9911796707
TMI Blog2006 (2) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... s vendor agreeing to vacate the suit property as and when his vendor request him to vacate. They took time to vacate the property. After purchase of the property when the plaintiff requested him to vacate he did not do so. As he had obtained licence for permission to put up construction and a sanctioned plan, he was constrained to file a suit for declaration of his title and for possession. Defendants contested the claim and denied the ownership of the plaintiff over the suit schedule property. They contended that the suit property belonged to one Ramanaik Konappa Naikar who had given it to defendants' grandfather by name Hanamappa and they have put up a dwelling house in the suit schedule property thirty years back. They also constructed a tea stall-cum-restaurant which has been given M.P.C. No. 565 by the Pancliayath for which they have also obtained electricity connection. After the death of Hanamappa his widow and children have become the owners of the said property. They have perfected their title to the said property by adverse possession. The plaintiff is trying to take possession of the property by force. Therefore, the defendants were constrained to file a suit and obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that she has perfected title over the suit property by adverse possession. Therefore, it is clear that the first defendant nor his mother was the owner of any portion of the suit schedule property. They were claiming title by adverse possession, thereby admitting title of the plaintiff to the suit schedule property. The said suit came to be dismissed on 15.12.1993, which fact is not disputed. It is thereafter the plaintiff filed the present suit for declaration of his title and for possession. To substantiate his claim, plaintiff relies on Ex. P4, the registered sale deed in respect of the suit schedule property which has been proved by examining the executant to the document himself who was admittedly the previous owner of the suit schedule property. First defendant in the course of his evidence admits that the plaintiff has purchased the suit schedule property bearing No. 518. It is his specific case that in the said property in an area measuring 11' x 25' he has put up construction and living with his family members and thus he has perfected his title to the said portion of the property by adverse possession. He has failed to establish the plea of adverse possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the principal. In our view the word acts employed in Order 3 Rules 1 and 2 CPC confines only to in respect of acts done by the power of attorney holder in exercise of power granted by the instrument. The term acts would not include deposing in place and instead of the principal. In other words, if the power-of attorney holder has rendered some acts in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. Underlining by me 9. The aforesaid judgment is rendered in the peculiar facts of that case. The question involved in the said case was whether the appellants had any independent source of income and have contributed towards the purchase of the property from their own independent income. The said facts were within the personal knowledge of the appellants and to prove the said facts it was obligatory on the appellants to have entered box a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible to prove the truth of the facts stated. This is the most common form of hearsay. The term hearsay is rather ambigous and misleading and it has therefore been purposely excluded from the Evidence Act. Hearsay may be defined to be that which a witness does not say of his own knowledge, but says another has said or signified to him. Hearsay is therefore properly speaking secondary evidence of any oral statement. Hearsay is not now confined to oral statement. In includes what is done or written as well as what is spoken, i.e., all evidence reported whether orally or in writing. Conduct may also be hearsay like statements. The reason advanced for rejection of hearsay are numerous. The two principal objections however appeared to be lack of an oath and the absence of an opportunity to cross-examine him. 11. The proposition of law about the competence of a person to testify as a witness is governed by Section 118 of the Evidence Act. Giving evidence before a Court of law is an act within the meaning of the said provision. However, everyone is not entitled or competent to give evidence as witness before a Court unless one fulfills the requirements of the qualifications envisaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act that had worked smoothly for a century, it was proposed, instead of replacing the Act by a new one, to make the necessary amendments therein. Among others, the Commission suggested for insertion of a suitable definition of Power of Attorney , as the Act did not contain one. Therefore, Section 1-A was introduced by Act No. 55/1982 by the Parliament amending the Act. Hence, the Power of Attorney under the Act includes any instrument empowering a specified person to act for and in the name of the person executing it. It is an inclusive definition. 13. The Power of Attorney Holder is nothing, but an agent as defined in Section 182 of the Contract Act. It differs from agency in that, while in the case of agency the principal is only bound by acts of his agent, the holder of a power of attorney not only acts on behalf of the principal so as to bind the latter, but also acts in the name of the principal and uses his name in the instruments executed by him as the attorney. Prior to enactment, an agent having authority to execute an instrument has to sign in the name of the principal if he was to be bound. If the agent signed the deed in his name albeit as agent, he was the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit is one for declaration of title and for possession. In a suit for declaration of title, the plaintiff has to establish his title. Title cannot be established by his personal knowledge. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. In so far as documents are concerned Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., document itself. The said evidence can be adduced by the party or by his Power of Attorney Holder. Production of the document, marking of the document is a physical act which does not need any personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the person ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
