Madras High Court
T.P.Manoharan vs Achari Antoni on 26 April, 2011
Author: G.Rajasuria
Bench: G. Rajasuria
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 26/04/2011 *CORAM THE HONOURABLE MR.JUSTICE G. RAJASURIA +SA.200 of 2011 #Krishnan $Padmavathy !FOR PETITIONER : T.P.Manoharan ^FOR RESPONDENT : Achari Antoni :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.04.2011 Coram:
THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.200 of 2011 and M.P.No.1 of 2011 Krishnan @ Kishtan .. Appellant vs.
1. Padmavathy
2. Kumarakrishna Reddiar .. Respondents This Second Appeal is focussed as against the judgment and decree dated 20.01.2011 passed in A.S.No.47 of 2006 on the file of the Court of the Principal Sub-Judge, Puducherry, confirming the judgment and decree dated 11.12.2006 passed in O.S.No.787 of 2003 on the file of the Court of the District Munsif, Puducherry.
For appellant : Mr.T.P.Manoharan For Respondents : M/s Achari & Antoni (for R1) Mr.Mahimairaj (for R2) JUDGMENT This Second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated 20.01.2011 passed in A.S.No.47 of 2006 by the Principal Sub-Judge, Puducherry, confirming the judgment and decree of the District Munsif, Puducherry in O.S.No.787 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The plaintiff filed the suit seeking the following reliefs:
"(i) To grant permanent injunction restraining the defendants, their men, servants, agents and any persons claiming any right through them from interfering with the peaceful possession and enjoyment of the suit property, by the plaintiff until he is duly evicted by due process of law; and
(ii) for costs." (extracted as such)
(b) D2 filed the written statement which was adopted by D1.
(c) Whereupon issues were framed by the trial Court.
(d) On the side of the plaintiff, he has not examined himself as a witness, however P.Ws.1 to 4 were examined and Exs.A1 and A18 were marked. The second defendant- Kumarakrishna Reddiar examined himself as D.W.1 along with D.W.2-Rajamanikam and Exs.B1 to B5 were marked. Exs.X1 to X7 were also marked.
3. Ultimately the trial Court decreed the suit partly, by granting injunction relating to items 1 and 2 and dismissed the suit in respect of the remaining items 3 to 6 of the suit properties.
4. Being aggrieved by the same, the plaintiff preferred appeal for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the trial Court.
5. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been focussed by the plaintiff on various grounds and also suggesting the following substantial questions of law:
"1. The failure of the Court below to consider the contents of Ex.A5 Rent Receipt viz., the specific mention of all the 6 items of the suit properties and the extent made by the respondents themselves therein as leased out to the appellant, had not vitiated its finding and judgment that the appellant is not the cultivating tenant in possession of the items 3 to 6 of the suit properties and made them perverse?
2. After having issued Ex.A5 receipt, specifically mentioning all the 6 items of the suit properties and the extent as leased out to the appellant and receiving the lease amounts from him therefor, the respondents are not barred and estopped from claiming the contrary that they have leased out only items 1 & 2 to him and they are in possession of the remaining items 3 to 6 of the suit properties?
3. When the appellant is in actual possession of the items 3 to 6 of the suit properties, can he be evicted therefrom without following due process of law by stating that he has not proved that he is the cultivating tenant of those items?
4. Whether in view of the facts and circumstances of the case and materials on record, Ex.B4 Adangal Extract which was procured by the respondents after receipt of the suit notice, containing incorrect particulars and not proved in accordance with law, can be relied upon and hold that they are in possession of the items 3 to 6 of the suit properties?
5. In view of the facts and circumstances of the case, the failure of the 1st respondent viz., the competent person to file her written statement, get in to the box, give evidence and make her available for cross examination by the appellant, would not lead a presumption that if she has done so, her statement and evidence would be unfavourable to the case of the respondents and consequential rejection of the same?
6. Whether the Court below was right in proceeding that it has jurisdiction to decide the issue relating to Cultivating Tenant, presuming that the issue involved in the suit is also relating to Cultivating Tenant, ignoring Ex.A5 issued by the respondents admitting that the appellant is the cultivating tenant of all the 6 items and holding that he has not proved that he is Cultivating Tenant of the items 3 to 6 of the suit properties and dismissing the suit in respect of those items, that too, without giving any finding that the respondents are in possession of those items?
7. Whether the rejection of Ex.A2 to 10 and the evidence of P.W.1 to 4 by the Court below by recording incorrect, flimsy and faulty reasons, are sustainable in law?
8. Whether the failure of the Court below to consider the material evidence and read and construe the remaining evidence on record in its correct perspective, had vitiated its findings and judgment and made them perverse?
(extracted as such)
6. Heard both so as to find as to whether any substantial question of law is involved in this case.
7. At the outset, I fumigate my mind with the following decision of the Hon'ble Apex Court:
(2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs.COMMISSIONER OF INCOME TAX, DELHI]; certain excerpts from it would run thus:
"19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread."
8. In addition to that, the learned counsel for the plaintiff cited the following decisions of the Hon'ble Apex Court:
(i) (2004) 9 SCC 468 [Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity and others]; an excerpt from it would run thus:
"9. Though, as rightly contended by the learned counsel for the appellants, the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited, where the trial Court and/or the first appellate Court misdirected themselves in appreciating the question of law and placed the onus on the wrong party, certainly there is a scope for interference under Section 100 CPC after formulating a substantial question of law."
(ii) (2007) 5 SCC 730 [J.Yashoda v. K.Shobha Rani]; an excerpt from it would run thus:
"9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher of superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it........"
(iii) (2011) 1 SCC 158 [D.R.Rathna Murthy v. Ramappa]; an excerpt from it would run thus:
"9. Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e., not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the reappreciation or evidence in those proceedings, however, such a course is permissible in exceptional circumstances."
(iv) JT 2010(11) SC 398 [D.R.Rathna Murthy v. Ramappa]; an excerpt from it would run thus:
"7.1. Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the Courts below are found to be perverse i.e., not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional cases. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa & Ors. Hafazat Hussain v. Abdul Majeed & Ors. [JT 2001 (6) SC 591:200197)SCC 189]; and Bharatha Matha & Anr. v. R.Vijaya Renganathan & Ors. [JT 2010 (5) SC 534]).
9. A mere poring over and perusal of those excerpts including the whole judgments would reveal that unless there is any perversity or illegality in the findings of the Courts below or that the Courts below have failed to apply the correct law, the question of interference in the Second Appeal does not arise.
10. It is therefore just and necessary to find out as to whether any substantial question of law in involved in this matter for interfering with the judgments and decrees of both the Courts below.
11. The learned counsel for the plaintiff would put forth and set forth his arguments thus:
(a) Both the Courts below failed to give any finding positively on the actual issues involved in the matter.
(b) One could see in the judgments of the lower Courts only the narration of facts and the evidence adduced on both sides and that without any finding, straightaway the Courts agreed with the case of the defendants and decreed the suit only in respect of items 1 and 2 and dismissed the suit in respect of items 3 to 6.
(c) The non examination of the plaintiff as a witness was taken seriously by the lower Court, but in Ex.A1 - the Power Deed itself, it is found set out that the plaintiff was suffering from serious illness, and hence his son was examined and his evidence is free from blemish.
(d) The evidence of P.W.2, the person cultivating the land nearby the suit properties, supported the case of the plaintiff and pointed out that it is the plaintiff who has been cultivating all the six items of the suit properties.
(e) During cross examination of P.W.1 or P.W.2, there is nothing to suggest that their versions during their chief examinations were untrue.
(f) D1 is the person who is the mother of D2. In fact, one Rangasamy Gounder - the father of the plaintiff took on lease all the items of the suit properties from D1, but D1 herself has not chosen to figure as a witness to speak about her case.
(g) D2 was not competent to depose on behalf of D1.
(h) There was no cross examination challenging and impugning Ex.A5, which clearly highlights as to what are all the properties which are the subject matter of lease in favour of the plaintiff's father and consequently in favour of the plaintiff.
(i) In fact, both the Courts below have not given any specific finding, but simply placed reliance on the so called concession given by the defendants in respect of items 1 and 2.
(j) The law enjoins the Courts below which are the Courts of fact, to analyse the facts and give a specific finding on all the issues based on oral and documentary evidence. The oral and documentary evidence placed on the side of the plaintiff were ignored and in such a case, as per the above cited decisions, the interference of this Court in the Second Appeal is warranted.
Accordingly, the learned counsel for the plaintiff would pray for formulating the substantial questions of law and decide the lis by setting aside the judgments and decrees of both the Courts below and decreeing the suit in toto.
12. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for R2/D2 would advance his arguments thus:
(a) The onus of proof is on the plaintiff to prove his case and he cannot try to fob off the burden of proof on the defendants.
(b) The plaintiff shunned the box for reasons best known to him. Had he appeared as a witness, then the defendants would have had the opportunity of cross examining him and exposing his falsities, but conveniently he allowed his son to appear and he stayed away from the Court. As per the established principles of law, if the plaintiff fails to figure himself as a witness and speak about the facts which are within his knowledge, then adverse inference has to be drawn as against such a person.
(c) The Power of Attorney does not contain any authorisation to depose by the plaintiff in favour of his son, who deposed on his behalf.
(d) The deposition of P.W.1 itself would amply make the point clear that the plaintiff is having no evidence to prove that he is the cultivating tenant or possessor of items 3 to 6 of the suit properties.
(e) Both the Courts below took into consideration the oral and documentary evidence and also the fact that the burden of proof is on the plaintiff to prove the case and ultimately decided the lis warranting no interference at the second appellate stage.
13. A mere poring over and perusal of the judgments of both the Courts below, would exemplify and demonstrate that they decided the lis adhering to the well settled following maxims namely:
(1) Affirmantis est probare : The person who affirms must prove (2) Affirmanti, non neganti, incumbit probatio : The proof is incumbent on the one who affirms, not on the one who denies.
14. The plaintiff cannot pick holes in the defence and try to achieve success in the litigative battle. It is the plaintiff who came with a specific case that the plaintiff's father Rangasamy Gounder took on lease of the six items of the suit properties, about 45 years anterior to the date of filing of the suit. When such is the case, the plaintiff should have figured himself as a witness and deposed about those facts. P.W.1 the son of the plaintiff was only 36 years old as on the date of deposing before the Court. There are ample provisions in the CPC so as to enable the plaintiff to get himself examined by getting a Commissioner appointed in that regard, but he had not chosen to do so. Ex.A1 the power deed is niggard and bereft of any version authorising P.W.1 - the plaintiff's son to depose on behalf of the plaintiff.
15. I hark back to the following decisions of the Hon'ble Apex Court:
(i) (1999) 3 SUPREME COURT CASES 573 VIDHYADHAR V. MANIKRAO AND ANOTHER, certain excerpts from it would run thus:
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh1. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh2 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat4 also followed the Privy Council decision in Sardar Gurbakhsh Singh case1. The Allahabad High Court in Arjun Singh v. Virendra Nath5 held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.
18. Defendant 1 himself was not a party to the transaction of sale between Defendant 2 and the plaintiff. He himself had no personal knowledge of the terms settled between Defendant 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, Defendant 1 have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part-payment thereof? Defendant 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed on the ground that it was without consideration or that the consideration paid to him was highly inadequate. But he, as pointed out earlier, admitted the claim of the plaintiff whose claim in the suit was based on the sale deed, executed by Defendant 2 in his favour. The property having been transferred to him, the plaintiff became entitled to all the reliefs which could have been claimed by Defendant 2 against Defendant 1 including redemption of the mortgaged property.
21. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as a defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram7 in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.
22. In the instant case, the property which was mortgaged in favour of Defendant 1 was transferred by Defendant 2, who was the owner of the property, to the plaintiff. This transfer does not, in any way, affect the rights of Defendant 1 who was the mortgagee and the mortgage in his favour, in spite of the transfer, subsisted. When the present suit for redemption was filed by the plaintiff, Defendant 2, as pointed out above, admitted the claim of the plaintiff by filing a one-sentence written statement that the claim of the plaintiff was admitted. When the plaintiff entered the witness-box, Defendant 2 did not cross-examine him. He did not put it to the plaintiff that the entire amount of consideration had not been paid by him. Defendant 1 alone raised the question of validity of the sale deed in favour of the plaintiff by pleading that it was a fictitious transaction as the sale consideration had not been paid to Defendant 2 in its entirety. Having pleaded these facts and having raised the question relating to the validity of the sale deed on the ground that the amount of consideration had not been paid, Defendant 2 (sic 1) did not, in support of his case, enter the witness-box. Instead, he deputed his brother to appear as a witness in the case. He did enter the witness-box but could not prove that the sale consideration had not been paid to Defendant 2. ....
23. The findings of fact concurrently recorded by the trial court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion."
(ii) (2010) 10 SUPREME COURT CASES 512 MAN KAUR (DEAD) BY LRS V. HARTAR SINGH SANGHA, certain excerpts from it would run thus:
"14. In Vidhyadhar v. Manikrao4 this Court reiterated the following well-recognised legal position: (SCC pp. 583-84, para 17) 17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.
15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the attorney-holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd.5 held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21) 13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to act on behalf of the principal. In our view the word acts employed in Order 3 Rules 1 and 2 CPC confines only to in respect of acts done by the power-of-attorney holder in exercise of power granted by the instrument. The term acts would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some acts in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
* * *
17. In Shambhu Dutt Shastri v. State of Rajasthan6 it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
18. The aforesaid judgment was quoted with approval in Ram Prasad v. Hari Narain7. It was held that the word acts used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC.
* * *
21. We hold that the view taken by the Rajasthan High Court in Shambhu Dutt Shastri6 followed and reiterated in Ram Prasad7 is the correct view. (emphasis supplied)
18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
. . . . .
. . . . .
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his state of mind or conduct, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his bona fide need and a purchaser seeking specific performance who has to show his readiness and willingness fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or readiness and willingness. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
The aforesaid decisions of the Hon'ble Apex Court would clearly display and evince that if the plaintiff fails to appear before the Court and depose with regard to the facts which are exclusively within his knowledge, then adverse inference could be drawn. This is a case where admittedly the plaintiff's side is in dearth of evidence and in such a case, it is the plaintiff who ought to have taken care to examine himself as a witness and he should have subjected himself to cross examination. He cannot simply stay away from the witness box and expect the Court to believe the versions in the plaint for gospel truth. The plaintiff who failed to examine himself as a witness is having no locus standi to point out that D1 shunned the witness box and it was only D2 who deposed on behalf of D1. The onus of proof is only on the plaintiff and in such a case, the non examination of the plaintiff himself before the Court is fatal to the case of the plaintiff.
17. I would like to extract hereunder the relevant portion of the evidence of P.W.1:
"Ex.A2 to A10 ypy; ve;j epyj;Jf;fhd Fj;jif vd;nwh my;yJ vt;tst[ Fj;jif vd;nwh ,y;iy vd;why; Mkhk;/@
18. It is therefore crystal clear from the admission of P.W.1 himself that the documentary evidence so to say Exs.A2 to A10 placed before him did not prove and establish as to what extent of property was covered by the lease.
19. The learned counsel for the plaintiff would submit that in Ex.A5 at the top portion, there is reference to survey numbers. In such a case, both the Courts below should have concentrated on that and given their verdict over it, but they failed to render their judgment on that particular portion of the document.
20. I would like to point out that when P.W.1 himself is not placing reliance on that endorsement at the top portion of Ex.A5, it is not the bounden duty of the Court to concentrate suo motu on that and give its verdict. Had the plaintiff pointed out in response to the question during cross examination that there are two sentences in the middle of Ex.A5, so to say at the top portion of Ex.A5, then there would have been further cross examination and both the Courts below would have had the opportunity of concentrating on that and render their judgment. Simply by marking a document, nothing could be presumed to have been established. Marking is different from proving.
21 In this connection I would like to refer to the following decision of the Hon'ble Apex Court:
(2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]. Certain excerpts from it would run thus:
10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....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 is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the 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 when 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 latter 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. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original).
15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
22. It is therefore crystal clear that mere exhibiting a document would not absolve the party concerned from proving the contents of it. There is nothing to indicate and exemplify as to who made such endorsement at the top of Ex.A5.
23. The learned counsel for the plaintiff correctly pointed out the following decision of the Hon'ble Apex Court rendered in 1992 (1) SCC 647 [Jagdish Singh v. Natthu Singh]; certain excerpts from it would run thus:
"10. In our opinion, the High Court was right in its view. The notices must be presumed to have been served as contemplated by Section 27 of the General Clauses Act. As to the jurisdiction of the High Court to re-appreciate evidence in a second appeal it is to be observed that where the findings by the court of facts is vitiated by non-consideration of the relevant evidence of by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. We find no substance in the first contention."
24. Keeping in mind the aforesaid mandate of the Hon'ble Apex Court, Exs.A2 to A10 are analysed by this Court. It is pellucidly and palpably clear that Exs.A2 to A4 do not bear any endorsement referring to survey numbers or extent. Even Exs.A6 to A10 also do not refer to any survey numbers or extent. Only in Ex.A5 and that too at the top portion after 4th line but above the rectangular format, one could see some reference to the survey numbers and extent. Indubitably and indisputably, unarguably and unassailably, a bare looking at it would evince and exemplify, disclose and demonstrate, that those two sentences are in different ink, for which the learned counsel for the plaintiff would submit that one and the same person appears to have written it, but he himself could not by placing his finger on any part of the evidence highlight and spotlight that it was written by a particular individual. The plaintiff has not even ventured to say as to who made such endorsement. When such is the position, I am at a loss to understand as to how the plaintiff could raise his accusative finger as against both the Courts below for not rendering any specific finding on that portion of the Ex.A5.
25. The total extent of six items comes to 99 ares, whereas in Ex.A5 in that impugned portion, it is found mentioned as 98.50 ares. Be that as it may, the burden is on the plaintiff to prove all those facts in detail. In the plaint also there should have been clear indication to that effect, but a mere perusal of it would disclose and convey that it is niggard and bereft of details. I am fully aware of the fact that all the details that would figure in the evidence cannot find a place in the plaint. But I recollect the maxim:
Judicis est judicare secundum allegata et probata It is the duty of a Judge to decide according to the facts alleged and proved.
If at all the plaintiff intended that utmost importance should be given to Ex.A5, then certainly in the plaint itself there should have been a version as to who made such endorsement relating to the extent covered by the lease, because that issue alone gained prominence in the discussion.
26. The learned counsel for the plaintiff attached much importance to the deposition of P.W.2, who claims to be a person cultivating a land near the suit properties. I am of the considered view that during cross examination, P.W.2 exposed himself as to how he was totally unaware of the details relating to the extent covered by the lease. No doubt, a farmer who happened to be the neighbour, with mathematical precision might not be in a position to say about his neighbours' area of cultivation etc. But here the distinction is not one that of tweedledum and tweedledee or six of the one and half a dozen of the other, but one that of chalk and cheese. Items bearing Survey Numbers 285/6 and 285/8 both constitute 40 Ares and 50 Centires plus 5 Ares, so to say totally 45 Ares and 50 Centires, i.e. below half hectare. On the other hand, if all the six items are put together, it comes to nearly one hectare. A farmer would be certainly in a position to distinguish between half hectare and one hectare, but his evidence is far from satisfactory, as he could not precisely say as to what was the area under the cultivation of the plaintiff. He would even go to the extent of claiming as though the defendants are entitled to only six items which goes totally against what is contained in Exs.X1 to X7 as well as Ex.B5 which are quite clear that not less than 8 items are owned by the defendants in that vicinity and it is not the case of the plaintiff that all the eight items which belong to the defendants are under the cultivation of the plaintiff. They would claim that out of the various items, only six items are under their lease hold. These are all facts which are capable of being understood from a mere perusal of the records available. As such P.W.2's evidence in no way buttresses and fortifies the deposition of P.W.1 which itself is shaky and it is not fortified by any documentary evidence. If at all for nearly half a century the six items have been under the cultivation of the plaintiff, then he must be in a position to produce atleast some evidence in support of his claim. Both the Courts below appropriately and appositely, correctly and convincingly pointed out that absolutely there is no clinching or convincing iota or shred, shard or miniscule extent of evidence to support the claim of the plaintiff. As such, I am of the considered view that no question of law, much less substantial question of law is involved in this matter.
24. The learned counsel for the plaintiff also would place reliance on the following decisions and develop his argument:
(i) The decision of this Court reported in 2004(2) CTC 331 [Baby v. Thiagarajan and others]; certain excerpts from it would run thus:
"9. A perusal of the evidence on record shows that P.W.1 and P.W.3 has stated in their evidence that the marriage between them took place in the year 1986. There is no challenge at all in the cross examination about the status of P.W.1 and P.W.3 as the husband and wife. When that be so, there was no reason for the trial to come to the conclusion that the first marriage between P.W.1 and P.W.3 has not been proved and therefore, there was no valid marriage between P.W.1 and P.W.3. This finding of the trial Court is erroneous for the reason that it was not the case of either by A.3 or A.4 or A.1 or A.2 or P.Ws. 1 and P.W.3 that there was no marriage and however, P.W.1 and P.3 specifically stated in their chief examination that they are husband and wife. It has not even been denied in the cross examination and further, in the 313 statement, no such statement that P.W.1 and P.W.3 were not husband and wife made. In the absence of any such challenge by P.W.1 and P.W.3, the trial Court was not correct in holding that there was no valid marriage between P.W.1 and P.W.3. So far as that finding is concerned, viz, P.W.1 and P.W.3 are not husband and wife, it is liable to be set aside and accordingly, it is set aside."
(ii) The decision of the Punjab High Court reported in AIR 1958 Punjab 440 [M/s Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. And another]; certain excerpts from it would run thus:
"14. .......The statements of these four witnesses, who stated that the goods were looted on 8th and 9th of August, 1947, have not been challenged in cross-examination and their credit has not been impeached in any manner. It is a well established rule of evidence that a party should put to each of his opponent's witnesses so much of his case as concerns that particular witness.
If no such questions are put, the Courts presume that the witness' account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross examination so that he may have an opportunity of giving an explanation. In Browne v. Dunn, (1893) 6 R 67(A), Lord Herschell observed:
" I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps be might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.
I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him, and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is is essential to fair play and fair dealing with the witnesses."
25. The above excerpts would display and highlight that if there is no specific cross examination of a particular fact, then that would be taken as one admitted by the opponent. There is no quarrel over such a proposition. Here a mere perusal of the cross examination of P.W.1, would reveal that the counsel cross examined P.W.1 with reference to Exs.A2 to A10 and also with reference to other facts and challenged the version of P.W.1 and in such a case, it cannot be taken that there was no cross examination specifically concerning the averments made by the witness during the chief examination.
26. The learned counsel for the plaintiff would also try to find fault with the deposition of D.W.1 as well as D.W.2. As has been correctly pointed out by the learned counsel for the defendants, the burden of proof is on the plaintiff and if at all the plaintiff had succeeded in shifting the burden from his side to the defendant's side, the question of the defendant proving anything positively would not arise. No doubt, D1 did not examine herself as a witness.
27. I would be constrained to recollect the proverb:
Pot calling kettle black Here the plaintiff has not examined himself and the burden is on him alone to establish the preponderance of probabilities in his favour, but he failed to do so.
28. I am fully aware of the fact the concept burden of proof is ambulatory and not static. Here the plaintiff has not established his case and in such a case, he cannot try to achieve success in the litigative battle by picking holes in the case of the respondents. The defendants without mincing words categorically admitted that the plaintiff is a cultivating tenant with regard to items 1 and 2 and while so, the probabilities are in favour of the defendants that they could have had no reason to dispute that the plaintiff also is a cultivating tenant with regard to the other four items, if at all the claim of the plaintiff was true. But both the Courts below adhering to probable and plausible ratiocination, arrived at the conclusion that the plaintiff has not proved his possessory right over the items 3 to 6 of the suit properties.
29. The learned counsel for the plaintiff also would argue that the finding of the appellate Court was to the effect that the plaintiff had not proved that he was a cultivating tenant in respect of the items 3 to 6 of the suit properties, but there is no finding that he was not in possession of those properties as a possessor. I would like to point out such an argument fails to carry conviction with this Court. It is the plaintiff who approached the Court with a specific plea that he is a cultivating tenant and that he is in possession, ultimately the Court negatived the said plea and therefore it was constrained to give such a finding only. Over and above that, if the whole judgments of the lower Courts are read properly, it could be discernible the trial Court as well as the appellate Court pointed out that there is nothing to prove that the plaintiff established his possession so to say 'corpus possessionis' over items 3 to 6 of suit G.RAJASURIA, J.
gms property and in such a case, I do not think that any substantial question of law is involved in this matter warranting interference in this Second Appeal.
Accordingly, this Second Appeal is dismissed. However, there shall be no order as to costs. Consequently connected miscellaneous petition is closed and the interim order passed shall stand vacated.
26.04.2011 Index : Yes Internet: Yes To
1. The Principal Sub-Judge, Puducherry.
2. The District Munsif, Puducherry.
S.A.No.200 of 2011