1. Suit for possession of land — dispute over benami ownership and claim of title by adverse possession. (Para 1 , 2 , 4 , 5 )
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2000 Supreme(SC) 287
2000(6) Supreme 373
SUPREME COURT OF INDIA
B.N. Kirpal, M.B. Shah & R.C. Lahoti, JJ.
Smt. Swayamprabha & Anr. -Appellants
versus
Jayantha & Ors. -Respondents
Civil Appeal No. 204 of 1988
Decided on 3-2-2000
Documents cannot be admitted into evidence if they are not proved by the author or a witness who can identify the signatures. Without admissible evidence of hostile title, a claim of adverse possession cannot be sustained.
Headnote:(i) Limitation Act, 1963-Article 65-Adverse possession-Suit for possession-Defendant s claim of adverse possession-Defendant was de facto guardian of plaintiff-Plea of adverse possession on basis of office copy of two legal notice allegedly issued by defendant-Contents of documents not proved by defendant he having died during pendency of suit-Witness who was examined to prove contents could not say that initials at documents were of counsel who allegedly issued same-No other witness examined-Documents in question could not have been taken in evidence-Defendant failed to prove plea of adverse possession. (Paras 6 and 10)
(ii) Indian Evidence Act, 1872-Section 65-Secondary evidence-Office copy of notices allegedly issued on behalf of defendant-Plea of adverse possession on basis of legal notices-Original document not produced-Author not examined-Witness who was examined could not say initial on notices were that of lawyer who allegedly issued same-Document could not be taken in evidence. (Paras 6 and 10)
Act Referred
Legal Category Hierarchy
Table of Contents
2. Defendant contends ownership via benami transaction and adverse possession; Plaintiffs assert ownership through parental title. (Para 4 , 5 )
3. Documents not proved by the author or a competent witness must be excluded, rendering the plea of adverse possession unsustainable. (Para 6 , 10 , 11 )
4. Unproved documents cannot be relied upon to establish hostile title or the perfection of title through adverse possession. (Para 10 , 11 )
5. Appeal allowed, High Court judgment set aside, and trial court decree restored. (Para 12 )
6. What is the evidentiary status of documents where the author is deceased and the witness cannot identify the signatures?
Such documents cannot be taken into evidence and must be excluded from consideration if the witness cannot identify the signatures or initials of the author. (Para 6 , 10 )
7. How does the exclusion of evidence regarding hostile title impact a claim of adverse possession?
Once the documents intended to prove the setup of a hostile title are excluded for lack of proof, the defendant fails to prove the plea of adverse possession. (Para 10 , 11 )
8. What is the outcome when a plea of benami ownership is rejected and the property is found to belong to the parents?
If the benami plea is incorrect and the property is found to belong to the parents, the children or legal heirs are entitled to the decree for possession. (Para 7 , 9 , 11 )
ORDER
The Appellants had filed a suit for possession of property which is a land measuring one acre and 68 cents situated at Mudabettu village.
2. The case of the Appellants was that this land was purchased in the name of their mother by registered sale deed on 24th September, 1943. The money for this was provided by the Appellants father, namely, Ramchandra. Ramchandra was living in Bombay and the mother of the Appellants died in 1950. The Appellants were living in the village with Defendant No. 1 who was stated to be the de facto guardian of the Appellants.
3. It appears that in 1951 a civil suit was instituted by Ramchandra against Defendant No. 1, namely, Sitharama Pandit. During the pendency of the said suit Shri Ramchandra was murdered on 10th June, 1952. In this suit the Appellants were brought on record on 13th August, 1952. This suit was for claim of money and is stated to have been decreed in the year 1953. Two documents which were exhibited in the said suit were Exhibits D-13 and D-14 which are stated to be replies which were sent by the lawyers of Sitharama Pandit. The notice was stated to have been issued on behalf of Ramchandra.
4. The Appellants who were minors at the time of father s death filed the present suit on 1st, December, 1969 for possession of the suit properties. Sitharama Pandit was Defendant No. 1 and he was in physical occupation of the land in question. In the written statement which was filed, the main plea which was taken by Sitharama Pandit was that he was the real owner of the land in question and the land had been bought benami in the name of Kalyani who was the mother of the Appellants.
5. In the written statement, it was also pleaded by Defendant No. 1 that "without prejudice to any of the contentions made above, the plaintiffs claims to possession and delivery of the plaint properties, are barred by limitation, adverse possession and prescription. The defendant has been in possession and enjoyment of the plaint C Schedule lands in his own right and in negation of and adverse to the alleged rights of the plaintiffs, notoriously and uninterruptedly for over the statutory periods. "On the basis of the pleadings the trial Court framed the following issues :-
1. Whether the Defendant proves that property purchased by Kalyani Bai under registered sale dated 24.12.1943 is benami for the defendant and that he is the true owner of the property?
2. Whether the Defendant proves that he has effected improvement in C Schedule property and if so, whether he is entitled to the value thereof?
3. Whether the plaintiffs prove that the defendant is in possession of B Schedule moveables and if so whether the defendant is liable to deliver the same to the plaintiffs?
4. Whether the Defendant proves that the plaintiffs have acquiesced by their conduct the title of the Defendant to the plaint property?
5. Whether the plaintiffs prove that the purchase of the muli right by the Defendant under the registered sale deed dated 29.11.1956 is from out of the income belonging to the plaintiffs in the hands of the Defendants?
6. Whether the plaintiff prove that the defendant was in management of the plaint property in his fiduciary capacity?
7. Whether the plaintiff prove that the Defendant is liable to render accounts to the plaintiffs and if so from which period?
8. What is the correct income of C Schedule property?
9. Whether the plaintiffs prove that the defendants is liable to surrender possession?
10. Whether the plaintiffs prove that the defendant is liable to pay mesne profits and if so from what date?
11. Whether the Defendant proves that the suit is barred by limitation, adverse possession and prescription?
12. Whether the Defendant proves that the suit has not been properly valued for court fees and j
