TRIMBAK NARAYAN MOGHE Vs. YADORAO SHANKAR RAO JAMDAR

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit for a declaration that the plaintiff is the owner of certain land in Nagpur, as shown in the map attached to the plaint. The land is partly covered by a house. The contesting defendant Yadorao, defendant 1, admits the plaintiff's ownership of the materials of the house but denies that the plaintiff is entitled to any part of the site. In 1884 there was a suit between, Yadorao's father Shankarrao and the plaintiff's father Narayan over the site occupied by this house. Shankarrao alleged that he had allowed Narayan the use pf this site and the house standing thereon for his, occupation as they were related to each other and that Narayan had recently pulled down the house and started to reconstruct it. Shankarrao sued to recover possession of the site and the value of the house. Narayan pleaded that he had been in ad-verse possession for over forty years but it was held that he had been in permissive possession throughout and Shankarrao's claim was decreed for possession and for Rs. 75 as the value of the materials of the house. Against that decision Narayan appealed. The Appellate Court's order was as follows: "The parties having filed a written compromise dated 23rd September the appeal is dismissed thereon." Unfortunately the terms of the compromise were not recorded in the order of the Appellate Court and the compromise itself has been lost.

(2.) DEFENDANT 1 in this case alleged that the compromise was that Narayan should continue in possession of the site of the house and the adjoining land, pay damages as decreed, and be the owner of the materials of the new house, and that Shankarrao should not execute the decree for possession but should permit, Narayan to occupy the house as his licensee. The plaintiff denied any such compromise and pleaded that oral evidence of the terms was inadmissible. The terms of the agreement to compromise were reduced to writing, and therefore under Section 91, Evidence Act, no evidence can be given in proof of the terms of the agreement except the document itself or secondary evidence of its contents. Section 63(5) permits oral accounts of the contents of a document being given by some person who has himself seen it. Two witnesses have been examined on the point. Ramchandra Shankar(D.W.4) and Ramchandra Balwant (D.W. 5), but clearly neither of them had read the document and therefore their evidence is inadmissible : see. Ma Mi v. Kallander Ammal (1927) 14 AIR P.C 15

(3.) THE plaintiff has contended that, if he is not the: owner, he is a licensee and that the license is irrevocable. That point does not arise as the suit is for a declaration that he is the owner of the property in dispute. The suit of 1884 related merely to the site on which the house stands. The lower Appellate Court has held that the rest of the site in dispute has been in the possession of defendant 1 throughout and not in the possession of the plaintiff, so that the plaintiff's claim to that site also must fail. The appeal therefore fails and is dismissed with costs. Counsel's fee Rs. 40.