Jamuna Prasad and Others vs Shivnandan and Others

Hon''ble Mr. R.S. Jha, J.—This second appeal has been filed by the appellants being aggrieved by the judgment and decree dated 17-8-1994 passed in Civil Appeal No. 7-A/91 by the First Additional District Judge, Satna affirming the judgment and decree dated 31-8-1984 passed in Civil Suit No. 26-A/1984 by the First Civil Judge Class II, Satna decreeing the suit filed by the respondent Nos. 1 and 2 plaintiff.

The brief facts, leading to the filing of the present appeal, are that the deceased respondent No. 3 (who is now represented by his legal representative) Gopal @ Ramgopal Ahir was the owner of the suit land bearing Khasra No. 54 (New Khasra No. 54/2) area 5 acres and Khasra No. 55 area 0.80 acre of Village Kakraad, Choubeypur, Tehsil Raghurajnagar, District Satna. It was alleged in the plaint by the plaintiff/respondent Nos. 1 and 2 that the said land was sold by Gopal to them by a registered sale-deed dated 2-8-1967 for a consideration of Rs. 4,000/-and possession thereof was also handed over to them. However, subsequently, the appellants who were defendant Nos. 2 and 3 in the suit took forcible possession of the land from the plaintiff/respondent Nos. 1 and 2 sometime in the year 1976. It was also stated that in the meanwhile there was some dispute regarding mutation of the land which was also agitated and pursued before the Revenue Authorities by the appellant No. 4 defendant and Gopal as the appellant No. 4 Jamunia claimed half share of the property. It was alleged that as forcible possession of the land was taken over by appellant No. 1, therefore, a suit for declaration of title, possession, permanent injunction and mesne profit was filed by the plaintiff/respondent Nos. 1 and 2 before the Trial Court.

The defendant No. 1 vendor, Gopal did not file a written statement in spite of service and was, therefore, proceeded ex parte while the defendant Nos. 3, 4 and 5 filed a written statement and opposed the claim of the respondent Nos. 1 and 2 plaintiff and it was stated that the possession of the property in question had always been with the defendants but was wrongly recorded in the name of the plaintiff/respondent Nos. 1 and 2 in the year 1967-68 in respect of which the matter was taken up before the Revenue Authorities who decided the same against the respondent No. 1 plaintiff. It was also contended that the defendants had in fact purchased part of the property from Jamunia, sister of defendant No. 1 on 18-7-1972, who was the joint owner of the property and thereafter obtained possession of the property. It was also contended that the alleged sale deed in favour of plaintiff/respondent Nos. 1 and 2, dated 2-8-1967 was also void as the defendant No. 1 Gopal had no right or title to sell the same.

It is pertinent to note the fact that though the defendant No. I Gopal did not file a written statement and was proceeded ex parte, he was produced as a witness by the defendant and has been examined as D.W. 4 and in his statement he has denied the execution of the sale deed or the fact that he had ever sold the disputed property to respondent Nos. 1 and 2/plaintiffs and has also stated that he has no knowledge about the sale-deed.

The Trial Court, on analysis of the evidence and the documents on record, decreed the suit filed by respondent Nos. 1 and 2 plaintiffs holding that they had acquired title over the land on the basis of the sale-deed dated 2-8-1967. The appeal, filed by the appellants, also suffered dismissal as the First Appellate Court affirmed the findings recorded by the Trial Court and confirmed the judgment and decree, being aggrieved by which, the appellants have filed the present appeal.

It is contended by the learned Counsel for the appellants that the respondent Nos. 1 and 2 plaintiffs did not produce the original sale deed but have filed a certified copy of the same which has been taken on record by the Trial Court on the ground that it is a public document in spite of an objection by them. It is further urged that in the absence of laying any foundation for not producing the original sale-deed, the certified copy could not have been taken on record nor could the suit be decreed by the Courts below as the respondents failed to prove the sale-deed. It is also contended that the suit was in fact barred by limitation which issue has also not been addressed rightly by the Courts below.

The learned Counsel for the respondent Nos. 1 and 2per contra, submits that the documents produced by them, Exh. P-12, is a certified copy and has, therefore, rightly been taken on record in view of the provisions of the Indian Evidence Act, 1872 (hereinafter referred to as ''the Evidence Act'') and the Registration Act, 1908 (hereinafter referred to as ''the Registration Act''). It is also contended that as the document in question was a certified copy of the sale-deed, therefore, it could have been taken on record without laying any foundation for the same or obtaining any permission to adduce secondary evidence in this regard. It is also contended that as the suit, filed by them, was basically for possession, the same was within time and the findings recorded by the Trial Court and the Appellate Court in this regard being in accordance with law, do not warrant any interference.

This second appeal, filed by the appellants, was admitted for hearing on the following substantial questions of law :--

(i) Whether the Court below erred in taking into consideration the sale-deed on the ground that it was a public document though that sale-deed was not filed and no permission to adduce secondary evidence in this regards sought ?

(ii) Whether the suit filed by the respondent was within limitation ?

In addition, with the consent of the learned Counsel for the parties, the following additional substantial question of law is also framed by this Court in the present appeal :--

(iii) Whether in the absence of proof of execution of the sale-deed the suit filed by the respondent plaintiff could have been decreed by the Courts below ?

The learned Counsel for the parties have argued extensively on the aforesaid substantial questions of law as well as on the additional question of law.

The question as to whether the certified copy of the sale-deed (Exh. P-12), could have been taken into consideration on the ground that it was a public document can be properly adjudged only on an analysis of the relevant statutory provisions namely Sections 64, 65, 74, 75, 76 and 79 of the Indian Evidence Act, 1872 and Sections 51 to 57 of the Registration Act, 1908.

Sections 64, 65, 74, 75, 76 and 79 of the Evidence Act, are in the following terms:--

Proof of documents by primary evidence.-- Documents must be proved by primary evidence except in the cases hereinafter mentioned.

Cases in which secondary evidence relating to documents may be given.-- Secondary evidence may be given of the existence, condition or contents of a document in the following cases :--

(a) When the original is shown or appears to be in the possession or power--

of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily moveable;

(e) when the original is a public document within the meaning of Section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a); (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

Public documents.-- The following documents are public documents :--

(1) Documents forming the acts, or records of the acts-

(i) of the sovereign authority,

(ii) of official bodies and the Tribunals, and

(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;

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

Private documents.-- All other documents are private.

Certified copies of Public Documents.-- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

Explanation :-- Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

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

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

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

Sections 51, 52, 55 and 57 of the Registration Act, 1908 are in the following terms :--

Register-books to be kept in the several offices.-- (1) The following books shall be kept in the several offices hereinafter named, namely :--

A-- In all registration offices,--

Book 1, "Register of non-testamentary documents relating to immovable property",

Book 2, "Record of reasons for refusal to register",

Book 3, "Register of wills and authorities to adopt", and

Book 4, "Miscellaneous Register".

B-- In the offices of Registrars-

Book 5. "Register of deposits of wills.

(2) In Book 1 shall be entered or filed all documents or memoranda registered under Sections 17, 18 and 89 which relate to immovable property, and are not wills.

(3) In Book 4 shall be entered all documents registered under clauses (d) and (f) of Section 18, which do not relate to immovable property.

(4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a Sub-Registrar.

Duties of Registering Officers when document presented.-- (1) (a) The day, hour and place of presentation, the; photographs and finger prints affixed u/s 32-A, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;

(b) a receipt for such document shall be given by the Registering Officer to the person presenting the same; and

(c) subject to the provisions contained in Section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.

(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.

Indexes to be made by Registering Officers, and their contents.-- (1) Four such indexes shall be made in all registration offices, and shall be named, respectively, Index No. I, Index No. II, Index No. III and Index No. IV.

(2) Index No. 1 shall contain the names and additions of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No. 1.

(3) Index No. II shall contain such particulars mentioned in Section 21 relating to every such document and memorandum as the Inspector-General from time to time directs in that behalf.

(4) Index No. III shall contain the names and additions of all persons executing every will and authority entered in Book No. 3, and of the executors and persons respectively appointed thereunder, and after the death of the testator or the donor (but not before) the names and additions of all persons claiming under the same.

(5) Index No. IV shall contain the names and additions of all persons executing and of all persons claiming under every document entered in Book No. 4.

(6) Each Index shall contain such other particulars, and shall be prepared in such form, as the Inspector-General from time to time directs.

Registering Officers to allow inspection of certain books and indexes, and to give certified copies of entries.-- (1) Subject to the previous payment of the fees payable in that behalf, the Book Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all times open to inspection by any person applying to inspect the same; and, subject to the provisions of Section 62, copies of entries in such books shall be given to all persons applying for such copies.

(2) Subject to the same provisions, copies of entries in Book No. 3 and in the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies.

(3) Subject to the same provisions, copies of entries in Book No. 4 and in the Index relating thereto shall be given to any person executing or claiming under the documents to which such entries respectively refer, or to his agent or representative.

(4) The requisite search under the section for entries in Book Nos. 3 and 4 shall be made only by the Registering Officer.

(5) All copies given under this section shall be signed and sealed by the Registering Officer, and shall be admissible for the purpose of proving the contents of the original documents.

It needs no emphasis to state that transactions envisaging transfer of immoveable property of the of the value of more than Rs. 100/- are required to be compulsorily registered in view of the provisions of Sections 2(6) and 17 of the Registration Act and in the absence of such a registration the documents cannot be received as evidence of any transaction effecting such property. The manner of registration of documents is clearly prescribed under Sections 51 to 57 of the Registration Act, which have been reproduced above. A conjoint reading of the aforesaid provisions makes it clear that the Registering Officer shall, after registering documents allow inspection of the books and indexes and give certified copies of entries made therein. Section 57(5) of the Registration Act lays down that all certified copies issued under the provisions of Section 57 shall be issued under the signature