Karnataka High Court
Venkataramanappa vs Narasaiah on 5 February, 2004
Equivalent citations: AIR2004KANT414, ILR2004KAR3079, 2004(5)KARLJ549, AIR 2004 KARNATAKA 414, 2004 AIR - KANT. H. C. R. 2239, (2004) ILR (KANT) (3) 3079, (2004) 5 KANT LJ 549, (2004) 4 ICC 272, (2004) 3 KCCR 1517, (2004) 3 CURCC 402
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER 14 RULE 1 & 2 - FRAMING OF ISSUES BY THE COURT - HELD - If there is a specific denial of execution of a document by a party to the suit, it is necessary for the Court to frame a specific issue regarding proof of execution of the document. ALLOWING THE RSA, REMANDING THE MATTER TO THE FIRST APPELLATE COURT, THE COURT, Held: In the instant case there is a specific denial of execution of the sale deed by the defendant. It is necessary for the Courts-below to have framed a specific issue regarding proof of execution of the sale deed casting burden on the plaintiff and such an issue would have given a fair opportunity to both the parties to adduce necessary evidence available with them. The examination of the attesting witness Under Section 68 of the Evidence Act is not necessary when the executant denies the execution. But when the fact of execution of a document is itself in dispute irrespective of the provisions of Section 68 the party alleging execution of a document has to prove the execution. In that regard if there are any attesting witnesses to a document, the examination of such witness to prove the execution of the document becomes necessary and they would be necessary and material witness. JUDGMENT K. Sreedhar Rao, J.
1. The appeal filed against the judgment and decree in RA 40/2002 on the file of Civil Judge, Senior Division, Ramanagaram arising out of the judgment and decree in O.S. No. 64/90 on the file of Civil Judge, Junior Division, Ramanagaram. The appellant is the defendant. Respondent-plaintiff filed the suit initially for permanent injunction against the defendants not to interfere with the peaceful possession and enjoyment of the suit property. Later on amended the relief for possession. The plaintiff claims title to the property by virtue of the sale deed dated 24-4-1962 at Ex.P.10 executed by the defendant and claims to be in possession and enjoyment of the property since the date of sale. The defendant categorically denies the execution of sale deed, delivery of possession and payment of consideration.
2. The Trial Court decreed the suit and directed delivery of possession. The first appellate Court confirmed the findings in the judgment and decree of the Trial Court and dismissed the appeal of the defendant. Hence, the second appeal.
3. The case is at the stage of admission. The parties assisted the Court with necessary documentary evidence and pleadings and argued on merits for final disposal. The following substantial question of law is framed for consideration.
"Whether the appellate Court committed error in not formulating the proper issues to draw the necessary attention of the parties to prove the controverted fact of execution of sale deed Ex.P.10 by the defendant. Whether absence of specific issue has resulted in lack of fair and proper opportunity and miscarriage of justice?
4. The plaintiff claims title to the property by virtue of Ex.P.10 the sale deed of the year 1962 and claims to be in continuous possession and enjoyment even on the date of the suit. The defendant has categorically denied execution of the sale deed, delivery of possession and receipt of consideration. On the disputed facts, the Trial Court framed the issues in the following manner:
1. Whether the plaintiff proves that he is the owner in possession over the suit schedule property?
2. Whether the plaintiff proves the interference by the defendant over the suit schedule property?
3. What order or decree?
Additional Issues:
1. Whether the plaintiff proves that the defendant has taken possession after filing the suit on 6-2-1994?
2. Whether the plaintiff proves that he is entitled to means profit after 6-2-1994?
5. Issue No. 1 framed incidentally deals with the question of the execution of sale deed Ex. P 10 by the defendant but it does not precisely draw attention of the parties to adduce necessary evidence with regard to execution of the sale deed Ex.P.10 which is a crucial and a seriously disputed fact. The plaintiff is aged around 90 years his son is the power of attorney holder examined as P.W.1. From the evidence of P.W. 1 it is explicit that he was not born as on the date of Ex.P.10 and he could not have competently spoken to the facts relating to the execution of the sale deed by the defendant. PWs. 2 and 3 are the witnesses. Their evidence corroborate the factum of possession of the plaintiff from the date of sale deed till the date of suit but factually their evidence gets belied by the contents of RTC extracts produced by the parties. The plaintiff contends that pursuant to EX P.10 he has obtained mutation of his name in the year 1962-63 but the RTC extracts produced by the plaintiff are from the year 1969. The entries are made in the name of plaintiff till the year 1988. For the year 1988-89 the name of defendant is mentioned. From 1974-75 till 1987-88 the name of defendant is mentioned as cultivator. For the year 1989-90 the name of the plaintiff is shown. From 1990-91 onwards the name of the defendant is shown as cultivator.
6. The Counsel for the respondent relied on the ruling of the Supreme Court SMT. HANS RAJI v. YOSODANAND, wherein it is held that sale deed is not a document, which requires attestation by witnesses. Therefore Section 68 of the Evidence Act would be inapplicable to sale deed and there is no need to examine the attesting witnesses to prove the execution of the sale deed when the executant denies the execution.
7. In the instant case there is a specific denial of execution of the sale deed by the defendant. It is necessary for the Courts-below to have framed a specific issue regarding proof of execution of the sale deed casting burden on the plaintiff and such an issue would have given a fair opportunity to both the parties to adduce necessary evidence available with them. In the absence of a specific issue I feel that the parties are misdirected and have placed scanty evidence. No doubt, the sale deed need not be attested by a witness. The examination of the attesting witness Under Section 68 of the Evidence Act is not necessary when the executant denies the execution. But when the fact of execution of a document is itself in dispute irrespective of the provisions of Section 68 the party alleging execution of a document has to prove the execution. In that regard if there are any attesting witnesses to a document, the examination of such witness to prove the execution of the document becomes necessary and they would be necessary and material witness. Otherwise non-examination may expose to the risk of adverse inference. In the absence of a specific and a necessary issue regarding the valid execution of Ex. P. 10 has really misdirected the parties from understanding the case of each other from the legal angle, perhaps for that reason the parties could not adduce necessary evidence. The Courts have also not understood the crux of the matter. Therefore I feel it just and necessary that the matter requires a limited remand.
Accordingly, the appeal is allowed. The matter is remanded to the first appellate Court with a direction to frame a specific issue regarding proof of execution of the sale deed and parties should be permitted to adduce necessary evidence. There upon the first appellate Court shall dispose of the case in accordance with law. The appellate Court shall dispose of the case within six months from the date of receipt of the records.