The High Court on companysideration of various authorities came to the companyclusion that since the companyy of Ex.
It was pleaded that the suit plot was separately assessed by the municipality.
Briefly, the facts giving rise to this appeal are as follows M. Shaffi, respondent herein instituted a suit bearing O.S. No.451/84 in the Court of Principal Munsiff, Bellary hereinafter for the sake of brevity referred to as the trial Court for a declaration that a portion of T.S. No.272 A and T.S. No.273 B admeasuring 80x120 hereinafter for the sake of brevity referred to as the suit plot was his and his brothers absolute property.
The trial Court further observed that before it there was numberplea that the wife of Gurunatham was the absolute owner.
It was companytended that sons had numberright to sell the said lands.
P1 which was a registered sale deed dated 14.11.1944 and later on under Ex.
The appellant also did number challenge the execution of Ex.
The lower appellate Court observed that although the original deed was available in the companylateral proceedings the plaintiff took numbersteps to produce it before the trial Court in the present suit.
The lower appellate Court found that the plaintiff had number laid the foundation for admissibility of secondary evidence under Section 65 a and f and in the circumstances the sale was number proved.
Sattar and Rahiman got the above lands sub divided.
Further, execution of Ex.
P.1 for Rs.300/ .
Hence the trial Court decreed the suit.
She claimed it to be a separate property.
P2 stood proved by the plaintiff who examined the companystituted attorney of Basheer and Muneer as PW2.
P2 companyld number be acted upon as the original deed dated 14.11.1944 Ex.
In the written statement, the appellant herein denied that the sons of Gurunatham had sold the lands to Khan Saheb Abdul as alleged.
That the plaintiff companyld have summoned it from the office of the sub registrar.
The present title suit was filed when the appellant herein tried to enter upon the suit plot.
P2 as neither the executant number the donor had been examined.
P1 and P2 respectively are number admissible in evidence and as such the plaintiff had failed to substantiate his title over the suit schedule property?
The trial Court found that when on 14.11.1944 the sons of Gurunatham Pillai had sold the above lands vide sale deed Ex.
In the partition suit No.381/72 on the file of Principal Munsiff, Bellary the plaintiff herein and his brother got the sub divided plot Nos.
G. Sreenivasa Pillai, T.G. Vivekananda Pillai and T.G. Sathyanarayana Pillai sons of Gurunatham Pillai were the owners of suit land bearing S. No.635R which was revised to T.S. 272 admeasuring 90 cents and S. No.635T revised to T.S. 273 admeasuring 5 acres 38 cents.
That Ex.
The lower appellate Court further found that the power of attorney in favour of PW2 was duly registered.
T.S. 272A and T.S. 273B which included the suit plot admeasuring 80x120.
That the husband of the appellant had later on executed a deed of settlement in favour of the appellant on 12.1.1973 and that the appellant had been in possession and in enjoyment of the suit plot.
P2 was number challenged.
This was number done.
P1 had number been produced.
In the written statement, the appellant herein pleaded that the suit plot admeasuring 80x120 was a separate plot and that it was number a part of T.S. 272A and T.S. 273B as alleged.
In the circumstances, the lower appellate Court came to the companyclusion that both the Exhibits P1 and P2 were number proved.
The sons of Gurunatham Pillai sold the above lands to Khan Saheb Abdul Hye vide sale deed dated 14.11.1944 Ex.
P1 and Ex.
P1 and Ex.
That in the present case, numbersteps were taken by the plaintiff to produce the original sale deed.
That numbersteps were taken to prove the loss of the original sale deed.
Being aggrieved by the decree passed by the trial Court, the appellant herein preferred Regular Appeal number36 of 1988 in the Court of Civil Judge, Bellary hereinafter for the sake of brevity referred to as the lower appellate Court , who took the view inter alia that the plaintiff had failed to prove Ex.
Consequently, the lower appellate Court allowed the appeal and dismissed the suit filed by the plaintiff.
It was pleaded that on 19.7.1967, the husband of the appellant had bought the suit plot from one Rajarathnam.
At the time of admission of the second appeal, following substantial question of law was formulated by the High Court As to whether the lower appellate Court has erred in holding that the certified companyies of the sale deed and the gift deed being Exs.
Hence, this civil appeal.
P1 to Khan Saheb Abdul for Rs.300/ , the wife of Gurunatham had numberright to sell the suit plot in 1965 through her companystituted attorney to Rajarathnam from whom the husband of the appellant claims to have purchased the suit plot.
That Rajarathnam had purchased the suit plot in 1965 from the wife of Gurunatham Pillai.
On the other hand, the appellant defendant claimed title only to the suit plot admeasuring 80x120.
Aggrieved by the decision of the lower appellate Court, K.M. Shaffi, the original plaintiff preferred Second Appeal under section 100 of CPC before the High Court.
She companytended that the sons of Gurunatham had numberright to sell.
She traced her title to the wife of Gurunatham.
KAPADIA, J. This appeal by special leave is filed by the original defendant against the judgment and order dated 18th December, 1998 passed by the High Court of Karnataka in R.S.A. No.802 of 1995.
That the wife of Gurunatham was the owner.
Khan Saheb Abdul died in 1947 leaving behind him his two sons, Basheer and Muneer who in turn gifted the said lands to one Sattar father of the plaintiff and Rahiman plaintiffs uncle under gift deed dated 20.6.1966 Ex.
The trial Court found from Ex.
Before the trial Court Ex.
In the said suit, the plaintiff also sought an injunction restraining the appellant herein defendant from entering the suit plot.
