THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN SECOND APPEAL NO. 369 OF 2009 Date: 18.11.2009 1. Dasha Jaggaiah (died) 2. Dasha Janardhana Rao 3. Karri Gunnamma 4. Karri Yerramma 5. Dasha Babu. … Appellants/Plaintiff and 1. Dasha Punnaiah 2. Dasha Tatarao 3. Dasha Dhanunjaya. … Respodnents/plaintiff THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN SECOND APPEAL NO. 369 OF 2009 JUDGMENT: The second appeal is preferred against the order of the Senior Civil Judge, Sompeta in A.S. No. 42 of 2001 dated 10.09.2008, confirming the judgment and decree in O.S. No.78 of 1998 dated 11.10.2001. The appellant herein is the plaintiff in the suit. It is his case that he purchased the suit schedule property under a registered sale deed on 18.03.1935 and that, eversince, he has been in peaceful possession and enjoyment thereof. The suit was filed seeking permanent injunction restraining the defendants and their men from interfering with the appellant’s peaceful possession and enjoyment of the suit schedule property. The first defendant alleged that the plaintiff, and his minor sons, had executed a settlement deed on 12.12.1963 under which 37½ cents was settled in favour of the defendants and that, subsequently on 09.03.1997, a gift deed was executed for an extent of 12½ cents. The plaintiff examined P.Ws-1 to 3 on his behalf and marked Ex.A- 1 sale deed. On behalf of the defendants, D.Ws-1 to 3 were examined and Exs.B-1 to B-4 were marked. Ex.B-1 is the registered settlement deed dated 12.02.1963, Ex.B-2 is the gift deed dated 09.03.1970, Exs.B3 is the pass book and Ex.B-4 is the title deed. By its judgment dated 11.10.2001, the trial Court held that it was not in dispute that the title deed of the suit schedule land stood in the name of the plaintiff by virtue of the sale deed dated 18.03.1935 marked as Ex.A-1, that, except for marking this document as exhibit, no other documentary evidence had been placed on record by the plaintiff to show that he was in possession and enjoyment of the total extent of the suit schedule property of Ac.1.00 cts. The trial Court disbelieved the evidence of P.Ws-2 and 3 and Dws.2 and 3. In dismissing the suit, it relied exclusively on Ex.B-1 document and held that its contents were required to be accepted as the said document was more than thirty years old. The Appellate Court, while considering the contention of the defendants that Exs.B-3 and B-4 pattadar pass book and title deed related to the land covered by Exs.B-1 and B-2, observed that Exs.B-3 and B-4 disclosed that D-1 was the pattedar and was in possession of Ac.0.50 cts of land in Sy. No.168/9 of Bejjiputtuga village, whereas the suit schedule property was located in Sy. No.264/2. It held that though Exs.B-3 and B-4 were marked through D.W-1, who deposed that the revenue authorities, having recognized his possession and enjoyment of the property covered by Exs.B1 and B2 had issued Exs.B-3 and B-4 in his favour and that he was in possession and enjoyment of half share on the southern side of the suit schedule property of an extent of Ac.0.50 cts, there was no suggestion on behalf of the plaintiff to D.W-1 that Exs.B-3 and B-4 were not related to the property covered by Exs.B-1 and B-2 and the suggestion that they were fabricated was denied by D.W-1. While noting the plaintiff’s contention that possession follows title, the Appellate Court held that, subsequent to the sale deed dated 18.03.1935, it was the case of the defendant that Exs.B-1 and B-2 (registered documents) were executed for an extent of Ac.0.50 cts, from out of the suit schedule extent of Ac.1.00 cts, that Ex.B-1 was a settlement deed of more than thirty years old and, therefore, required no further proof to prove its contention. The Appellate Court also noted that the scribe and attestors of the said documents were no more and that it appeared from Ex.B-1 that the plaintiff, and his two minor sons, had sold an extent of 37½ cts under Ex.B-1 and 12½ cts under Ex.B-2, from out of the plaint schedule property of Ac.1.00 cts. The Appellate Court disbelieved the evidence of P.Ws-2 and 3 and observed that, if really the plaintiff was cultivating the plaint schedule property as wet land, such cultivation should have been reflected in the revenue records i.e., No.3 accounts and 10(1) Adangal and that the plaintiff did not file copies of the said revenue records to show that he was in possession and enjoyment of Ac.1.00 cts of the plaint schedule property. The Appellate Court also noted that the plaintiff did not file any cist receipts to show that land revenue was paid to the Government in respect of the said Ac.1.00 cts of land. While noting that the defendant had also failed to file these documents, the Appellate Court observed that it was for the plaintiff to establish that he was in possession and that he could place no reliance on the weakness of the defendant’s case. The Appellate Court came to the conclusion that the appellant was not in possession and enjoyment of the suit schedule property by the date of suit, that the defendants had created a cloud over his title by marking Exs.B-1 and B-2 and that the trial Court had not committed any error or illegality in dismissing the suit. Sri K. Manikprabhu, learned Counsel for the appellant, would contend that for any document which is more than thirty years old, the presumption under Section 90 of the Indian Evidence Act is only regarding the signature of the executor and, in case it is attested, that the person who had so attested had in fact attested to the said document. Learned Counsel would contend that the presumption does not extend to the contents of the settlement deed (Ex.B-1). He would contend that Section 68 of the Indian Evidence Act required Ex.B-1 settlement deed to be proved by examining atleast one attesting witness and, in as much as no attesting witness was examined, the contents of Ex.B-1 could not have been relied upon by the Courts below. While the submission of Sri K. Manikprabhu, learned Counsel for the appellant, does seem attractive at first blush, a reading of Section 68 would go to show that in cases where a document is required by law to be attested, it shall not be used as evidence until one attesting witness has atleast been called for the purpose of proving its execution, if there be an attesting witness alive, and, subject to the process of the Court, is capable of giving evidence. As noted above, the Appellate Court has recorded its finding, which is not disputed before this Court, that none of the attestors or the scribes of Exs.B-1 and B-2 were alive. As such reliance on Section 68 of the Indian Evidence Act is misplaced. The Appellate Court has categorically held that the appellant had failed to prove his possession on the date of the suit by filing necessary documentary evidence and that the only document he filed was Ex.B-1 over which there was a cloud in view of the subsequent settlement deed i.e., Ex.B-1. No substantial question of law arises for consideration in this Second Appeal and it is, accordingly, dismissed. __________________________ Date: 18-112009 RAMESH RANGANATHAN,J MRKR