 Good evening, friends. And it's always a pleasure connecting with Mr. Esa Somasekhar, a former district judge from Bangalore. And as we all know that his all sessions, especially on the Beyond Law CLC, are taken on a different leap and are newly accepted. And today's session can also be gaged from the fact we received so many messages on the WhatsApp, saying that we should add them in the WhatsApp group of the Beyond Law as well as on the Telegram group. And though the two ways topic is appreciation of civil, of evidence in civil cases, but before we take leap and a deep dive into this, I can say that the way, sir appreciates the evidence and the audience at large appreciates the way he takes knowledge is a facet to be learned. And the way he takes the analytical analysis of the Bayer Acts and thereafter to the case law series is a different perspective, which actually people all that we should also learn the manner in which he takes. And despite the Sunday and as usual when we say that his son and daughter law are an important pillar for his being there to share the knowledge. And we can only say that everyone should remain blessed because of their effort to pay back to the society, which we all say that just like corporate social responsibility. I think Mr. Somasekhar has taken the legal social responsibility that becomes the LSR for today. And I would request sir to share his knowledge. Oh, do you? Good evening friends. And once again thanks to Vitas Chhatrap for having given me one more opportunity. It was more than three months. The last occasion we discussed was in the month of July 3, 7, 2022. It is more than three and a half months. Now, lawyers and judges are used to this expression frequently because how that question is relevant. How this evidence is relevant. Therefore, they always speak in terms of relevancy. Therefore, the subject that we discussed also should be relevant to their working. Only one or two judicial officers are here, maybe others might join. But the majority of the audience surprises the lawyers. It is the judge who appreciates the evidence and writes a judgment, be it a civil case or a criminal case. How then is the subject relevant for a lawyer is the question. The answer is very simple. Your opponent tells the court that the evidence of your party or your client and his witness is unbelievable for a particular reason. The document which you rely upon cannot be looked into for some reason. It is not proved, not admissible. Some contentions are raised. You have to convince the court that the evidence of your witness or client is certainly reliable, could be accepted by the court. It can be believed, it is believable. The document is duly approved. It is admissible in evidence. Therefore, it could be looked into by the court. Similarly, when you argue and appeal, appearing for the appellate, you have to satisfy that that means the appellate court where the trial court went wrong in disbelieving your witness. Similarly, appearing for the respondent, you will have to tell the court that the trial court was perfectly right in disbelieving the evidence of the appellate opponent and believing the evidence of my client. Therefore, the subject of appreciation of evidence is not irrelevant to the lawyers, though as I said, it is the judge who ultimately appreciates the evidence. Now, the subject which I have chosen is appreciation of evidence in civil cases. It is a subject which is dear to my heart. And there are some indications from Vitas Chaturthal also about this. And ultimately, we came to the conclusion that this should be the title. Now, one basic principle, which the evidence act itself will not tell us, but jurists thought that the standard of proof in a civil case and in a criminal case should be different. If you read the provisions of the evidence act, that principle cannot be known. In civil cases, it is preponderance of probabilities while in a criminal case, the prosecution has to establish the charges beyond all reasonable doubt. Today, we are discussing only about civil cases, preponderance of probabilities. What it is? You get an indication of it in section three of the evidence act which gives the definitions of three important terms, proofed, disproved, and not proofed. I will just take up the word proof and that itself is sufficient to explain this concept. A fact is said to be proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Two things emerge from this. A prudent man, under the circumstances, says that the existence of that fact is so probable. Therefore, a judge deciding the case should appreciate the evidence as a prudent man. What does that mean? Where does it take us? If instead of coming to the court, the parties who have a dispute approach a prudent man in their village, that prudent man does not know the rules of evidence contained in the evidence act nor any decision. Let us take one or two situations and we will understand what it means. A simple suit for recovery of money. The other A has lent money. A claims to have lent money to be, B disputes it. All right, they decide. Let us go to that prudent man in the village and see who is right and who is wrong. The prudent man uses his common sense and says, well, it is he himself had borrowed money from me about a year back. And I am given to understand that he has borrowed money from several people. When he himself is impoverished, where is the question of he lending money to be? It is highly improbable that he would have lent the money to be. On the other hand, he may also say, well, well, B also had approached me to advance the sum of rupees 10 lakhs. I am given to understand that he had approached several other persons. Recently he performed the marriage of his daughter. He got his son admitted to a prestigious school. One of his family members, one of his family members was ailing and he spent a good lot of money and treatment. So it is quite likely that he had a need for money. He has not read the evidence that he does not know the presumptions under the negotiable instruments that he does not know on whom the burden lies. As a prudent man, he comes to a conclusion. It is quite probable that he might have lent or B might have borrowed or the other ways. Let us take a suit for specific performance. The familiar defense appears to be throughout the country. At least in Tarnada, it is very rare that the defense is very popular. The defendant wanted loan. He knew that the plaintiff was a money lender had enough money to lend on several occasions. He had lent money to several other persons. He went to the plaintiff and asked him to finance him. The plaintiff told him, well, I prepared to lend, provided you execute a document in the nature of an agreement of sale as security for the loans. The document reads like an agreement of sale, but according to the defendant, the intended transaction was a loan transaction and not a sale transaction. Whether such a plea is borne by the provisions of section 92, the evidence that is altogether a different matter about which if an occasion arises, we will discuss on some other day. But as of now, we will go to a prudent man and let us see how he examines this. Well, this plaintiff, because before the prudent man, it is no plaintiff and defendant, he and we will put it. Well, he had come to me saying he wanted to buy a land. He asked me whether there is any person who is willing to sell his land. He had gone to several persons intending to buy a land. So it is quite possible that he really intended to buy the land. Similarly, when it comes to B, he may say, as I hear the same example, he had some need for money. He had to raise money by sending, by selling his property. His wife is eight. He is also eight. His children are all settled in a city. They want to leave the village, sell their land, and they want to settle in the village. It is quite probable that he intended to sell the land. On the other hand, he may also come to the conclusion. I know that the only land he has is this. He has got reproached in the village. It is unlikely that he intended to sell his only land. As far as this A is concerned, well, he has lent money to several persons. Maybe to be also he had lent money and took the start limit. So it is quite probable that it is not a sale transaction, but it is only a loan transaction. A suit for partition of joint family properties. The one defense which is usually taken is that some of the properties are self acquisitions. These parties go to a good end man. He says the father of the parties was a lazy man, sufficiently eight. He was addicted to vices. He was not working at all. It is quite unlikely that he would have financed his son to purchase a valuable property worth 20 lakhs. On the other hand, I know this boy. Even as a college going student, he was working in some shop. He was giving tuition. He was a very studious boy. He was working. He is employed. He is not even married. He has saved some money. It is quite plausible that he has contributed for his own funds and I rule out the probability of the property having been acquired from out of joint family funds. On the other hand, if he comes to a conclusion that it is probable that it is a joint family property, he may say, well, the joint family has about five, had eight of five acres of wet land. Their father was a very enthusiastic person. Even at that age, he was going to the land and taking care of it. On the other hand, this boy who says that he has purchased from his funds for hardly 20 years of age, he was a lazy boy. Moving around the town, he was not doing any work. It is unlikely that funds generated from him for purchase of this valuable land. It is improbable. Now, when a judge appreciates evidence, see that Sachin Ajay proved a fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists. If a prudent man accepts that fact as probable, then the judge also has to say it is probable. Therefore, while appreciating evidence, the judge should also reserve to the standard of a prudent man. But then what is this difference or distinction? That prudent man is not governed by the provisions of section 6255 of the evidence set, which speak about facts which are relevant, nor is he bound by the provisions of part 2 of the evidence set which tell us as to how a fact is to be proved. But for a judge, he is bound by this. Well, when he comes to a conclusion that it is probable that this fact existed, it is probable that the plaintiff lent money, it is probable that it is a joint family property, it is probable that it is not an agreement to sell, but it is only a loan transaction. For him to come to such a conclusion, the facts placed on Raka should be strictly within relevant facts covered by part 1 of the evidence set. Those facts will have to be strictly proved as provided in part 2 of the evidence set. As all of you know, evidence set preliminary chapter dealing with some important definitions and thereafter it is divided into three parts. First part deals with the relevancy of facts, the second part proof of facts, third part production and effect of evidence. I often tell the title given to the first two parts is quite appropriate, but somehow the title given to the third part is not all that appropriate. It does not really reflect the contents of the various provisions there. Leave it. Anyway, effect of evidence, it is the judge who has to consider the effect of that evidence. So, therefore, as lawyers and as judicial officers, what you need to know is whether the evidence placed on Raka is relevant. Just go through the definition of the word relevant given in the evidence set. One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of the set relating to the relevancy of facts. Straight away go to section 5. Evidence may be given in any suit or proceeding of the existence or non-existence of a very fact in issue and of such other facts as are herein after declared to be relevant and of no others. See the stress there. The evidence set has declared certain facts to be relevant. Section 5 does not stop there. It says, I have declared by the set. The evidence set has declared that certain facts are relevant and the court is prohibited from receiving evidence of facts which I have not declared as relevant. However, intelligent a judge may be, however intelligent a lawyer may be, I am above you. Be you ever so high, law is above you, I am above you. I have declared by this through this act. Only these facts are relevant. Please be careful. As of herein after declared to be relevant and of no others, it has not stopped there. See this stress there as I am not going as to be of relevant and of no others. Therefore, the judge is constrained, prevented, injuncted, restrained by the provisions of section 5 of the evidence set to take on record any fact which the evidence set has not declared to be relevant. Which are those facts which the evidence set has declared to be relevant? They are covered by section 6255. Having regard to the title of the subject given to me and the time at my disposal, I will not be able to tell you in detail about the provisions of section 6255. I will only for those who are uninitiated and novice, I will just tell you as to how we should go about it. It has to be read in groups. Section 6266, they form one group, 17 to 31. The title is Admissions. Generally, we say Admissions and Confessions. 32 and 33, the third group. 34 to 39 is the fourth group. That is, then judgments of courts of justice when relevant. Sections 40 to 44, opinion evidence 45 to 51, then character evidence 50 to 55. So, therefore I repeat, a lawyer who argues the matter before the court should say, well, there is evidence, there is only volume, there is no quality. The evidence that is placed by the opponent is certainly not covered by any of these provisions. It is totally irrelevant. There is only volume, but no quality. The other side has to say, well, I will point out how it is relevant. Of course, it is a big exercise. We will leave it at that stage. Then, what is this preponderance then? There is some oral evidence and documentary evidence on the side of the plaintiff. Similarly, there is some evidence on the side of the defendant. The court has to put them in a balance. We will have to see where the weight is, which pan goes below. If the pan on which the evidence of the plaintiff is put goes below, then the case of the plaintiff is more probable than the case of the defendant. This is what we say when we deal with this temporary injunction, the concept of balance of convenience. The inconvenience starts to the plaintiff if an order of temporary injunction is not granted, is put on one pad. The inconvenience that is caused to the defendant by granting an order of temporary injunction is put on the other pad. See which pan goes below. In fact, even two or three days back, I was telling someone that there is a place called Chitwalapur in Tarnaratha. They are the lawyers for saying balance of inconvenience, not balance of convenience. You will have to examine who will be put to more inconvenience when an injunction is granted or not granted. Leave it as it is. Therefore, whose case is more probable. But when it comes to a criminal case, as I told you in the beginning and as most of you may be knowing, the charge against the accused will have to be proved beyond all reasonable doubt. What is that all reasonable doubt? What is that reasonable doubt? Let's say different concept altogether. Let us not bring that in here. Then the next important thing which you should bear in mind is as lawyers, we have one basic principle. Any amount of evidence without a plea cannot be looked into by court. Therefore, lawyers of this generation, they put evidence also in the pleadings because there is a bar which says that no amount of evidence can be looked into without pleading. Not knowing it, perhaps they put that evidence also in the pleading. On an earlier occasion, I have drawn your attention to odd receipts saying that pleading should contain only facts and material facts and not evidence. I am only refreshing your memory in that regard. So, when you try to place evidence on retard, that evidence should be related to the case of the plaintiff or the defendant. Any evidence which is not borne out of play, which is not related to the pleadings, is of no value, is of absolutely no value. Then there is another concept called variance between pleading and evidence. First rule is no amount of evidence without pleading is of no value either to the plaintiff or to the defendant. The second concept is variance between pleading and proof. Something is pleaded, something is proved, some other evidence is given. I have seen this in many cases. Particularly in suits for partition, in the plaintiff it is stated that the properties are ancestral properties or they were the self-adquisition, so they deceased, maybe a woman or a man, whatever it is. During the course of evidence, some document is produced indicating that they were ancestral properties. In the trust examination, a suggestion is made. The plaintiff admits that there is ancestral properties. This generally happens like this. Therefore, you will have to be careful as lawyers to see that any evidence you place on retire does not vary with the plaintiff. Of course, whether your client stands the test of cross-examination, which stands the test of cross-examination is a different aspect of the matter. Whether the case put forward by the opponent is true or false, it is ultimately for the judge to decide. It is for you to convince whether it could be accepted or rejected. But the care that you will have to take is, well, when you put your client to the witness box for purpose of cross-examination, you should tell him, this is your case. This is the likely seditions that are to be put. Be consistent in your stand. Of course, there may be other factors which may come in the way of witness, maybe gets confused and all that. Leave all that. But you have got a duty to tell your client, well, this is your case. This is the case of the opponent. You must stick to your case. Therefore, even when you draft the plaintiff's written statement, take clear instructions from the client. Look to the documents that they have produced and let the case put. You stand or fall on that particular case that you have pleaded. Be clear about this. Then, there is one concept thought, burden of proof and bonus of proof. Evidence that does not by itself tell you what this bonus of proof is. It only refers to burden of proof. Please go to part three of the evidence that commencing from section 101. Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustration here relates to a criminal case and avoiding B. A desires the court to give a judgment that he is entitled to certain land in the possession of B by reason of which he asserts and which B denies to be true. A must prove the existence of those facts. A suit for declaration of title and possession or a suit for possession based on title. So, plaintiff says that I am the owner of the property. Defendant is in lawful possession or he has dispossessed with me. Give me back that possession because he is denying my title. Also declare that I am the owner of the property. The defendant denies that the plaintiff is the owner. Therefore, the burden is on the plaintiff to show that he is the owner of the property. So, there is a basic thing. Whoever asserts a positive fact must prove it. Then 102, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Whatever be the illustration given here, I will give a simple example for that. Plenty files a suit for recovery of rent. Defendant admits that he is at an end. He admits the rate of rent. He pleads I have paid the entire rent. Nothing is due. He asserts a positive fact saying that he has paid everything. Plaintiff cannot be thought upon to prove a negative saying that defendant has not paid the rent. It is sufficient if you reverse that evidence. Therefore, if no evidence is given, the plaintiff will succeed. A simple suit for partition. Let us not go to section 6 of the Hindu succession act. Leave it. A simple case covered by section 8 of the Hindu succession act. A Hindu father dies leaving behind his class 1 years. One of them files a suit for partition against others. They admit the relationship. They admit that the father died interstate. They say that the father has left behind a bill, bequeat in the properties to them and therefore they have become the owners. What is there for the plaintiff to prove in this case? If the defendants do not give evidence, the plaintiff will certainly succeed. It is the defendant who fails in this suit. On the other hand, in the earlier case, when the defendant denies the title of the plaintiff, if the plaintiff does not give evidence to show that he has got the title, the plaintiff will fail. Then 103, the burden of proof has to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. A suit for partition of joint family properties. The presumption under Hindu law is that the properties continue to be joined. The presumption is that and it is for he who says that there is a partition. The defendants admit the nature of the properties. It is true that they are joint family properties. They also admit the genealogy given in the plaintiff. They say that there is a partition. Who has to prove it? Because there is a presumption under Hindu law that the properties continue to be joined. The plaintiff takes no burden. It is the defendant who has to prove it. Please go to R18 rule 1 CPC to by any chance you have the CPC with you. R18 rule 1, the plaintiff has the right to begin unless the defendant admits the facts elated by the plaintiff and contends that either in point of law or on some additional facts elated by the defendant, the plaintiff is not entitled to any part of the relief which he has for in which case the defendant has the right to begin. This is a case where the defendant has to begin because he sets up a prior partition. It is for him to do. In the other case I said plaintiff files a suit for recovery of friend. Defendant admits that he is a tenant. Defendant admits the rate of friend. He says that he has paid the entire rent nothing is due. The burden is on the defendant. The case will have to be posted for defendant's evidence. It is the defendant who gets the right to begin. Then we have a presumption under section 118 of the negotiable instruments act. One of the presumptions is that every negotiable instrument is drawn for consideration. As all of you know, pro note check and bill of exchange are considered to be negotiable instruments. I meant to see a case where a bill of exchange or a bill of exchange a suit is filed in case of pro notes and checks. They are the usual suits that are filed. The plaintiff need only established execution of the document. The plaintiff says that the defendant borrowed from him a particular sum of money and executed a suit pro note, proof pro note or gave a check and the defendant denies it. The first issue is whether the plaintiff proves that the defendant has executed the suit pro note or has issued the checking question. Plaintiff need not prove that he lent money. Issue cannot be listed whether the plaintiff proves that the defendant borrowed some a particular sum of money from him or he lent that money. Because there is a presumption under 118 of the negotiable instruments act that every negotiable instrument is drawn for consideration. The first issue is whether the plaintiff proves the execution of the suit pro note. Whether he proves that the defendant issued the suit check. Second issue, if so, does the defendant prove that it is not supported by consideration? In fact, I see some at least two officers from Tarnadaka on the screen. They have heard me in the judicial academy and I have drawn their attention to number of judgments with the Tarnadaka High Court on this point. Judges of history years have written those statements saying that in a suit on an ornament promissory note, the issue is whether the plaintiff proves the execution of the suit pro note. There is no need for the plaintiff to prove that loan amount was also, I mean money was also lent by him to the defendant. So these are certain presumptions. It is not for the judge who frames issues. We should have a knowledge of this. Lawyers also should know it, appearing for the plaintiff. When the court frames an issue casting the burden on your client to prove not only the passing of consideration and also execution of the document, you should bring to the notice of the court. There is a presumption under 180. My burden is only to show the execution of the promissory note. It is the defendant who takes the burden to show that it is not supported by consideration. Suit is for partition. Defendant pleads a prior partition. The court frames an issue whether the plaintiff proves that the suit properties are joint family properties. You will have to tell the court there is a presumption under Hindu law that the properties continue to be joined. It is for he who says that there is a partition to prove it. Therefore, you now see that this state, I mean what issues have to be framed on whom the burden is to be cast is not just for the judge. It is for the lawyers also to assist the court and also see that their claims are not unnecessarily burdened and they need not take a burden that the law does not give them. So, please be clear with this data. Therefore, the concept of this burden of proof is not altogether irrelevant for the lawyers also. I told you that bonus of proof is something which the evidence that does not make a reference. Well, if you go to a dictionary, you do not find any different meaning for that. Bonus and burden, they do the same thing. But in law, there is a difference. Judges have found what a difference. The concept is a bit difficult to understand, but I will give you one or two examples. Then you will be able to understand this burden of proof and bonus of proof. Before that, one concept requires to be known. What is this burden of proof? Judges tell, I mean the Supreme Court has said that the burden of proof has also two meanings. One, the burden of establishing a case and the burden of leading evidence. Burden of proof has two shades. One, burden of establishing a case, burden of leading evidence. You will have to lead evidence and you will have to establish it. That is that burden. This is AER 1960 Supreme Court 100. These are all world decisions I know, but they have laid down the law in very clear terms. AER 1960 Supreme Court 100, distinction between burden of proof and bonus, not distinction, two shades of this expression, burden of proof, burden of proving the case, establishing the case, and burden of leading evidence. Then what is this difference between burden and bonus? AER 1964 Supreme Court 136. AER 1964 Supreme Court 136. What is Supreme Court has said? Probably I believe it is justice, that in the judgment says, burden remains constant throughout whereas, bonus oscillates. As the evidence progresses, it oscillates. The concept is a bit difficult for those who are still in the beginning of the profession. Gray hairs would be able to appreciate this. Burden remains constant. Bonus oscillates, shifts from time to time. Many times, what happens is this. I have seen this. Plaintiff sets up some title. He says that he has purchased with the property from Mystery X. Defendant denies it. In the cross examination, a question is asked to the plaintiff. You say that the property you say that you purchased the property from X. Did you verify the title deeds of X? Did you satisfy yourself that X had title to the property? Yes, I satisfied myself. It is a clear answer. I satisfied myself and therefore I bought it. The lawyer's viewpoint, there is nothing to show that X was having title to the property. Have you challenged it by a further suggestion in the cross examination? What documents you verify? I mean, have you further questioned him? Which document you verified to know that X had title? Have you suggested to him that X had no title at all? If the suggestion is that I put it to you that X had no title, then I think the owner shifts to the plaintiff. Burden is already there. Issue is frame saying that the plaintiff proves that he is the owner of the suit schedule property. During the course of evidence from stage to stage, bonus goes on shifting. He says that the property belonged to X. Did you verify how X got title? Yes, I verified. Finish. You must further suggest to him, if at all it is your case that X was also not the owner and therefore he could not have conveyed one to the plaintiff. You must suggest that X was not the owner. Then the owner shifts to the plaintiff to produce some document or give some evidence to show that X had the title to the property. Are you following what I am telling? This is appreciation of evidence. I have seen lawyers arguing. Well, the plaintiff says that he has purchased the property from X. Where is any document to show that X was the owner? Have you disputed it? What is it that you have elicited? Did you verify at the time of purchase in the property that X was its owner? Yes, I verified. Is there a further question to him which document you have perused? Is there a further suggestion that X did not own the property at all? In the absence of such a suggestion, I am fully confident that the plaintiff's lawyer may not go to the extent or go out to the course. If he wants to still be certain and produce document, no problem. Even if he does not do it, certainly he should be able to convince the court and the Glucier officer should accept his claim that X was the owner. Then let me proceed further. All right, plaintiff says that I verified. Defending the client also asks, what is it that you verified? Well, I went to, I made inquiries in the office of the sub-register. I took an income and certificate. He also gave me the title deed and all. Did he also give you the title, his title deeds when you purchase the property? Yes, I got it. And then the lawyers will ask, have you produced it? If it is there, it is already there. And we judges are also used to this type of questions. We also don't, because if we say it is not there, it will not be there, but lawyers will not be satisfied. They think that we read only the documents and not oral evidence. And therefore, they insist on regarding this answer. We have also been doing it. All right, I have not produced it. Next question is, do you have any impediment to produce? Very relevant question. He says, I have no impediment to produce. Then an adverse inference has to be drawn against him. Supposing he says that he has seen the document, the document and the title deed of the answer was also given to him. He does not produce it. Draw an adverse inference. Now there is a bonus on him to produce the document. That is why Justice Dajyan Reductor in the statement beautifully says, Baran remains constant. Bonus is a shifting thing. It takes place continuously during the course of evaluation of evidence. Now, when I say this burden remains constant, what does it mean? The issue is already frail. Casting the burden on the plaintiff or on the defendant to prove a particular fact asserted by him or her. As and when the trial goes on, as I said, the owner shifts, depending upon the suggestions made, the admissions obtained, the denial is obtained, the owner shifts. Nearly because the owner shifts, the court cannot go on retouching the issues. Now, there is evidence to say that the plaintiff purchased the property from its plaintiff has stated in his evidence that he were confirmed, that he had said title to the property. Therefore, the owner shifts to the defendant. Therefore, I will reframe the issue. Casting the burden on the defendant, that cannot be done. That is why Baran remains constant till the judgment is pronounced. It is the bonus that shifts and it certainly requires some experience. For a lawyer, what is to be elicited, what is to be argued, certainly it requires experience. And junior lawyers will read some earlier judgments. Here, senior counsel, R. G. Dematter, cross-examining, here some lectures and all that, thereby equip themselves. Judicial officers also, in the beginning, they also have this difficulty in appreciating evidence. Over the years, they would be able to make it up. So, this, I believe that I have discharged my burden of explaining to you the concept of this burden of proof and bonus. If I have, now the bonus is on you now, then there is one other principle which you should bear in mind. When both parties have let evidence, when both parties have let evidence, burden of proof pales into insignificance. It is of no consequence that burden of proof assumes significance at the time of framing the issues. At the time of framing the issues, you will not know whether the plaintiff admits or the defendant admits. Based on the assertions made in the plaint and the denials in the written statement or admissions in the written statement, issues are framed by the court. To cast the issues, burden is cast either on the plaintiff or the defendant. Now, assume a case where the burden of proofing all the issues is on the plaintiff. Does it mean that the defendant should not lead any evidence to report the case of the plaintiff? Does it mean that the defendant is prevented from leading evidence on his side to report the evidence of the plaintiff? Does it mean that the defendant should not produce any document? Therefore, even in a case where the burden of proofing all the issues is on the plaintiff, experience has shown defendant also gives evidence at least to probably his case. And I am sure in your experience at least in one case an issue would have been framed cast in the burden on the defendant also. Though he might not have set up a counter claim, though he may not have sought any relief, there is an issue on him. Take a very usual case of plaintiff seeking the declaration of title, defendant setting up adverse possession. Issues on the different, burden is on the defendant to prove that he has prevented his title by adverse possession. When you examine whether the plaintiff has established his title, when the court examines that, the court has to necessarily examine the stand of the defendant whether he has prevented his title by adverse possession. Both parties are leading evidence. Plaintiff has produced a document saying that they establish his title, they establish his possession, he produces some revenue records and all that. He examines a few witnesses. Defendant also produces some documents. Defendant also produces some oral evidence, reduces oral evidence. The court cannot shut its eyes to the evidence of the defendant saying the burden is on the plaintiff. There is one familiar argument advanced in the courts. Plaintiff has come to the court. He has to stand on his legs. He cannot take advantage of the weakness of the defendant. They are all very general propositions. I generally tell them there are some rotations where the plaintiff can relax. When the defendant has to stand on his legs, plaintiff can sit and relax for some time. These are all general propositions. There are exceptions to a very general rule. If it is an absolute proposition that the plaintiff has come to the court, he has to stand on his legs. Why any issues should be framed, casking any burden on the defendant to prove any issue? Why issues at all should be framed? Why the issues are framed to know what the burden of each party is? Why the defendant should lead evidence? See, basically the plaintiff has come to the court. He has to make out a case true. But when both the parties are letting evidence, can the court shut its eyes to the evidence given by the defendant? There it is said at the time of writing judgment or appreciating evidence that burden of proof, that burden which I have placed on the plaintiff or the defendant at the time of framing the issues does not assume significance when the court evaluates evidence. It has to take into consideration the evidence placed by both the parties, the documents placed by both parties. So, this is a principle when both parties have led evidence, burden of proof fails into incident evidence, AER 1964 Supreme Court 880, AER 1964 Supreme Court 880 and a fairly recent one, AER 1999 Supreme Court 3216, AER 1999 Supreme Court 3216. That decision is also reported in SCC 1999, 1999, Volume 4 SCC 350, 350. Then on some earlier occasion in this very platform had explained this concept of judicial admissions and evidentiary admissions. Evidentiary admissions are covered by sections 17 to 31 found in part one of the evidence that relate into relevancy. Judicial admissions are contained in section 58, which is in the second part. First, let me refer to this judicial admission. Please go to section 58 of the evidence set. FATs admitted need not be proved. No FAT need be proved in any proceeding which the parties thereto or the reagents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands or which by any rule of pleading enforce at the time they are able to have admitted by their pleading. Provides why I leave it for the time being. I remember that when I spoke about order 8, then order 11 discovery had told this. FATs admitted need not be proved, which are those FATs. If you read section 58 very carefully, it would indicate what is admitted in the pleading need not be proved. Admissions in pleading are called judicial admissions. They need not be proved. I will elaborate it a little later. First, know the concept. I will give an illustration later. First, let us know the concept. Admissions in pleading need not be proved. They are the admissions referred to here. We are seeing lawyers arguing. Admitted. He reads the Thras examination of the plaintiff or the defendant. It is true to suggest something. Your honor with your honor's rich experience admitted FATs need not be proved. That is not what is contemplated by section 58. The admission referred to in section 58 I am repeating. Please let it register in your mind. It is a judicial admission that is made in the pleading. Then the commentary and the evidence had to tell us there is another kind of admission. Answers given to interrogate these delivered under order 11. Interrogate these delivered under order 11. I had told you in detail what this interrogate three is. Again, take a suit for partition. Defendants say that there are some self acquisitions. They may deliver interrogate these to the plaintiff. Do you admit that this particular defendant was an employee in a bank? Do you admit that he was a lecturer in a college? Do you admit that he was running a computer center and was earning so much of money? If those things are admitted, then they are admissions on radar. Judicial admissions means admissions made during the course of judicial proceeding. After the matter has reached the judiciary, there is an admission there. That is why they are called judicial admissions. One, admissions in pleading. Secondly, admissions in answers to interrogate these delivered under order 11. The third kind of admission is admission made in response to a notice issued under order 12 rule 8 under order 12 rule 8. They are called judicial admissions. The Supreme Court has said that judicial admissions can be the foundation of rights. The court can safely act upon those judicial admissions. Whereas evidentiary admissions will have to be brought through the medium of evidence. Parties will have to be asked in the trust examination. They will have to be asked during the course of trial. They are called evidentiary admissions covered by sections 17 to 31. Commencing from 24 up to 31, they relate to 30. They relate to criminal cases 17 to 23 and 31, they relate to a civil case. To please know, see section 31. Admissions are not conclusive proof of the facts admitted, but they may operate as estepals under the provisions here and after here and after contact. So, therefore, if our opponent says, takes out over some evidence of the plaintiff or the defendant says, he has admitted my law of your honor, admitted facts need not be proved. These evidentiary admissions can be explained. The explanation that your client used may be true or not. The court may accept it or may not accept it. That's a different aspect of the matter. They are not conclusive by themselves. They only operate as estepals is what section 31 of the evidence that says. So, section 17 to 21 and 31, they relate 17 to 23 and 31, they relate to civil cases. 24 to 30, they relate to criminal cases. We usually say them as confession. Now, we have a series of judgments of the Supreme Court, which we will quickly make a note of in this regard. AER 1960 Supreme Court 100. AER 1960 Supreme Court 100. AER 1966 Supreme Court 405. AER 1966 Supreme Court 405. AER 1967 Supreme Court 341. AER 1967 Supreme Court 341. AER 1974 Supreme Court 117. AER 1974 Supreme Court 117. AER 1974 Supreme Court 471. AER 1974 Supreme Court 471, then AER 1977 Supreme Court 1724. Now some explanation is required here. Now, I will give you two examples because they are the cases which usually come with the trial courts. You may, I may be excused because I always give examples from suits for specific performance and partition suits because they are the best examples to be given to bring home the facts very clearly. I told you in a suit for specific performance, the familiar difference at least as far as the state of Karnataka is concerned is true that the defendant has executed an agreement of sale but it was intended to be a security for the loan borrowed from the plaintiff and there was no intention on the part of the defendant to execute the sale date. As I have already told you whether such a plea can be taken in the face of section 92 is a different matter, Supreme Court has said that such a plea is permissible. That does not divert our attention to this. Now, what is admitted here? There is a clear admission of the execution of the agreement of sale. Signature of the mark of the defendant of the document is admitted. He does not dispute the execution of the document. He does not dispute the title given to the document. He does not dispute the contents of the document. What he says is that the transaction which was intended was altogether different. This was not the transaction we intended. For this purpose, this document was signed like this. The recitals were like this. Such a plea the Supreme Court has said is permissible. It is not about by section 92 of the evidence act. Now, there is this clear admission of the execution of the agreement of sale. It is a judicial admission powered by section 58. Unwittingly, are not having prepared himself or not having gone through the statement or not knowing the concept very clearly or only to put some question to the defendant. The plaintiff lawyer says it is your signature. You have executed this exhibit. Defendant is also fed up because his lawyer would have instructed any document which is shown to you, deny any signature that is shown to you, deny. Just as when an accused is examined under 313 CRPC, the instructions are that you should say false. BW2 is your wife. I do not know he says. This is how the statement under 313. So, the defendant also gets fed up. Anything that is shown to him, you go on deny. Then the defendant lawyers argue. Your Honor, we will see in the cross-examination of the defendant, my learned counsel confronted exhibit P1. My client denied it. He confronted exhibit P1A, suggested to him that it is signature. My client has denied it. Plaintiff has not examined the attestor. He has not taken the services the handwriting gets worked. Don't get unnerved by such submissions. You should tell the court there is a judicial admission in the written statement about the execution of the document. Execution is not in dispute. Signature is not in dispute. The title given to the document is not in dispute. The recitals are not in dispute. The case of the defendant is that the transaction intended was altogether different, but the recitals show that it is only an agreement of same. This is judicial admission. Did you follow this? In a suit for partition, as I said, defendants admit that the suit properties are joint family property, or at least at one point of time. They say that there is already a partition. Defendant is in the witness box. Unnecessarily the plaintiff lawyer asks him to see item number one. It is your father's father's property. It is ancestral property. This man is fed up. No, I have purchased it. Where is the foundation for that? Then the defendant lawyer says, no, your honor will see in the cross examination, my client has stated that it is his own property. What about the judicial admission made in the written statement that their ancestral properties are joint family properties and subsequently the recitation. So it is here that admitted facts need not be proved them. Not just reading some cross examination, it is true to suggest that it is not the admission contemplated by section 58. So please be clear about this. Then we have seen when we spoke about order sits under order sits rule four, particulars regarding fraud, misrepresentation, and other things will have to be specifically pleaded. It is somewhat an exception to rule two. Rule two says facts, material facts alone should be pleaded. Evidence should not be pleaded is what rule two says. But rule four of order sits says, in all cases in which the party pleading may be the plaintiff or the defendant relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence. And in all other cases in the particulars may be necessary beyond such as are exemplified in the forms of force set, particulars with dates and items if necessary shall be stated in the pleading. Now a vague plea stated in the plaintiff written statement. The plaintiff files a suit for cancellation of a document. He says that the defendant played fraud on him. There was undue influence. Therefore he executed that document, cancelled that document. Are the plaintiff files a suit for title, declaration of title on the basis of some gift deed or sale deed said to have been executed by the defendant. Defendant says there was fraud on him, undue influence, pressure, coercion. Therefore he executed that document. When the plaintiff used for cancellation of that document said to have been executed by him. Are the defendant wants to non-suit the plaintiff saying that because of that pressure he executed that document. What was that fraud that was committed? What was that misrepresentation that was made? What is that undue influence which he exercised? Well, those definitions are found in the contract and 15, 16, undue influence, 17 fraud, 18 misrepresentation, all those particulars will have to be given. Well, the plaintiff has to say, well defendant took me to some office saying I will get the katha of your property changed to your name, please put your signature. I have an illiterate person, I do not know, I do not have knowledge of wordly affairs, I signed it. Later it turned out to be that he has taken a gift deed from me or a sale deed from me. Similarly the defendant might read certain things. So what exactly was the fraud played? How the fraud was played? What was that misrepresentation made? We are used of the words that the document is a result of fraud and misrepresentation, we are not surprised. Therefore, when you argue a matter result of the court, you must tell the judge that there is only a pleading, it is only during the course of trial he says something and therefore that cannot be looked into. So, particular fraud and other things will have to be done. Then while appreciating evidence, one thing, one other thing which assumes importance is presumptions. There are directory presumptions and mandatory presumptions under the evidence act and other enactments also. First let us see what the evidence had to say about this. Carefully follow me when I read it. Observe the stress layer I gave. Section 4 may presume whenever it is provided by this act that the court may presume a fact it may either regard such fact as proved unless an entity is disproved or may call for proof of it. See the expression used whenever it is provided by this act that the court may presume a fact. There are a host of sections commencing from 79 ending with 140 where the expression used is may. They are called a directory presumptions. Fats referred to in those sections may be presumed or may not be presumed where it is provided by this act that the court may presume a fact. The court may in its description presume that fact or may not presume. Of course, it should be reasonable. Whenever a description is given to the court, the description has to be exasperated reasonably. That is a settled principle. Shall pursue. See the four. Shall pursue wherever it is directed by this act. It may presume the word used is a little might wherever it is provided by this act. Shall pursue wherever it is directed by this act. It is the evidence that directs the court to do what that the court shall presume a fact. It shall regard such fact as proved unless an entity is disproved. These are called mandatory presumptions. Terrain as I said from 79 to 140. In some sections, the word used is may. In some other sections, the word used is shall. In some other platforms, well, when the subject itself is taken, I have drawn the attention of the audience also to the relevant sections where the word may is used, where the shell is or the shell is used. Time doesn't permit me to do that exercise. You do it on your own. So, if a particular section uses the word may, the fact referred to there may be presumed by the court, it is thought a discretionary presumption. But on the other hand, in those provisions or sections where the word shall is used, the facts referred to therein will have to be presumed by the court. That presumption may be in favor of the plaintiff or it may be in favor of the defendant. It is for the opponent to disprove that fact. Then conclusive proof. Then one fact is declared by this act to be conclusive proof another. See how beautifully the words are used. It may presume whenever it is provided by this act. Stress is not there. Shall presume whenever it is directed by this act, the court shall presume it. When one fact is declared by this act, the evidence act has declared certain facts are conclusive proof. For your immediate reference, sections 41, 112 and 113 are three sections where the facts referred to therein are conclusive proof by themselves. Of course, it does not go into those details. It is not the occasion for me to tell you that. Anyway, they are three sections where the expression conclusive proof, facts referred to therein are conclusive proof. The other sections are these. Now, apart from the presumptions available under the evidence act, we have got certain statutory presumptions. As I have already told you, 118 of the negotiable instruments act. There are I think some 118 A2H or something or 128 something of that kind. Eight facts are referred to therein which the court has to presume. One important thing is that every negotiable instrument is presumed to be drawn for consideration. It is presumed to have been drawn on the date mentioned in that document. These are all the usual presumptions. So, apart from the presumptions mentioned in the evidence act, when you argue a matter, you will have to draw the attention of the court to the specific presumptions available under the special enactments. As I said, one thing is henna act. As far as 145 Hindula, as I said, at least thrice today it is said there is a presumption under the classic Hindula that a property is joined. It is for the person who says that there is a partition to prove it. There is yet another presumption. When there is a partition and the partition is admitted, it is a partition, total partition. Partition of all the properties belonging to the family, partition amongst all the shares. So, he who creates a partial partition will have to establish it. These are all settled legal positions. So, therefore, when you argue a matter, you should also draw the attention of the court to these presumptions and you will have to lead evidence keeping in you these presumptions. What is it that I am required to prove? Rather, what is it that my client is required to prove? What is it that the opponent is required to prove? What evidence he has given to revert the presumption available under the act? Then having drawn your attention to some provisions of the evidence side, let us see how the evidence of each witness needs to be appreciated. Different categories of witnesses and types of evidence. Number one, parties to the suit. When and to what extent the operation is required. This is important. There cannot be hard and fast rule in this setup. First of all, go to section 134 of the evidence act. No particular number of witnesses shall, in any case, be required for the proof of any fact. The evidence act does not say that you should necessarily examine a witness in support of the case of the plaintiff or in support of the case of the defendant. The court can decree the suit based on the sole evidence of the plaintiff. The court can dismiss the suit based on the sole evidence of the defendant. There is no rule. Sometimes the operation becomes necessary when it becomes necessary. A suit where either the plaintiff sets up perfection of title by adverse possession or the defendant sets up title by adverse possession. Probably, probably aptly, depending upon the answer solicited in the cross examination, mere evidence of the plaintiff or the defendant may not be sufficient. The plea itself is perfection of title by adverse possession. There cannot be any document to evidence it. Necessarily, the party who sets up that plea has to examine someone to show that he is in possession of the property. As far as title is concerned, it is only the documents. No amount of oral evidence, even if you bring 100 witnesses and tell that the plaintiff is the owner or the defendant is the owner, it cannot be accepted. Title in respect of an immobile property can only be established by document re-evidence. No thorough operation will be required. Now, the plaintiff has filed a suit for permanent indention. Well, the documents produced by him do not show his possession at all. They show the names of someone else or the name of the defendant. What is there for the defendant to establish in this case, except entering the witness spots and say that he is in his possession? There is no need for the defendant's evidence to be corroborated here. On the other hand, the plaintiff may say, he may examine some neighbors saying, well, I have seen the plaintiff, he is cultivated in this land, he is my neighbor, he is staying in that house, something of that kind. So, therefore, the evidence of parties themselves could be accepted by the court. There are certain situations where the evidence of the plaintiff or the defendant needs the operation. Now, a case of oral partition is set up. Certainly, to prove that oral partition, the panchayatars of the elders of the village who are present at the time the oral partition is, need to be examined. It is unsafe to rely only upon the sole testimony of the defendant and court that there is an oral partition unless admissions are obtained from the mouth of the plaintiff, saying that there is separation, kathas is changed, separate tanda and the revenue is paid. The particular portion is the possession of the plaintiff and the defendant. Then, with regard to the appreciation of the evidence of the power of attorney's holder, there is some confusion because of, there is some confusion because of the judgment of the Supreme Court. There is absolutely no confusion with regard to the judgment. Somehow, lawyers and judicial officers appear to be under some confusion with regard to this and that I would like to clarify. If the audience is not aware of the judgment, my job is lessened. If you are aware of the judgment, I have got some difficulty in telling them as to what the correct legal position in the regard is. AER 2005 Supreme Court 439, AER 2005 Supreme Court 439, Janaki Vasudev Bhojwani, Janaki Vasudev Bhojwani versus Indus Ind Bank, Indus Ind Bank. See, what happened in that case was, you will find one of the parties to be sued was a bank. The borrower had pleaded discharge. That was not accepted by the court. The matter ultimately reached the Supreme Court at one point of time. The defendant had pleaded that he had discharged with the loan. He had not entered the witness spots. His power of attorney's holder was examined. The Supreme Court says it's a case where the defendant has pleaded discharge. It is for him to enter the witness spots and say that he has discharged the loan. The evidence of the power of attorney's holder will not help to establish his claim. Power of attorney's holder cannot give evidence in the place of the defendant. This is what the Supreme Court said in that case. In that case, the power of attorney's holder cannot give evidence in the place of the defendant. In the legal fraternity, there is some confusion they thought that the Supreme Court had laid down a law saying that in no case, a power of attorney's holder can give evidence. Either the plaintiff or the defendant should give evidence. The situation was such that when this judgment was reported, lawyers started making applications for reopening the case, relying upon this judgment for examining the plaintiff. If he had not been examined, his P.F. Porter's examined are similarly the case in the defendant. Then, as far as Tarnadaka is concerned by applying to some lawyers from Tarnadaka and some judicial officers also from Tarnadaka, you please see this judgment of the Supreme Court is 6-12-2004. Within six months thereafter, on 8-6-2005, the Tarnadaka High Court had a vocation to examine to explain this decision to the legal fraternity that is in ILR 2005 Tarnadaka 437-0. ILR 2005 Tarnadaka 437-0, Taju Devi versus H.S. Rudrappa. Our High Court said nowhere in this Janki Vasudev Bhojwani case, the Supreme Court has said that a power of attorney holder cannot be examined and in no case he can be examined is not the law laid down. In the circumstances of that case, evidence of the power of attorney holder was of no avail to the defendant. The defendant should have stepped in. Please see the date. 6-12-2004 is the judgment at the Supreme Court. Within six months thereafter, our High Court had a vocation to examine the decision on 8-6-2005. Our High Court clarified this. Then again, in ILR 2006 Tarnadaka 3129, ILR 2006 Tarnadaka 3129, Bhimappa versus Ali Saab on 27-2006 against eight months thereafter, ILR 2006 Tarnadaka 3129. Honourable judge said, by referring to the provisions of the evidence that competence of witnesses 118 and all that said, any person can give evidence so long he is aware of the facts. The Supreme Court has not laid down that in no case the power of attorney holder's evidence could be accepted. You must also note one thing here. The decision in ILR 2006 Tarnadaka 3129 by then the decision in ILR 2005 Tarnadaka 43070 had already been reported and the matter was also decided. The decision was not cited. What I am trying to tell is two independent points came to the same conclusion, uninfluenced by each other statement and they interpreted the judgment of the Supreme Court. The matter did not rest there. Another single judge in ILR 2007 Tarnadaka 17, AER 2007 Tarnadaka 17, Shardhamma versus Tenchamma on 8-8-2006, Siri dates here 23-6-12-2004 is the dead body of the Supreme Court. High court judgment 8-6-2005, next high court judgment 27-2006, six months thereafter on 8-8-2006, another judge, this single judge also did not refer to ILR 2006 or ILR 2005. His lordship also put this similar view. What does it mean? Three independent minds without referring to the because by the time IAER 2007 was reported, the other two decisions were already there. They were not cited. All the three learned judges have examined the ratio given in the Supreme Court decision and have said, well, the Supreme Court has nowhere said that a power of attorney holder cannot enter the witness spots or his evidence cannot be accepted. Then Honorable Justice R. V. Ravindran had an occasion to examine this legal position in great detail and as his lordship is known for that clarity in Manthaur, M. A. N. K. A. U. R. Manthaur versus Harthar Singh Sandha. Manthaur versus Harthar Singh Sandha, reported in 2010, volume 10 SCC 512, explained the legal position in very clear terms. I have told you a number of vacations. Whenever a legal position is examined by his lordship, he would summarize the entire legal position in the penultimate para or the last para of his judgment so that the legal fraternity did not lead to the entire judgment. So in para 18 of this judgment, his lordship has put in very clear terms. We may now summarize for convenience the position as to who should give evidence in regard to matters involved in personal knowledge. Some seven situations have been conceived. There is no time for me to read it. I will just explain this with one or two illustrations. Of course, on some platforms, I have taken my own personal situation. Let me not do that. You see, a property is purchased by a government servant or he wants a property. He wants to dispose of that property or he wants to let out that property to someone. The property is in village yes. He is working in place why? He can't frequently come to the place yes and negotiate for sale at least. He gives a power of attorney to his brother, father, mother, sister, wife or whoever he or she is in the village. To look for the tenants, to find out the intending buyers, to enter into an agreement of sale, to enter into a lease lease, collect rents and all that. It is he acting on the power of attorney, enters into that sale transaction, lease transaction. He has personal knowledge of what transpired, how much advance was paid, he knows it. What does this yes, what does this man, the owner of the property working in place yes, know as to what actually transpired between his power of attorney holder and the defendant of the plaintiff as the case name. This is an ideal case where the evidence of the power of attorney holder would be the evidence of a competent person and not of the owner of the property because he has no personal knowledge at all, except tightly this may be that barked through him nothing more. He can't say anything about this. Then his lordship says readiness and willingness. Obviously it is for the plaintiff to enter the witness parts and speak his body. Here again the lordship has said even for this there is a exception. If some power of attorney is given, some person residing abroad and other things he has given a power of attorney authorizing his father or mother to purchase some property and all that. Well, he would have approached him or she would have approached the defendant number of times with the balance sale consideration, taking relatives and friends please execute the sale deal. The plaintiff may not have personal knowledge at all about these things, matrimonial disputes. The husband has treated the wife with loyalty. As the wife has treated the husband with loyalty. These are not things about which a power of attorney holder can speak. It is only the spouses who can speak about it. Therefore, as I said for a lot of time I'm not able to read this. I am tempted to read. I don't read it. Please read page 523 in this statement in 2010, volume 10 SCC 512, para-AD. I am given to understand that subsequently also this statement has been referred to by the Supreme Court. Anyway, I have not checked this and our High Court has also referred to this. Again in ILR 2014, Karnataka 84, ILR 2014, Karnataka 84 or Narasimha versus S.P. Schreeder. These judgments would make it very clear that the evidence of a power of attorney holder can also be accepted. Even if the plaintiff or the defendant is not examined in that case, if he can convince the court that there was nothing for the plaintiff or the defendant to enter the witness parts, every fact was known to the power of attorney holder, he was the competent person to speak. Certainly the court should accept this. Please cite this decision. Then evidence of these attest tasks. What is attestation? We find the meaning of the expression attestation in the transfer of property act, some indication from the Indian succession at all. All that the attest are is required to deposit the properties that the document in question was executed in his presence. Of course, it goes further even if he has issued a personal acknowledgement that is sufficient. Of course, when he comes and says that it was written in my presence itself, the courts will not believe if he says that here is that he received a written acknowledgement. Well, theoretically it is sound but practically it will be defeated. So, he gives direct evidence of the fact that in his presence, the executant of the document affixed his landmark or put his signature. Questions are asked to the attestant as to who owned the property. Did you verify the title needs? I execute a sale deed in favor of some yes. Some why is the attestant? Why should I show the title deed to that why? Absolutely not necessary. Please avoid such questions being asked. The attestant is saying, did you verify the title deed? Do you go through the revenue or others? Why is it required to do it? Unless he speaks to certain facts. Supposing a suit for declaration of title and indenture. He is the attestant they give deed or some title deed under which they plaintive claims or the defendant claims. Incidentally, he also speaks about possession. Maybe he had an occasion to see the plaintive being in possession or the defendant being in possession. He may have a land adjacent to the suit land or he may be staying in a house. If he also speaks about possession in addition to attestation, cross-examining in great detail with regard to is how he came to know that the plaintive is in possession and defendant is in possession. I have already told you with regard to title any amount of oral evidence will not help the parties, will not take you anywhere. So this is all. So if the attestant says I have not done through the sale deed, I do not know the boundaries of the property that is of no consequence. Was he present when the executant executed the document? Here again a word of caution. After the Civil Procedure Court was amended in 1999 slash 2002, examination in chief is by Hafdevit. Hafdevit is filed. Then some lawyer comes and he gets the documents marked. I have seen many lawyers getting the signature of the attest are only marked. What is it that the attestor has to say? He must say that the executant signs the document in his presence or affixed his mark. So you must tell us it from him which is that signature with the defendant or the plaintive put in his presence or someone else put in his presence. What is now being done is the signature of the attestor is got marked. No purposes, sir. The signature of the attestor may help in a case where the document is a gift or a mortgage or a will where attestation is also compulsory. In other cases where attestation is not required at all, of course, practice is to have attestors. Then from the attestor's mouth, you will have to elicit. Well, he was present when Hafdevit discloses. But when he's put to the witness box, you won't ask him which is that signature of the defendant or the plaintive used which you say was put in your presence. Even if it is got marked already through the plaintive for the defendant as Exhibit D1A or D1A, you must say, well, Exhibit D1A already marked is the signature of the defendant. Exhibit D1A already marked is the signature of the plaintive something of that kind. That is, please take care of them. Then with regard to this strike, now the Supreme Court in a few decisions has held that a strike can also be an attestor in a given situation. So he must sign the document not only in his capacity as a strike, but also in his capacity as an attestor. Even in the case of strike, there may not be any need for him to know the boundaries of the property. And there is one thing else here. He's a professional man. He would have written a number of documents. He cannot be expected to say from his memory whether he wrote a document to which he plaintiff and the defendant for parties. Section 159 of the evidence that which speaks about refreshing his memory, please refresh your memory by reading to section 159 of the evidence that I will simultaneously do myself also. A witness may, while under examination, have seen lawyers particularly in criminal cases telling it is for the prosecutor to refresh his memory outside the court, not in the witness box. While under examination, examination not in the office of the public prosecutor or in the office of the lawyer, examination in court while he is in the witness box refreshes memory by referring to what? By referring to any writing made by himself, any writing made by himself, at the time of the transaction concerning which he's questioned. Well, whether this plaintiff and the defendant had called you at any point of time. All right. Was there any occasion for you or a professional strike? Was there any occasion for you to scribe a document? Well, an honest scribe in my opinion should say, show the document and I will tell. You lawyers will understand when you are also strives when you draft documents and when you are put to the witness box. Then you will say, I can't be expected to remember the documents which I have all strived unless the document is shown. For you, the document has to be shown to refresh his memory, but for the litigant for a other witness, the document should not be shown. Oh, he can't be. Oh, he's looking to the document. My 11th friend is putting the answer to his mouth, showing the document to him. He's entitled to refresh his memory. How can he say it? So therefore, that can be perfectly permissible. That can be done. Then, as I said, the suit is for declaration of title and injunction. There is a plea of adverse possession and all that. The witnesses also say, reproduction of the plaint government in the affidavit of the witness also, plaintiff is the owner in possession. Thank God, the decisions do not fight a place in the affidavit filed by the witnesses. And suit is barred by them. Witnesses also say in the affidavit, this is the stage to which we have reached. Then, he says that the plaintiff is the owner of the defendant. What's the consequence? I have already told you, there is no point in eliciting the answers from the both of the witnesses as to who the owner of the property is. So, you can't say, the opponent says, he has examined PWA too. Nowhere in his evidence, he has stated that the plaintiff is the owner. Why should he say it? He can speak about possession. Then, he tried out possession. When the question of appreciation of evidence comes in, had he an occasion to know about the plaintiff's possession? Is he a neighbor? Does he stay in a house, adjust it to the house of the plaintiff? Or do they stay in a tenement where he is a tenant in a particular portion? The plaintiff or the defendant is a tenant in another portion. He may have an occasion. He may not be his neighbor. He may be his close relative. He occasionally goes there. The land is situated in the village of Yetz, in the village Yetz. The witness stays in the village Y. Certainly, he must explain why though the land is situated in the village Yetz, he knows who is in possession. He may say, well, I have my in-laws in that place Yetz. I frequently go there. On every Sunday or Monday, the market takes place there. I go there to buy certain things. Or my relatives are there. My own land is there. Though I am from village Yetz, I have also got a land in Y. I go to my land and therefore, I have an occasion to visit the plaintiff or the defendant cultivating the land. In which event, he will explain. In criminal cases, he is a chance witness. So, he has to explain what was that occasion for him to know. Is he a neighbor? Is he a relative? That needs to be established. In the chief examination itself, we can bring it. This is the reason why I had an occasion to know it. Then, about this oral partition, do the persons who speak about the oral partition have had personal knowledge of it is important. Here, Yetz becomes extremely important. The partition referred to in the written statement is something which is said to have taken place about 20 or 25 years prior to the filing of the written statement. Here, there is a word of caution. The written statement is filed in the year 2018. The affidavit of the defendant is filed in the year 2022 when he enters the witness parts. In the written statement filed in 2018, I have stated the partition took place about 25 years back. The same thing is repeated here. It will not be 25, it would be 30 years. Please take care to see that. 25 years prior to the filing of the written statement, as of the date of evidence, it is already 30 year old. You will have to specifically say when, I mean, at least date may not be knowing about 28 years, 30 years like this. Then, who you are examining? The partition took place, according to your client, about 25 years prior to the filing of the written statement was done in 2018. You examine a person. Today, of course, he is aged 50 years. What was his age about 25 years? A boy of 20 years or 22 years, could he have been taken as a panchayatta? Many times, he would be a, you examine a person aged about 42 years, well grown up man. But what was his age? A boy of 15 years when this partition took place, who will take him as a panchayatta? Then, in many cases, what happens is, obviously, in partition suits, there will be number of defendants. One of them dies. The senior most usually dies first. His allures are brought up without. So, the first allure is his wife. She enters the witness box to speak about a partition. That partition took place much prior to her marriage. How does she know about the partition? It is through her husband or someone she has knowledge of that partition. She has no personal knowledge. Therefore, no purpose should be served by examining persons who could not have had personal knowledge. I am not suggesting for a moment that only aged people should be brought to speak about partition. See the date of the partition period. If the exact date is not there, at least the year. How old is the person whom you are examining? Would he have had an occasion to be present when these types of partition took place? That becomes very material there. So, do not go by the age of the legal representative. He is the first legal representative. Therefore, examine him. Maybe her brother-in-law, husband's brother may be competent to speak about it because he knows the affairs of the family. Before this lady entered the matrimony and said, do not mistake me that I am not condemning them. She would not have had knowledge about it. If something has taken place after marriage, certainly she is competent to speak about this. Therefore, number of questions are asked in his thought. He says, I do not know anything. Obviously, he does not know anything. He could not have known. If he says that he knows that evidence cannot be taken at all, then about this commissioners appointed under order 26 whole line, particularly in cases of enthronement, the evidence of a commissioner, preferably a civil engineer, if it is a case of enthronement of a site or some construction put on a party wall, or if it is an enthronement of a land a surveyor, his evidence is very material. The course would be too slow not to reject the evidence of a commissioner in preference to the oral evidence given by the parties. In the very nature of things, oral evidence cannot be given that much of it. Plaintiff says enclosement is to an extent of two acres or some sands. Defendant says no encroachment. Even if 100 witnesses are examined, what purpose should be served? Certainly, the evidence of a commissioner has to be given, because he is an independent person. Unless there is something in his evidence, he has not gone to his spot at all, he has prepared a state share, or he has not conducted the survey in accordance with the survey manual. He himself has no knowledge of survey. Certainly, the evidence cannot be accepted. Otherwise, there is no reason as to why the evidence of a commissioner per local investigation cannot be accepted. His evidence is certainly preferable to the evidence of the parties. It is obviously self-interested, which does not show any purpose. Then the next question is whether this commissioner should be examined. Of course, it is rightly outside, but it has some relevancy in the context as to how the evidence is to be appreciated. Order 26 rule 10 sub rule 2 says that the evidence of a commissioner appointed under order 26 rule 9 is evidence by itself. It is a part of the Ratha. I am not aware of the judgments of the Supreme Court or of other high courts. Our high court has taken a view that there is no need to examine the commissioner, because his report itself is evidence. Even without the decision, one can easily say, well, the statute itself says it is evidence by itself. There is no need to examine the commissioner. There is no need to mark his report. But order 26 rule 10 sub rule 2 provides. If the court for any reason wants to examine the commissioner, the court can summon him as its witness. The parties can also summon him and examine him with regard to the matters referred to him, the manner in which he has done the executed the commission work. You will find it from the language of order 26 rule 10. Therefore, I repeat, there is no evidence of the commissioner has to be preferred to the evidence of the parties. There is no need to examine the commissioner. There is no need to mark the report. I am not telling he should not be examined at all. He can be examined provided you want it. Then there is some procedural difficulty here. Now the report of the commissioner is in favor of the plaintiff. A professional lawyer who knows the law, who has read order 26 rule 10, knows that there is no need to examine the commissioner. He will tell the court order 26 rule 10 says that it is evidence by itself. It was not incumbent upon me to examine. Defendant lawyer says, I have filed objections to the report of the commissioner. It was my learned friend to examine. Why should you examine? The plaintiff flyer is a professional man knows the law. He doesn't examine. Defendant can examine the commissioner and show to the court that the commission work has not been properly done. His report for reasons one, two, three cannot be accepted. The plaintiff doesn't summon him because he is happy with the evidence of the report of the commissioner. He cannot look into the commission's report without the commissioner being examined. Unless the defendant examines, he will not be able to bring to the notice of the court what is the deficiency in the report, why the report cannot be accepted. So, he summons him. Now, the evidence that says he who summons him has to examine him in chief. Evidence that further says that he cannot be, leading questions cannot be put in the chief exam. Fine. Now, the defendant is challenging the report of the commissioner. He has filed objections to the report of the commissioner. Unless he cross examines the commissioner, he cannot convince the court where the commissioner has gone wrong. Why his report cannot be accepted? What is it that can be done? Please go to section 154 of the evidence that which many think has a place only in a criminal case. The court may, in its discretion, permit the person who tells the witness to put any question to him, which might be put in process examination by the adverse party. The world hostile is not mentioned in section 154. But usually in a criminal case, we say when the witness does not support the prosecution, we call him as a hostile witness. There is absolutely no bar, even in a civil case, to treat a witness hostile. Now, the commissioner is summoned by the defendant himself. In the retards, he is shown as DWU or something. No, he can't certainly say something contrary to his report. The defendant cannot cross and say directly. Put a few formal questions in the chief examination. Who are you appointed as a commissioner in this case? Is this the commission warrant? Is this the report you have given? Are there the memos of inspections which both the parties file? Formally get them marked. Then tell the court, I have filed objections to the report of the commissioner. Unless I am permitted to cross examine the commissioner, I cannot bring out the truth. And a judicial academy, I have told the judicial officers, this concept of cross examining one's own witness is not the exclusive privilege of the public prosecutor. Even a plaintiff lawyer can do it and a defendant lawyer can also do it. You request the court to permit you to cross examine him, which can be done. And 26 rule 10 also says that the court, if it wants clarification, can also summon him, in which event it is open to both the parties to put any question. Then, with regard to the evidence of the experts in a civil case, more particularly, this handwriting and fingerprint experts. Of course, these days, the DNA reports when paternity is in question. Here again, the provisions of order 26 rule 10A, which provide for commission for scientific investigation prior to 1976, applications were filed under section 45 of the evidence act. Now applications are filed under 26 rule 10A, read with 45, whatever be the provision. There is a provision under 26 rule 10A which says that the provisions of relating to commission for local investigation under 26 rule 9 apply notatis, notatis to your commissioner appointed rule 10A also. What does it mean? That even an expert need not be examined. We have a judgment of justice N Kumar on this point in this context. Anyway, the audience agrees from different states. I also right now I am not able to give you the decision. Now there is no need to examine an expert. If the parties want to take an exam, if the court wants to take an exam, same thing as in the case of the commissioner for local investigation. Then the question is, as between the evidence of the experts and the oral evidence of a witness which needs to be preferred, you will find section 45 under that head which says opinion evidence. He gives opinion evidence. In my opinion, the signature on the disputed document is not of the plaintiff. It is not of the defendant. He does not say it is of so-and-so. He does not give a positive report. He rules out the possibility of the two signatures being similar or being not similar. In my opinion, because I have conducted this test, I am on the opinion that both signatures are similar. Exhibit P1A, the disputed signature, is similar to the admitted signature or specimen signatures or not similar. Now let us take a case. We have a gift deed. Plaintiff relies upon a gift deed. Defendant disputes it. We will take it. It is the defendant according to the plaintiff. It is defendant who has executed the gift deed. There is a specific denial of the gift deed by the defendant in the written statement. Specific denial in the manner contemplated by order 8, which I took a lot of points on the other occasion to tell how the denial should be. It is in this background. Please go to section 68 of the Evidence Act. Please look to it very carefully. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. If there be an attesting witness alive and subject to the process of the court and capable of giving evidence. So, if a document requires attestation, it's it can be proved by itself as an attesting witness. Let us read the proviso provided that it shall not be necessary to call an attesting witness in the proof of the execution of any document not being able, which has been registered in accordance with the provisions of the Indian Registration Act unless it's execution by the person by whom it purpose to have been executed is specifically denied. Now the different according to the plaintiff, it is the defendant who has executed the gift reading his papers. The defendant in the written statement specifically denies the execution of the document. Plaintiff has to prove its execution by examining at least one attesting witness. Plaintiff examines one attesting witness or both the attesting witnesses. They fully support the case of the plaintiff. Despite searching cross examination, nothing can be brought on record to discredit their testimony. So, the defendant client is fully convinced. Well, the attestors have stood the test of cross examination. It has become difficult for me to discharge them. Then he takes a chance of getting the document examined to an expert. Application is filed, the application is allowed, expert is appointed. The expert in his opinion, in his opinion, not those words, it is only opinion. The expert was not present when the document was executed. Please know that. The expert, he has got some parameters. He says, well, the signature exhibit P1A on the gift deed, which is the disputed signature, is not similar to the signature of the defendant. I don't find them to be similar. So, the report or the opinion of the expert is in favor of the defendant. The evidence of the attesting witnesses is in favor of the plaintiff. What is to be done? The legal position is direct evidence or vocular evidence given in court, be it a civil case or a criminal case, has to be accepted and not the opinion of the expert. Please be clear about this. Therefore, the court will be well justified in accepting the evidence of the attesting witnesses and uphold the gift. Don't find fault with the trial judge who says, in spite of the expert's opinion, the trial judge does not know the basics of the evidence that he has ignored the report of the expert. Well, judicial officers have been trained in judicial academy. Most of them, of course, due entrance may have some difficulty. Most of them know the law. Please don't underestimate them any longer. Therefore, an expert's opinion is only opinion evidence because he might not have also come to a direct conclusion. So, this is one important. It might happen in any other case. Now that I am on the aspect of this examining and attesting witness, let me slightly deviate here. I read out to you the main part of Section 68 which says, if a document requires attestation, it shall not be used in evidence unless one attesting witness is examined. The provisor says it is not necessary to examine the attesting witness if the execution is not specifically denied by the person who is said to have executed it. This is very important. The example which I gave was a case where the defendant had executed it. Defendant has denied its execution specifically. Certainly, the plaintiff has to examine the attesting witness, failing which the court cannot rely upon this gifted adult. Let me take another case. Plaintiff says that one yes, he is not a party to be sued. One yes has executed a gifted in his favor. Therefore, he has become the owner. The defendant who is a total stranger is denying his title. Defendant formally denies, no, it is false to say that the that so and so yes has executed a gifted in his favor. That yes, the donor, the person who is said to have gifted the property to the plaintiff, enters the witness parts and deposes in favor of the plaintiff say, well, this exhibit P1 is a document executed by me. Exhibit P1 is my signature. Nothing is brought out in this cross examination to you tell her that I'm speaking. She knows it. Nothing. Tomorrow I am going to tell her. There is nothing to dispute you. Therefore, the lawyer argues, the defendant the defendant client argues, plaintiff has not examined the attesting witness. I had United States execution. He reads of section 68 only the main part and says, well, this is an document which requires compulsory attestation. The plaintiff has not chosen to examine the attesting witness. When the examination of the attesting witness becomes material, when the person who is purported to have executed specifically denies it, the donor Pw2 has not denied, he comes and gives evidence in favor of the plaintiff. Where is any need for the plaintiff to examine the attesting witness? On the other hand, if it is the case of the plaintiff, that it is the defendant who executed the document and the defendant denies execution, certainly the plaintiff has to examine the attesting witness. In the same case, let us say that yes, who is said to have executed the guilty, does not depose in favor of the plaintiff. He doesn't. He gives evidence in favor of the defendant. He gives evidence in favor of the defendant. Certainly the plaintiff has to examine the attesting witness because the person who is purported to have executed the document specifically denies its execution. Well, he comes. This is not my signature. I have not executed any document. Then, Mr. Vitas Chaturth, have I got another 15 minutes time? Mr. Vitas. Yes, sir. Yes. Now I have given some concepts. Before I close, I want to tell about appreciation of evidence in particular suits. I am taking a few suits which are commonly filed in the trial courts. Money suits. If it is based on a pro note, if the execution of the pro note is denied, well, as I have already told you, plaintiff needs to prove only execution. He need not prove the passing of consideration. It is for the defendant in your presumption under section 118 to prove the negative saying that consideration has not passed up. So is the case. If the suit is based on a check, it is dishonored. Then, the consideration mentioned in the document is philax. Defendant says, well, I have executed the document. But the money paid to me, the consideration which was passed on to me was not philax, but only two laks. Defendant, take it, has admitted the execution of the document. Therefore, it is for the defendant to show that what passed on to him under the document was only two laks and not philax. Then he says, well, I have executed the document. I have received money, but I have repaid everything. So he pleads discharge. The legal position is settled that he who pleads discharge has to establish it. Then take a suit for recovery of rent. The relationship of landlord and tenant is admitted. Rate of rent is admitted. Defendant says, I have paid every rent for all months. Nothing is due. Then it is for the defendant to establish that he has paid the rent because he who pleads discharge. Suppose in the relationship of landlord and tenant is denied, you have to be careful here, appear for the plaintiff. Defendant in written statement says, I am not a tenant under the plaintiff. There is no dual relationship of landlord and tenant between me and the plaintiff. Then the defendant lawyer argues and tells the court, my learned friend has to file a separate suit and get a declaration about this dual relationship now. In this very suit which is filed for recovery of rent, the first issue is whether the plaintiff proves the existence of the relationship of landlord and tenant as between him and the defendant. Then if the relationship is denied, the plaintiff takes that order. Then rate of rent is denied. Plaintiff says the rate of rent is 25,000. Defendant says that the rate of rent is 20,000. Here the plaintiff has to prove that the rate of rent is 25,000. Now, well, again we have said preponderance of probabilities. Well, the court has to either accept the case of the plaintiff as 25,000 or the case of the defendant. The court cannot run average as in a low-total attention of 22,000 point right now. The court has to either accept the case of the plaintiff or accept the case of the defendant. Because if there are rent receipts, the rent agreement, the problem is, are the plaintiff may examine another tenant in the same tournament which has the same dimension? He says I am also paying 25,000. Are the defendant may examine another tenant? No. My house and the house are the defendant. They are of similar dimensions. Everything is the same. I am paying only 20,000 because it is only oral evidence. Then in the suit for specific performance, see whether the agreement is denied totally or the signature is admitted and only certain circumstances are pleaded. I said it is only a loan transaction. Here there is no need to prove the execution of the document. First of all, an agreement of sale did not be in writing. It could be oral. Your MPT is in writing. It does not require registration. Third, it does not require attestation and therefore, there is no need to examine the attesting witness. But if the evidence discloses that both the attesting witnesses are alive, you cannot take a foolhardy risk of not examining the attesting witnesses who give direct evidence and examine someone else. Though the evidence act does not say if a document does not require attestation, even then if the attesting witnesses are alive, they should be. It doesn't say so. But practical considerations are there. The document certainly does not require attestation. But it is brought out in the trans-examination that the attesting witnesses are alive. Instead of examining them, relying upon that abstract proposition document, it does not require attestation, can be proved by other evidence. It is a risk that you are taking. Why you are not examining the attesting witnesses who are available, available, and alive? That has to be examined. Then a plea is taken that time was of the essence of the contract. In the case of immobile property, the presumption is that time is not of the essence of the contract. Of course, there is a thinking about a re-route or revisiting is required in this context. As of now, the law is time is not of the essence of the contract in the case of an immobile property. Therefore, if the defendant pleads that time was of the essence of the contract, the burden is on him. Then despite the amendment brought to section 16 by the recent amendment, the need to establish readiness and willingness is still there. Plaintiff need not, however in the plaintiff, he was always ready and willing to perform as part of the contract, but he has still to establish that. Then of course, whether what is the effect of the deletion of section 20, substitution of section 20, it is a different aspect of the matter. Assuming that there is a case which relates to an agreement which was executed prior to the amendment, recently the Supreme Court has said, if it is a suit for specific, if it is a suit for specific requirements in relation to an agreement which came into existence prior to the amendment, no, you can't apply it in event. So, Supreme Court has also said under section 20, hardship has to be pleaded by the defendant. Then in the case of suits for invention, if it is an agricultural land or a building, proving possession is easy. So, neighbors can be examined. In the case of agricultural lands, parties in that is revenue records should be there. In the case of building also, Dhaka would be there or neighbors can be examined. The difficulty arises in the case of a house site because no evidence of actual possession can be given. There the presumption that possession follows title will have to be applied there in such situations. Though the suit is for invention, incidentally the plaintiff has to establish his title if it is a suit in respect of a vacant site because there is no way by which actual possession can be established. Maybe an year back or two years back when I spoke about trial of suits for declaration of title, invention and possession, I have drawn the attention of the audience to the judgment of justice, Ravindran in Anathulla or Sarathulla or Sudhakar versus Gujji Reddy. Please read that judgment. It will be really an enlightening judgment. Then in a suit for mandatory invention, pleading encroachment, better get a commissioner appointed have already told you that the evidence and the approach that the commissioner cannot be lightly ignored. In the case of declaration of title, invention and possession, title cannot be proved by examining any number of witnesses unless it is a case of adverse possession and the basis of the title will have to be clearly pleaded. If the title of the plaintiff's vendor is also denied, the plaintiff should examine how his vendor got denied. Then plea of adverse possession by the defendant. Then there is one concept thought just tertiary. Defendant does not admit that the plaintiff is the owner. He does not say that he is the owner. He says that someone else is the owner. Plaintiff says he is the owner. Defendant does not admit that the plaintiff is the owner. He does not say that he is the owner. He says that someone else is the owner. This is called a plea of just tertiary, setting up title in others. So here is a case where the defendant says that the property belongs to someone else. Suddenly the burden is on him because the plaintiff would have produced some documents probabilizing his title. Then, as I have already said, when the title of the vendor is denied, it is necessary to show as to how the plaintiff's vendor got title. Then suits for partition. When the relationship is admitted, there is no problem. When the relationship is not admitted, you will have to give that evidence which has been declared to be relevant under section 50 of the Evidence Act. Evidence of persons would have known about the relationship. You go to your friend's house. Your friend introduces some ex-advice in there as his parents. You have frequently gone there. You will just accept it. You have not attended the plaintiff's marriage. You have not attended the marriage. Nothing. But you just plaintiff introduces some woman in his house as his spouse. You will accept it. This is not opinion evidence. If there are documents of adoption deeds, school records, medical records, showing the names of the persons, how they are related, fine. Otherwise, oral evidence as covered by section 50. And I do not know the practice elsewhere in the country. But in our state, there is the practice of producing a genealogy in suits for partition as though it is a very valuable piece of evidence to establish genealogy. Lawyers know and judicial officers know. What is this genealogy? Plaintiff, before he fights the suit for partition, goes to the Revenue Inspector or the village accountant and tells that he was his father. He was his grandfather. He was his great-grandfather. E-F-G are his brothers and sisters. And the village accountant or the Revenue Inspector meets an old there. Before me, he has stated so. Instead of this plaintiff going to the village accountant and Revenue Inspector swearing before him, let him swear before the court saying that this is the relationship. That genealogy, which you are producing in a partition suit, is useful to the court only to know what the genealogy is. It is not proof of genealogy. It is not proof of genealogy at all. See, there is a death register, birth register. They are all public documents. Certainly, those extracts would be relevant. They are invisible in evidence. This genealogy has absolutely nothing with the plaintiff's force and tells that village accountant, this is my genealogy. He is my brother. He is my father. It has absolutely no evidentiary value. It only helps the court. We can Mr. of producing the genealogy, which is illegible. We can put it, we can type it and give it in the plaint itself, put that genealogy in it. Then this is continued. And your case in a suit for partition should be very clear. Is it an ancestral property? Is it a giant family property? Or is it a property which the parties are plaintiff is claiming as belonging to his father or as belonging to his mother? Please see to whom the property, let there not be where plaintiffs say that it is ancestral producing some documents, admitting in trust examination, they have self-adquisitions that will not take you anywhere. So then lastly, how to present the case before the court? Now, I have told you that the evidence that by section 5 has declared has said, I have already declared through section 6 to 55, which are those facts are relevant. I have, I also inject the court from receiving any fact which I have not declared as relevant. Therefore, when you present the case, read only relevant portions of the pleading. Don't start reading the entire plaint or written statement. Read only the relevant portions of the depositions. Then it is not just reading you with a deposition that is sufficient. You will have to tell the court why the evidence of a particular witness cannot be believed or can be believed. You examine PwO2 to prove the execution of a document. You will draw the attention of the court. Exhibit P1 is this disputed document. It shows the name of PwO2 and 1 yet has its attest starts. I have chosen to examine PwO2. He has stated in the chief examination that in his presence the defendant executed this document. In the truss examination, this is what is elicited. Who was there? Who are all there? What was the color of the shirt which he was wearing? Where he was sitting? All unnecessary details as in a, even in a terminal case such truss examination is of no use, obviously of no use in a civil case. So therefore, please read only the relevant portions and tell the court as to why that evidence, if you are appearing for the plaintiff or appearing for the defendant, relying upon the evidence of a witness to prove a particular fact, attestation of the document, execution of the document, relationship with the parties, possession. You read the deposition, highlight only relevant portions in the truss examination and sometimes suggestions are made, denials are obtained. It is absolutely of no evidentiary value. Suggestions have to be made, otherwise you will be accepted in the version given in the chief examination. I have suggested he has denied, finished. It is of no consequence. If it is an admission, it is of some consequence. So, you will have to tell the court why the evidence of a particular witness can be believed or cannot be believed. And then don't just read the depositions in the order in which it is retarded in the court. The first issue relates to title. Who are the witnesses who can speak about title? Which are the documents which are relevant to prove that first issue? Take only those documents, take only those exhibits. Draw the attention of that court. The evidence of the attesting witness is material. Draw the attention of the court, his evidence only. Don't read the evidence of PWU-3 when you are arguing about issue number one which relates to title. Issue number two is with regard to position. There the evidence of PWU-3 may be material. Partition should, first issue is with regard to relationship itself. Why should you read some RTC extracts which show whether the properties are joint family properties or self positions? So, when you argue also refer only to relevant portions of the proceedings and depositions. So, with this I have done. I believe I have told things only relevant to the subject and the discussion and I am done. If there are any questions, welcome. Not with reference to any pending case. I am making it very clear that I am not giving any opinion in respect of any pending case. I have ceased to be a lawyer. I don't do it. I have still connections with the judiciary and it is improper for me to give any opinion to a lawyer in respect of a pending case. If I have got any doubt with regard to legal course, in that case you might save some clarification for a pending case. I am helpless, but don't tell me if that's the pending case or a case which you propose to find. No, that I can't. Though I have ceased to be a judicial officer, still I have maintained the dates and propriety. I don't want to give any advice to a lawyer in respect of a suit pending or a suit contemplated or a suit disposed of. Yes. This is what is the difference between a marking a document and exhibiting it? Are there any two different things mutually inclusive or exclusive? The question is this. Exhibiting means showing the document to the witness and the court saying this is a particular document. This is the same thing. You are exhibiting it. Then the court for purposes of its convenience gives a number P1, P2. The plaintiff has produced it. Number of documents he has produced. Therefore, marking only means for purposes of identification, the number is given. In Tamil Nadu, we say P1, P2. In Northern India, they don't say it as 1, 2, 3. They will just say P like this or exhibit one itself. So it is only for the purpose of convenience. Proof is different. Proof in the manner contemplated by the evidence said. Our document which requires attestation is to be proved and all that. Then witnesses deposed thoroughly and who is called by plaintiff doesn't provide any documentary or cooperative material. What is the extent the court shall rely on such an evidence? As I have already told you, in respect of title, absolutely no purpose would be served by examining number of witnesses who give oral evidence to title. There should be a document in support of the case of the plaintiff or the defendant if it is a question of title. Of course, whether the document requires registration, what is the evidentiary value, whether it is admissible in evidence, there are all different aspects of the matter. There should necessarily be a document. If it is an oral partition, if it is a case of possession, plaintiff is in possession or defendant is in possession. Or if it is a case of adverse possession, certainly oral evidence would be made in it. Even in the case of relationship, some villagers illiterate persons have not gone to school, there are no school records, they are not reporting the birth or death to the authorities concerned. Some close relatives may come and give evidence, oral evidence with regard to relationship. It all depends on how ultimately he has fared well in the transit examination. I predict myself has to know a particular ex. I don't give you evidence. I know he is the son of wife. In the transit examination, I used to say I do not know the names of the sisters of vets. I do not know the name of the mother of vets. I do not know where their house is. How much evidence can be accepted? So, it depends on what is elicited in the transit examination. That comes by experience. How to transit exam in a witness and all that. And I am not myself good at that because I used to be a lawyer in the year 1985. I am only appreciating the evidence. I am not leading evidence in any case. And therefore, to advise a lawyer in the matter of transit examination, I must honestly confess I am not good at that. But with my experience, I can tell whether what is elicited in the transit examination is sufficient or insufficient. And I don't believe in a class under the head art of transit. It has to come on its own. No amount of coaching can help in that regard. You will have to be present in the court. Watch the senior's transit examination. Of course, learned seniors who have good number of cases, you will have to watch there. Just don't go by their age. See whether he has got number of cases, how learned he is, how effective his transit. Read the judgments. Read the judgments. And then you will know how the court has appreciated evidence. What should have been the evidence given in this case. And by that, juniors will come to know as to what is to be. In fact, when I was a junior, a lawyer told me it is transit examination which is easy because you can put any question. In the chief examination, you have got restrictions because you can't put leading questions and all that. Well, if it was his experience, he said it. It comes by experience. Yes, next question. One plaintiff deposes on behalf of the other plaintiffs. Will the court call other plaintiffs to give evidence or excuse them? It depends upon the facts of each case, whether the case of both the plaintiffs is the same. On same set of facts, both of them have come to, usually it happens in the case of plaintiffs. Generally, there would not be conflict of interest between the plaintiff's intersect. Maybe the evidence of one plaintiff would be sufficient, but there are certain exceptions. Now, this takes us to the provisions of order one under order two CPC. I can't give word to detail. They, in effect, they do the situation. If different persons have similar causes of action against the same person, they can bring a common suit. I'll just give some one example. An agricultural land is converted into sites. The landowner has sold those sites to various persons. Let us say A and B. He denies their title or does not deliver possession or interferes with their possession. This A and B can bring a common suit, but A's declaration of title or injunction has to be confirmed only to item number one. B is the certain plaintiff. He sees declaration only in respect of item number two, surprise court fee and all that. Here, order two provides for such a suit being filed. Order one provides for a joiner of parties in such a situation. There the position may be different. Well, the defendant might admit the title of the first plaintiff. He might deny the title of the second defendant. Or there is nothing in the idrasic examination of the plaintiff, first plaintiff. Or the first plaintiff might have admitted everything because the first plaintiff is not able to show his possession. Both hands say that I rely only upon the evidence of his first plaintiff. So, evidence of the second plaintiff may also be necessary. Normally, it doesn't happen. Normally, as between the plaintiffs or amongst the plaintiffs, there would not be conflict of interest cases are raised. But amongst the defendants, there would be that conflict of interest. Depending upon the case, whether the evidence of a particular plaintiff can be accepted as the evidence on behalf of all, certainly that could be done. In family court, is it necessary to get compared voice of the wife and husband in the cases of all-fall conversations between husband and wife in divorce case? Normally, in the family matters, it is the spouses who know what has actually happened between them. It is not a case of 304 PIPC where the victim is not available or alive to give evidence. Necessarily, the court has to rely upon the evidence of her parents or dying declaration. But in family matters where they see the divorce and other things, where cruelty and other factors are pleaded, some dispute, some problem with regard to visual relationship but all that. Necessarily, the evidence of the parties who have not able to give the exact provision with family courts that it says that the court can insist on the presence of the parties also in family matters. Even in order three CPC, it is there. In order three CPC also, though it says that four of attorney voters can be examined, the court may in its description fall apart. I think that somewhere in order three, it is stated provided that any such appearance shall in the court so directs be made by the party in person. So normally, it is advisable in family matters to examine the parties themselves. Are there any grounds for specific performance where it can be disposed at the stage of institution? At the institution. Well, as far as I am concerned, the question is, no, there is a present trend of filing applications under order 7 rule 11 for rejection of the point. Plaint can be rejected only in that six or seven situations provided in order 7 rule 11. The most frequently involved are 7 rule 11 A and 7 rule 11 D. When the plaint does not disclose of the cause of action or when an government made in the plight, the suit appears to be barred by any law. Very rarely such situations arise. Therefore, the court will have to be too slow in dismissing the suit or in the extreme case where the plaintiff has no cause of action at all. A daughter or a son or a wife files a suit against a man who is living for partition, anticipating that he would die soon and they would get a share. No, that is not what will be done. Plaint is liable to be rejected then and there. When an accused contends that he borrowed an amount lesser than the amount shown in the check, can you be a little, I did not catch the question. I am also saying that there is some echo. When an accused contends that he borrowed an amount lesser than the amount shown in the check, can the provisions in section 91 and 92 be applied against him? I will have to examine that but anyway, today's subject is appreciation of evidence in civil cases. We are speaking of a case under 138 of the NIA. I will have not in touch with the recent decisions under 138. Maybe it requires some examination. I cannot straight away give an answer for it. Could you clarify when the defendant denies the Jural Relationship and Rent cases? What can be done? When the defendant denies the Jural Relationship in Rent matters, certain little port which is required to give a degree of business to this suit has to examine whether the Jural Relationship exists. The plaintiff cannot be driven to a separate suit to establish the Jural Relationship. The first issue is whether the plaintiff proves the existence of the Jural Relationship, whether he proves that the rate of rent. Of course, once the Jural Relationship is denied, obviously the defendant cannot say that that is not the rate of rent that happened to the entire rent. Certainly, the suit deserves to be degree. So, the evidence with the plaintiff has to give is if there is a rent agreement, well and good. If there is no rent agreement, rent receipts. If neither of them is available, maybe oral evidence of the neighbors, very difficult to prove that. But here again there is one thing under 114 of the Evidence Act, it says, without being had to the common force of natural events, human content, public and private business, the court may pursue the existence of certain facts, may pursue. Now, I will give a simple example. The plaintiff says that the defendant is his tenant. He is his eviction rate. Defendant admits his occupation. He denies that he is a tenant. When the defendant denies tenant, he should say in what capacity is in possession of that property? Is he in possession under the agreement of sale executed by the plaintiff? Is he a licensed under the plaintiff? Or is the property his ancestral property? If he simply says that I am not a tenant and the possession is proved or admitted, what is the inference that can be drawn? A person can be in possession of a property either as a owner, or as a tenant, or as a mortgagee, or in an agreement of sale. In all those situations, some document is required. To prove an oral tenacity, obviously, there cannot be a document. Common sense would tell, you are in possession, you don't claim ownership, you don't dispute plaintiff's ownership. The only inference that can be drawn is that you are in possession as a tenant. 114 of the Evidence Act says, regard being had to the common force of natural events, human content, public and private visitors. So, there are a good number of illustrations worth in relation to criminal cases and civil cases. Well, if we get an arctic word to draw the presumption, it's a discretionary presumption. A judge has to exercise a sound description as to necessarily accept your argument. To invoke pecuniary jurisdiction in a partition suit, is it the value of the plaintiff's share or the whole property share? It depends upon the local court fees and suits valuation act. I am not aware of the provisions of the court fees act of other states. I am only aware of the provisions of the Karnataka court fees and suits valuation act. With regard to partition section 37 of the Tamil Nadu court fees and suits valuation act, it is in very material with section 35 of the Karnataka act. Now, it says in a partition suit, if the plaintiff says that he is in joint possession and enjoyment, the court has to simply accept it and permit him to pay court fee as provided under 35 to, the maximum is 200. There are similar provision under the Tamil Nadu court. If the plaintiff himself says that he is excluded from possession, then the court fee has to be paid under 35 to, depending upon the market value. Here, there is one thing. If it is an urban property, actual market value under the Karnataka court fees and suits valuation act, if it is an agricultural land, depending upon the land revenue. Then on the plaintiff's share, it is on the plaintiff's share. 35 to 35 to, they have both speed of plaintiff's share. With regard to pecuniary jurisdiction also the same thing on the plaintiff's share. Unless, of course, the local enactment makes some difference. This is, sale deed has been executed and GPA, and can GPA be entitled to register the property next day in case of the death of the principal? Whether it is, no, nothing. If he dies, nothing, the court of Patapani goes with his death with the death of the principal. Now, what is the difference between the rejection of a plaint and the dismissal of a suit? Rejection of a plaint is covered by order 7 rule 11. Only that six or seven contingencies, as I said, the main important are A and D, where it does not disclose the cause of action, or where the suit appears to be barred by any law from an government made. Dismissal, it happens in several situations. When the plaintiff does not turn up for the court, the suit is dismissed. If the plaintiff abandons the client, the suit is dismissed under order 23 rule 1. Or on merits, the court finds that after dismissal, a D3 is drawn. Of course, order 7 rule 11 also says rejection of the plaint amongst a D3. For rejecting the a plaint under order 7 rule 11, no issue need to be framed. No evidence need to be given. Only the plaint alone has to be looked into. Of course, the Supreme Court has said some documents produced by the plaintiff also can be looked into. No question of looking to the written statement. No question of looking to the defense of the defendant if it is rejection of the plaint under order 7 rule 11. Rejection is contemplated by order 7. Dismissal is contemplated by order 20 after contest. Default order 9, 7, 9 and 20. Of course, 23 also contemplates dismissal if the plaintiff abandons the suit. Abandonment withdraws simple procedure 23 rule 1. If the plaintiff has got an expatriate order by showing a forced general power 20 by impersonation in a lower court, does it amount to perjury? It is slightly. If it is a forwarded document, certainly the plaintiff is liable to be prosecuted under the relevant provisions of the Indian penal court following the relevant provisions of CRPC. 195 CRPC, 340 to 345 or 6. Those provisions will have to be involved. It is certainly a fit case where the court also does it and the attention of the court is also drawn to those provisions. If on a forwarded document, let alone a power of attorney, any forwarded document that the plaintiff or the defendant is liable to be proceeded at least under the relevant provisions of the Indian penal court, I am right now not able to give you the exact sections of the Indian penal court. So the last question, what is the difference between a disposal of a suit and dismissal of a suit? Disposal of a suit. So disposal, it has got several modes of disposal. In fact, here again Justice R. V. Rabindran in one judgment has said which are the various modes by which a suit gets disposed of. Order 7, rule 11, flight is rejected, suit is disposed of. Then order 9, when the suit is disposed for non-prosecution, 23, rule 1, when the plaint suit is abandoned or suit is withdrawn with liberty to file a fresh suit, again under 23 compromise by judgment. So disposal of a suit is that. So and dismissal in particular or merits also it could be dismissed, by default also it can go, by withdrawing simplicity or it can go. Yes, anything else? On the WhatsApp, on the chat box it is done. I am just checking it out on the YouTube because mainly we have taken from the USN. This is can a Xerox copy of the will or a gift deed will lead into evidence if the original is lost. Well, section 65 of the evidence that provides as to when secondary evidence has to be given. Foundation has to be laid in the witness box as to what has happened to the original. Of course in the cross examination it is open to the opponent to show that the original is really not lost or described deliberately the plaintiff or the defendant is suppressing it. But foundation has to be laid by the party who leads secondary evidence as to what has happened to the original. That is provided by section 65 of the evidence set. So six or seven situations are contemplated where secondary evidence can be laid. Yes sir. So thank you for sharing your insights and on behalf of the team of Beyond Law CLC we would like to share that we have got the highest views on the YouTube for today's sessions of so many we have done more than 550 but today it has garnered the maximum views online. So congratulations for sharing your knowledge and thank you to all the participants who have been encouraging us and encouraging the speakers to bring the best speakers but if you kindly like subscribe and share that will also encourage the speakers to bring there and share their more knowledge. Thank you everyone. Stay safe. Stay blessed. Namaskar. My special thanks to two judicial officers from Tarnadaka. I don't want to name them and cause embarrassment to them. I had to send the links to them and of course to one of them I sent the link. Usually I thought that I should send a link to her also because I'm going to be a good judicial officer. Today morning I included her name also in the list of the officers to whom I am sending the link. The other officer he usually sits here. I'm seeing their faces here. My special thanks to both of them and to my knowledge both of them are good honest and hardworking judicial officers. I hope that they will continue to be so. Thank you.