Ajit Singh vs Sajjan Singh and others

S.D. Bajaj, J.—Mann Singh father of defendant-respondent Sajjan Singh owned 23 Kanals 2 Marias of land comprised in Khewat No. 35 Khatauni No. 47, Khasra No. 20-M/13/2 (12-24), 17/2(0-6), 18(8-0), 19(8-0) and 20(4-2) situated in village Behak Walait Shah tehsil Zira district Ferozepur. After his death, the land devloved in equal undivided 1/4th share each on his four sons named Sajjan Singh, Bhagwan Singh. Sarabjit Singh and Attar Singh. Three out of the four sons of Mann Singh migrated to Uttar Pradesh while Sajjan Singh alone stayed back in the village. Two of his brothers Sarabjit Singh and Attar Singh executed general power of attorney Exhibit P.2 in favour of Sajjan Singh on June 16, 1977 which was registered on June 23, 1977. Sajjan Singh entered into agreement Exhibit P. 1 with plaintiff appellant Ajit Singh for the sale of the entire land aforesaid for Rs. 17,000/-, obtaining Rs. 5,500/- as advance, put the intending purchaser in actual physical possession of the land and agreed to get the balance of Rs. (sic) before the Sub Registrar at the time of the execution of the sale deed on July 15, 1977. The bargain did not go through as envisaged in the agreement of sale. Intending purchaser Ajit Singh, therefore, filed civil suit No. 86 on July 15, 1980 for specific performance of the agreement of sale. In the alternative a claim for recovery of Rs. 17,000/- as damages for its non-performance was also made therein. Inspite of substituted service the defendants did not appear and were, therefore, proceeded against ex-parte vide order dated February 6, 1981 of the learned trial court.

In its ex-parte judgment and decree dated October 6, 1981 learned trial court declined to plaintiff-appellant Ajit Singh the relief of specific performance and granted to him a decree for Rs. 5,500/- with interest thereon at the rate of 12 per cent per annum from the date of payment of the earnest money viz. June 23, 1977 till the date of the realisation of the decretal amount. In Civil Appeal No. 172 of 1981 decided on November 6, 1982 learned lower Appellate Court affirmed the exparte decree awarded to plaintiff-appellant by the learned trial court. Hence R.S.A. No. 61 of 1983 in this Court.

I have heard Shri Ravinder Choppra, Advocate, for the appellant, Shri H.S. Gill, Advocate, for the respondents and have gone through the record of proceedings before the learned two courts below very carefully.

The main reason assigned by the learned two courts below for declining to plaintiff-appellant the relief of specific performance of the agreement of sale dated June 23, 1977 is that the general power of at (sic) Exhibit P.2 allegedly executed by Sarabjit Singh and Attar Singh his other two brothers in favour of Sajjan Singh was not duly proved, that in the absence of evidence of due authority, learned courts below did not deem it desirable to decree the claim for specific performance of the agreement of sale in respect of 1/4th share of Sajjan Singh alone on payment of the entire consideration of Rs. 17,000/. The reasoning afforded is in no way legal. As held in Md. Saimuddin Seikh v. Abjuddin Sheikh AIR 1979 Gau. 14, certified copy of the registered general power of attorney Exhibit P. 2 is a public document within the meaning of section 74(2) of the Indian Evidence Act and could, therefore, be admitted in evidence to prove the contents of the original in terms of section 77 of the Indian Evidence Act. Relevant observations read:-

In my opinion, the copy of the sale deed which was maintained in the Sub-Registrar''s office is a public document within the meaning of S. 74(2) of the Evidence Act which reads as follows:-

The following documents are public documents:-

(1)....

(2) Public records kept in any State of private documents.

It is indisputable that the sale deed in question is a private document. It is also indisputable that the record of the sale deed kept in the office of the Sub-Registrar is a public record of that private document and hence it falls within the category of ''public document''. Section 77 prescribes the mode of proving a public document. It provides:-

Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

It is not disputed that Ext. ''Cha'' is a certified copy of the sale deed executed by Syed Ali in favour of Johiruddin. It, therefore, could not be argued that Ext. ''Cha'' is not admissible in evidence.

That apart, when this deed, Ext. ''Cha'' was proved by D.W. 2, it was admitted without objection by the plaintiff. Their Lordships of the Supreme Court in Javer Chand and Others Vs. Pukhraj Surana, have observed:-

Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses....it is not open either to the trial Court itself or to a Court of Appeal or Revision to go behind that order.

In AIR 1972 S.C 603 their Lordships observed:

It is not open to a party to object to the admissibility of documents which are marked as exhibits without any further objection from such party.

The above two decisions of the Supreme Court clinch the point. It must, therefore, be held that the learned lower appellate court committed an error in holding that Ext. ''Cha'' was not admissible in evidence and thus reversing the judgment and decree of the trial court.

Defendant-respondent Sajjan Singh being possessed of the authority to sell undivided 3/4th share of the land agreed to be sold, learned trial court as also learned lower Appellate Court could certainly in terms of the observations made in Rakesh Kumar v. Sat Pal (1986-2) 90 P.L.R. 214 (F.B.), pass decree for specific performance of agreement of sale qua this 3/4th undivided share aforesaid and, therefore, erred in declining the prayer made in the appeal in to. Assailed judgments and decrees of the learned two courts below thus deserve to be reversed on this score.

In result the appeal succeeds and is allowed, the assailed judgments and decrees passed by the learned courts below are both set aside and the case is remanded to the learned trial court for fresh decision according to law. Parties through their learned counsel have been directed to appear before the learned trial court on September 15, 1988.