Koohardi Oraon v. Fagu Oraon — 1988 DIGILAW 33 (PAT)

Judgment S.B. SINHA, J. : This second appeal is directed against a judgment and decree dated 11.6.1981 passed by shri R.K. Singh VIth Additional judicial Commissioner, Ranchi in Title Appeal No. 91/6 of 1980/81, where by and whereunder the said learned court affirmed the judgment and decree dated 6.5.1980 passed by Shri N.K. Kanth “Niraj” Munsif, Gumla in title suit No.22 of 1973 decreeing the plaintiff’s respondents suit. 2. The fact of the case lie is a very narrow campass. 3. One Diba Oraon was admittedly the owner of the properties in suit. 4. The said Deba Oraon had two wives Suni Orain and Changa Oraon, Deba Orain through his first wife had a son namely Bandhana 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 district Assam. 5. According to the plaintiff, Deba began taking assistance from Mitku in cultivation of the lands and ultimately married his daughter with him. 6. 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 Chango 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 right (Ext.1) the name of Bandhana was recorded in respect of all the lands including the said 14 kiyaries. According to the plaintiff, the said entry was made owing to negligence on the part of Survey Authorities although Mitku had been in possession thereof. 7. It is also alleged that the lands gifted to Changa (second wife of Deba) was also being cultivated by Mitku during her life time and after her death, possession thereof was taken over by her daughter Bandhni Orain who got the lands cultivated by her husband and plaintiff Nos. 1 and 2. 8. It is stated that Bandhani Orain died in the year 1970 and thereafter the land in plaintiff Nos. 1 and 2. 8. It is stated that Bandhani Orain died in the year 1970 and thereafter the land in plaintiff Nos. 1 and 2 and proforma defendant No.2. 9. It is further the case of the plaintiff’s that Bandhana died issueless and upon his death, the properties in his possession also vested in the plaintiffs and the proforma defendant No.2. 10. 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 allegedly evidenced by a registered deed of adoption dated 17-3-1969 (Ext.B). 11. The plaintiff filed an objection to the aforementioned application for mutation filed by the defendant No.1 which was rejected and the 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 Scheduled Tribes but are governed by Mitakshara School of Hindu Law. 12. The defendant No.1, on the other hand, alleged that parties are governed by their own customary law. The defendants denied possession of any land whatsoever by Mitku or his sons and wife as alleged by the plaintiff. The defendant No.1 further denied the purported compromise by and between Bandhana and Mitku in the year 1928 (Ext. 4). 13. 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 Bandhana. 14. 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 Bandhana 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 Chabo 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 ½ of the lands known as Thakchi don. The learned trial court further did not accept the plaintiff’s version that they had been in possession over ½ of the lands known as Thakchi don. He further did not rely on the compromise deed. 15. However, it found that there was no cause of action for a preliminary decree in respect of the lands described in Scheduled B 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 appellant court pressed issue No.7 only. The said issue runs thus : “Is the deed of adoption dated 17-3-1969 executed infavour of defendant No.1 illegal and void ? Although on perusal of the aforementioned issue, it would appear that 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 Bandhana. 16. Mr. A.K. Sinha, the leaned counsel submitted that the learned lower appellate court committed an illegality in sofar 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. 17. Mr. V. Shivnath, on other hand, submitted that in the instant case, the learned lower appellate court have came to the finding on the basis of the evidence of the witnesses examined on behalf of the defendants and as such it was not necessary for it to consider the other oral and documentary evidences on record. 18. he further submitted that the appellants 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 issue and thus give a go by, so far as confinement of their appeal by the appellants on issue No.7 only. 18. he further submitted that the appellants 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 issue and thus give a go by, so far as confinement of their appeal by the appellants on issue No.7 only. The learned counsel, in this connection has relied upon a decision, (Maharaja) Sri Ram Chandra Banj Deo Vs. Secretary of Sate for India1 and Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari pratap narain Singh2. 19. It appears that the defendant No.1 stated 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. 20. Mr. A.K. Sinha, the learned counsel appearing on behalf of the appellant, in this connection has relied upon a single beach decision in (Md. Saimuddin Sheikh vs Abejuddin Sheikh)3 In the aforementioned decision, it has been held that a copy of the 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, provided as to how and in what manner, a secondary evidence may be led. 21. There cannot be any doubt whatsoever that an adoption deed is not public document. True it is, that a secondary evidence is admissible in respect of a private document also but before such an evidence is let to prove a private document, the conditions for leading secondary evidence as laid down in section 65 these of, must be satisfied. 22. Sofar as the copy of a deed maintained in the office of the Sub registrar is concerned, the same is a not 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 sub-registrar was called for interms of Section 66 of the Act. 23. 23. In the instant case, the said adoption deed was marked with objection. It is therefore not case where the secondary evidence was admitted without any objection and marked as an exhibit. 24. It is well known that the parties producing the secondary evidence is not relived from proving the execution of a document which was to be proved if the original document had been produced unless the case 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 registered document was entered in book No.1, the contents there of can be received in evidence by reason of the 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. 25. In terms of section 60 of the Registration Act, when 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 endorsement referred to section 62 have occurred as there in mentioned. 26. In my opinion, a certified copy of the entry of registration of a deed at the registry office is admissible under section 74 and section 77 of the Indian Evidence Act, as proof of the entry but not the contents of deed, so far as a private deed is concerned. 27. In Gopal Das Vs. Thakurji4 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 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. 28. In Smt. Mira Bai Vrs. Jai Singh5, it was held that sub-section 5 of section 57 of the Registration Act, does not dispense of 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 under section 57(5) of the Act. Similarly in Bishwanath Agrawalla Vrs. Smt. Dhapu Debi Jajodia6, it was held that a deed of adoption can only be proved with section 63(1) of Evidence Act. In the said decision it was also held that registration of deed of adoption is not conclusive proof of factum of adoption. 29. In view of there 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. 30. 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. 31. The record kept in registration office may be 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 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. 32. However, it was open for the appellant to prove the factum of adoption by leading oral evidence. 33. True it is, that the appellant’s natural father stated that the appellant was his son that is a fact. 34. Only because, the defendant was summoned through his natural father and return of service was filed by him dies not ipso-facto disprove adoption. 35. In the written statement itself, the plea of adoption has been taken. 36. It appears that the learned lower appellate court took into consideration an application filed by Bandhana oraon before the Circle Offices, 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 she is widower. This statement was marked as Ext.2 from this statement alone, the learned lower appellate court has come to a conclusion appellate court has came 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 evidence on record and other documentary evidence. This statement was marked as Ext.2 from this statement alone, the learned lower appellate court has come to a conclusion appellate court has came 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 evidence 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 or record. 37. The fact remains that the appellant was the natural son of D.W.1. 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. 38. 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 Orain in fact adopted the appellant. 39. In this view of the matter, in my opinion, it was obligatory on the part of the learned lower appellate court to consider all evidence 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. 40. The decision cited by Mr. V. Shivnath have no application to the fact and circumstances of this case and are not at all relevant. The said decision are not on the pointy on the basis whereof this appeal is being decided and the same are not required to be considered at this stage. 41. 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 setaside 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 cost. This appeal is therefore allowed and the judgment and decree passed by the lower appellate court is setaside 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 cost. 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 appellate court on its own merits, taking into consideration the facts 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. Appeal allowed.