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2007(6) Kar. L.J. 286
N. KUMAR, J.
BHIMAPPA AND OTHERS -Appellant
versus
ALLISAB AND ANOTHER -Respondent
Regular Second Appeal No. 733 of 2005.
Decided on 27th February, 2006
Case Referred: Distinguished: (2005) 2 SCC 217.
Hearsay Evidence - Hearsay evidence vis-a-vis direct oral evidence -If hearsay evidence admissible. See, Indian Evidence Act, 1872 - Section 60.
Cases Referred: (2005) 2 SCC 217 144.
Code of Civil Procedure, 1908 - Order 3, Rules 1 and 2 - Holder of power of attorney - Word acts - Scope of. Dilatory settled principles : The word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined." [AIR 2005 SC 439].
Cases Referred: (2005) 2 SCC 217 144.
Witnesses - Depostition before court by - Competency. See, Indian Evidence Act, 1872 - Section 118.
Cases Referred: (2005) 2 SCC 217 144.
Powers-of-Attorney Act, 1882 -Object of -Section 1-A -Object of -Stated. See, Preamble.
Powers-of-Attorney Act, 1882 -Power of attorney holder -Section 1-A -Power of attorney holder - Difference between agent. [N. Kumar, J]: The Power of Attorney Holder is nothing, but an agent as defined in Section 182 of the Contract Act. It differs from agency in that, while in the case of agency the principal is only bound by acts of his agent, the holder of a power of attorney not only acts on behalf of the principal so as to bind the latter, but also acts in the name of the principal and uses his name in the instruments executed by him as the attorney. Prior to enactment, an agent having authority to execute an instrument has to sign in the name of the principal if he was to be bound. If the agent signed the deed in his name albeit as agent, he was the person who was regarded as party to the document and not the principal. It was the agent alone that could enforce the deed and he was only liable to pay. It was to overcome this hardship that the Act was enacted.
Powers-of-Attorney Act, 1882 -Preamble -Preamble - Object of the Act - Stated. [N. Kumar, J]: The first object of the bill was to render it legal for such donor to execute in and with their own names and seals. The said Act does not however confer on a person a right to act through agents. It presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority but in his own name. After Independence and coming into force of the Constitution, the Law Commission in its 68th Report examined this Act and while suggesting that, because of its archaic form and language it should be replaced by a new enactment, it also suggested certain amendments to the Act. As the amendments did not call for any radical or substantial changes in the Act that had worked smoothly for a century. t Was proposed, instead-of replacing the Act by a new one, to make the necessary amendments therein. Among others, the Commission suggested for insertion of a suitable definition of "Power of Attorney", as the Act did not contain one. Therefore, Section 1-A was introduced by Act No. 55/1982 by the Parliament amending the Act. Hence, the Power of Attorney under the Act includes any instrument empowering a specified person to act for and in the name of the person executing it. It is an inclusive definition.
Indian Evidence Act, 1872 - Section 118 - Competance to testify before court - Witness should fulfill requirements under. [N. Kumar, J.]: The proposition of law about the competence of a person to testify as a witness is governed by Section 118 of the Evidence Act. Giving evidence before a Court of law is an act within the meaning of the said provision. However, everyone is not entitled or competent to give evidence as witness before a Court unless one fulfills the requirements of the qualifications envisaged in Section 118 of the Evidence Act.
Cases Referred: (2005) 2 SCC 217 144.
Indian Evidence Act, 1872 - Section 60 - Oral evidence - Must be direct - Hearsay evidence is not admissible. [N. Kumar, J.]: Oral evidence must be direct, i.e., if it refers to a fact which could been seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. As opposed to this direct evidence, we have what is known as indirect evidence, i.e., transmitted, second hand or hearsay, something which a witness before the Court says that he heard from a third party who is not called as a witness and the statement of that witness is inadmissible to prove the truth of the facts stated. This is the most common form of hearsay. The term hearsay is rather ambigous and misleading and it has therefore been purposely excluded from the Evidence Act. Hearsay may be defined to be that which a witness does not say of his own knowledge, but says another has said or signified to him. Hearsay is therefore properly speaking secondary evidence of any oral statement. Hearsay is not now confined to oral statement. In includes what is done or written as well as what is spoken, i.e., all evidence reported whether orally or in writing. Conduct may also be hearsay like statements. The reason advanced for rejection of hearsay are numerous. The two principal objections however appeared to be lack of an oath and the absence of an oppo-rtunity to cross-examine him.
Cases Referred: (2005) 2 SCC 217 144.
Certainly. Based on the provided legal document, here are the key points:
The primary object of Order III Rule 1 CPC is to allow a party to perform certain acts before the court, such as appearing, making applications, or taking necessary steps for the progress of the case, either in person or through recognized agents or pleaders. It aims to facilitate procedural conduct and prevent fraud by unauthorized persons posing as agents (!) .
An agent holding a power of attorney can act on behalf of the principal within the scope of the authority granted. However, such a holder can only depose regarding acts performed by them in exercise of that authority and cannot depose on matters outside their personal knowledge or acts solely performed by the principal (!) .
The scope of the word "acts" in the context of a power of attorney is limited to acts done in exercise of the authority granted by the instrument. It does not include deposing for acts done by the principal or matters only within the principal's personal knowledge, which require the principal's own testimony (!) .
The competence of a person to testify as a witness depends on fulfilling the requirements under the relevant evidence law. A power of attorney holder is competent to testify, but their deposition's evidentiary value depends on whether they have personal knowledge of the facts. If they lack such knowledge, their testimony may have limited weight (!) (!) .
Oral evidence must be direct, meaning it should relate to facts perceived by the witness through their own senses. Hearsay evidence, which involves second-hand information from third parties, is inadmissible to prove the truth of facts and is considered secondary evidence (!) .
The evidence of a power of attorney holder cannot substitute for the personal knowledge of the principal when the law requires the principal's direct testimony, especially on facts within their personal knowledge. Nonetheless, such evidence can be considered when proving documents or acts within the scope of the authority granted (!) (!) .
In a property dispute, the court's findings are based on the appreciation of oral and documentary evidence, including registered sale deeds and admissions by parties. The identity of the property and the ownership rights are determined by examining these documents and the credibility of witnesses (!) (!) (!) .
Discrepancies in boundary descriptions or the identity of the property do not necessarily invalidate the title if the evidence sufficiently establishes the property in question. The courts are entitled to rely on documentary proof and admissions to confirm ownership (!) .
The legal principles regarding adverse possession and the proof of ownership through possession are considered, with courts requiring cogent evidence to establish adverse possession claims. The courts have the authority to evaluate the credibility of such claims based on the totality of evidence (!) .
The procedural rules and the law of evidence collectively support the admissibility of documentary evidence and the testimony of agents or power of attorney holders, provided they have the personal knowledge or authority to speak on the matters in dispute. The courts are to assess the credibility and scope of such evidence accordingly (!) (!) .
Please let me know if you need further elaboration or assistance with specific aspects of this case.
This is-a defendants' second appeal. The subject-matter of the suit is, property measuring East to West 11' and North to South 25' bearing No. 518 situated at Adagal Railway Station, Badami Taluk, Bijapur District, now Bagalkot District.
2. The respondent-plaintiff filed a suit for declaration and possession of the suit schedule property. His specific case was one Basanagouda S/o Rudragouda Patil was the owner and in possession of property located in Nandikeshwar Mandal Panchayat Nos. 518 and 519 of Adagal Railway Station, Badami, which he purchased for a consideration of Rs. 23,000/- under a registered sale deed dated 24-9-1990 and he was in possession of the property on the date of sale deed. In the suit schedule property which is shown by letters A, B, C and D in the plaint sketch, defendants are residing on leave and licence granted by his vendor. At the time of the sale of the schedule property in favour of the plaintiff, defendant 1 had executed an agreement letter in favour of his vendor agreeing to vacate the suit property as and when his vendor request him to vacate. They took time to vacate the property. After purchase of the property when the plaintiff requested him to vacate he did not do so. As he had obtained licence for permission to put up construction and a sanction plan, he was constrained to file a suit for declaration of his title and for possession. Defendants contested the claim and denied the ownership of the plaintiff over the suit schedule property. They contended that the suit property belonged to one Ramanaik Konappa Naikar who had given it to defendants' grandfather by name Hanamappa and they have put up a dwelling house in the suit schedule property thirty years back. They also constructed a tea stall-cum-restaurant which has been given M.P.C. No. 565 by the Panchayat for which they have also obtained electricity connection. After the death of Hanamappa his widow and children have become the owners of the said property. They have perfected their title to the said property by adverse possession. The plaintiff is trying to take possession of the property by force. Therefore, the defendants were constrained to file a suit and obtain an order of injunction. Hence, they contended that the plaintiff has no title to the suit property.
3. On the aforesaid pleadings, the Court below framed as many as seven issues. Plaintiff examined himself and two other witnesses and marked Exhibits P.1 to P. 8. Defendants on their part examined three witnesses and marked documents Exhibits D.1 to D. 9. The learned Trial Judge on appreciation of the oral and documentary evidence held that, the plaintiff has established his title to the property; defendants have failed to establish their plea of adverse possession; the agreement executed by the first defendant in favour of his vendor establishes that the defendants are in possession of the suit schedule property as licences and, therefore, he decreed the suit. Aggrieved by the said judgment and decree, the defendants preferred a regular appeal. The First Appellate Court on re-appreciation of the entire evidence on record after formulating the points for consideration by an elaborate reasoning has affirmed the judgment and decree of the Trial Court. Aggrieved by these two judgments and decree, the defendants have preferred this second appeal.
4. Learned Counsel appearing for the appellants assailing the judgment and decree contends that in the sale deed, the plaint schedule do not tally and the defendants' property is altogether different from the plaintiffs property. The identity of the property was disputed and the Court below has not appreciated this aspect of the defence by the defendants. Secondly, he contends that, merely because in Ex. P.2 the defendant's signature is found, it does not lead to the inference that the defendants have admitted that they are in permissive possession under plaintiffs vendor. Lastly, it was contended that the plaintiff did not step in
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