Case Note & Summary
The case involves a second appeal by the defendant against the judgment of the Additional District Judge in a suit for permanent and mandatory injunction. The plaintiff claimed to be a co-owner of the property 'Kotkar Bhatle' along with the defendant and others, and sought to restrain the defendant from constructing within 3 metres of the plaintiff's house. The trial court had decreed the suit, and the appellate court confirmed it. The defendant appealed on substantial questions of law regarding the admissibility of evidence of a constituted attorney (DW1) and the use of revenue records to establish co-ownership. The High Court held that a constituted attorney with personal knowledge can depose on oath, and that revenue records, though not creating title, can be used to show co-ownership when consistent. The court allowed the appeal, set aside the judgments below, and remanded the matter for fresh consideration in light of the legal principles.
Headnote
A) Civil Procedure - Evidence of Constituted Attorney - A constituted attorney who has personal knowledge of the facts can depose on oath on behalf of the party, and his evidence cannot be discarded solely on the ground that he is a power of attorney holder. (Paras 1-2)
B) Property Law - Revenue Records - Revenue records do not create title but are meant for fiscal purposes; however, they can be used to show possession or co-ownership when supported by other evidence. (Paras 1-3)
C) Property Law - Co-ownership - Co-ownership can be inferred from entries in survey records if they consistently show the names of the parties as co-owners. (Paras 1-3)
Issue of Consideration
Whether the Appellate Judge erred in discarding the evidence of a constituted attorney on the ground that he cannot depose on oath on behalf of the party; whether revenue records can be used to establish co-ownership.
Final Decision
Appeal allowed. Judgments and decrees of the trial court and appellate court set aside. The matter is remanded to the trial court for fresh disposal in accordance with law, after giving both parties an opportunity to lead evidence. No order as to costs.
Law Points
- Constituted attorney can depose on oath on behalf of the party
- Revenue records do not create title but are relevant for possession
- Co-ownership can be inferred from revenue entries
Case Details
2005 LawText (BOM) (09) 72
Second Appeal No.62 of 2000
Mr. J. P. Mulgaonkar for appellant, Mr. P. S. Rao for respondent
Shri. Ramkrishna Bapu Kotkar
Shri. Namdeo alias Narayan Nagesh Kotkar
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Nature of Litigation
Civil suit for permanent and mandatory injunction regarding property rights
Remedy Sought
Plaintiff sought to restrain defendant from constructing within 3 metres of plaintiff's house in the suit property
Filing Reason
Defendant allegedly forcibly raised a hut in the suit property in 1983
Previous Decisions
Trial court decreed the suit; Appellate court confirmed the decree
Issues
Whether the learned Appellate Judge erred in discarding the evidence of Dw.1 Dayanand Kotkar on the ground that the constituted attorney cannot depose on oath in capacity of the party on defendant's behalf?
Whether the learned Appellate Court committed error in holding that the testimony given by Dw.1 was to be taken as the deposition of the witness and that there was no evidence of defendant except his witnesses?
Whether the learned Additional District Judge proceeded on the proposition that the Revenue records did not create any title and they are meant only for declaration for fiscal parties, committed error by recording the finding that the plaintiff and the defendant were co owners on the basis of entries in survey records?
Submissions/Arguments
Appellant argued that the constituted attorney can depose on oath on behalf of the party and that revenue records can be used to show co-ownership.
Respondent argued that the constituted attorney cannot depose on oath and that revenue records do not create title.
Ratio Decidendi
A constituted attorney who has personal knowledge of the facts can depose on oath on behalf of the party, and his evidence cannot be discarded solely on that ground. Revenue records, though not creating title, can be used to show possession or co-ownership when consistent.
Judgment Excerpts
This is defendant's second appeal arising from Reg. Civil Suit no.333/85/C and was admitted by this Court on 28.9.2000 on substantial questions of law...
Whether the learned Appellate Judge erred in discarding the evidence of Dw.1 Dayanand Kotkar on the ground that the constituted attorney cannot depose on oath in capacity of the party on defendant's behalf?
Procedural History
Plaintiff filed Reg. Civil Suit no.333/85/C for permanent and mandatory injunction. Trial court decreed the suit. Defendant appealed to the Additional District Judge, who confirmed the decree. Defendant then filed Second Appeal No.62 of 2000 in the High Court of Bombay at Goa, which was admitted on 28.9.2000 on substantial questions of law. The High Court allowed the appeal and remanded the matter for fresh disposal.
