LAWS(KAR)-2015-3-12

S. NANJAPPA Vs. KENDRIYA UPADHYARA SANGHA AND ORS.

Decided On March 10, 2015
S. Nanjappa Appellant
V/S
Kendriya Upadhyara Sangha And Ors. Respondents

JUDGEMENT

(1.) Heard the learned Counsel for the appellant and the learned Counsel for the respondents.

(2.) This is an appeal by the plaintiff. The parties are referred to by their rank before the trial court for the sake of convenience. The suit was filed seeking a declaration that documents executed by defendant no.1 in favour of defendant no.2 were not binding on the plaintiff, for a permanent injunction restraining interference with his possession of the suit property and for a mandatory injunction to remove certain construction by defendant no.2 on the suit property. It was the case of the plaintiff that the plaintiff and his two brothers were the owners of land bearing Survey Nos.1/2, 1/3, 1/4, 1/5 of Nagarabhavi, Yeshwanthapura Hobli, Bangalore South Taluk. The same is said to have been bequeathed to them under a registered will by their mother, Thimmakka. The plaintiff and his two brothers are said to have executed a General Power of Attorney on 25.1.1985 in favour of the first defendant Society authorising it to form a housing layout and the Society, in turn, is said to have got prepared a layout plan identifying a site, bearing no.160, which is more fully described in the Schedule to the plaint, to be retained by the plaintiff. The plaintiff is said to have continued in possession of the suit schedule site and was never transferred in favour of the defendant no.1. The khata in respect of the site was said to have been registered in the name of the plaintiff.

(3.) It is contended by Shri P.D.Surana, appearing for the plaintiff- appellant that the trial court has committed serious errors in considering the facts and in applying the law, in having dismissed the suit. It is pointed out that a glaring error committed by the trial court is the circumstance that Exhibits D-14 to D-33 , produced and marked by defendant no.2 during the course of his evidence, were marked subject to serious objection raised by the plaintiff, as the same were not original documents, but certified copies thereof. The said defendant had not claimed or demonstrated that the original documents were not available or could not be secured. However, the court having permitted the defendant to place reliance on the same ultimately, while concluding that reliance could be placed on the said documents, under Section 65(f) of the Evidence Act, 1872 (Hereinafter referred to as the 'Evidence Act', for brevity), is clearly an erroneous view, as the said Section would apply only in respect of certified copies of a public document and not otherwise. Further, there were also no pleadings in the written statement of defendant no.2 in respect of the said Exhibits D-14 to D-33 and hence, the same could not have been admitted in evidence and no reliance could be placed on the same.