This case concerns the question of the genuineness of the photocopies of the documents, which were as old as 30 years, presented to ensure the title of the suit property.
Brief Facts of the Case
The dispute arose of encroachment by the respondent on the property no. 44/6 measuring 90 ft. X 110 ft. situated on J.C, Road in Bengaluru, which was owned by the appellant. The respondents were the owner of property no. 42, at a distance of 103 ft. and encroached the property no. 44/6 by dumping bamboo and other construction materials which compelled the appellant to institute the present suit.
The plaintiffs are in appeal against the findings by the two courts, rejecting their plaint seeking relief for a permanent injunction.
Appellant’s Argument
The counsel submitted that the respondents had no concern with the suit property. According to the reports of the Pleader Commissioner, the appellants were found to be in possession of the property coupled with the entries in the property tax registers and municipal tax receipts in the name of appellants.
The respondent did not claim any title in themselves to the suit property but feebly sought to question the appellants’ title vaguely. The lawful possession of the appellants was established from Ex. D-1 dated 07.09.1946, vesting the title in their vendor, O.A. Majid Khan by the Bangalore City Municipality (Municipality) under Sec. 41(2) of the Mysore City Municipalities Act, 1933 (The Act) over an area of 75 ft X 110 ft.. and the subsequent sale deed by the Municipality in favour of appellants mother for the remaining 15 ft. X 110 ft.
Respondent’s Argument
It was submitted that the appellant failed to establish the identity of the suit property, the boundaries have changed from time to time. The appellants failed to establish title in favour of the vendor, thus, was rightly held that they could not establish lawful possession. No original documents were produced and only photocopies which were inadmissible. The property tax register entries for the year 1950-51 and 1954-55 are irrelevant, as the appellants claimed acquisitions of the title based on sale deed dated 10.07.1956. The suit was rightly dismissed.
It was, further, acknowledged that the respondents never claimed any title to the property bearing no. 44/6.
Observation by the Court
The suit property originally belonged to the municipality and the part measuring 75 ft X 110 ft., was to be sold to one O.A. Majid Khan. The widow of Majid Khan later sold it to the mother of the appellant, Zahara Khatoon by a registered sale deed. Later, two confirmatory sale deeds were also executed in favour of Zahara Khatoon after attaining majority. The remaining portion of the suit property measuring 15 ft. X 110 ft., was later sold by Municipality to Zahara Khatoon by a registered sale deed. Thus, Zahara Khatoon became the owner of the suit property and gifted the same to appellants.
The necessary entries were made in the property tax register and the tax receipts signifying the payment of tax by the appellant from 1964-65 up to the year 1969-70 and again from 1984-85, 1986-87.
The original defendant No.1 did not appear in person to depose and be cross-examined in the suit. His younger brother deposed based on power of attorney, acknowledging that the latter had separated from his elder brother. No explanation for not being deposed was furnished.
In the case of Iswar Bhai C. Patel vs. Harihar Behera, the Court observed that adverse presumption had to be drawn against the persons who have not entered the witness box and not presented himself for cross-examination, based on principles contained in sec. 114(g) of the Evidence Act, 1872.
The Courts considered the title of the appellant to decide the lawful possession. The appellant produced photocopies of all required documents. The reasons for not being able to produce the original or certified documents were properly explained as they were untraceable due to the death of P.W.1 who looked after the property matters. The attempt to procure certified copies from the municipality also failed.
The photocopies were marked as exhibits without objection and respondents also never questioned the genuineness of documents. Though the documents were 30 years old but were produced from the proper custody of appellants along with an explanation of non-production of original documents, they were rejected without any valid reason, holding that no presumption that documents executed by public authority had been issued in the proper exercise of statutory powers. This finding was found to be perverse as per Sec. 114(e) of the Evidence Act, 1872.
In the Court in Lakhi Baruha vs. Padma Kanta Kalita, the court observed the admissibility of 30 years old documents by referring to Sec. 90 of the Evidence Act. The court stated that presumption of genuineness may be raised if the documents in question are produced from proper custody. It is the discretion of the court to accept the presumption flowing from Section 90.
The conclusion by the courts below that appellants failed to establish the title and identity of the property was held to be perverse. The contentions of the respondents feebly questioned the title of the appellants was rejected holding that they had nothing to do with the suit property. The appellants were wrongly denied the permanent injunction. Both the Trial and High Court arrived at an erroneous conclusion concerning the title of the appellant.
Decision of the Court
The impugned orders dismissing the suit and the appeal were not sustainable. The orders of the Trial Court and High Courts were set aside.
The appeals were allowed.
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