Haricharan and Others vs Kaushal and Another

Dhirendra Mishra, J.—Heard on admission.

The appellants have preferred this Second Appeal u/s 100 of the Codeof Civil Procedure, 1908, against the judgment and decree dated 6-2-2002 passed by the Additional District Judge, Janjgir in Civil Appeal No. 31-A/97 whereby the learned Additional District Judge has set aside the judgment and decree dated 15-3-1997 passed by the 2nd Civil Judge Class-II, Janjgir in Civil Suit No. 327-A/94 whereby the suit preferred by the respondents was dismissed and accordingly decreed the suit of the plaintiff. This second appeal has been preferred by the appellants on the following substantial questions of law:

(i) Whether the Lower Appellate Court has properly considered the provisions of Section 68 of the Evidence Act ?

(ii) Whether a document is proved without there being any examination of the attesting witness thereof ?

(iii) Whether the Lower Appellate Court was justified in reversing the judgment and decree of the Trial Court ?

(The parties hereinafter shall be referred to as per their description before the Trial Court)

The plaintiffs case before the Trial Court was that the suit land earlier belonged to one Manau Ram who sold the same on 7-6-1954 to Jwala Prasad in the name of his sons. Thereafter, Jwala Prasad by way of registered sale deed, transferred the same on 13-5-1965 in the names of Shyamlal and Lallu; and Shyamlal and Lallu through the registered sale deed on 3-3-1970 transferred the suit land to the plaintiff and handed over the vacant possession. It is further averred that the land in question comprised on 58 decimal, out of which 5 decimal land was transferred to the plaintiff and Manau Ram transferred the remaining 53 decimal of land to Shyamlal and Lallu in the year 1962, who in turn sold the same to the defendants. The defendants in written statement denied the averments of the plaint and claimed that Shyamlal purchased 58 decimal of land vide registered sale deed dated 18-4-1962 and the same was purchased by him through the registered sale deed on 24-1-1974. Since then he is in possession. The allegation of forcible dispossession of the plaintiff by the defendants has been denied. On the basis of the pleading of the respective parties, issues were framed and the Trial Court dismissed the suit by recording a finding that the plaintiff is not the owner of the suit land and he is not entitled to recover his damages and he is also not entitled for declaratory relief of title nor he is entitled for a decree of possession and accordingly the suit was dismissed.

The plaintiff preferred the civil appeal against the judgment and decree of the Trial Court, and the Appellate Court by the impugned judgment and decree, decreed the suit in the following terms:

(i) That, the plaintiff is owner of the suit land bearing Khasra No. 3552/4 area 0.05 acre;

(ii) The plaintiff shall be entitled to recover the possession of the suit land from the defendants.

The learned Trial Court dismissed the suit with a finding that the document Ex. P-2 being the sale deed executed by Shyamlal and Lallu in favour of the plaintiff has not been proved in accordance with law as no attesting witness to the said document has been examined by the plaintiff and even the sale deed Ex. P-1 in favour of the Shyamlal and Lallu has also not been proved in accordance with law as per Section 68 of the Evidence Act, to prove any document, examination of attesting witness is a must. However, this finding has been reversed by the Appellate Court with the observation that as per Section 68 of the Evidence Act, to prove a document, it is necessary that the same should be proved by examining at least one attesting witness. However, it would not be necessary to call the attesting witness to prove the document where the executant of the sale deed does not dispute the execution. Placing reliance in the judgment of the Supreme Court in the matter of Smt. Hans Raji Vs. Yosodanand, , Appellate Court has arrived at a conclusion that where the document is not a Will and has been registered as per Indian Registration Act, 1908, it would not be necessary to prove the document in accordance with Section 68 of the Evidence Act unless the executant of the document denies the execution.

learned Counsel for the appellant submits that the Appellate Court was not justified in reversing the well reasoned judgment of the Trial Court as from a bare perusal of the statement of P.W. 1 Jwala Prasad, it would be evident that he transferred the property of his minor children in the name of Shyamlal and Lallu without seeking any permission and the same transfer was void. Similarly, he disputed the transfer effected by Shyamlal and Lallu vide Ex. P-2 in favour of the respondent/plaintiff on the ground that though the executant Lallu has been examined by the plaintiff, but he has himself said that deed was executed by his father Shyamlal and, therefore, the Court below was right in holding that the document of Ex. P-2 has not been proved in accordance with law and, therefore, the substantial questions of law as proposed above arise for adjudication of the second appeal.

From the pleading of the respective parties and from the perusal of the document Ex. P-2 being the sale deed executed by Shyamlal and Lallu and document Ex. D-l executed by Shyamlal in favour of the defendants, the admitted position emerges is that at the relevant time, the owner of the property were Shyamlal and Lallu and there is no dispute about it. There was no evidence available on record that the vendors i.e., Shyamlal and Lallu at any point of time disputed execution of deed of Ex. P-2 in favour of the plaintiff. On the other hand, one of the executants was examined as witness and he deposed that he executed along with his father in the year 1970 and handed over the possession of the suit land to the plaintiff. Admittedly, the document Ex. D-l has been executed in the year 1974, i.e., 4 years after the execution of first deed and that has also been executed by Shyamlal therefore, the finding of the Trial Court that the deed of Ex. P-2 has not been proved in accordance with Section 68 of the Evidence Act is contrary to the provisions of Section 68 of the Evidence Act and the Appellate Court has rightly set aside the judgment of the Trial Court by relying upon the document Ex. P-2 and accordingly decreed the suit of the plaintiff.

On the basis of the aforesaid discussions, this Court is of the opinion that the impugned judgment and decree passed by the learned First Appellate Court is based on correct appreciation of law and no substantial question of law as proposed by the appellant arises for adjudication of this appeal. The appeal being devoid of substance deserves to be dismissed at the admission stage itself and the same is dismissed. However, there shall be no orders as to cost.