*HON’BLE SRI JUSTICE R.KANTHA RAO + S.A.NO.1094 OF 2006 % Date: 22.06.2011 Between: # Madanlal Pujari .. Appellant And $ Sharad Joshi .. Respondent ! Counsel for petitioners: Sri Damodar Mundra ^ Counsel for respondent : Sri R.Chandrasekhar Reddy < GIST: >HEAD NOTE: ? Cases referred: HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.1094 OF 2006 DATED: 22.06.2011 BETWEEN: Madanlal Pujari .. Appellant And Sharad Joshi .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.1094 OF 2006 JUDGMENT: This second appeal arises out of the judgment and decree dated 07.10.2005, passed by the I Additional Chief Judge, City Civil Court, Secunderabad in A.S.No.135 of 2001 wherein and whereby the learned I Additional Chief Judge reversed the judgment and decree dated 20.10.2001 passed by the XVIII Junior Civil Judge-cum-Additional Rent Controller, Secunderabad in O.S.No.1529 of 1998. 2. For the sake of convenience, the parties will be referred as ‘the plaintiff and the defendant.’ 3. The appellant is the plaintiff and he filed the suit for declaration of his title and ejectment of the defendant, who is the tenant of the schedule mentioned premises bearing No.12.10.228, Seethaphalmandi, Secunderabad. 4. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. Perused the judgments passed by both the Courts below and other material papers. 5. The brief facts relevant for considering the second appeal may be stated as follows: 6. Madanlal Pujari, the plaintiff claims to be the owner of the property and asserts that he became entitled to the property under Ex.A.1, Will dated 13.10.1964 executed by one late Ramnath Pujari in his favour bequeathing all his properties in favour of the plaintiff and giving life interest to Pujari Lakshmibai, who is the wife of Ramnath Pujari. The plaintiff says that after the death of Pujari Lakshmi Bai, who enjoyed the property during her life time, he became absolute owner of the property by virtue of the said Will. 7. The defendant-Sarad Joshi is the tenant of the schedule premises. According to him, originally his father obtained the schedule premises on lease and was continuing as a tenant. After the death of his father, the defendant is continuing as tenant of the premises, but he disputed the title of the plaintiff. The defendant’s case is that Pujari Lakshmibai is the owner of the schedule premises and not Ramnath Pujari. Therefore, even if Ex.A.1-Will is considered to be true, genuine and is proved according to law, the plaintiff will not get any title to the schedule premises under the Will. 8. Prior to the suit, the plaintiff filed R.C.No.136 of 1991 before the Additional Rent Controller, Secunderabad seeking the defendant’s eviction on account of willful default in payment of rent. However, since there arose a dispute relating to the title in consequence of denial made by the defendant, the Rent Controller closed the rent control case directing the parties to get the issue of title adjudicated by a competent Civil Court. Thereafter, the plaintiff instituted O.S.No.1529 of 1998.. 9. The case of the plaintiff is that one Ramnath Pujari, who is his paternal uncle, is the absolute owner of the properties bearing No.12-10- 227, 12-10-228 and 12-10-229 situated at Seethaphalmandi, Secunderabad and as already said the plaintiff became entitled to the schedule premises No.12-10-228 under the Will along with the remaining properties. Curiously, the defendant admits that Pujari Lakshmibai is the owner of the property, but only disputes the fact that the plaintiff became entitled to the property as absolute owner under the Will after the death of Pujari Lakshmibai, who was given life interest under the said Will by Ramnath Pujari. The defendant also disputed the fact that the plaintiff is the brother’s son of Ramnath Pujari. Owing to the dispute relating to the title, the defendant has not been paying rents and he has also not been continuously depositing the rents into the Court. After making an application, he only deposited rent for few months, then stopped paying rent. Therefore, when once it is established that the plaintiff is the owner of the property, the defendant is liable to be evicted. 10. The trial Court held that the plaintiff could prove that he is the owner of the property and accordingly declared his title to the property in the suit filed by him. Whereas the first appellate Court reversed the finding and held that the plaintiff failed to establish his title to the property. The first appellate Court was of the view that even though the defendant committed default in payment of rents, he is not liable for eviction since the plaintiff failed to establish that he is the owner of the property and thus dismissed the suit for declaration of title and ejectment filed by the plaintiff. 11. The contention of the defendant is that the Will discloses the relationship between Ramnath Pujari and Puraji Lakshmibai as wife and husband. The Will is in Gujarati language. The plaintiff’s version is that all the attestors of the Will are no more and therefore, he could not be able to get the attestors examined before the trial Court. However, the plaintiff in R.C.No.136 of 1991 in proof of the very same Ex.A.1 Will examined one of the attestors as PW.2 and its translation is marked as Ex.A.2. After his evidence in the said R.C. and before commencement of the trial in O.S.No.1529 of 1998, PW.2 died. The plaintiff filed his deposition in O.S.No.529 of 1998 and it is marked as Ex.A.7. Ex.A.7 clearly indicates that late Ramnath Pujari executed the said Will with the recitals as contended by the plaintiff. The learned trial Court relying on the version of the plaintiff that all the attesting witnesses died by the time of commencement of trial in O.S.No.1529 of 1998, rightly took into consideration the deposition of PW.2 which is marked as Ex.A.7 and also considering the fact that Ex.A.1 Will is a document of more than 30 years old, rightly held that presumption of its execution as well as genuineness can be drawn, more particularly when none of the attesting witnesses were alive. 12. Ex.A.11 is an application made by Pujari Lakshmibai to the Municipal Corporation, Hyderabad seeking mutation. It was made in the year 1967. She described in the application as the wife of Ramnath Pujari. It is to be remembered that the application was made when no litigation between any of the parties was contemplated. Ex.A.12-extract of the assessment book also clearly reveals that Pujari Lakshmibai was described as wife of Ramnath Pujari. The learned first appellate Court without assigning any convincing reason simply doubted the genuineness of Exs.A.11 and A.12 which is obviously erroneous and there is no basis for the finding arrived at by the learned first appellate Court that it might be result of manipulation of records by the plaintiff. In Ex.A.1 Will the property bequeathed is described as 12-10-227, 8 and 12-10-229. There may not be any doubt about the fact that the description of the property as 12.10.227, and 8 is nothing but 12.10.227 and 12-10-228. But strangely the learned first appellate Court expressed the view that the property bearing No.12-10-228 which is schedule premises is not mentioned in Ex.A.1-Will which finding in my view is not only erroneous, but also contrary to the evidence available on record. 13. The defendant filed Ex.B.1 to B.39, rent receipts which were admittedly issued by Pujari Lakshmibai. The defendant sought to contend that Pujari Lakshmibai was the owner of the property, but Ramnath Pujari was never the owner of the property. The defendant sought to disbelieve the theory that originally the property belongs to Ramnath Pujari and it was bequeathed to Pujari Lakshmibai giving life interest and then to the plaintiff with full rights. The learned first appellate Court curiously, without there being any pleading or evidence as to the fact that Pujari Lakshmibai perfected her title to the property by adverse possession, gave a finding that she perfected her title to the property by adverse possession and that it is her absolute property in which the plaintiff has no right. This finding also is contrary to the evidence on record and recorded without any basis. The learned first appellate Court held that there is nothing unusual in Ramnath Pujari allowing his wife Pujari Lakshmibai to issue rent receipts in favour of the tenants. But the learned first appellate Court acceded the contention put-forth by the defendant that the plaintiff failed to establish that Ramnath Pujari in fact allowed Pujari Lakshmibai to issue rent receipts. These findings thus are mutually inconsistent. 14. Another crucial aspect is that in R.C.No.136 of 1991 the defendant had categorically admitted in his deposition as RW.1 that the plaintiff is the owner of the schedule premises. His deposition is marked as Ex.A.10. The defendant also admits the said fact, but seeks to withdraw the same on the ground that he was not aware of the fact by then that the plaintiff is not the owner of the property. The learned first appellate Court agrees with his contention and holds that he can withdraw the said admission which finding according to me is contrary to law. It is true that in certain circumstances the party can withdraw or explain away the admission made by him. But, there must be some justifiable ground for the Court to hold that any such admission can be withdrawn. Here is a case wherein the plaintiff filed the suit as well as rent control case specifically asserting that he is the owner of the schedule premises. The defendant categorically admitted that the plaintiff is the owner of the schedule premises. Whether the plaintiff is the owner of the premises is crucial issue within the exclusive knowledge of the defendant and he cannot make evasive statements on such issue. According to him, his father had been tenant of the premises since 1936 and subsequent to the death of his father, he has been continuing as tenant of the premises. Therefore, it is not understandable as to how he was not sure about the title holder and landlord of the property. The learned first appellate Court recorded a finding that the admission made by the defendant to the effect that the plaintiff is the owner of the schedule premises is of no consequence and in a suit for declaration of title, the plaintiff has to prove the title by independent evidence. It is true that the plaintiff has to prove his own case and he shall not have recourse to the weakness of the case of the defendant in proving the same. But an admission on vital point by the opposite party also one of the important pieces of evidence, in proof of title of the plaintiff. If the entire evidence is taken into consideration along with the admission made by the defendant, it is obvious that the plaintiff is the owner of the property. In a civil case, a fact can be said to be proved basing on the preponderance of probabilities and a fact can be proved either by positive evidence or from the circumstances of the case or from the admissions made by the opposite party. While considering a fact is proved or not, the Court has to consider the facts and circumstances of the case in their entirety and the evidence on record as a whole, but shall not adopt a hyper technical approach. Such a hyper technical approach is not permitted even for proving guilt of the accused by the prosecution in criminal cases. 15. I n HARADHAN MAHATHA AND OTHERS v DUKHU MAHATHA[1] , it has been laid down that a Will which is more than 30 years old and when the executant and attesting witnesses are not alive, the mode of proof required under Section 68 of the Evidence Act is not possible. It has been further laid down that the principle underlying Section 90 is that if a document, thirty years old or more, is produced from proper custody and is, on its face, free from suspicion, the Court may presume that it has been duly executed and attested, it is extremely difficult and some times impossible to prove handwriting, signature and execution and attestation of ancient documents after lapse of many years. 16. Similarly in MADHUKAR D.SHENDE v TARABAI ABA SHEDAGE[2] the Supreme Court held that when factum of execution of Will is challenged without any specific pleadings by rank trespasser and no challenge put-forth by any relative of testatrix, the law of evidence does not permit conjecture of suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence, well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative. The Supreme Court also held that if there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a Will, the Court would not return a finding of “not proved” merely on account of certain assumed suspicion or supposition, who are the persons propounding and supporting a Will as against the person disputing the Will and the pleadings of the parties would be relevant and of significance. 17. I n RAM KRISHNA JAISWAL AND OTHERS v. DISTRICT JUDGE, ALLAHABAD AND OTHERS[3] it is laid down as follows: “It is settled law that where a tenant who had been let into possession of the premises by the landlord, the tenant under Section 116 of the Evidence Act is estopped from denying the right and title of the lessor however defective it may be so long as he has not openly restored possession by surrender to his landlord. The tenant’s estoppel operates even after termination of the tenancy as long he continues in possession.” 18. I n KADIAM PAPARAO v SIDDIREDDY SATYANARAYANA AND OTHERS[4], it is held as follows: “A reading of Section 33 of the Indian Evidence Act makes it clear that it is not only the evidence given in a judicial proceedings but evidence given before any person authorized by law to take it is admissible in evidence. The expression ‘or’ used in Section 33 indicates that not only the evidence given in a judicial proceeding but evidence given before any person, who is authorized by law to take it, is relevant in a subsequent judicial proceedings or in a later stage of the same judicial proceeding subject of course to the conditions mentioned therein viz. when the witness is dead or cannot be found etc. are satisfied.” 19. I n DUKHIRAM DEY v MRITYUNJOY PROSAD DAW AND OTHERS[5] it is held with reference to admission in a prior suit as follows: The statement of witness made in Court in a previous suit that a certain person was a tenant of the disputed property can be taken as his admission in a subsequent suit against same property after confronting him with such statement. 20. If we examine the facts of the present case, in the light of the principles laid down in the decisions above referred, it requires to be noticed in the first place that except the plaintiff, nobody claimed to be the owner of the schedule premises. The defendant also did not state as to who is the owner of the property at present. He admitted Pujari Lakshmibai to be the owner of the property, but conveniently silent about who succeeded Pujari Lakshmibai after her death. The defendant had made a categorical admission in R.C.No.136 of 1991 which was filed earlier to the present suit that the plaintiff is the owner of the schedule premises. No cogent reason has been assigned by the defendant for withdrawing his admission and stating in the subsequent proceedings i.e. in the present suit that the plaintiff is not the owner of the property. He only states that the plaintiff is not the owner of the property, but he is not able to say till today as to who became the owner of the property after the death of the Pujari Lakshmibai. 21. In R.C.No.136 of 1991 the attesting witness had categorically spoken to the execution of Will by Ramnath Pujari in favour of the plaintiff by giving life interest to his wife Pujari Lakshmibai and after her death to the plaintiff with absolute rights. Since he died subsequent to his giving evidence in R.C.No.136 of 1991 and was not alive on the date of trial in the present case, his deposition can be considered in the present case as per the provisions of Section 33 of the Evidence Act. Therefore, it is no longer open for the defendant to argue that the Will has not been proved as required under Section 68 of the Indian Evidence Act. Further Ex.A.1 Will is more than 30 years old, there is a presumption about its execution and attestation and if we consider the evidence forthcoming in this case as a whole, it can be said without any hesitation that the Will has been duly proved. 22. While exercising its power under Section 100 C.P.C. in disposing of the second appeal, this Court can interfere with the findings recorded by the first appellate Court if there has been any decision rendered by the first appellate Court erroneously in regard to a substantial question of law. This Court also can interfere with the finding of the first appellate Court, if such finding is contrary to the evidence on record. In the instant case, the first appellate court has erred gravely in deciding the questions of law which affected the rights of the parties ignoring the settled legal principles in relation to proof of Will, the effect of admissions made by opposite party and estoppel against tenant in regard to the denial of title of the landlord. The findings of fact as well as of law arrived at by the learned 1st appellate Court while reaching conclusions on crucial issues which are referred hereinabove are opposed to settle legal principles and also contrary to the evidence on record. There is enough evidence in this case in proof of title of the plaintiff which was rightly considered by the learned trial Court, but was unjustly reversed by the first appellate Court. The findings of fact and law recorded by the learned trial Court are therefore liable to be set aside in the second appeal. 23. Consequently, the decree and judgment dated 07.10.2005, passed by the I Additional Chief Judge, City Civil Court, Secunderabad in A.S.No.135 of 2001 are set aside and the judgment and decree dated 20.10.2001 passed by the XVIII Junior Civil Judge-cum-Additional Rent Controller, Secunderabad in O.S.No.1529 of 1998 declaring the title of the plaintiff and evicting the defendant from the schedule mentioned premises are confirmed. The defendant is directed to vacate and handover the schedule mentioned premises to the plaintiff within two months from the date of this judgment. The second appeal, therefore, succeeds and is allowed with costs. _______________ R. KANTHA RAO, J Date: 22.06.2011 Note: L.R.Copy to be marked. B/O kvrm HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.1094 OF 2006 DATE: 22.06.2011 [1] AIR 1993 PATNA 129 [2] AIR 2002 SC 637 [3] AIR 1999 ALLAHABAD 198 [4] AIR 1983 AP 257. [5] AIR 1982 CALCUTTA 294