Koohardi Oraon vs Faru Oraon and others

S. B. Sinha, J.—This second appeal is directed against a judgment and decree dated 11.6.1981 passed by Shri R. K. Singh, Vlth Additional Judicial Commissioner, Ranchi in Title Appeal 91/6 of 1980/81, whereby and whereunder the said learned court affirmed the judgment and decree dated 6.5.1980 passed by Shri N. K. Kanth, Munsif, Gumla in Title Suit No 22 of 1973 decreeing the plaintiff''s respondent''s suit. The fact of the case lie in a very narrow campass.

One Deba Oraon was admittedly the owner of the properties in suit.

The said Deba Oraon had two wives Suni Orain and Changa Orain. Deba Oraon through his first wife had a son namely Bandhna Oraon whereas he had daughter through his aforementioned second wife Bandhani Orain. Bandhani Orain was married with one Mitku. She had two sons who are plaintiff Nos. 1 and 2. Bandhana Oraon allegedly left the village and went to labour in district of Assam.

According to the plaintiff, Deba began taking assistance from Mitku in cultivation of the lands and ultimately married his daughter with him.

Plaintiff''s case is that the lands as described in Schedule B of the plaint was gifted by Deba Oraon to Mitku and some other lands were gifted to Changa Orain. It is alleged that Bandhana Oraon returned to the village before Revisional Survey Settlement operation and began cultivation of the lands in suit jointly with Mitku. It is also alleged that thereafter a deed of compromise (Ext. 4) was entered into by and between Bandhana and Mitku as a result whereof 14 Kiyaries of don lands were given to Mitku. In the Revisional Survey record of rights (Ext. 1) the name of Bandhana was recorded in respect of all the lands including the said 14 kiyaries. According to the plaintiffs, the said entry was made owing to negligence on the part of Survey Authorities although Mitku had been in possession thereof.

It is also alleged that the lands gifted to Chango (second wife to Deba) was also being caltivated by Mitku during her life time and after her death, possession thereof was taken over by her dauchter Bandhni Grain who got the lands cultivated by her husband and plaintiff nos. 1 and 2.

It is stated that Bandhni Orain died in the year 1970 and thereafter the lands in question were taken in possession by plaintiff nos. 1 and 2 and proforma defendant no. 2.

It is further the case of the plaintiffs that Bandhna died issueless and upon his death, the properties in his possession also vested in the plaintiffs and the proforma defendant No. 2.

It is further alleged that defendant no. 1 alleging himself to be the adopted son of Bandhna filed an application for mutation of his name in the office of the State of Bihar. The said purported adoption is allegebly evidenced by a registered deed of adoption dated 17.3.1969 (Ext. B).

The plaintiffs filed an objection to the aforementioned application for mutation filed by the defendant no. 1 which was rejected and the application for mutation was allowed by the Circle Officer (Ext. C). The plaintiff''s further case is that though they are members of the Schedule Tribes but are governed by Mita-kshara School of Hindu Law.

The defendant no. 1, on the other hand, alleged that the parties are governed by their own customary law. The defendants denied possession of any land whatsoever by Miktu or his sons and wife as alleged by the plaintiff. The defendant no. I further denied the purported compromise by and between Bandhna and Mitku in the year 1928 (Ext. 4).

It has been asserted in the written statement that the lands in suit were recorded in Sikmi Khatas 7 and 8. It has further been asserted that the defendant no. 1 has been in possession of the lands in question by reason of his having been adopted by Bandhna.

The learned trial court framed as many as eleven issues and upon consideration of the evidences on record, decreed the plaintiff''s suit in part. The learned trial court held that Bandhna had been in possession of the suit lands except plot Nos. 648 and 650. He further found that so far the Sikmi Khatas recorded in the name of Changa Orain is concerned, after her death they might have come in possession of plaintiff Nos. 1 and 2 and proforma defendant no. 2. The learned trial court further did not accept the plaintiff''s version that they had been in possession over 1/2 of the lands known as Thakchi don. He further did not rely on the compromise deed

However, it found that there was no cause of action for a preliminary decree in respect of the lands described in Schedule V of the plaint. He further held that the defendant no. 1 had not been adopted by Bandhana Oraon. On appeal, the appellant, before the learned lower appellate court pressed issue no 7 only. The said issue runs thus :--

Is the deed of adoption dated 17.3.1969 executed in favour of defendant no.1 illegal and void ?

Although on perusal of the aforementioned issue, it would appear that a question arose as to whether the said deed of adoption was valid or not, the learned lower appellate court proceeded to consider as to whether the defendant No. 1 was adopted by Bandhana Oraon or not It is, therefore, evident that the learned Lower appellate court proceeded to decide the question about the factum of adoption of the defendant no. 1 by Bandhna.

Mr. A.K. Sinha, the learned counsel submitted that the learned lower appellate court committed an illegality in so far as it did not consider the oral evidences on record for the purpose of coming to the conclusion as to whether the appellant was adopted by Bandhana Oraon or not. The learned counsel further submitted that although the original deed of adoption could not be proved but the certified copy thereof being a public document was admissible in evidence and the same ought to have been looked into by the learned lower appellate court.

Mr. V. Shivnath, on the other hand, submitted that in the instant case, the learned lower appellate court has come to the finding on the basis of the evidence of the witnesses examined on the behalf of the defendants and as such it was not necessary for it to consider the other oral and documentary evidences on record.

He further submitted that the appellant having confined his submission before the learned lower appellate court on one issue namely issue no. 7 only, he could not be permitted by this Court to raise other issues and thus give a go by, so far as confinement of their appeal by the appellant on issue no. 7 only. The learned counsel in this connection has relied upon a decision reported in 1916 P. C. page 126 (Mabaraj (Sri) Ram Chandra Banj Deo v. Secretary of State for India) and 1931 SC page 120 (Sarjo Prashad Ramdeo Satan v. JwaleShwari Pratap Narain Singh).

It appears that the defendant no. 1 sated in paragraph 2 of the deposition that the said deed of adoption was lost. The certified copy of the said document was produced and marked as Ext. C with objection. It has been contended by the learned counsel that the certified copy of the adoption deed being a public document, the same was admissible in evidence.

Mr. A. K. Sinha, the learned counsel appearing on behalf of the appellant, in this connection has relied upon a single bench decision in (Md. Saimuddin Sheikh v. Abejuddin Sheikh) reported in AIR 1979 Gauhati page 14. In the aforementioned decision, it has been held that a copy of the sale deed which was maintained in the Sub-Registrar office is a public document within the meaning of Section 74(2) of the Evidence Act. With utmost respect to the learned Judge, I am unable to subscribe the aforesaid view. Section 65 of the Evidence Act provides as to how and in what manner, a secondary evidence may be led.

There cannot be any doubt whatsoever that an adoption deed is not a public document. True it is, that a secondary evidence is admissible in respect of a private document, the conditions for leading secondary evidence as laid down in Section 65 thereof must be satisfied.

So far as the copy of a deed maintained in the office of the Sub-Registrar is concerned, the same is not a public document and the contents thereof being a copy of a private document, it was obligatory on the part of the appellant to prove the same by leading secondary evidence in terms of section 65 of the Evidence Act. There is nothing to show that the original register maintained in the office of the Sub-Registrar was called for in terms of Section 66 of the Act.

In the instant case, the said adoption deed was marked with objection. It is, therefore, not a case where the secondary evidence was admitted without any objection and marked as an exhibit.

It is well known that the party producing the secondary evidence is not relieved from proving the execution of a document which was to be proved if the original document had been produced unless the same is covered by section 90 . Once such execution is proved, the production of the certified copy would be sufficient proof of the deed and if the certified copy of registered document was entered ''in Book no.1 the contents thereof can be received in evidence by reason of section 57(5) of the Registration Act. As the execution of the sale deed was not proved, the document in question, in my opinion, could not have been admitted in evidence.

In terms of section 60 of the Registration Act, when a certificate is signed by the Registering Officer, the same becomes admissible for the purpose of proving that the document has been duly registered in manner provided in the said Act and that the facts mentioned in the endorsement referred to (sic) section 62 have occured as therein mentioned.

In my opinion, a certified copy of the entry of registration of a deed at the registry office is admissible u/s 74 and Section 77 of the Indian Evidence Act as proof of the entry but not the contents of the deed, so far as a private deed is concerned.

In Gopal Das v. Thakurji reported in AIR 1943 P.C. page 83 the Privy Council repelled a contention, that the registered document itself comes within the purview of Section 74(2) of the Evidence, Act and thus being a public document, on the ground that the original document was not a public record of a private document as the original has to be returned to the parties under sub-section (2) of Section 61 of the Registration Act.

In Smt. Mira Bai v. Jai Singh reported in A.I.R.1971 Rajasthan page 308, it was held that sub-section (5) of section 57 of the Registration Act does not dispense with the proof of the execution of the original document, therein it has been held that where attestation of execution of a deed is required to be proved in terms of section 68 of the Evidence Act, the requirements thereof is not dispensed with u/s 57(5) of the Act. Similarly in Bishwanath Agrawalla v. Smt. Dhapu Debi Jajodia reported in AIR 1966 Calcutta 13, it was held that a deed of adoption can only be proved with section 63 (1) of the Evidence Act. In the said decision it was also held that registration of deed of adoption is not conclusive proof of factum of adoption.

In view of these decisions, it must be held that the adoption deed in question could not have been admitted in evidence only by filing the certified copy thereof.

Sub-section (2) of section 74 of the Indian Evidence Act reads as follows :--

The following documents are public documents :--

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

The record kept in registration office may be a public document but it is not that record but the original document which has to be proved. Clause (f) of Section 65 of the Evidence Act may be applicable because a registered copy has been declared admissible under sub-section (5) of section 57 -of the Registration Act; however that sub-section does not declare that a registered document is a kind of document which is provable by a certified copy.

However, it was open for the appellant to prove the factum of adoption by leading Oral evidence.

True it is, that the appellant''s natural father stated that the appellant was his son but that is a fact.

Only because, the defendant was summoned through his natural father and a return of service was filed by him does not ipso facto disprove adoption.

In the written statement itself, the plea of adoption has been taken.

It appears that the learned lower appellate court took into consideration an application filed by Bandhna Oraon before the Circle Officer, Gumla which has been marked as Ext. 5. In a proceeding before the Circle Officer, Gumla, he allegedly stated on 24.4.1979 that he has no issue, neither son or daughter and he is widower. This statement was marked as Ext. 2. From this statement alone, the learned lower appellate court has come to a conclusion that the factum of adoption as pleaded by the appellant has been disproved. He, therefore, did not take into consideration the other oral evidences on record and other documentary evidence. In this case, the learned lower appellate court did not take into consideration that the parties are members of the Schedule Tribes and as such statements made by Bandhana should not have been considered literally but along with the other circumstances available on record.

The fact remains that the appellant was the natural son of D. W. I. It is also a fact that Bandhana Oraon did not have any issue. The aforementioned statement by itself, in my opinion, did not disprove adoption. It is now well known that a registered deed carries a sanctity.

If the deed of adoption could have been taken in evidence, the same would have been a relevant fact for the purpose of proving that Bandhana Oraon in fact adopted the appellant.

In this view of the matter, in my opinion, it was obligatory on the part of the learned lower appellate court to consider all evidences on record and not come to the conclusion arrived at by him only on the basis of the evidence of D.W. 1 and Exts. 5 and 2.

The decisions cited by Mr. V. Shivnath have no application to the facts and circumstances of this case and are not at all relevant. The said decisions are not on the point, on the basis whereof this appeal is being decided and the same are not required to be considered at this stage. In the result, the judgment and decree passed by the learned lower appellate court cannot be sustained. This appeal is, therefore, allowed and the judgment and decree passed by the lower appellate court is set aside and the case is remitted to him for a fresh decision in accordance with law upon consideration of all the evidences on record. There will be no order as to costs. Before parting with this case, I may observe that if an application for additional evidence is filed by the appellant for proving the deed of adoption in accordance with law, the same may be considered by the learned lower appellant court on its own merits, taking into consideration the fact that the appellant might have been labouring under the belief that the certified copy of the adoption deed would be ipso-facto admitted in evidence.