HANUMANTAPPA Vs. BHIMAWWA

JUDGEMENT

(1.) This appeal by the defendant is directed against the judgment and decree passed by the Fast Track Court, Bijapur, in RA No. / dismissing the appeal and confirming the judgment and decree passed by the Court of Prl.Civil Court Judge (Jr. Dn.) Bijapur, in O.S. No.440/98 dated 11.8.2004 decreeing the suit of the plaintiff for possession of suit schedule property from the defendant.

(2.) I have heard the Learned Counsel appearing for the appellant.

(3.) The Learned Counsel appearing for the appellant submitted that the gift deed under which the possession is claimed by the plaintiff has not been proved in accordance with law. The Learned Counsel submitted that under Section 68 of the Evidence Act (for short 'the Act') where the document is required to be compulsorily attested same can be proved by examining one of the attesting witnesses and since the execution of the gift deed is denied, it is incumbant upon the plaintiff to examine one of the attesting witnesses to the gift deed. In support of his contention he has relied upon the decision of the Hon'ble Supreme Court in Surendra Kumar Vs Nathulav (AIR 2001 Supreme Court 2040) wherein it is held that when the person who has executed the gift deed has admitted the execution of the gift deed, question of examining attesting witnesses does not arise under proviso to Section 68 of the Act. The Learned Counsel submitted that in view of the principles laid down in the said case, it must be inferred that whether the person who has executed the gift deed does not admit execution of the gift deed, the same should be proved by examining the attesting witnesses. The Learned Counsel also relied upon the decision of this Court in Balappa Tippanna Vs Asangappa Maliappa 1959 Mysore Law Journal 920 wherein it has been held that even in a case where there is no specific denial and where the proviso applies, it is necessary for the plaintiff to prove due execution and attestation of the deed sued on and the proviso to Section 68 of the Act does not dispense with proof of the document altogether and the document has still to be proved, although it may not be in the manner indicated in Section 68 of the Act itself. He has also relied upon the decision of this Court in Kumbara Narasimhappa Vs Iakkanna (1959 Mys LJ. 122) wherein it is held that specific denial of execution within Section 68 of the Act need not be necessarily by the executant and it may be by anyone of the defendant interested in the denial of the execution of the document. The Learned Counsel further submitted that in view of the fact that plaintiffs have not been able to prove execution of the deed the Courts below were not justified in decreeing the suit of the plaintiffs and wherefore the decree passed by the Courts below is perverse and arbitrary.