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Judgment
Ramesh Madhav Bapat, J.—The appellants herein were the original defendants in O.S.No.5308 of 1988, which was filed in the Court of the X Assistant Judge, City Civil Court, Hyderabad by the plaintiff/respondent herein.
The suit was filed for ejectment of the defendants and possession of the suit schedule property on the ground that the defendants were the licensees and their licence was terminated and the defendants were working as servants with the plaintiff. The suit was decreed.
Aggrieved by the aforesaid judgment and decree of the learned X Assistant Judge, City Civil Court, Hyderabad the appellants/defendants carried the matter in appeal by filing A.S.No.204 of 1993 in the Court of the Additional Chief Judge, City Civil Court, Hyderabad. On merit, the appeal was dismissed confirming the judgment and decree passed by the trial Court.
The facts as stated in the suit can be briefly narrated as follows:
The property in dispute originally belongs to one Nazuruddin Galib and in a Court sale it was purchased by one Sriram Gnaneswar and late Sri Ramanujaswamy was the tenant. Later, he purchased the property under the agreement of sale for running an Ayurvedic Dispensary. In O.S.No.663 of 1975, which was filed in the Court of the IV Additional Judge, City Civil Court, Hyderabad in between the plaintiff and Gnaneswar, the plaintiff was declared as owner on 1-3-1985. The plaintiff and his grand-father, late Ramanujaswamy have been running an Ayurvedic clinic in the suit schedule premises, by name, Ayurvedic Kalamandiram and they also erected two huts in the North-East corner of the premises for their servants, who were working in the Kalamandiram.
It was further averred by the plaintiff that the defendants 1 and 2 used to work with them in Ayurvdedic Kalamandiram and they were permitted to stay in the two huts. Defendant No. 3 is the husband of defendant No. 1 and defendant No. 4 is the husband of defendant No. 2, and they were permitted to stay in the said two huts as licensees and to act as watchmen in the premises.
It was further averred by the plaintiff that defendants 1 and 3 are residing in shed No. 1 whereas defendants 2 and 4 are residing in shed No. 2. Defendants 1 and 2 illegally attempted to change roof unauthorisedly and extended it without the permission from the plaintiff or from the Municipal Corporation, Hyderabad. The Corporation issued a notice dated 9-6-1988 to stop illegal work.
Defendant No. 3 submitted an explanation dated 10-6-1988 stating that since the roof is leaking, he is putting new roof. Thereafter, the defendants illegally extended the shed westwards enclosing the bore-well also.
It was the further case of the plaintiff that the act of the defendants is prejudicial to the interest of the plaintiff. As such, he asked the defendants to vacate the huts. The defendants pleaded for sometime to vacate the premises, but failed to comply and, therefore, the plaintiff was constrained to file the suit.
It further appears from the record that the defendants appeared in pursuance of the summons issued to them and pleaded that the suit property is part and parcel of Lingampally Bagh, which belongs to Nazuruddin Ghalib. The defendants originally confirmed by Sri Nazuruddin Ghaib family. The plaintiff has nothing to do with the possession, title and enjoyment of the defendants.
It was further pleaded by the defendants that the suit in O.S.No.663 of 1975, which was pending on the file of the IV Additional Judge, City Civil Court, Hyderabad is nothing to do with the defendants and the decree passed therein is not binding on them. It was emphatically pleaded by the defendants that they neither worked in plaintiff''s clinic nor under grand-father of the plaintiff at any point of time. The defendants are residing in the suit premises as a full-pledged owner of the property not under the permission of the plaintiff or his grand-father. In the capacity of the owner, the defendants had undertaken the repair work. The plaintiff with mala fide intention got issued notices to the defendants through Municipal Corporation, Hyderabad. It was further submitted by the defendants that they themselves dug the bore-well. The plaintiff has no right whatsoever in the bore-well. With this averment, it was pleaded by the defendants that the suit of the plaintiff be dismissed with costs.
It further appears from the record that on the strength of the pleadings, the learned Trial Judge framed issues. The plaintiff examined himself as P. W. 1 and produced certain documents and they were marked and Exs.A-1 to A-22. Defendant No. 3 entered into Box and examined himself as D.W.I and produced certain documents and they were marked as Exs.B-1 and B-2. Certain other documents were marked as Exs.C-1 to C-3 and Exs.X-1 to X-3. On evidence, the learned Judge decreed the suit of the plaintiff.
As stated earlier, the appeal filed by the defendants was also dismissed by the learned Additional Judge, City Civil Court, Hyderabad and hence the second appeal.
The learned Counsel Mr. Subba Reddy appearing on behalf of the defendants/appellants submitted at the Bar that both the Courts below relied upon Exs.A-6 and A-17, which were filed by the plaintiff. Ex.A-6 is a certified copy of deposition of one of the defendants in Calendar Case No. 12 of 1968, which was pending before the Judicial First Class Magistrate, Hyderabad. Ex.A-17 is a reply alleged to have been given by one of the defendants to the Municipal Corporation that they are the servants of the plaintiff''s grand-father. On the strength of these documents, the Courts below held that the defendants are the licensees, and decree for eviction passed by the Trial Court was confirmed by the first appellate Court.
The learned Counsel Mr. Subba Reddy further submitted at the Bar that both the Courts i.e., the Trial Court as well as the first appellate Court erred in relying upon Ex.A-6 and Ex.A-17. These documents are inadmissible in evidence and, therefore, the decree passed by the trial Court and as confirmed by the first appellate Court is required to be set aside. No other point was agitated by the learned Counsel for the appellants before this Court. Under these circumstances, the only point arises for consideration of this Court is:
Whether Exs.A-6 and A-17 documents are admissible in evidence?
The learned Counsel further submitted that in the trial Court itself an objection was raised for marking Ex.A-6 document, but the trial Court erroneously marked the document as Ex.A-6.
As stated earlier, Ex.A-6 is the certified copy of the deposition of one Mallaiah, son of Kesiah, who is defendant No. 4 in the suit. Mr. Mallaiah did not enter into the Box to deny Ex.A-6. The document produced by the plaintiff- Ex.A-6, thus, was not denied by the defendants by leading oral evidence. Therefore, the trial Court as well as the first appellate Court drew adverse inference for non-examination of defendant No. 4 and held that Ex.A-6 document stands proved. In Ex.A-6, Mr. Mallaiah in his deposition had clearly stated that he worked under Ramunja Swamy and he was given the premises free of rent. Though this is the factual position on record, the learned Counsel Mr. Subba Reddy submitted at the Bar that Ex. A-6 is not admissible in evidence.
The learned Counsel for the appellants relied upon a ruling in B.G. Tilak v. Shrinivas, AIR 1915 P.C., in which their Lordships were pleased to hold:
"(a) Evidence Act, Section 33 - Depositions in a previous criminal trial are inadmissible except as in Section 33 or to contradict the witness on particular point - Evidence Act, Section 155.
A Civil Cause must be conducted in the ordinary and regular way, and judged of by the evidence led therein. u/s 33 evidence given by witness in a previous criminal trial is relevant for the purpose of proving in a subsequent proceeding the truth of the fact which it states, but this is permissible when the witness is dead, or cannot be found or is incapable of giving evidence, or is kept out of the way, etc. But there is no warrant whatsoever for using such evidence for the purpose of either contradicting or discounting the evidence of the witnesses, given in the Civil Suit, unless the particular matter or point had been placed before the witness as one for explanation in view of its discrepancy with the evidence then being tendered.
The learned Counsel Mr. Subba Reddy further relied upon a ruling in Sheopal Singh Vs. Mahendra Narain Singh and Others, : in which His Lordship of the Patna High Court was pleased to hold as follows:
"(a) Evidence Act (1872), Section 145-Document used to contradict witness is inadmissible unless it is put to witness.
A document which is used to contradict a witness must be put to the witnesses. Simply because the witness does not go into the witness box, the Court is not entitled to break the law and admit such document."
The learned Counsel Mr. Subba Reddy also relied upon a ruling in The Gaya Muzaffurpur Roadways Co. and Others Vs. Fort Gloster Industries Ltd. and Another, in which their Lordships were pleased to hold as under:
"A certified copy of the deposition of a witness in a Criminal Court cannot be used as substantive evidence i.e., as an admission in a Civil Suit."
The learned Counsel Mr. Subba Reddy further relied upon a ruling in Sita Ram Bhau Patil Vs. Ramchandra Nago Patil (Dead) by Lrs. and Another, , in which their Lordships were pleased to hold as under:
"(A). Evidence Act (1872), Secs. 145 and 21 - Admission when can be used against the person making it.
An admission is relevant and it has to be proved before it becomes evidence. The provisions in the Evidence Act that ''admission is not conclusive proof are to be considered in regard to two features of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the Evidence Act and if it is to be used against the party who has made it, it is sound that if a witness is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule. Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilised against him.
While rebutting the aforesaid arguments of the learned Counsel for the appellants, the learned Counsel Mr. M.S.N. Prasad, appearing on behalf of the respondent-plaintiff herein, placed reliance upon a ruling in Bharat Singh and Another Vs. Bhagirathi, in which it was held by their Lordships as follows:
"(b) Evidence Act(1872), Secs. 17, 21, 145 - Admission is substantive evidence even though party is not confronted with the statement - Weight to be attached to it is different matter.
Admissions must be clear if they are to be used against the person making them. They are substantive evidence by themselves in view of Sees. 17 and 21 of the Evidence Act, though they are not conclusive proof of the matter admitted. The admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether such party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness u/s 145 of the Evidence Act is quite different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and only serves the purpose of throwing doubt on the veracity of the witness. Weight to be attached to an admission made by a party is a matter different from its use as admissible evidence."
The learned Counsel for the respondent placed reliance on a ruling in Union of India (UOI) Vs. Moksh Builders and Financiers Ltd. and Others, in which it was held by their Lordships as follows:
"An admission by a party is substantive evidence of the fact admitted and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions."
Their Lordships were pleased to hold further as follows:
"Section 33 deals with statements of persons who cannot be called as witnesses, and does not restrict or override the provisions relating to admissions in the Evidence Act."
Reliance was kept by the learned Counsel, on the ruling in R.V. Naidu v. T. Sugunamma, 1990 (92) ALT 548 in which His Lordship was pleased to hold as follows:
"The contention of Sri S.V.Ramana Reddy, learned Counsel for the appellants is that there is no evidence that the driver drove the vehicle rashly and negligently, as a result the liability cannot be fastened on the appellants. We have the direct evidence of P.W.2 who has stated that the deceased got into the tractor driven by R.W.2 and the accident took place due to negligent driving. In C.C.No.95 of 1982 on the file of the Addl. Munsif Magistrate, Srikalahasti, the driver has confessed that he had driven the vehicle rashly and negligently and on that basis he was convicted for an offence u/s 304-A of the Indian Penal Code and he was sentenced to pay fine. In view of the; fact that the driver himself has confessed that he had driven the vehicle rashly and negligently, though the judgment in the criminal Court is not binding on the civil Court, but that admission is admissible u/s 18 of the Evidence Act. Therefore, it constitutes a substantive evidence in the proceedings u/s 110-A of the Motor Vehicles Act (Act 4 of 1939)...... Accordingly I hold that the accident had occurred due to rash and negligent driving of the driver."
Further reliance has been placed on a ruling reported in Thiru John Vs. The Returning Officer and Others, , wherein their Lordships were pleased to hold as follows:
" (A) Evidence Act (1872), Secs. 17 - 21 - Admission by party - Value of recitals in document - Proof of - Shifting of omus.
It is well settled that a party''s admission as defined in Secs. 17 - 20, fulfilling the requirements of Section 21 Evidence Act, is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that ''what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted the fact admitted must be taken to be established."
As stated earlier, Ex.A-6 is a deposition given by the 4th defendant in C.C.No.12 of 1968. A certified copy of the deposition was produced on record. The defendants did not enter the box to disprove the said document; in effect it must be held that the defendants admitted the said document. It is a well settled principle of law that averments made by one party if not denied by the other party, the other party is presumed to have admitted the averments made by his adversary. Under these circumstance, this Court has no hesitation in holding that the Ex.A-6 document is admissible as defined u/s 17 of the Evidence Act. Ex. A-17 is alleged to have been written by the defendants to the Municipal Corporation by way of reply stating that they are the servants of the plaintiff and his grand-father. Though the defendants have denied the said document alleging it to be forged, no further steps were taken by the defendants to prove that Ex.A-17 is a forged document produced by the plaintiff on record. Both the trial Court as well as the first appellate Court held that when specific averment was made by (one of) the defendants Ex.A-17 is a forged document, the burden of proof lies upon the defendants. The said observation is correct. No reason to disturb the said observation made by the Courts below. Under these circumstances, this Court is of the considered view that Exs.A-6 and A-17 are clear admissions given by the defendants stating that they were the servants of the plaintiff and his grand-father.
Once the defendants are held to be the servants of the plaintiff and his grand-father, their occupation in the suit schedule premises is that of licensees and the licence was terminated by the plaintiff and the suit for ejectment was filed. Thus, this Court holds that the plaintiff has been able to prove successfully his title to the property. He has been also able to prove that the defendants are licensees in the suit schedule premises and their licence was terminated by him and thus, this Court holds that the plaintiff is entitled for the decree of eviction against the defendants.
Considering these facts, this Court holds that there is no reason to disturb the finding of the trial Court as well as the first appellate Court. Thus, the second appeal is dismissed with costs. However, the defendants are given one month''s time from to-day to vacate the suit schedule premises.