Mrs. Maria Margarida Sequeira Fernandes and Others vs Mr. Erasmo Jack de Sequeira and Others

Smt. R.S. Dalvi, J.—This civil revision application has been filed against the order decreeing the suit of the respondent who was the original plaintiff in the suit on 12.9.2009 granting an injunction against the petitioners from interfering with the possession of the original plaintiff and his family members in respect of the suit house and the suit property which is the southern portion of plot No. 6 admeasuring 654 square metres. The original plaintiff sued his sisters and the husband of one of the sisters who claimed rights in respect of the suit property in certain inventory proceedings No. 18/1991 taken out upon the death of the original plaintiff. The real contesting defendant was the defendant No. 3 who claimed to have acquired the ownership rights in respect of the suit property. The original plaintiff expired pending the suit. His heirs have been brought on record. His daughter has essentially prosecuted the suit by leading evidence. The defendant No. 3 prosecuted the suit essentially through the evidence of her sister, the defendant No. 1. These persons, examined as P.W.1 and D.W.1, gave evidence relating to the possession in respect of the suit premises. This oral evidence is sought to be further substantiated by production of certain documentary evidence. They have also examined number of other witnesses to corroborate their respective testimonies. The essential oral evidence of possession led by the P.W.1 and D.W.1 on behalf of the original plaintiff and the defendant No. 3 would be considered as that of the plaintiff and the defendant respectively.

The suit was essentially filed u/s 6 of the Specific Relief Act though it has been titled " the suit for permanent and mandatory injunction and consequential reliefs". The main relief in the suit is for restoration of the possession of the plaintiff and for the defendant to withdraw from the suit property by way of mandatory injunction. The other relief is for injunction against interference with the plaintiff''s possession "upon restoration of possession". The plaintiff applied for appointment of receiver which is essentially the relief claimed only pending the suit and for protection of the property for whichever party who is ultimately held entitled to the property. The alternative relief is for damages which is not pressed.

Since it is a suit essentially for restoration of possession of the plaintiff, the plaintiff must prove his possession by whichever mode that he acquired it for at least 6 months prior to the filing of the suit. If such possession is seen, the Court must restore possession, notwithstanding any other title in any other person. Consequently, the person claiming title must file an independent suit on title upon payment of the requisite court fee. Until such a suit is filed, which is the due legal process statutorily required to be resorted to u/s 5 of the Specific Relief Act, the restoration of the possession would be the essential relief in a suit filed u/s 6 of the Act. It is this aspect which the learned Judge was called upon to consider. Since it is a suit u/s 6 of the Specific Relief Act an appeal is barred u/s 6(3) of the Act. Similarly u/s 6(4) of the Act, the consequent suit on title cannot be barred once the possession is restored upon the plaintiff''s plea of having been in possession of the suit property.

The aspect to be considered in the suit is extremely narrow. The plaintiff has to show his possession. The defendant may show lack of possession.

It has been the plaintiff''s case that he was in possession under a family arrangement since about 1964 until he was forcibly dispossessed by the defendant putting up new locks at a number of places in the suit property between 14.6.1992 and 15.6.1992. The plaintiff, therefore, claimed to be in possession for about 28 years prior to filing of the suit. Though the plaintiff has mentioned how he was put in possession - it was under a family arrangement - he has not sued on title. His suit is, therefore, u/s 6 of the Specific Relief Act.

The defendant has admitted the plaintiff''s possession not from 1964 but from about 1966 until April- May 1991. It has been her case that the plaintiff was appointed caretaker by her in respect of the suit property and was allowed to reside there as such. Upon she obtaining ownership of the suit property under certain auction which took place in the inventory proceedings No. 18/91, she became the owner and allowed her brother, who was residing in the suit premises, to take care of it and asked him to give her vacant possession of the suit premises when she would require, which the plaintiff did in April-May 1991. It is her case that the plaintiff left the suit premises which is at Campal and went to reside at his own premises at Caranzalem. The premises of the plaintiff at Caranzalem is an apartment in a building which was taken on leave and licence. The Leave and Licence agreement is dated 1.4.91 marked Exh.K in evidence and is shown to be between one Pilgaonkar as the licensor and the plaintiff''s wife as the licencee for the flat Nos. 3 and 4 in Campo verde Apartment at Caranzalem. The licence of the said premises to the plaintiff''s wife was for 11 months. It has been the plaintiff''s case that he took that premises to shift his wife and children there upon certain disputes raised by and between the plaintiff and the defendant in which the defendant had abused and insulted the plaintiff''s family to avoid which, that premises was taken by the plaintiff on leave and licence for his family while he continued to reside in the suit premises and to visit his family occasionally and at weekends. It had, therefore, to be seen in the trial whether the plaintiff showed his continuous possession in the suit premises until the date of his dispossession or whether the defendant showed how she took over vacant possession from the plaintiff and how the plaintiff handed over such vacant possession to her upon acquisition of her right in the inventory proceedings in respect of the suit premises. The defendant claimed title.

Upon the claim of the plaintiff relating to his possession and consequent dispossession within the period of limitation u/s 6 of the Specific Relief Act and upon the defendant''s averments relating to her title and her obtaining vacant possession of the suit premises, the learned Judge framed eight issues which he proceeded to consider. The issues are necessarily in two groups. The first 4 issues deal with the plaintiff''s possession (under the family arrangement ), dispossession on 15.6.1992, certain movables of the plaintiff retained in the house and his right against interference. The second group deal with the defendant''s case that the house belongs to her, the plaintiff shifting from the house, vacating the house and handing over the keys to her. The learned Judge has correctly considered each of these issues upon the pleadings of the respective parties. The essence of the plaintiff''s case orally stated by the original plaintiff admitted and corroborated by several other witnesses is to be substantiated from the documentary evidence containing the plaintiff''s ration card, electoral role, electricity bills, telephone bills and water bills. These are continued in the name of the plaintiff until the date of dispossession. The plaintiff has sought to show his actual dispossession by the defendant putting up several locks on several doors of the house in which the plaintiff lived under panchanama though the panchanama has not been proved by the author of the panchanama. The other interesting evidence produced by the plaintiff is revocation of two powers of attorney initially executed in his favour by his sisters including the defendant No. 3 which have been revoked on 18.5.91 and 15.7.91.

The defendant essentially relied upon survey reports and other revenue records being house tax receipts showing the suit property in her name to claim such title. To show that the defendant was the owner of the property, the defendant has produced several documents being a gift deed, the certified copy of form B and a certificate of Panaji Municipal Council. The suit is not concerned with the title. That has been the observation of the learned Judge also. The defendant must show that upon the right, title and the interest claimed by her were accepted and acted upon by the plaintiff so that the plaintiff vacated house and handed over the keys to her as has been her case. In that regard, the defendant has produced two powers of attorney admittedly executed in favour of the plaintiff by the two sisters, her income tax returns, certain electricity, water and telephone bills and the certified copies of certain letters written by and on behalf of the plaintiff to the electricity department, telephone department etc. with regard to the plaintiff vacating the suit premises.

The learned Judge has considered each of these documents as also the oral evidence. He has rightly observed in para 47 of the judgment, which is the ambit of the entire litigation, that the plaintiff must prove his possession and dispossession and the defendant must prove that the plaintiff handed over the keys of the house and vacated the house voluntarily in or around April 1991.

The appreciation of some of the documents would be a key to consider these two aspects. The plaintiff''s possession right from 1966 is admitted. The parties had cordial relations at least until 1991.

The two powers of attorney have been executed on 24.10.89 and 08.02.91. The plaintiff''s mother expired on 08.02.91 on which date one of the powers of attorney was executed. These powers of attorney have been revoked on 18.05.91 and 15.07.91. The revocation shows the deterioration of the relations between the parties. In the weekend which began from 13.06.92, the plaintiff claims to have visited his family in the evening on 13.06.92 and returned on 15.06.92. It was reported by one of his employees, who has been examined by the plaintiff, that the defendant had put her several locks at various places on the suit premises a day before. The learned Judge has understandably observed that if the defendant was in continuous physical possession, the plaintiff having returned that possession to her upon vacating the suit house so many locks at so many places would not have been put on the suit property. The revocation of the powers of attorney must be considered alongside the defendant''s defence. The plaintiff is stated to have vacated the property in April-May 1991. The first power of attorney was revoked on 18.5.1991. The plaintiff had lived in the suit house admittedly for 26 years. He gave of his entire possession to his sister in April-May 1991. This would show that there was cordial relationship between the parties. In such circumstances, the revocation of the powers of attorney becomes esoteric. The learned Judge has observed that there is no document of surrender and not even a receipt passed by the plaintiff handing over the possession to the defendant produced by her. It is contended by Mr. Lotlikar, Counsel for the defendant that no receipt could be expected from her brother. This would stand to reason if the relationship was shown to be cordial. In that case the revocation of the power of attorney is most inconsistent. If the plaintiff vacated the suit premises at about the time of the revocation of the power of attorney then, the atmosphere that would prevail between the siblings would necessarily require a receipt for possession taken.

The most eye catching evidence is the plaintiff''s address in the revocation of powers of attorney. The suit address is shown therein. The powers of attorney were revoked on 18.05.91 and 15.07.91. The revocation of the powers of attorney dated 8.2.91 and 24.10.89 is by letter dated 18.5.1991marked Exh.65 in evidence issued by the defendants'' Advocate to the plaintiff and sent under certificate of posting and registered post. The Certificate of posting shows that it was posted on 21.5.1991. The registered acknowledgment shows receipt is dated 23.5.91. These letters are addressed to the plaintiff at the suit premises. The evidence of the defendant No. 1 is that the plaintiff vacated the property on 15.05.91, but it could be two days before or after. A specific date of the plaintiff vacating the property is not mentioned by the defendant No. 1 in her evidence. He vacated it a day prior to first revocation of the power of attorney or thereabouts. Given the evidence of D.W.1 that the plaintiff vacated two days before or after 15.5.91, the dispatch of the letter thereafter at the plaintiff''s residence shows that the oral evidence is unworthy of acceptance. The receipt of the letter a week thereafter, by or on behalf of the plaintiff coupled with fact of rejection having been accepted by the plaintiff shows the oral evidence of D.W.1 to be entirely false. Further the revocation of power of attorney executed on 8.2.91 by all the defendants is on stamp paper on 18.5.91 and notarised on 25.5.91. The said document also shows the plaintiff is residing at the suit property. The plaintiff is definitely stated to have vacated the suit property well prior to 15.7.91 much after when the second power of attorney was revoked. The other revocation of the power of attorney dated 24.10.89 has been executed on stamp paper on 15.7.91. As late as in July 91 also the plaintiff is shown to be residing at the suit property. These powers of attorney have been marked Exh.T colly in evidence. Even two months after the plaintiff vacated the suit premises the execution of the second revocation of the power of attorney would never be expected to show the same address of the plaintiff well after the matters had come to a head.

If the plaintiff left the suit property amicably without issuing a receipt in favour of the defendant he would then consent also to transfer of electricity, telephone and water bills. The defendant would require those to be issued in her name. She would then start making payment of those bills. The plaintiff in support of her case has produced all of these bills even after April-May 1991. If the house was locked by the defendant upon it having been vacated by the plaintiff, the plaintiff could not have produced those bills. The bills, if any, would show no consumption of water, electricity or telephone. The bills showed consumption of all these utilities. Though these consumption is lesser after April 1991, the learned Judge has considered the few units of electricity consumed, few telephone calls made etc. It has been the plaintiff''s case that after the death of his mother on 8.2.91, the defendant abused and threatened the plaintiff and his family members. The plaintiff shifted his family to another Apartment. That was taken on leave and licence basis. The plaintiff continued to stay alone in the suit premises. He would consume lesser amounts of utilities. Hence, the bills for consumption of lesser utilities stand to reason. The defendant No. 1, who deposed on behalf of her sister stated that she made some telephone calls. That evidence has been disbelieved. That evidence does not explain the consumption of electricity or water which are also shown in the respective bills. Hence, the rejection of that evidence is not without reason. But the plaintiff''s case has been that he has shifted his family to Caranzalem after the death of his mother when the relation soured between him and his siblings. The evidence has shown certain disputes. Though that does not relate to the factum of possession of the plaintiff or vacating the house, it would show that indeed the relationship between the siblings was very strained. Hence, shifting the family at another place cannot be completely ruled out. These remarks show that the plaintiff''s family was not in the suit premises and that he lived alone. There are three electricity bills produced on record as Exh.51 Colly. The first electricity bill for Rs.1703/- is for April 1991. The second electricity bill for Rs.128/- is for April 1992. The third electricity bill for Rs.6945/- is for the later period till January - February 1994 (wrongly stated as 16.2.1994 to 17.1.94). The plaintiff has produced similar water bills for September 1991, November 1991 and April 1992 as Exh.F colly in evidence. All of these are in the name of the plaintiff. Hence, even after April-May 1991 when the plaintiff is stated to have vacated the suit premises, the defendant did nothing to transfer the electricity bills to her name. Similarly, the water bill for the period April-May 1992 Exh.64 has been issued in the name of the plaintiff. It is argued on behalf of the defendant that the bills show that the door was locked and reading was invisible. P.W.1 has explained in her cross-examination that door was locked because her father was in the office and since his wife and children were not residing in the suit premises the door could have been locked.

The learned Judge has rightly considered that if the plaintiff vacated the suit house the bills for utilities would not be paid by the plaintiff, but by the defendant. She has not shown payment for any of the utilities. She has not applied for transfer of any of the bills. The water bill for the period April-May 91 has also been issued in the name of the plaintiff.

Hence, not only the defendant has failed to produce any documents to show that upon her right, title and interest which were fairly conceded by the plaintiff he returned the whole house to her, but also she did nothing to effectuate that right. She has not even shown any expenses incurred by her for the property that she claimed to own. It has not been shown by the defendant that all the articles of the plaintiff were removed. The plaintiff admittedly had many articles including artistic d''objects d''art. The defendant No. 3 has not called upon the plaintiff to remove them.

The defendant No. 3 has not deposed about handing over of possession by direct oral evidence also. The defendant No. 1, who deposed to that effect has admitted not having seen the actual handing over of the keys. In fact she has deposed that the defendant No. 3 shifted to the suit premises on 09.06.92. That was a week before the plaintiff claims to be forcibly dispossessed. The oral evidence shows that the defendant No. 3 had a sweeper, who used to work for her. The sweeper is not examined despite the plaintiff having examined the number of witnesses to show his continuous possession.

If the plaintiff was a caretaker of the defendant, the defendant would require to maintain the house even when the plaintiff continued in possession. The defendant has not shown any expenses incurred by her for such maintenance.

Two documents marked Exh. 57 and 58 which are certified copies of the records of electricity department have been produced. The plaintiff or his representative is shown to have signed those documents. Their signatures have not been identified. The representative/ employee, who signed on behalf of the plaintiff was not examined. The author of the documents have not proved the documents. Hence, the truth of the contents of the documents are not proved. The exercise of production of certified copies of three letters must first be considered. The exercise is purely mischievous. Instead of producing the original letters received by the telephone and electricity departments the certified copies of those letters have been sought to be produced. These are xerox copies of the letters. If the xerox copies are certified as true by the telephone and electricity departments, the original letters must be taken to have been with those authorities at the time of certification of these letters as true copies. No xerox copy of a letter can be certified as true unless the original is seen or unless the xerox copy is taken of the original document itself and certified to be a true copy. Mrs. Agni contended that in the Trial Court the defendant and the relevant witnesses were asked to produce original letters themselves. The original letters were not produced. Hence it must be taken that the original letters were not received by those authorities. Of course, if certified copies of government records are produced no party can call upon the public authority to produce the original document. The certified copies carry a presumption as to their correctness u/s 79 of the Indian Evidence Act (the Act). The question which is to be considered is whether two letters which are xerox copies of the original records certified as true would carry such a presumption in which case the original records need not be produced and the public authority cannot be called upon to produce that original document. If the original letters themselves can be produced, the originals themselves must be produced at the first instance. It would be for the party who requires to produce such a document simplicitor to issue a summons to produce such a document. Such summonses are issued to all witnesses who have possession of documents being addressees of the letters received by them. This also includes public or government authorities. The letters received even by the public or government authorities have to be produced upon a summons to produce such documents. No certified copies of such records can be produced. The relevant officer is required to attend the Court to produce the documents called upon which are summoned to be produced. It may only be that after the original document is produced its xerox copy can be kept on record by the Court and the original document may be returned to that authority. That would not be a case of production of certified copies. In this case the defendant has sought to produce xerox copies of letters received by the electricity department certified as true by them. It must first be seen whether these letters could have been produced as certified copies under the Act.

Section 76 and 77 of the Act deals with the issue of certified copies of public documents. The sections run thus :

Section 76 - Certified copies of public documents -

Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

Section 77 - Proof of documents by production of certified copies - Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

Under the aforesaid sections, the public document which is contemplated is the document of the public office which is in custody of the public officer. It is the document which a person would have a right to inspect. If it is such a document and the right to inspect is exercised, the public officer is enjoined to give a copy of the said document to the party applying upon payment of the requisite fee and to certify at the foot of such a copy that it is a true copy of that public document or a part of that public document. The certificate would have to be issued as mentioned in the Section 76 of the Act namely viz. that it would be dated, it would show the name and the official title of the officer issuing it. Such a copy is a certified copy of the public document. The officer who would deliver such a copy is the officer who is in custody of such public document.

It must be understood that this provision is made because public records are voluminous. There are large registers kept by the public officers. A particular person would need only a part of the document which would be relevant to him. It would be too cumbersome for public authorities to produce unwieldy public records each time they are required to be inspected, shown to other parties, or produced before the Court. An extract of such document duly certified by the relevant public officer who has custody of such document would, therefore, suffice for production in the Courts. For that purpose a certified copy of the document or its part (it may be an extract, an entry or such other record) may be issued with the name and designation of the office together with the date of issue. These are, therefore, records of the public offices. These are not correspondence received by the public office. The correspondence received can be produced in the original. The certified copies of such correspondence, therefore, is not contemplated within Section 76 of the Act.

Further u/s 79 there is a presumption as to genuineness of such certified copies. Section 79 runs thus :

Section 79. Presumption as to genuineness of certified copies - The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized thereto by the Central Government:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper."

"A certified copy of a public document contemplated u/s 76 and issued as specified in that section would carry a presumption as to its genuineness in a Court of law. It can thereupon be tendered in evidence as it is the document admissible as evidence of the fact which is certified by the relevant public officer."

Section 79 of the Act, therefore, shows that government records as enumerated above (be they an extract, an entry or such other public record) can alone carry a presumption as to genuineness of the certified copies issued. A certified copy of a letter received by the public authority cannot carry a presumption as to its genuineness. The original letter received by the public authority must alone be produced. When such letter is produced it would be admissible in evidence of the fact that such a letter was received by that authority. Such a letter cannot be taken to be a proved document. The truth of the contents of the letter cannot be proved by production of the certified copy of the letter or even the original letter itself. The truth of the contents of the letter can only be proved by the author of the letter, unless of course it is an admitted document which need not be proved. Consequently, the certified copies of two letters which are marked Exhs. 57 and 58 cannot be taken to have been proved. They were correctly marked only to show that the letters were received by the electricity department. However, as held in the case of Om Prakash Berlia and Another Vs. Unit Trust of India and Others, , the marking of the exhibit would show receipt of such a letter by the electricity department without proving the truth of their contents.

Such a letter is not an extract of public record produced by a public officer having in its custody. It is mere correspondence received by the public authority. It, therefore, does not fall under the scheme of production of public record through their certified copy u/s 76 of the Act at all.

The defendant has produced an original letter of the plaintiff from the office of the Telecom, Panaji, Goa. It has been marked Exh.85 in evidence. The letter is not proved. The author of the letter is not examined. P.W.1 has not admitted that such a letter was written by the original plaintiff. The signature stated to be of the plaintiff having not been identified, it is argued that it is similar to the plaintiff''s admitted signature on an affidavit in litigation. That is no way of proving the plaintiff''s signature.

Even so, the reliance upon the letters do not matter. The defendant must show how the authority acted upon those letters. Assuming that the telephones were to be shifted to the new house of the plaintiff as shown in the letters, the defendant has not shown that these telephones have actually been shifted or which telephone was used and how she paid the bills for the telephone that remained with her upon possession being given to her.

It is argued by Mr. Lotlikar that though the panchanama has not been proved by the direct evidence of one of the panchas, it shows that dust settled in the suit premises. Upon this statement I have gone through the panchanama marked Exh.O. Though marked as Exhibit it is not a document proved in evidence for want of the direct evidence of panchas, who are the authors of the document. However, reliance upon the panchanama by the defendant requires the Court to see the document. The panchanama shows dust covered on bottles and articles in the cupboard and on the right side corner of the room on the right side. It does not show dust in all the rooms and on all the articles. It shows a number of locks put on the various doors of the suit property. If the defendant No. 3 had moved into the suit property on 9.6.92 as deposed by D.W.1, there would not have been so many locks on the suit property. The learned Judge has correctly evaluated this evidence.

Though the defendant has sought to tender a certificate of panchanama from the Municipal Council stating that house tax has been paid by her and the property is assessed in her name the certificate is not proved by the author of the document. The defendant has not produced the house tax assessment bills after May 1991, showing the payment of the house tax upon she acquiring the right in respect of the suit premises.

It is argued that by Mr. Lotlikar that the suit property described by the plaintiff was the house at Campal, Panaji, Goa where the plaintiff resided from 1966. However, the learned Judge has granted injunction in respect of the suit house and the property which includes the open space around the house being garden etc. I have been told that the defendant has herself got receiver appointed in respect of not only the house but also the garden. The garden is appurtenant to the house. If the plaintiff enjoyed the house 1966 to the exclusion of the defendant, he enjoyed the garden too. The receiver has been discharged by the Court. The discharge would be for the house as well as the garden. Hence, the order specifies and clarifies that the injunction is with regard to the house as well as "the property". If the injunction is granted to the plaintiff in respect of the house, it must follow that it is granted also for the garden and the open space surrounding the house which termed "the property". The learned Judge has correctly framed issues and appreciated the oral as well as the documentary evidence. The evidence shows the possession of the plaintiff for many years and his dispossession. The evidence does not show the plaintiff having vacated the suit premises in April or May 1991. In fact, it is argued that the plaintiff has challenged the right, title and interest of the defendant No. 3 in the suit premises in the inventory proceedings. The defendant No. 3 claims such a right thereupon. The defendant No. 3 would require to follow due legal process to obtain possession of the suit property from the plaintiff. Without following such process she is seen to have taken law in her hands and obtained the possession forcibly in June 1992. The evidence of D.W.1, her sister has been rightly disbelieved. There is no infirmity or irregularity, material or otherwise, in the impugned judgment. The learned Judge has correctly exercised his jurisdiction. Hence the following order :

(i) The plaintiff must be restored possession of the suit premises. The Court Receiver, who has been appointed Receiver pending the suit, shall hand over the entire suit property including the suit house to the plaintiffs (respondents herein).

(ii) The plaintiffs'' possession is required to be protected against dispossession by the defendants (petitioners herein) until they follow due legal process to obtain possession based on their title, if any. The Civil Revision Application is dismissed except for the addition of the words "without following the due legal process" at the end of the para 2 of the operative part of the impugned judgment dated 12.01.2009.

The Court Receiver shall stand discharged after 8 weeks.