SIVASANKARA PILLAI Vs. PONNUSWAMI NADAR

JUDGEMENT

(1.) PLAINTIFFS 1, 3 and 4 are the appellants. The suit was filed by the appellants along with the second plaintiff for an injunction restraining the defendants from interfering with their possession and for recovery of a sum of Rs. 300 as damages. The defense was that though the second plaintiff, whose children are plaintiffs 1, 3 and 4, is the owner, first defendant has been in possession and enjoyment of the land under an oral lease granted by the second plaintiff. The trial Court found that the plaintiffs are not in possession of the suit property, that the defendants are in possession and that the oral lease set up by them was true. In regard to the oral lease in addition to the evidence of the first defendant the trial Court relied on the admission of the second plaintiff who was examined as P. W. 4 on commission. In appeal the lower appellate court confirmed the finding that the first defendant was in possession and the plaintiffs were not in possession on the date of suit. The lower appellate Court also confirmed the finding on the question of oral lease.

(2.) IN this second appeal the learned counsel for the appellants contended that both the trial Court and the lower appellate Court relied on the evidence of the second plaintiff who was examined on commission as P. W. 4 but that the recording of the evidence of P. W. 4 by the Commissioner was not in accordance with Order xxvi, Rule 17 read with Order XVIII. Rules 5 and 6, C. P. C. on the ground that the evidence was not read over to the witness and explained in a language known to her and therefore the evidence is inadmissible. The evidence recorded by the commissioner admittedly does not contain the endorsement as required under order XVIII. Rule 5, C. P. C. The Commissioner was examined at the stage of the appeal and he admitted that he did not read the evidence to the witness after the evidence was recorded. The evidence was recorded. The evidence was recorded in english and P. W. 4 does not know English language. The Commissioner has also stated in his evidence that he had not explained the evidence in Malayalam to the second plaintiff after it was recorded. In these circumstances the question for consideration is whether the evidence is admissible at all.

(3.) ORDER XXVI, Rule 17 (1) reads as follows:-