Document Fragment View

Matching Fragments

46. It is no doubt true as contended by the learned Senior Counsel for the defendant and as declared by the Apex Court in the Judgments relied upon that oral evidence is permissible under Section 92 of the Indian Evidence Act, 1872 to explain the contents of any document and or to prove that the document was not intended to be acted upon or was a nullity. Contrarily, the learned Senior Counsel for the plaintiff contended that oral evidence is permissible only when the terms of a written document are ambiguous or unclear. However, the present case is one for ejectment and thus the Trial Court rightly did not traverse beyond the realm of the suit to roll out findings that could impinge upon the rights of the parties or create a right that never existed. Conversely, it would have been difficult for the Trial Court to have decreed the suit for ejectment if the defendant had not admitted the execution of Ex.P2 and the Court would have invariably directed the plaintiff to seek appropriate declaration of title and recovery of possession of the suit property. Further, the contention that Ex.P2 was executed to demonstrate the rent potential that the premises could earn is not outrightly believable as the plaintiff and the defendant were dealing with Vijaya Bank, Yelahanka since the year 1996 and it is obvious that the bank would be aware of the relationship between the plaintiff and the defendant. Thus, a rental agreement between the plaintiff and the defendant would have definitely raised eye brows within Vijaya Bank about the genuinity of the document. Even otherwise, if this document was intended to be given to Vijaya Bank, either there must have been a reference of Ex.P2 in the loan application form or Ex.P2 must have been given to the bank. Having regard to the number of accounts that the plaintiff/ defendant/ their spouses/ firms had with Vijaya Bank and having regard to the fact that the plaintiff had already spent Rs.16,00,000-00 on the construction of the house by the time the loan was raised, it is quite improbable that Ex.P2 was created nominally. Thus Point No.3 framed by this court is answered in the negative.