Bandi Sathaiah v. Bandi Eshwaraiah

THE HON'BLE SRI JUSTICE P. NAVEEN RAO CIVIL REVISION PETITION No.895 OF 2017 Dated:17.07.2017 Between:

Bandi Sathaiah, S/o. Ramaiah, Aged about 70 years, Occ: Agriculture, R/o.Kondikonda Village of Kuravi Mandal, Warangal District .. Petitioner And Bandi Eshwaraiah, S/o. Sambaiah, Aged about 70 years, Occ: Agriculture, R/o.Kandikonda Village, Kuravi Mandal, Warangal District .. Respondent The Court made the following:

THE HON'BLE SRI JUSTICE P. NAVEEN RAO CIVIL REVISION PETITION No.895 OF 2017 ORDER:

Petitioner herein is plaintiff. He instituted suit for perpetual injunction on the subject properties mentioned in the suit schedule. Trial is completed and the suit is coming up for arguments. At this stage, petitioner filed I.A.No.331 of 2016 praying to direct the respondent/defendant to submit sketch map of the land pertaining to Survey Nos.14, 15 and 32 of Kandikonda Village, Mahabubabad District, and to give evidence explaining the measurements of land in each survey number.

2.

Case of the petitioner/plaintiff is that during the cross examination, DW.1 deposed that he could not identify the suit land after going through Ex.A3, but admitted that he would file Tonch map. Since respondent/defendant has accepted to file Tonch map, the same should be directed to be filed. It is the further case of the petitioner that he was unable to secure the relevant documents from the revenue authorities as they are not furnishing the same and since the respondent/defendant has accepted that he would file Tonch map, he should be given direction. 3.

This claim of the petitioner/plaintiff was opposed by the respondent/defendant. The stand of the respondent/defendant is that the burden is on the petitioner to produce all the relevant material in support of his claim, but cannot rely upon the material available with the respondent/defendant to substantiate his claim.

4.

On considering the rival claims, the trial Court observed that the plaintiff cannot seek a direction to the defendant to produce a document to prove his possession over the subject matter of the suit since the burden is on the petitioner/plaintiff to prove that as on the date of institution of the suit he was in possession and entitled for injunction restraining the respondent/defendant to interfere with the possession and enjoyment of the suit property. 5.

Briefly noted, it appears that the defendant purchased Ac.1.00 of land from the petitioner/plaintiff and even though the sale consideration was paid, the petitioner was not executing the sale deed in his favour. Therefore, the defendant instituted O.S.No.48 of 2001 in the same Court and the same was decreed in favour of the defendant on 29.06.2009. The land of Ac.1.00, which was the subject matter of O.S.No.48 of 2001, is part of the total extent of Acs.2.20 guntas of land described in the suit schedule. Aggrieved by the decree in O.S.No.48 of 2001, plaintiff filed A.S.No.3 of 2009 and the same is pending consideration by the Senior Civil Judge at Mahabubabad.

6.

Petitioner/plaintiff earlier filed I.A.No.9 of 2015 seeking a direction to the Village Revenue Officer to produce village map. The said I.A. was dismissed. Aggrieved thereby, he filed C.R.P.No.2480 of 2015. By order dated 05.10.2015, this Court dismissed the said C.R.P. A reading of the order passed by this Court in the aforesaid C.R.P., would disclose that the petitioner marked the sketch map of the suit schedule land as Ex.A3. A suggestion was given to him in the cross examination that the said sketch map was created. However, he asserted that Ex.A3 was

prepared on the basis of the original revenue map of Kandikonda Village and not concocted one and therefore he filed I.A.No.9 of 2015 to summon the Village Revenue Officer to verify Ex.A3 by producing the original revenue map of the said village. This Court confirmed the view taken by the trial Court and dismissed the Civil Revision Petition. However, the Court granted liberty to the petitioner to obtain the village revenue map. It appears, so far no such map is obtained.

7.

Learned counsel for the petitioner Sri M. Rama Rao sought to contend that in spite of several requests made, the village map is not furnished. However, since the defendant himself has accepted in his cross examination that he has Tonch map and he would file the same, learned counsel for the petitioner contends that once there is admission by the party to the litigation, it is permissible for the Court to take note of the said admission and compel the concerned party to produce the document as required and therefore the trial Court erred in not granting the direction as sought for.

8.

In response, Sri T.S. Anand, learned counsel for the respondent/defendant, contends that the petitioner/plaintiff cannot compel the defendant to produce the document in his possession in a suit for injunction and in a suit for injunction the burden lies on the plaintiff to establish possession, but he cannot rely on the weakness in the defence of respondent/defendant to seek relief in his suit. He further submits that the statement made in the cross examination cannot be taken as the basis to direct the respondent/defendant to produce a document.

9.

In support of his contention, he placed reliance on a decision of the Madras High Court in Chinnasami Thanjiroyar vs. Pichai Maricar1.

10.

I have given my anxious consideration to the rival contentions. Having regard to the facts, as noted above, and the contentions urged, I am of the considered opinion that the trial Court has come to correct conclusion in rejecting the prayer of the petitioner/plaintiff to direct the respondent/defendant to produce the Tonch map. The statement made in the cross examination cannot be taken as the basis to direct the respondent/defendant to produce a document in a suit for injunction simplicitor. It is rightly contended by the counsel for the respondent that the suit is for perpetual injunction and therefore the burden is on the petitioner/plaintiff to prove that there is unlawful encroachment into his land by the defendant and interfering with peaceful possession and enjoyment of his property. It is also appropriate to note at this stage that there is an earlier round of litigation in which the defendant succeeded to Ac.1.00 of land from out of the suit schedule land and claims that the same is in his possession. 11.

In Chinnasami Thanjiroyar, the Madras High Court held as under:

"5. ... In a civil suit the Court is not sitting to do some kind of abstract justice but is there to decide the issues between the parties on the evidence, oral and documentary, which they care to produce. Where a witness discloses, accidentally perhaps and may be to the surprise of the counsel who has 1 AIR (34) 1947 Madras 58: MANU/TN/0038/1946

called him, that he has in his possession books of account which may throw light on the case, it is for that counsel to take steps to see that they are produced as soon as possible lest their non-production, after the fact of their existence has been stated by his own witness, leaves the Court to draw an inference against his client and endangers his case. It is not a matter for interference by the Court, beyond, may be a suggestion that the party concerned, that is to say in this case the plaintiff, might do well to cause the production of the books.

6. If either party needs the assistance of the Court in procuring documentary evidence the Court may make orders in accordance with the rules. (See Order XIII and Order XVI of the Code of Civil Procedure). In proper cases the Court may inflict penalties on those who disobey orders made in accordance with the rules. The Court has of course power to require persons present in Court to give evidence or to produce documents which they may have then and there in their possession or power; Order XVI, Rule 7. The Court does not of its own accord issue a summons under Order XVI, Rule 10.

7. Section 165 of the Evidence Act gives a Judge wide powers in the conduct of a case, criminal or civil, and enables him to order the production of any document. The section provides however that a witness cannot be compelled to produce any document which he would be entitled to refuse to produce under Sections 121 to 131 if the document were called for by the adverse party. In this case it does not appear that the learned District Munsiff considered that he was acting under the provisions of Section 165 of the Evidence Act, for, as appears from his order, the matter first arose over a reference by the witness to a note made by him in a private diary. Later he was questioned whether he maintained accounts of his family income and expenditure and the witness replied in the affirmative, whereupon the Court directed him to produce such accounts the next day. There was no discussion whether the witness could have refused to produce such documents, or about the precise relevance of such accounts to the suit before the Court."

12. As held by the Madras High Court in Chinnasami Thanjiroyar, the petitioner/plaintiff cannot compel the respondent/defendant to produce a document in his possession. I do not see any error in the decision arrived at by the trial Court warranting interference by this Court.

13.

The Civil Revision Petition is accordingly dismissed. Since this Court has already granted liberty to the petitioner to obtain appropriate record from the revenue authorities, there is no need for further observations to be made in this regard. There shall be no order as to costs.

Miscellaneous Petitions, if any, pending in the Civil Revision Petition shall stand closed.

____________________ P. NAVEEN RAO, J Date:17.07.2017 KH