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1984 DIGILAW 40 (GAU)

Gurumayum Jugol Sharma v. Amom Indrajit Singh and Another

1984-03-29

B.L.HANSARIA

body1984
The plaintiff-appellant has prayed for a declaration of his title over the suit land by virtue of his purchase from defen­dant No. 1 on 23.5.67. This however has been denied to him by both the Courts below, because the Courts were not satisfied about the due execution of the deed in question. As per the defendants, the related sale deed (Ext.A/1) is a forged document. 2. The only question, therefore, which arises in this appeal is whether the finding of the Courts below relating to the execution of the sale deed merits to be set aside in this appeal. The perusal of the impugned judgment shows that the plaintiff produced 3 witnesses to prove the execution of the deed-they are the plaintiff himself as P. W. 5, the scribe of the document P. W. 2, and an attesting witness P. W. 1. Though P. W. 5 stated in the evidence that Ext. A/1 is the sale deed executed by Indrajit singh (defendant No. 1), somehow he did not exhibit the signature of Indrajit on the document, surely, a mistake on the part of the counsel. Be that as it may, as section 67 of the Evidence Act requires that if a document is alleged to be signed by any person the signature of that person must be proved to be his. This, the plaintiff did not prove. 3. P. W. 2, however, did that, but he further stated that he would not be able to identify the executant, which showed that Indrajit was not known to him from before. P. W. 4's evidence does not assist the plaintiff as he bad stated that he had not seen Indrajit Singh executing the deed. It is also not his evidence that Indrajit admitted his signature when he had attested the deed. 4. This being the position, the Court below concluded that the plaintiff, on whom the burden lay to prove the execution, had failed to do as per the law. Mr. R. K. Manisana Singh, appearing for the appellant, however, contends that if the evid­ence of P. Ws. 2 and 5 is read together the case of due execu­tion by Indrajit is made out on the strength of their statements alone. Mr. R. K. Manisana Singh, appearing for the appellant, however, contends that if the evid­ence of P. Ws. 2 and 5 is read together the case of due execu­tion by Indrajit is made out on the strength of their statements alone. It is difficult to accept this assertion, as it is apparent that P. W. 2 could not have really testified about due execu­tion by Indrajit Singh, because the executant was not known from before to this witness. It cannot also be forgotten that the evidence of P. W. 5 has to be taken with some reservation as he himself is the plaintiff. 5. The main submission advanced by the learned counsel for the appellant is that the Courts below did not really take into consideration the effect of due registration of the document and fallowing it the presumption available under section 60(2) of the Registration Act. I have been referred to a number of decisions regarding the purport of certificate of registration granted under section 60(1) of the aforesaid Act. 6. One decision which is oft cited in this regard is Gopal Das vs. Sri Thakurji, AIR 1943 PC 83, at page 87 of which it is observed that it "seems clear that any objection to the sufficiency of the proof upon this point would have been idle, the circumstances being such that the evidence of due registra­tion is itself some evidence of execution...." 7. This rendering has been cited with approval by different High Courts in India. In Irudsyam Immal vs. Salayath Mary, AIR 1973 Madras 421, it was stated that the certificate of registration is prima facie evidence of execution if no other evidence is available. This view was taken by referring to Ihtisham Ali vs. Jamna Prasad, AIR 1922 PC 56 also where it has been stated that the Court can presume that the Registrar performed his duties after being satisfied about due execution of the deed. 8. What has been stated in this regard in Amir Bi vs. Committee of Management of Nilasandra, AIR 1969 Mysore 103 is that the certificate of the above is a proof of due registration and not of due execution, but the certificate read with evidence in the case may be sufficient to hold that the document is proved to have been signed by the person concerned. In Penumarthy Veera Panasa Ramanna vs. Penumarthy Sambamoorthy. In Penumarthy Veera Panasa Ramanna vs. Penumarthy Sambamoorthy. AIR 1961 Andhra Pradesh 361, the view taken was that the effect of registration is not to prove the execution as provided by section 67 of the Evidence Act, but only to prove an admis­sion by the executant to the registration in solemn circumstances. It has been further opined that the certificate of Registering Officer is admissible not to prove the execution of the deed but merely to prove the admission of execution, the effect of such admission being in each case a separate question. 9. Mr. Nodiachand Singh refers to Naresh Chandra Base vs. State of West Bengal, AIR 1955 Calcutta 398, in which it was held that mere registration is not by itself sufficient proof of the execution, which has to be proved as contemplated by section 67 of the Evidence Act. Reference is also made to Indernath Modi vs. Nandram, AIR 1957 Rajasthan 231 wherein it was observed that the view expressed in Gopal Das vs. Sri Thakurji, (AIR 1943 PC 83) would apply when evidence to prove execution in the manner provided in section 67 of the Evidence Act, is not available due to the executant or the marginal witnesses being dead or for some other reason. Finally, I may refer to the decision of this Court in Laurembam Henamat Singh vs. Laishram Angahal Singh, AIR 1972 Gauhati 68, where it was held that mere registration of a document is not conclusive proof of execution. It was further observed that proof of admission of execution does not satisfy the requirement of section 67 of the Evidence Act, and that more that mere admission of a signature is needed to amount to admission of execution of a document. 10. From what has been stated above regarding the legal effect of certificate of registration, it can safely be held that it is of some moment and importance; and though it is not suffi­cient by itself to prove execution, but mind has to be applied to this solemn transaction also, and depending on the facts and circumstances of the case, it has to be decided whether execu­tion has been proved. The learned counsel further states that another presumption was also available to the appellant and the same was under section 114 (g) of the Evidence Act flowing from non-examination of Indrajit Singh by defendant No. 2, who had subsequently purchased the suit from Indrajit on 27.6.68, and who is the main contestant in this proceeding. An adverse inference is, therefore, required to be drawn against the defen­dants on the point under examination, submits Mr. R.K. Manisana Singh. As to this, reply of Mr. Nodiachand Singh is that as the burden of proving the execution lay on the plaintiff-appellant, non-examination of Indrajit Singh has no significance. In a civil proceeding the question of burden loses importance when parties lead evidence and try to prove their respective cases. ID such a situation, the entire evidence on record has to be scan­ned to find out whose case was true or more probable. 11. I am finally reminded by the learned counsel for the respondents that as the matter is being examined in second appeal I may not reverse any finding of fact on fresh appre­ciation of the materials on record to which effect is the deci­sion of the Supreme Court in E. Madhoob Saheb vs. N. Sabbarayan Chowdhury, AIR 1982 SC 679 . This position is well-settled in law. And equally well-settled is the proposition that a fin­ding of fact which has been arrived at by ignoring relevant facts and circumstances which have important bearing on the matter in issue can be disturbed in second appeal. The present is a case where the Courts below did not give due weight to the fact that the deed in question did bear a certificate of registration which has some importance, as it signified some evidence of execution. Further, non-examination of Indrajit Singh was totally lost sight of which also raises a presumption against the defendants. If these factors are considered along with the testimony of P. Ws. 2 and 5 it has to be accepted by any reasona­ble person that the case of the plaintiff was more probable than that put up by the defendants. As a civil litigation has to be decided on preponderance of probabilities, I am satisfied that the plaintiff had succeeded in discharging this burden which lay on him under the law. 12. Accordingly, I am constrained to set aside the finding relating due execution of the sale deed (Ext. As a civil litigation has to be decided on preponderance of probabilities, I am satisfied that the plaintiff had succeeded in discharging this burden which lay on him under the law. 12. Accordingly, I am constrained to set aside the finding relating due execution of the sale deed (Ext. A/1) by Indrajit Singh. I would, therefore, declare the title of the plaintiff over the suit land and grant the further relief of khas possession, as subsequent purchase by defendant No. 2, even if without notice of Ext. A/1, cannot confer title on him. 13. The appeal is allowed as above by leaving the parties to bear their own costs throughout.