTURIST,
R/O KUREKUPPA VILLAGE,
SANDUR TALUK, BELLARY DISTRICT.
... RESPONDENTS
(BY SRI.GODE NAGARAJA, ADV. FOR R1(a-c), R2 & R3,
RR SERVED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATD 12.08.2003
PASSED IN R.A.NO.7/2002 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) KUDLIGI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
26.09.2000 PASSED IN O.S.NO.15/1999 ON THE FILE OF
THE CIVIL JUDGE (JR.DN.) & JMFC, SANDUR.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
I.A.1/2012 is filed for recalling the order dated 05.11.2012. Accepting the cause shown in the affidavit filed in support of the application, I.A.1/2012 is allowed. The order dated 05.11.2012 is recalled. The matter is considered on merits.
2. This appeal is by the plaintiff against the judgment and decree in R.A.No.7/2002 dated 12.08.2003 confirming the judgment and decree passed in O.S.No.15/1999 dated 26.09.2000.
3. Plaintiff filed a suit for declaration, permanent injunction and also possession. The case of the plaintiff was that Angadi Doddappa the father of the plaintiff had filed a suit in O.S.No.702/1957 on the file of the Principal Munsiff, Bellary for declaration and permanent injunction and also for possession. The said suit was decreed and in pursuance of the decree, the said Angadi Doddapa filed E.P.No.518/1965 and E.P.No.468/1966. In pursuance of :4: the execution, the father of the plaintiff took possession of the suit land. Defendant Nos.1 to 4 are the sons of one Timmanagouda. The Timmanagouda was defendant in the suit in O.S.702/1957 and judgment debtor in E.P.No.518/1965. However, five months before the suit, the defendant Nos.1 to 4 trespassed into the land without any right, title and interest. As such, the plaintiff was constrained to file suit for declaration, permanent injunction and possession.
4. The said suit was contested by the defendants inter alia alleging that the plaintiff has no right, title and interest, the defendants are in actual possession of the suit land. The defendants have never trespassed into the land. Defendants have been cultivating the lands for more than 30 years and are in continuous possession and enjoyment of the suit land. As such, the suit is not maintainable in law.
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5. On the basis of the pleadings, the trial Court framed the following issues:
i) Whether the plaintiff proves his title over the suit schedule property?
ii) Whether the plaintiff proves that, he is in actual lawful possession and enjoyment of the suit schedule property?
iii) Whether the defendants prove that, the suit schedule property is inherited property of them and they are in actual possession and enjoyment of the same?
iv) Whether the plaintiff is entitled to any reliefs as sought for?
v) What order or decree?
6. The trial Court dismissed the suit inter alia holding that the suit is barred by limitation under Section 27of the Limitation Act, as the plaintiff has not sought for possession within 12 years from the date of decree. As against the said judgment and decree, the plaintiff filed R.A.No.7/2002. The Lower Appellate Court also dismissed the appeal by confirming the findings of the trial Court.:6:
As against both the judgment and decrees, the plaintiff is in appeal.
7. This Court by order dated 08.07.2005 has admitted the appeal to consider the following substantial question of law:
"Whether the finding of the Courts below that the appellant-plaintiff has failed to prove that possession was taken pursuant to the decree passed in O.S.No.702/1957 and in E.P.No.518/65 is perverse and arbitrary and being contrary to the material on record."
8. The learned counsel for the plaintiff submitted that P.W.1 in his evidence has marked Ex.P1, the suit register extract and Ex.P11-District Court endorsement to prove that the relevant records as to the delivery of the possession and connected records of the execution case No.518/1965 were not available, as such the plaintiff filed a xerox copy of the delivery warrant and also the bailiff report in execution petition. However, they were not :7: marked in the evidence. But they are on record of the trial Court. The trial Court though permitted the plaintiff to mark Exs.P1 and P11, but did not permitted bailiff report and delivery warrant to mark as secondary evidence. Learned counsel also submitted that, if the original records are not available and the xerox copies are the true copies of the original under Section 63 of the Evidence Act such documents should have been permitted to be marked as the secondary evidence. It is also submitted that both the Courts only on the ground of limitation have dismissed the suit. If the plaintiff's father had taken possession and thereafter if the defendants had came into possession, the burden lies on the defendants to prove, as to whether they have been in continuous possession for 12 years next before the suit and the suit is barred under Article 64 of the Limitation Act.
9. On the other hand, learned counsel for the defendants submitted that, suit is filed on the allegation :8: that the plaintiff's father had taken possession, to prove that the possession has been delivered in pursuance of the E.P.No.518/1965, no records have been produced. Just because some xerox copies are produced in the records, they do not become evidence and they cannot be looked into and for this reason the trial Court and appellate Court have not considered the same. He also submitted that suit is hit by Section 27 of the Limitation Act and both the Courts below have concurrently held that the suit is barred by Section 27 of the Limitation Act.
10. It is not in dispute that even after the decree, if the decree holder does not execute the decree and take possession, the limitation will not wait for him and if the possession is not taken within 12 years, the decree holder losses his right to take possession.
11. However, Ex.P1 is a petition for execution of decree. It shows that the father of the plaintiff did filed the execution, the xerox copy of the bailiff report and the :9: order sheet of the said execution case, but they have not been marked nor they are certified copy. In this regard, Ex.P11, the Court endorsement issued by the District Court, shows that the records pursuant to E.P.No.518/1965 are not available. It is in this context the trial Court should have considered the admissibility of the xerox copies.
12. In a case, the party is not having the primary evidence and if the party has the certified copy or a copies made from the original by mechanical process which themselves proves the accuracy of the copy and if the party proves that they could not produce the primary evidence in terms of Section 65 of the Evidence Act, the Court could consider whether such evidence could be accepted as secondary evidence. However, neither the trial Court nor the appellate Court has considered these materials which were on record.
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13. Section 27 of the Limitation Act extinguishes the right of the party, if the suit is not instituted within limitation period. But such question could be determined only on the basis of the finding that the plaintiff had never been in possession in pursuance of the execution proceedings in the earlier suit. On the question of whether the right of the plaintiff has been extinguished with reference to the date on which he was dispossessed or had taken possession, both the Courts have not considered the same, except observing that the plaintiff has not proved his possession.
14. In my opinion, if there are records on record and if such records could be accepted as secondary evidence subject to plaintiff proving in terms of the Sections 63 and 65 of the Limitation Act, the trial Court should have considered the same. This Court has rightly framed the substantial question of law inter alia as to whether the findings of both the Courts below that the : 11 : plaintiff has failed to prove his possession is perverse and arbitrary and contrary to the material on record. Since the material on record including the unmarked documents are not referred, the substantial question of law has to be answered in the affirmative.
15. Accordingly, I answer substantial question of law in the affirmative. Since matter requires reconsideration on the question of Section 27 of the Limitation Act and also on the question of whether the documents could be marked under Section 63 and 65 of the Evidence Act, matter is remanded to the trial Court. Keeping all other contentions of the parties are open and are permitted to lead additional evidence if any. Accordingly, I pass the following order:
16. The appeal is allowed. The judgment and decrees passed in R.A.No.7/2002 and O.S.No.15/1999 are hereby set aside. The matter is remitted to the trial Court : 12 : for reconsideration with a liberty to the parties to lead additional evidence if any.
Sd/-
JUDGE MBS/-