- (1.) THE plaintiff is the appellant in this second Appeal. THE suit is for declaration of his title to the suit properly and for consequential injunction or in the alternative for possession. THE suit property is a vacant site measuring east to west 10 yards and south to north 23 yards and comprised in S. No. 183/1 (part) in Vellur village natham. THE plaintiff claimed it under Ex. A-6 sale deed dated 27. 3. 1978 and according to him, his vendor Gopalakrishnan got the said properly under a registered settlement deed dated 22. 1. 1947, the registration copy of which is Ex. A-3, from one Thirumalaiammal. THE plaintiff also sought title by adverse possession alternatively. On the other hand, the claim of the defendant/respondents is that the property being a natham properly, vested with the Government and defendants were alone in possession of the property. Further, according to the defendants, the alleged settlement by Thirumalai Ammal could not be true and neither Thirumalaiammal , nor Gopalakrishnan was in possession of the suit property and that the alleged sale in favour of the plaintiff was also invalid.
(2.) THE trial court decreed the suit for declaration -on the basis of the abovesaid title deeds Ex. A-3 and A-6 and holding that the defendants were in possession of the suit property on the date of suit, granted decree for possession. But, on appeal, the first appellate court has dismissed the suit and allowed the appeal on the ground that the plaintiff has not proved the abovesaid Ex. A-3 document, he having not examined any attestor to the said document. THE lower appellate court also held that since Ex. A-3 is only a registration copy of the original deed, Sec. 90 of the Evidence Act would not come to the rescue of the plaintiff, on the footing that the document in question was more than 30years old. Further, while the trial court has held that item No. 19 in Ex. A-3 is the suit property, the lower appellate court has reversed that finding by saying that in item 19 in Ex. A-3, the western boundary is described as Perumal Iyengar's vacant site and the eastern boundary is described as Yoganandasami madam, but that "the abovesaid boundary is not in existence now". On that reasoning, the lower appellate court has held that the property described as item No. 19 of Ex. A-3, does not relate to the suit property. Aggrieved by the said decision of the first appellate court, the plaintiff has preferred this second appeal. The learned counsel for the appellant argues that the lower appellate court erred in holding that ex. A-3 has not been proved since no attestor therein has been examined. According to him, there is no specific denial by the defendants regarding the execution of Ex. A-3. All that has been pleaded in the written statement regarding Ex. A-3 is only as follows: "the further contention that Thirumalai Ammal executed a registered settlement deed in favour of one Gopalakrishna Iyer on 22. 1. 1947 cannot be true. The plaintiff should prove the truth and validity of the alleged Settlement Deed dated 22. 1. 1947. The Settlement deed even if true cannot convey any title in favour of the Donee as the donor herself had no title, right, or interest in the suit property. " According to the said counsel, in view of this pleading, there is no scope for the application of Sec. 68 of the Evidence Act. Sec. 68 of the Evidence Act runs as follows: "68. Proof of Execution of document Required by Law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian registration Act, 1908 (16of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. " According to the learned counsel, since there is no specific denial of the execution of Ex. A-3, it is not necessary to call an attesting witness in proof of the execution of Ex. A-3 registered settlement deed. On the other hand, the learned counsel for the respondents argues that there is a specific denial of the execution of Ex. A-3 and hence one attestor at least has to be necessarily examined. 3a. I shall first consider the rival submissions on the abovesaid point. The learned counsel for the appellant has hot cited any authority regarding the term "specifically denied" used in the proviso to Sec. 68. However, since it has been pleaded that the execution of the abovesaid settlement deed cannot be true, it has to be taken that the execution of the said document has been specifically denied. In fact, I find that in Ghansilal v. Bhuridevi , A. 1. R. 1964 Raj. 39, relying on Surendra Bahadur v. Behari Singh, (1939)2 M. L. J. 762: 181 I. C. 216: 1939 M. W. N. 867: A. I. R. 1939p. C. 117, it has been held that where the defendant pleads that a certain paragraph of the plaint is denied the plaintiff is put to strict proof of the facts stated therein and the plaintiff must prove that a legal and valid gift has been made to her, there is specific denial of the execution of the document within the meaning of the said proviso. In the abovesaid Surendra Bahadur v. Bahari Singh, (1939)2 M. L. J. 762:181 I. C. 216:1939 M. W. N. 867: A. I. R. 1939 P. C. 117, the plea raised by the defendant ran thus: "the contesting defendant does not admit the execution and completion of the document sued on, nor is receipt of the consideration of the same admitted. " This plea was regarded by the Privy Council as specific denial of the execution of the document within the meaning of the term "specifically denied" in the abovesai d proviso. In the present case, the defendants have also stated in the above extracted portion of the written statement that the plaintiff should prove the "truth" of the alleged settlement deed. They have specifically referred to the said settlement deed and made the abovesaid allegations. It has also been held in Dhiren Ballung v. Bhutuki,a. I.R. 1972 Ghuhati 44,that the term "specifically denied" is used in the abovesaid proviso in contra distinction to the word "generally" and that in order to understand the meaning of the word "specifically" used in the abovesaid proviso to Sec. 68 of the Evidence Act, considerable help could be drawn from the meaning given to that word in 0. 8 Rule 3 C. P. C. , whose object is that the defendant should not exhibit casualness in the matter of his pleadings and that he should exhibit sense of responsibility by making his stand known to the court by dealing with the individual facts set out in the plaint. In the present case, the abovesaid denial cannot be merely termed as general denial, but it can as well be taken only as specific denial with reference to the document, relating to the truth of it and not merely to its validity. However, on a different reasoning, I have to hold that the lower appellate court erred in dismissing the suit on the ground that Ex. A-3 has not been proved. It has been held that the objection regarding the mode of proof of a document has to be taken at the time when it is being exhibited and not at a later stage. To illustrate, in Bhagwan Dass v. Khem Chand , a. I. R. 1973 P. H. 477 (D. B.), it has been held thus: "the lower appellate court came to the conclusion that Ex. P-12 was not properly proved and, therefore, it had not been established that Kidar Nath was a statutory tenant. In the regular second appeal filed by the plaintiffs, basing his decision on Gopal Das v. Sri Thakuji , (1943)2 M. L. J. 51: 207 I. C. 553: a. I. R. 1943 P. C. 83: 1943 M. W. N. 334, and on a decision of this Court in Hamam Singh v. Dalip Singh, (1963)65 Pun. L.R. 1133, the learned single Judge came to the conclusion that the document being admissible and no objection having been taken by the defendants to the mode of its proof at the relevant time, they cannot now be heard to object that the document has not been properly proved. The observations of the Privy Council in Gopal Das v. Sri Thakurji , (1943)2 M. L. J. 51: 207 I. C. 553: A. I. R. 1943 P. C. 83: 1943 M. W. N. 334, which were relied upon by the learned single Judge, were to the following effect: "where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a court of appeal and then complain for the first time of the mode of proof.' In the present case, I find that there was no objection to the proof of Ex. A-3 through the abovesaid Gopalakrishnan , P. W. 1, the settlee under Ex. A-3. The following is his deposition, in seeking to prove Ex. A-3 and also the earlierothi document Ex. A-4 dated l6. 3. 1941 ,executed by the abovesaid Thirumalai Ammal in favour of some third party: In fact, even in the cross-examination, there appears to be no specific suggestion that Ex. A-3 was not executed by Thirumalaiammal in favour of Gopalakrishnan. On the other hand, 1 am able to see only the suggestion regarding the validity of the settlement as borne out by the following answer given by P. W. I in the cross-examination: So where a piece of evidence even assuming not proved in the proper manner, has been admitted without objection, it is not open to the opposite party to challenge it at a later stage of litigation. Therefore, the lower appellate court erred in holding that Ex. A-3 has not been proved. That apart, the other reasoning of the lower appellate court that Sec. 90 of the Evidence Act would not help the plaintiff, because ex. A-3 is only a registration copy, is also misleading. It is well known that sec. 90 of the Evidence Act deals with presumption as to documents of 30 years old. Though this particular Section may not strictly apply to the registration copy of Ex. A-3 that has been filed in the present case, I think Sec. 57 (5) of the Registration Act would come to the help of the plaintiff in proving the contents of originals of Ex. A-3. Sec. 57 (5) of the Registration Act runs as follows: 'all copies given under this section shall be signed and sealed by the registering Officer, and shall be admissible for the purpose of proving the contents of the original documents.' ; In Karupanna v. Kolandaswami , (1953)2 M. L. J. 717: 1953 M. W. N. 799: A. I. R. 1954 Mad. 486, also it has been held thus: 'as stated'already under Sec. 57 (5) of the Indian registration Act, a certified copy obtained from a Registrar's office shall be admissible for the purpose of proving the contents of the original documents. That means that the mere production of a certified copy without any further oral evidence to support it would be enough to show that the original document contained. That a registration copy is the copy of a public document contemplated under Sec. 74, Sub-sec. (2) of the Indian Evidence act is indisputable and the copy of such a document is a certified copy of a public document under Sec. 76 of the Indian Evidence Act.' ; Therefore, it cannot be said that Ex. A-3 has not been proved. The lower appellate court's observation as if Ex. A-3 is not admissible is also not correct.
(3.) NEXTLY , the learned counsel for the respondents contends that the suit property being a natham property, vested with the Government and that the plaintiff cannot have the declaration as prayed for. No doubt, the plaintiff also admits that the suit property is a natham. But according to the learned counsel for the plaintiff, that fact does not mean that the said property is a government property. While considering this point, first of all, I find that even though the defendants plead in the written statement,'as the suit is for declaration of plaintiffs title to a site in Natham which belongs to the Government and vest with the Panchayat should be decided only making the Government and the Panchayat as parties'; , the 2nd defendant, who alone went into the box among the three defendants, did not even depose that the suit property is the property of the Government or the Panchayat. All that he deposed was only that the property was natham. Natham , according to K. G. Iyer's Judicial Dictionary, 8th edition, page 654, means that part of the village land, on which the houses of the Mirasdars are built as distinct from the lands attached to the village. Shortly putting it, they are house sites in the villages. There is no law saying that all natham properties are Government or Panchayat properties. The learned counsel for the appellant cited Chinnath-ambi Goundan v. Venkatasubramani , 49 L. W. 326. It says that in a shrotriem village not falling under the Estates Land Act, the control of unoccupied gramanatham vests in the shrotricmdar. So according to the said counsel, natham docs not vest with the Government or Panchayat. But, there is neither plea nor proof, that the village in question here is one such shrotriem village, not falling under the Estates Land Act. Anyway, the learned counsel for the respondents also could not point out any decision that natham properties automatically vests with the Government or Panchayat. He no doubt cites Rengaraja Iyengar v. Achikannu Ammal , (1959)2 M. L. J. 513. But even there, the decision is that gramanatha m does not stand vested in the Government under Sec. 3 (b)of the Madras Estates (Abolition and Conversion into Ryotwari )Act (XXVI of 1948 ). Thus, at any rate, it cannot be said automatically that all natham properties are Government properties. Therefore, I am unable to hold that the suit property is a Government property. Thirdly , the learned counsel for the respondents also relies on Jai Narain v. Kishan Chand , A. I. R 1968 S. C. 1165. There, no doubt, it has been held that a suit on mere prior possession within 12 years is not barred and in such a suit, title need not be proved unless the defendant can prove one. But, in the present case, the defendants have not proved title. They only set up title in the Government and, even with reference to it, there is no proof. On the other hand, the plaintiff has come forward to prove his title by virtue of Exs. A-3 and A-6, the plaintiff has to be given a decree for declaration of his title and since the plaintiff is held to be not in possession on the date of suit, he should be given the possessory relief also. No doubt, the learned counsel for the respondents also seek , to argue that the defendants have prescribed title by their adverse possession. But, there is absolutely no plea regarding adverse possession, by the defendants. On the other hand, it is only the plaintiff who has alternatively pleaded title by adverse possession. Therefore, even assuming there is some evidence of possession by the defendants, it cannot be looked into, the fundamental principle being no amount of evidence can be looked into on a plea which was never put forward. Further, even the learned counsel for the respondents could not point out evidence showing open, continuous and peaceful possession as of right by the defendants as against the true owner. Further, as already mentioned, even according to them, the true owner is the Government and not the plaintiff. Therefore, there is absolutely no scope for defendants prescribing title by adverse possession against the plaintiff. ;