LexSMT. BAYANABAI KAWARE versus RAJENDRA S/O BABURAO DHOTE
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[2017] 11 S.C.R. 1029 SM~BAYANABAIKAWARE v. RAJENDRA S/O BABURAO DHOTE (Civil Appeal No.19625 of 2017) NOVEMBER23,2017 [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.] Transfer of Property Act, 1882 - si.~ 54and123 - Possession A B · _and mesne profits - Claim of, on basis of sale deed - Respondent- c plaintiff purchased the suit land from a Housing Co-operative Society vide registered Sale deed and was, accordingly, placed in possession of the suit land by the Society - After few years, appellant encroached upon the suit land and erected a 'kacha' hut - ' Respondent filed suit against appellant claiming possession and mesne profits in relation to the suit land;... Trial Court and the First D Appellate Court held that since the sale deed was hot properly proved, the respondent's suit was dismissed - High Court held that the respondent proved the sale deed as required in law and, therefore, · was entitled to claim decree for possession on the basis of sale deed as owner against the appellant - On appeal, held: Sale deed E was duly proved by ihe respondent and rightly relied 011 by the High Court for passing a decree of possession against the appellant - It is for the reasons that, firstly, the execution of the sale deed does not need any attesting witness like the gift deed, which requires· at least two attesting witnesses at the time of its execution as per s.123 of the Transfer of Property Act, and Secondly, s.68 of the F Evidence Act, which deals with the examination of the attesting witness to prove the execution of the document, does not. apply to sale deed, which is governed by s.54 of the Transfer of Property Act-Appellant (defendant) did not dispute the respondent's vendor's (Housing Society) title - Further, respondent entered in witness box G and proved its execution and further did not raise any objection when the sale deed was being exhibited in evidence - In light of these admitted facts, respondent had a better title of suit land as against the appellant, who had no title to the suit land - Evidence Act, 1872 - s. 68. . H 1029 )()30 SUPREME COURT REPORTS [2017] 11 S.C.R. A Dismissing the appeal, the Court HELD: 1.1 The High Court held that the sale deed was duly proved as required in law and accordingly passed the decree for p~ssession against the appellant in relation to the suit land. The reasoning of the High Court is correct. The B respondent was able to prove the sale deed and was, therefore, rightly held entitled to claim decree for possession of the suit land on the strength of the sale deed against the appellant. [Paras 18 and 19] [1034-C-D] 1.2 It is for the reasons that, firstly, the execution of the c sale deed does not need any attesting witness like the gift deed, which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and Secondly, Section 68 of the Evidence Act, 1872, which deals with the examination of the attesting witness to prove the execution of the document, does not apply to sale deed, which is D governed by Section 54 of the Transfer of Property Act. [Para 20] [1034-E-F] 2. Further, the appellant (defendant) in this case did not dispute the respondent's vendor's (Housing Society) title. On the other hand, she, in clear terms, admitted their title in her E written statement. It is also not in dispute that the respondent entered in witness box and proved its execution and further did not raise any objection when the sale deed was being exhibited in evidence and indeed, rightly for want of any legal basis. [Para 21] [1034-G] F 3. In the light of these admitted facts, the sale deed in question was duly proved by the respondent and was, therefore, rightly relied on by the High Court for passing a decree of possession against the appellant. It was a clear case where the respondent had a better title of the suit land as against the G appellant, who had no title to the suit land. All that the appellant had was a plea of adverse possession which was not held proved. [Para 22] [1034-H; 1035-A] H CIVIL APPELLATE JURISDICTION :Civil Appeal No. 19625 of2017. SMT. BAYANABAI KAWARE v. RAJENDRA S/o BABURAO 1031 DHOTE From the fina!Judgment and Order dated 11-10-2012/12-10-2012 A of the High Court of Judicature at Bombay, Bench at Nagpur in Second Appeal No.304of 1997. Anshuman Singh, Satyajit Desai, Ms. Anagha S. Desai, Ad vs for
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