Sayed Mohiuddin & Ors. v. Kumarbee Syed Nooruddin died L.Rs

Shri P.F. Patni, Advocate for appellants. Shri Sk. A.T. Patel, Advocate for respondents no.1A to 1C. CORAM : K.U. CHANDIWAL, J 29th March, 2010. PER COURT:- 1 2 Heard. Unsuccessful defendants before the Joint Civil Judge (Junior Division), Paithan and also before the District Judge, at Aurangabad in R.C.A. No. 105/1995 is in the second appeal. 3 Mr. Patni counsel for the defendants while relentlessly making out his case for admission, in first place, sought leave of the Court to add the grounds in the appeal which indeed is entrained. His contention is, there could be two 2 substantial questions of law, which he formulated as (1) when the parties had by efflux of nature of possession, two independent status, one as a tenant and other as a purchaser, whether termination or holding illegality of the sale deed, mean that the purchaser / tenant could not fall back to the original status, (2) Whether the courts were justified in examining the thumb impression of the plaintiff on the sale deed taking aid of Section 73 of the Evidence Act without recourse to Section 45 thereof, in the eyes of law. 4 Though the learned counsel minutely read the legal position coupled with Section 111 of the Transfer of Property Act, and also Hyderabad Tenancy and Agricultural Lands Act, 1950, the fact remains the parties are bound to adhere the stand/claim within four corners of the pleadings. First point formulated by the learned counsel, naturally should bear its nucleus in the pleadings. At internal page 4 of the judgment of learned Civil Jude (Junior Division), Paithan (R.C.S. No. 169/1992), the defence set out by the defendants (appellants) is enumerated. It is stated, the defendants denied plaintiff’s ownership and possession over the suit land of defendants on behalf of plaintiff. Thus, the first submission that it was a case of tenancy directly or impliedly is brushed aside by defendants themselves. 5 Then comes the examination of the documents, as has been done by the learned judge, and its finding. Though I find in a matter like examination of hand writing or thumb impression, Section 73 of the Evidence Act, comes 3 into operation but its use is sparingly to be carried as Court may not have the expertise as is available, with the scientific expert in the field as they are also emboldened with requisite equipments with ultra modern avenue training. Such recourse was indeed available in terms of Section 45 of the Evidence Act. The learned judge did not allow this exercise, as it apparently transpired after hearing of the suit, the defendants were in slumber for virtually 8 years and then made application for referring the documents to the expert. This was probably felt to protract the proceeding and nothing wrong in learned judge, in making such impression. Then comes justification of the observations. Before the learned judge, there was evidence of the scribe, and the attesting witness who rebelled against the purchaser by pointing that the plaintiff did not appear before the Registrar to execute the sale deed. It was apparently a case of impersonation. It may be, the scribe and the attesting witness are accomplish. However, this Court is not expected to translate such activities for the aggrieved defendants, as he has independent remedies in the separate jurisprudence which the appellant may exhaust. However, the accomplishment which has been tried to be coined, will not come to the assistance of the defendants as the very document on which the claim was tried to be set up by the defendants, has turned into several pieces. 6 Reference to Section 68 of the Evidence Act, was taken with 4 justification and it also could not be criticized as has been done by the learned counsel for the appellants. The reliance to the judgment in the matter of Shaikh Usman s/o Shaikh Burahan & Others vs. Shaikh Badruddin s/o Shaikh Bhagan & another reported in 1994(1) Bom. C.R. 362 will not be available to be put in, as the appellant will have to come to his own case which unfortunately is not his case of either flowing with the tenancy or with certain independent rights. 7 The judgment of the Apex Court in the matter of Nirmal Chandra vs. Vimal Chand reported in (2001) 5 Supreme Court Cases 51 deals with a mortgage of the property lien by the land lord to the tenant. The Apex Court has observed an intention of the parties, has to be ascertained in determining whether the tenancy is liable to be continued or not. The Apex Court also observed the grant of decree of possession in such eventuality would be beyond scope of civil court. There should not be any quarrel on the proposition of law. However, the facts in the present case revolves that the court has independently dealt with the sale deed dated 25-06-1984 and analyzed the same, there could not be case of right of tenancy by either conduct or latently. Second appeal sans merit. Dismissed. C.A. disposed of. tsk/sa517.09 [K.U. CHANDIWAL.J] 5