Siddashetty M T S/O Madashetty vs Gowda P H S/O Huchchegowda on 8 June, 2010

[Cites 6, Cited by 6]

Karnataka High Court

Siddashetty M T S/O Madashetty vs Gowda P H S/O Huchchegowda on 8 June, 2010

Equivalent citations: 2010 (4) AIR KAR R 296

schedule to the plaint and hereiiiafter referred to as 'suit schedule property'. The new number assigned t_o..t_heli~si1it scheduie property was No.3OO in the records Bangalore Mahanagara Palike. The dei'er'1da'11ts::Nobl ai'1d__ 2* were in possession and enjoyment:I-oifiltlie suit sc'hed.1:.le property. The plaintiff purchased the said p:;of,-et:{;y_.t::l;de'n deed of Sale dated 13.12.2OO2lllfr'o_n1the delehdaht and his sons. The suit scl1edu_le«-- ofllh ltenarnents. Two portions ofpthe the occupation of deiendant_sllltslor} 'anti. portions are in occupatiorl _of-:{_:ert,airi ot;_h'e:t'ple'i's'o1'i's, the possession of pwhich is said to bylthe 1*" defendant. After the executiongdof the dated $3,122,002, symbolic })OjS4§§:3l€SSe:'.Oi"I ol'l't.h_elp1'op'«31'ty was given to the plaintiff. The 15*' deiendlant .lpA.1'0vfI1iS€Cl the plaintiff that he would evict all the 'tenant's:l"'fro1n:}iihe suit schedule property and handover vacs1nt..__'possession of the same to the piaintiff. After the execution of the sale deed dated 13.12.2002, the plaintiff lgrealised that the 15* defendant had not obtained necessary V. .,_--tlit1e deed from the BDA. Therefore, plaintiff fiied an application requesting he BDA t.o re~eonvey the land in his .. g ..

favour. Accordingly. BDA executed the sale deed 31.1.2004 in his favour. Thus. the plaintiff is the absolute owr1yer_oi7_Vthe suit schedule property. Since the defendants failed' _ the suit schedule property. he tiled the sL1.it.i7.3i~...p0ssess«i_o1'1_oi'~.. the property and to direct them to;_ of Rs.1.20,000/~ as well as f1.iLt1}'€ I Rs.5,000/-- per month from of shit. lti:ll'lh.a:ndii1g over possession of the property_.

3. After service ofstiit sLi.rhr'11ons-, V"the--.defei1dants No.1 and 2 have appeared counsel and filed their \:'»'{1'it-te1'1 the plaint averments. It is contendedthat tjl1e.°pllai:ri'tiflt'lhad entered into an agreerilent date{d"13..12.2OQt3l.Vagreeingl to purchase the entire property. execution of the sale deed dated 13.12.2002 only a sum of Rs.4,2 1,000/-. He has failed to "'play,__"theA:"halanc:e of sale consideration of Rs.2,00.000/~, which is reI1ect.ed in the subsequent agreement. Unless and the plaintiff pays the balance of Rs.2.00_0O0/~ the ._..defendant:s are not liable to vacate the suit schedule property. R / .. 5 ..

4. On the basis of the above pleadings, the Court below has framed the following issues:

.«1. Whether the plaintiff is the owner of tiilefllstzip, :_. property? __ _ V

2. Whether the defendant is iinmpossession suit property with permission

3. Whether plaintiff is entitled i'or'polsseVssio:n ]of._t_he property from the deiendanltsﬁft' V . by V E

4. Whether plaintivffiys en.ti'tleAd_:'to'rent: of damages at the rated from the defendants? _ '

5. Wliethferfhlpl'a§in.tiI'1E'.t»is_vlent'i'1ie.d"§ to Rs.5,000/~ per month ._ i'i"or}f1'-"i;h.e"'dat6.d65 Sn it, till delivery of vacant possession oi*.etlie:V'st1it.-. p'i*epe1'ty to the plaintiff?

6. _What "order or p"i"air1.ti1'fv got examined himself as PW.l and '1§:'x~;£,>; have been marked in his evidence. The defendant~.V."pgoAif;="himself examined as DWi and a witness j K.PfGo\?i.ndéi1"aju was examined DW2. EXDI to Ex.D4 if hay-en been marked in their evidence. The Court below on appreeiatiori of the materials on record has decreed the suit "in the following terms: \' "The suit is decreed with costs.

The defendants or anybody their behalf are directed to and -l1a:n"doVeVr':d"

vacant possession of the suitprerdnisesll Kl within two months froiii the date. of The defendants iliijthei' directed to pay "'a..V_sumi"oi' to the plaintiff by way V Tl1e.idei'endantS:'iare fiirtlhehrveddireeted to pay a sum date of suit, till possession of the 1 d Didadfeaoydeei*eed"aecordingly."

6.' have, learned Counsel for the parties Svri M.i3'.l'1"i'i*eniath, learned advocate appearing for 'dthdel'aijvpell.ai3ts'--"wou1d contend that having regard to the agreements:'at}:Ex.D2, the plaintiff is not entitled for delivery of possession of the suit schedule property since he has failed to a sum of Rs.2,00,000/-- as agreed between the parties. it .. 7 _ It is further argued that total sale consideratiiorl was Rs.6,2l.OO0/--. out of which a sum of Rs.4,21,QQQ/;:f~has been paid when the sale deed Ex.P3 was execu1.ed"bf}£_' _ defendant and his sons in favour of the pla:'rrtit".f.:~tlr1Eess V. until plaintiff pays the said arnou-n.t.? in,'.terrrrs'V'-af ﬁle agreement Ex.P2, defendantsa-r__e n.ot.hVabte to..'\fa'c.a.:t_€ the é,'u:t'. schedule property.

8. On the other ::'G.tKris.'dnamL11*thy, learned counsel. appeaxflnglor VNo.,f submits that the defendant. l'1'1S:_-f:_hi3d1"en::haye executed a sale deed in res'pect'ofthe_»isutt'"sehedule property in favour of the plaintiff' per l:3x.P3_ .. the execution of the sale deed, the4.;j1jlVai.ntil'f' 1'ea.l_lsed that the land in question is a revenue has to re~convey the property. Therefore, he to the BDA for execution of a sale deed.

Ac'e..o1'd..j'n'gEyT:' the BDA executed a sale deed as per EXP4 dated "3;1.1.2004. After the purchase of the property as f the khatha of the property was transferred in favour at the plaint,iff. Thus. the plaintiff is the absolute owner of the property. After the execution of the sale deed dated ll I _ 3 .

13.12.2002 symbolic possession was given to the plaintiff by the 1*" defendant. Some portion of the propert'y_lw_a's.V_ in possession of the 1*" defendani and his family n1§e'i"n'be'i=s_._" He' _ further submits that during the pendency Ql"'t'l1~(*;:".*?~.},1l'*t,:: the 1}} ._ defendant has incluctzed some other p.ersor'2_s.'iAnt.--ol'di'£ferent portions of the suit sclied'u.1_e propeiity. .fiO"l; agreement as alleged by the lslilllldveleiidantl The defendant No.1 has aq;i:1_i"tMt:ed original of Ex.D2 is in his Custodyn to produce the same. not admissible in evidence. "l'heifef_ore',"t'he"s'e:_id*--d.octi:gie1it. cannot be relied on by l"liI'l1__. He fti'r:lieVr"isj1ii3rrii--t._s'that pursuant to the interim order, ills?' has deposited a sum of Rs.i_;20,000/-"lied-this': appeal. The plaintiff is entitied to thjevsvame. He prays for dismissal of the appeal. .l"'Iv»':Z't;\.Fl11g regard to the contentions urged, the qu;est.ioii* for consideration is whether the judgment and '-decrele impugned herein requires interference'? is V' .. 9 .....

10. The suit filed by the plaintiff was for possession on the basis of title. Execution of t.he sale deed Ex.P3----daied 13.12.2002 by the 1% defendant and his sons in the plaintiff is not in dispute. The execution o1"--;thev V' by the BDA in respect of t.he suit setieduie it in favour of the p1aint:it'f is also hot "dis;5u_t:e...:

contention of the learned cotinsei.._for theVappeviiVa1'"1*t_:isthat on» V the date of the execution .'at'r1--..agif.e§e1I1€I1t at EXD2 was entered into' wherein it is stated that theyiﬁptaintiif"'is::V::ei'iti.tied iiivi'.-:)17::ioossession of t.he i>1'0p€1'ty Subitrvci his 'r:c'Vs1%.;5ni' ef'tis.2,oo.0oo/V to the 1st 13}:-'.332 is denied by the plaintiff. P.W2 i1'1'h«.is that the original agreement is with Counsel and he wili produce the same befo1'e. .iihc_:C.ourt if necessary. However, he has failed to pi'o_ducc:'t*hV,e agreement in the suit. 1}. 61 of The Indian Evidence Act. "E872 {for short Act") states that the contents of the document may ""p1'o\red either by primary evidence or by secondary e§vidence. Prirnary evidence means the document itself Kg?

_ ._ produced for inspection of the Court. it is the best or highest evidence. In other words. it is that kind of proof vvhi4ch_;"-in~the eye of t.he law, affords the greatest. certainty . question. Until it is shown that "the p1io'd'u--ct:i*on'~i.:ofAthisv evidence is out of the party's powei*.. noiether1p.i'oof-ofthe fact is in genera} admitted. Section 63V"0{"th€ 'yyédefines the}. secondary evidence. which copies made from the oi'igina.1._.'t%y which in themselves insure of and copies compared made from the original n_1_echariicai'C:pif_o'ce'sse;s[S which ensures their accuracy,--_ egg copies' "p:ho.togr'aphy, iithography. cyciostyie, carbon t.he copies iiienitioned in Explanation it t.o Section _es2_p£" the Act. secondary evidence. iiiustration (a] of SectionS:t3SEstates t.hat a photograph of an originai is 'Se-cond'ai1"y_evidence of its contents. though the two have not been co'n'i;)a'red, if it is proved that the thing photographed was the original. Section 65 of the Act provides for the '=.pr«ocedure for production of secondary evidence. Section 4 ..--tS5[c} states that secondaiy evidence may be given of the existence. condition or contents of a document when the it Q5 '3 _ _ original has been destroyed or lost or when the party offering evidence of its contents cannot {or any other i*easonIi1ot arising from his own default or neglect produce in reasonable time. The existence and exe_cu'tion--._:"*ol" the document must of course be proved. Spec-o1':dary'.evi.dence is not admitted mechanically or _as admatter oftolnrse. if primary evidence is not availablyerfopr out in Section 65 of the evidence is admissible. However, evidence is adduced, a I be laid for not producing 5 the.-lpprihnia ll after non--p1'oduction of the,prirnaryileev1denlc'e_ris._ satisfactorily accounted for, the secondaryeviden*cel':vo»i,ild._'oe permitted to be adduced.

2, l:n'«--SMT.J.YASHODA VS. SMT.K.SHOBHA RANI « 1721, the Apex Court was considering marking. "of; the photocopies oi" the documents in the h Aevident:'e. The Court has held that the secondaiy evidence as "'._a"gei1ere1l rule is admissible only in the absence of the

-Vprimaiy evidence. The secondary evidence is an evidence. which may be given in the absence of that better evidence it ..

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which iaw requires to be given first, when a proper explanation of its absence is given. It has b(i€ﬁ:V.l1€ki:d.."aS under:

"9. The rule which is the most; t1:n:ilve1'sai--i it that the best evidence -:'s1f;e._natu'1'e of the admit shall be producedlﬁidlecidesVth_is"ebje.ction that rule only rn'"e~a_ns th't[ as the'Aihi'ghe1' or superior evideneeyis possession or may be reached wyou. y'ou:_shta'll inferior proof in rei:a;tion;i._to ::it;~":Se'etion"Eifﬂdeais with the proGi'4'oi:V_the" f_'t;he"'.dOcL1rnents tendered iri.t...yVevideiiee,_ enable a party to iproducef~seeo«noary«,evi_dence it is necessary for the party tov'diji'Vove_:e:;is.tence and execution of the o1'igin._a£~. Vldociurneynt. Under Section 64, S udiocurnentsiv are to be provided by primary 65, however permits secondary it . be given of the existence, condition or «jccntents of documents under the circuinstaiices mentioned. The conditions laid it 'd.SVV11 in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents 01' a document cannot be admitted without non--production oi' the original being first accounted for in such a ti

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mariiier as to bring it within one or other of the..__ cases provided for in the Section."

l3. in the present case, P.W1 has elea_1flylv_ad.mi.ﬁ~ed that K V' original of Ex.D2 is available with hlisiawyerg ihelwilli produce the same before the :Courtl'i--f rieeessary..A.iEX'.D?x a xerox Copy of t;he agreement l;H)lai1'1tifi"ll has denied the exeeeition the first defendant ought to have in order to establish t.ha;t' agi'eem'e.rﬁLvlllvvasmeritered into between the V. the original is with his laxtryeig/l3lli'idi' will produce the same if below was right in holding that Ex. " eahngt due weightage.

it "eourt: below has clearly held that plaintiff is t'h__ello\v1'ielrithe suit schedule property having acquired valid title uridei' the registered sale deeds EX.P3 and EXP4. The V' .said_. findings recorded by the court below is on appreciatiori got" the evidence on record and there is no pen-'e1'si§y, illegality or irregularity whatsoever in those findings. There is no la 1, W14- merit in this appeal. It is accordingiy dismissed. The Vparties are directed to bear their own Costs.

Draw the decree accordingly.

KLY/BMM/w

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