KATIKA PILLA ALIAS FAKRUDDIN Vs. RAMAVATH VALLIKABAI

JUDGEMENT

(1.) Plaintiff in O.S.No.120 of 1983 on the file of the court of the Principal District Munsif, Kadiri is the appellant. He filed the suit for declaration of his title to the property specified in the schedule appended to the plaint (suit property), for delivery of possession thereof and for recovery of arrears of rent and future profits, contending that the suit property, which was an open site measuring Ac.1 cents in Survey No.661-4-A belonged to Gundluru Imambee, wife of Rasool Saheb, who sold it to the 1st respondent, who in turn sold it to him for Rs.1500/- under a registered sale deed dated: 26-2-1971 and put him in possession thereof. After he raised a small hut in the suit property 2nd respondent who is the husband of the 1 st Respondent took the suit property on lease at R.20/- per month. After paying rent to him for some time respondents are neither paying rents nor vacating the suit property. Hence, the suit. 1st respondent filed a written statement, which is adopted by the 2nd respondent, admitting the 2nd respondent executing a sale deed in respect of the suit property in favour of the appellant, but it is his contention that appellant having lent an amount of Rs.1500.00 to the 2nd respondent in 1976, with a view to knock away the suit property obtained a nominal sale deed but was never in possession thereof and that possession of the suit property is always with him and his wife, the 2nd respondent, and since the sale deed is nominal, appellant has no right over the suit property. Basing on the pleadings, the trial court framed five issues and three additional issues for trial. The trial court held in favour of the appellant on all the issues and decreed the suit. On appeal by the respondents, the 1st appellate court reversed the findings of the trial court and dismissed the suit. Hence, this Second Appeal.

(2.) The point for consideration is whether the reversal of the findings of the trial court by the lower Appellate court is on a proper appreciation of evidence?

(3.) Since execution of Ex.A-2 sale deed in favour of the appellant is admitted, respondents who have taken a plea that it is a nominal document have to establish the said fact. Except the interested oral evidence adduced by them there is nothing on record to show that Ex.A-2 sale deed is a nominal sale deed. The lower appellate court on the basis of Ex.B-14 statement said to have been recorded by the police under Sec. 161 Cr.P.C. held that Ex.A-2 is not a genuine document. It is well known that statement recorded by police under Sec. 161 Cr.P.C. is not substantive evidence and can be used only for the purpose of contradiction that too if the police officer who recorded it is examined as a witness. Even as per Sec.141 of the Evidence Act, the previous statement of the witness can be used only for the purpose of contradiction. The police officer who recorded Ex.B-14 statement of plaintiff is not even examined as a witness. In fact the trial court erred in admitting the entire statement of the appellant recorded by police under Sec.161 Cr.P.C. as Ex.B-14. Only the portions, which are not admitted the appellant as stated to police, can be given an exhibit mark.