Rameshwar Prasad vs Govind Rao and Others

A.K. Shrivastava, J.

The defendant has assailed the judgment and decree of reversal passed by First Appellate Court decreeing the suit of plaintiffs by the impugned judgment and decree.

The civil suit was filed more than two decades ago as the same was filed on 19.8.1980.

The plaintiffs who are respondents in this appeal filed a suit for possession and declaration that they are the Bhumiswami of the agricultural land, the description whereof has been mentioned in para 1 of the plaint and which is the subject matter of the suit. The plaintiffs are deriving title from their father Late Dattatre Rao. According to the plaint averments, the father of the plaintiffs, namely, Dattatre Rao, was the Bhumiswami of the suit land and was possessing the same. He died on 12.9.1979. After his death, plaintiffs became the Bhumiswami and were possessing the suit property. The defendants after the death of their father Mathura Prasad dispossessed plaintiffs from the suit property and took illegal possession. Hence, after having sent a notice by the plaintiffs on 24.10.1978, present suit has been filed for declaration of the Bhumiswami right and possession.

The defendant No. 2 by filing written statement submitted that he has not dispossessed the plaintiffs and in case they take possession of the suit property he has no objection.

The defendant No. 4 by filing a separate written statement refuted the averments of the plaintiffs. The defendant No.4 denied the right, title and interest of Dattatre Rao and also denied the Bhumiswami right of the plaintiffs.

The trial court framed necessary issues and issue No. l was framed in regard to the conferral of Bhumiswami right to the plaintiffs after the death of their father. The burden of proof was on plaintiffs that Darttatre Rao was the Bhumiswami. In order to prove the title of Dattatre Rao, the plaintiffs filed Kishta Band Khatauni signed by Patwari on 15.4.1975 in which the name of Dattatre Rao has been shown as Bhumiswami of the suit property. Except this document, no other document was filed by the plaintiffs. The trial court while deciding issue No. l categorically held that since Kishta Band Khatauni (Ex.P/4) is not a certified copy, therefore, it is inadmissible in evidence. Since no other document, except Ex.P/4, was filed in order to prove the title of Dattatre Rao, the trial court dismissed the suit.

An appeal was preferred by the plaintiffs before the First Appellate Court which has been allowed by the impugned judgment and decree and the suit of plaintiffs has been decreed. Feeling aggrieved by the judgment and decree of reversal passed by First Appellate Court, this second appeal has been filed by the defendants.

This Court on 13.5.1996 admitted this appeal on the following substantial question of law:

Whether the Lower Appellate Court was rightly held that the copy supplied by the Patwari u/s 34 of the Madhya Pradesh Revenue Records Rules, 1959, would be deemed to be a copy of Kist Bandi Khatoni of the year 1974-75 and is admissible in evidence as such as the public document when Patwari was not examined to prove the correctness of entry thereof?

I have heard Shri A.M. Trivedi, learned Sr. Advocate assisted by Shri S.K. Mishra and Miss Nirmala Raikwar and perused the record.

On bare perusal of Kishta Band Khatauni (Ex.P/4) of the year 1974-75, it is revealed that the same is not a certified copy. This document has been given by the Patwari under his signature by mentioning it to be a true copy. u/s 76 of the Evidence Act 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 therefore, 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. The explanation to this section says that any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody such documents within the meaning of this section.

Section 79 of the Evidence Act speaks about presumption as genuineness of certified copies. According to this section, 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, who is duly authorized thereto.

Section 77 of the Evidence Act speaks about the proof of documents by the production of certified copies. Thus, if a certified copy of a public document is adduced in evidence, mere production of it would suffice and is admissible in evidence. However, if such document is not a certified copy in terms of Section 76, it had no legal presumption as to its genuineness as envisaged u/s 79 of the Evidence Act. The said document is then a private document and it is required to be proved u/s 47 and 67 of the Evidence Act. In the case of Bhinka and Others Vs. Charan Singh, , the Apex Court while considering the scope of Section 79 of the Evidence Act in para 7 has held that under this section a Court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the certified copy is substantially in the form and. purported to be executed in the manner provided by law in that behalf. The Apex Court further held that if a Patwari has issued a certified copy of Khatauni without complying with the provisions of law governing its issue, the Court is not bound to draw the presumption in regard to its genuineness. In the present case also, since Ex.P/4 is not a certified copy and it is only a certificate of Patwari giving a true copy of Kishta Band Khatauni, it cannot be equated and cannot be termed as certified copy as defined u/s 76 of the Evidence Act and, therefore, Ex.P/4 is not having any presumption of its correctness u/s 79 of the Evidence Act and merely by producing the same, this document cannot be said to be proved u/s 77 of the Evidence Act. The plaintiffs ought to have examined the Patwari to prove his signature and the correctness of Ex.P/4. On behalf of the plaintiffs only Anil Kumar Athle was examined and he has net said that Ex.P/ 4 contains the signature of Patwair and he is acquainted with his signature. He had not even named the name of Patwari who had issued the said certificate. He has simply stated that he has filed a copy of Ex P/4 of Khatauni. The Single Bench of this Court in the case of Gani Khan and others vs. Amnabai and others, 1983 RN 213 has held that only properly certified copies of Khasras given under the Rule are admissible in evidence.

The substantial question of law is thus answered that lower appellate court erred in law by placing reliance on Ex.P/4 Kishta Band Khatauni which has been issued under the hand and signature of Patwari and which is not a certified copy. Since no other document has been filed by the plaintiffs in order to prove the title of Dattatre and Ex.P/4 is not a proved document, I am of the view that plaintiffs have failed to prove their case.

Ex consequenti, this appeal succeeds and is hereby allowed, the judgment and decree passed by First Appellate Court is hereby set aside and the judgment and decree passed by the Trial Court is hereby restored. Looking to the facts and circumstances of the case, the parties are directed to bear their own costs.