Second Appeal No.122 of 1997

28th April, 2010

Petitioner Counsel: Shri. M. N. INGLEY
Respondent Counsel: Shri. ANIL MARDIKAR

Cases Cited:
R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple, (2003)8 SCC 752 [Para 9]

JUDGMENT

JUDGMENT :- This Second Appeal is preferred by the plaintiff who was unsuccessful in both the Courts below.

2. The facts giving rise to the appeal are as follows :

The subject matter of the suit is house property. The plaintiffs claim to have purchased the said suit house from one Rukhamabai by registered sale deed dated 28.12.1955. Plaintiffs contend that the said house was in their possession until 1974. In the year 1974 the defendant who is real sister of the plaintiffs came to reside at village Tadali. She had no place to reside. She made a request to allow her family to reside therein. Plaintiffs acceded to the request and permitted the defendants to reside therein for a period of 5 to 6 years. After the period of 5 to 6 years defendants failed to vacate, hence the plaintiffs issued notice but the defendants refused to accept the notice. Plaintiffs therefore instituted a suit for possession.

3. Defendants resisted the suit. The defendants do not dispute that house property was belonging to Rukhamabai. They however dispute that plaintiffs had purchased the suit property from her for a sum of Rs.100/-. According to defendants Rukhamabai did not have any issue. It is the defendants who were therefore taking the care of Rukhamabai and she had therefore allowed them to reside there. Defendants have been residing there and have been paying the taxes. Suit house has been recorded in the name of husband of defendant no.1.

4. Learned Judge of the trial Court recorded the evidence. He found that the plaintiff had failed to prove their title inasmuch as the original sale deed was not produced by the plaintiffs on record.

5. Plaintiffs therefore preferred an appeal before the District Judge. Learned Additional District Judge who heard the appeal also found that plaintiffs had failed to prove the title as original sale-deed is not placed on record. The appeal was therefore dismissed hence this second appeal.

6. Second Appeal was admitted on the following substantial questions of law :

The question of title of the appellant is substantial question of law.

7. I have heard the learned counsel for the appellants and the respondents. Plaintiffs claim to have purchased the suit house from one Rukhamabai by a registered sale deed dated 28.12.1955. Defendants in the Special Pleadings specifically contend that Rukhmabai was the owner and they have been living with Rukhamabai as she had no issue. They contend that they are occupying the suit house and have been paying the taxes etc..

8. From the pleadings one thing is certain that Rukhmabai was the original owner of the suit house. Trial Court seems to have held that the plaintiffs could not be said to be the owner since plaintiffs had failed to prove the sale deed in their favour as the original sale deed is not produced on record. He has discarded the photo copy Ex.25. Plaintiffs had filed before the District Judge the original sale deed. Learned Judge had not passed any order on the application for production of the sale deed and says that he will deal with it at the appropriate stage. He strangely observed that though the sale deed is exhibited as Ex.25, it does not make out if the same property is purchased which is described in the plaint by the plaintiffs. In this regard at this stage itself, it may be noted that the defendants do not say that the description of the property as given in the plaint is not in accordance with the sale deed or that the suit house which is described in the plaint was not the one owned by Rukhmabai. Therefore the learned Judge of the appellate Court has wrongly observed that the suit property and the one purchased by the plaintiffs are not the same properties.

9. Let us see if the sale deed could be said to be proved in the instant case. The plaintiffs tendered in the civil suit the photocopy of the sale deed. P.W.1 Doma, the plaintiff had proved this sale-deed. He has stated that Rukhmabai had put her thumb impression on the sale deed. He also states that the attesting witnesses also put their thumb impression on it in his presence. Defendants did not raise any objection when the photo copy was exhibited and the document was proved by the plaintiff who was purchaser himself. The sale deed is a document which is not compulsorily attestable. Therefore any person who has seen the executant signing the document can prove the sale deed. In the instant case the plaintiff being the purchaser has stated that Rukhmabai had put thumb impression in his presence and had sold the suit house to him. It can therefore be said that he had in fact proved the execution of the document as well as the contents of the document. Further when this statement was recorded by the Court during the course of the examination of the plaintiffs the defendants did not object to the exhibition of the document. Defendants having not raised any objection to the exhibition of the document could not have raised objection about its proof on account of non-production of the original during the course of the argument. Had the defendants taken the objection at the time of exhibiting the document, plaintiffs would have certainly taken the care to produce the original in the Court by seeking certain time. If the judgment of the trial Court is seen it seems that the trial Judge himself seems to be raising objection to improper exhibition of the document rather than a party. He observed as follows in the judgment :

"A Photostat of the sale deed is on the record and it has been marked as Exh.25. A copy of the sale deed came to be exhibited because the Court also felt that the counsel was executing the original sale-deed."

Thus he feels that it was wrongly exhibited by the lawyer without letting the Judge know. It cannot however be said that the counsel appearing for the defendants was not aware of the copy being exhibited. The lawyer for the defendants had put the question to the plaintiff in the cross examination with regard to Ex.25. It must therefore be assumed that lawyer for the defendants very well knew that copy of the sale deed was being exhibited and yet he did not object. At the cost of repetition, I may say that defendants having not raised objection when the document was actually proved and exhibited, the same could not be raised during the course of the arguments. In a decision reported in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and another, (2003)8 Supreme Court Cases 752, the law in this regard as follows :

"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission Vs. State of Madras (AIR 1966 SC 1457) in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. 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 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."

From the law as laid down by Their Lordships of the Supreme Court it is obvious that the party has to raise objection at the time when the document is sought to be proved and exhibited. In the instant case the document was duly proved by the plaintiffs and it was duly exhibited without any objection and therefore the learned Judge of the trial Court should not have held that the document is not proved. In any case further it may be mentioned that the appellants-plaintiffs had placed on record an application under Order 41, Rule 27, Civil Procedure Code along with the original sale-deed. Learned Judge of the appellate Court neither allowed the application nor rejected it. The fact remains that the original sale-deed was produced by the plaintiffs in the appellate Court. Such production to my mind should have been allowed for the just decision in the matter. The original sale deed is produced on 31.01.1986. The document was dated 28.12.1955. It was obviously 30 years old document and coming from a proper custody. In the circumstances there was no difficulty for the appellate Court to read this original sale deed in the evidence. The appellate Court also fell in error in ignoring this original sale deed. In the circumstances I conclude that the sale deed was duly proved. Sale deed goes to show that plaintiff was owner of the suit house. Defendants do not have any document of title except some entries in the Gram Panchayat records as alleged by them, but they have not filed any document to that effect on record at all. In the circumstances it must be held that defendants have not produced any document suggesting their ownership in the matter. On the other hand plaintiff has amply proved his title by production of the sale-deed. In the circumstances the questions of law is answered accordingly. Appeal is allowed. Judgments and decrees passed by the Courts below are set aside. Suit is decreed. Defendants do handover vacant possession of the suit premises to the plaintiffs forthwith. An enquiry into future mesne profits be held from the date of suit till realisation. Defendants shall pay costs throughout.

Appeal allowed.