2019 Supreme(Kar) 1677

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.S. MUDAGAL, J.
Smt. Parvathamma W/o Late Shivashankaraiah Major – Appellant
Versus
V.S. Krishnoji Rao S/o Late V.K. Seetharam Rao – Respondent
Regular Second Appeal No. 1515 of 2006
Decided On : 12-11-2019

Headnote:

Indian Evidence Act, 1872 - Sections 13 and 43 - Possession and enjoyment of said property - Permanent injunction - Whether plaintiff proves that he is in lawful possession of suit property - Whether lower appellate court was justified in law in holding that judgments were not admissible in evidence having regard to provisions contained under Sections 13 and 43 of Indian Evidence Act and in light of decision of Apex Court - Whether issue is hit by principles of res-judicata - Plaintiff purchased suit property under a registered sale-deed - Since then he was in exclusive and peaceful possession and enjoyment of said property - When City Municipality tried to meddle with standing in favor of plaintiff he filed against City Municipal Council for mandatory injunction - That suit was decreed in favor of plaintiff was restored - Eastern boundary of plaintiff’s property was one - Defendant filed before Civil Judge for possession of said property - That suit was decreed - Defendant filed Execution Petition - In guise of taking possession of property in that case defendant claims to have taken possession of suit Schedule C site forming part of plaintiff’s site and trying to put up construction there – Thus he seeks permanent injunction – Held, Section 41 of Act deals with judgments in probate matrimonial admiralty or insolvency jurisdiction that means judgments - Section 42 of Act deals with judgment and decrees which relate to matter of public nature - But still it says that such judgments and orders are not conclusive proof of what they state - Judgments and decree in Exs.D3 D3(a) and D4 were not covered under Sections 40 to 42 of Act - In light of fact that judgments did not fall under any of components of Section 43 attempt was made to connect Section 43 to Section 13 of Act - Chapter-II of Act under which Section 13 falls relates to relevancy of facts - Section 5 of Act states that evidence may be given in a suit or proceeding of a fact in issue or facts which are declared as relevant by other provisions of Act - Section 13 of Act states that where question is as to existence of any right or custom a transaction by which right or custom in question was recognized disputed or asserted or departed or transaction which was inconsistent with existence of such fact is relevant - Some Courts have used Section 13 to prove admissibility of a judgment as coming under provisions of S.43 referred to above – Court are however of opinion that where there is a specific provision covering admissibility of a document it is not open to Court to call into aid other general provisions in order to make a particular document admissible - In other words if a judgment is not admissible as not falling within ambit of Section 40 to 42 it must fulfill conditions of S.43 otherwise it cannot be relevant under S.13 of Evidence Act - Words other provisions of this Act cannot cover S.13 because this section does not deal with judgments at all – Thus it was held that if judgment is not admissible as not falling within ambit of Sections 40 to 42 of Act it must fulfill conditions of Section 43 otherwise it cannot be relevant under Section 13 of Act - Larger Bench judgment of Hon’ble Supreme Court in State of case referred to supra was not referred to - Under such circumstances this court has to follow said larger Bench judgment in State of case - In that event t lower appellate court was justified in holding that judgments were not admissible in evidence except for purposes stated therein – Therefore substantial question of law formulated is answered in affirmative - Learned Counsel for appellant vehemently argued that first appellate court did not consider evidence with regard to identity of property and properly appreciate Commissioner’s report etc - He further argued that this court has to formulate additional substantial question of law on those aspects - Though defendant claimed that she has purchased property from one she did not produce her own original title deed or title deed of her vendor - Her only trump cards were judgment and decrees as per Exs.D3 D3(a) and D4 - On their exclusion from evidence absolutely her defense has no legs to stand – Therefore question of considering identity of property did not arise - Probably considering all those aspects only this court formulated substantial question of law only with regard to applicability of Sections 43 and 13 of Act and judgment of Hon’ble Supreme Court in case - Appeal is dismissed