Case Note & Summary
The litigation arose from a dispute over possession and ownership of a Nazul plot situated at Ner, District Yavatmal. The original plaintiff, Geetabai, claimed title through a registered release deed dated 17-2-1987 executed in her favour by Trimbakrao, who was found to be the owner. She alleged that the original defendant, Bhaurao, was occupying the suit premises as her licensee and that his licence was terminated by notice dated 20-4-1987. She sought recovery of possession and damages. The defendant resisted the suit, denying plaintiff's title and alternatively claiming ownership by adverse possession and that the licence was irrevocable due to expenditure on permanent construction. The Trial Court dismissed the suit, holding that the release deed was not proved for want of examination of an attesting witness and that the plaintiff failed to establish the licence and its termination. It did, however, find that Trimbakrao was the owner and rejected the defendant's claim of adverse possession. On appeal by the plaintiff, the First Appellate Court reversed the Trial Court’s decision. It concurred with the finding on Trimbakrao’s ownership, held that the registered release deed was validly proved even without examining an attesting witness because Trimbakrao, the executant, admitted execution in his deposition, and found that the defendant was a licensee whose licence stood terminated. It decreed the suit for possession and awarded damages and mesne profits. The defendant’s legal representatives filed a second appeal. The High Court admitted the appeal on two substantial questions of law: (i) whether the plaintiff proved ownership of the plot in the absence of proof of predecessor’s title, and (ii) whether the release deed could be proved without an attesting witness. The appellant also pressed a plea of irrevocable licence under Section 60(b) of the Indian Easements Act. The High Court, after examining the record, held that the concurrent findings on ownership were based on documentary and oral evidence and represented a possible view, thus not giving rise to a substantial question of law. Relying on the decision of the Supreme Court in Surendra Kumar v. Nathulal, the court held that under the proviso to Section 68 of the Indian Evidence Act, a registered deed (other than a will) can be received in evidence without examining an attesting witness if the person by whom it purports to have been executed does not specifically deny its execution. Since Trimbakrao admitted execution, the deed was duly proved. Regarding the irrevocable licence plea, the court noted that no issue was framed by the Trial Court, the defendant did not file any cross-objection in the first appeal, and the appellate court did not consider the point. Hence, the plea could not be agitated in second appeal. The appeal was dismissed, and the decree of the lower appellate court was confirmed.
Headnote
A) Transfer of Property – Proof of registered gift or release deed – Section 123 Transfer of Property Act 1882, Section 68 Indian Evidence Act 1872 – The instrument of release (Exh.45) was a registered deed executed by Trimbakrao, the previous owner, who was examined as PW2 and admitted its execution – The court held that under the proviso to Section 68 when execution of a registered document (other than a will) is not specifically denied, an attesting witness need not be examined, and the document is admissible in evidence – Held, the release deed was duly proved (Paras 6,10). B) Civil Procedure – Interference with findings of fact in second appeal – Section 100 Code of Civil Procedure 1908 – The trial and first appellate courts concurrently found that the suit property was owned by Trimbakrao and that the plaintiff derived title through the release deed – The finding was based on documentary evidence (tax receipts, index II, Gram Panchayat resolution) and oral evidence – The High Court held that the finding was a possible view and no substantial question of law arose for interference (Para 5). C) Easements – Irrevocable licence – Section 60(b) Indian Easements Act 1882 – The defendant contended that the licence was irrevocable because permanent construction was allegedly made and expenses incurred acting upon the licence – The trial court framed no issue on irrevocable licence and the defendant did not file any cross-objection in the first appeal; the appellate court did not address the point – The High Court observed that in the absence of a foundation in pleadings and issues, the plea could not be entertained in second appeal – Held, the plea of irrevocable licence was not available (Paras 7–9).
Issue of Consideration
Whether the plaintiff proved ownership of the suit Nazul plot without proof of predecessor's title; whether the registered release deed (Exh.45) was proved without examining attesting witnesses when execution was not specifically denied; whether the defendant could claim irrevocable licence under Section 60(b) of the Indian Easements Act
Final Decision
Second appeal dismissed. The substantial question (a) regarding proof of ownership does not arise as the concurrent finding is based on evidence and is a possible view. The substantial question (b) is answered by holding that under the proviso to Section 68 of the Indian Evidence Act, a registered deed need not be proved by an attesting witness when execution is admitted by the executant. The plea of irrevocable licence is not available as no issue was framed and it was not raised in the first appeal. The decree of the lower appellate court is confirmed.
Law Points
- A registered release deed can be proved without examining attesting witnesses under the proviso to Section 68 of the Indian Evidence Act if its execution is admitted by the executant
- findings of fact based on evidence that represent a possible view cannot be interfered with in a second appeal under Section 100 CPC
- to establish irrevocable licence under Section 60(b) of the Indian Easements Act the licensee must prove that work of permanent nature was done acting upon the licence and at his expense
- a plea of irrevocable licence not raised by framing an issue or challenged in the first appeal cannot be considered in second appeal
