Case Note & Summary
The appellant-plaintiff, Sri Thammaiah, filed a suit for declaration of title and permanent injunction (later amended to possession) in respect of suit schedule property. He claimed that the property originally belonged to one Muttu, S/o. Honnegowda, and was purchased by him through a registered sale deed dated 17.05.1965. The respondents-defendants, who are the legal representatives of late Puttaiah, contested the suit denying the plaintiff's title and possession. The trial court dismissed the suit on 11.12.2014, holding that the plaintiff failed to prove the execution of the sale deed as he did not examine an attesting witness. The first appellate court confirmed the dismissal on 16.12.2016. The plaintiff filed a second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court framed a substantial question of law: whether the courts below were justified in dismissing the suit on the ground of non-examination of the attesting witness when the attesting witness was dead and other evidence was available. The appellant argued that the attesting witness to the sale deed had died, and the plaintiff had examined the vendor and the scribe to prove the execution. The respondents contended that the plaintiff failed to prove the sale deed as required under Section 68 of the Indian Evidence Act, 1872. The High Court analyzed Section 68 and held that when an attesting witness is dead, the execution can be proved by other evidence. The court found that the plaintiff had examined the vendor (who identified his signature) and the scribe, which was sufficient to prove the sale deed. The courts below had misapplied the law and their findings were perverse. The High Court allowed the appeal, set aside the judgments of the lower courts, and decreed the suit in favor of the appellant, granting declaration of title and possession.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The appeal involves a substantial question of law regarding the proof of execution of a sale deed when the attesting witness is dead - The High Court framed the question whether the courts below erred in dismissing the suit for non-examination of the attesting witness despite his death and availability of other evidence - Held that the question is substantial and requires interference (Paras 1, 10-11). B) Evidence Act - Proof of Execution - Attesting Witness - Section 68 Indian Evidence Act, 1872 - When an attesting witness is dead, the execution of a document can be proved by other evidence, including the evidence of the scribe or other witnesses - The trial court and first appellate court erred in holding that the plaintiff must examine the attesting witness even after his death - Held that the courts below misapplied Section 68 and the judgment is perverse (Paras 12-15). C) Property Law - Possession - Declaration of Title - The plaintiff sought declaration of title and possession based on a registered sale deed - The courts below dismissed the suit on the ground that the plaintiff failed to prove the sale deed - The High Court found that the plaintiff had proved the sale deed through the evidence of the vendor and the scribe, and the attesting witness was dead - Held that the plaintiff is entitled to declaration and possession (Paras 16-18).
Issue of Consideration
Whether the courts below were justified in dismissing the suit for declaration and possession on the ground that the plaintiff failed to prove the execution of the sale deed by examining an attesting witness, despite the attesting witness being dead and other evidence available?
Final Decision
The High Court allowed the appeal, set aside the judgments and decrees of the trial court and first appellate court, and decreed the suit in favor of the appellant with declaration of title and possession.
Law Points
- Execution of sale deed can be proved by other evidence when attesting witness is dead
- Section 68 of Indian Evidence Act
- 1872
- Section 100 of CPC
- Substantial question of law
- Burden of proof on plaintiff
- Possession follows title
