Chhatu Paswan v. Salim Mian — 1995 DIGILAW 478 (PAT)

Judgment B. L. Yadav, J. 1. This is a plaintiffs Second Appeal in a suit for declaration of title over Plot No.1227 having an area of 18 Kata 3 Dhur in village Kahara P. S. and District Saharsa (described in Schedule 1 of the plaint)and also for payment of auction money deposited in the Government Treasury with respect to the crops of the suit land. 2. The plaintiffs-appellants filed the suit with the averment that plot no.1227 having an area of 1 Bigha 9 katha and 3 Dhur of Mauza Kahara was recorded under Khata No.412 in the cadestral survey in the name of jhumak Mian and Dhorhai Mian sons of Harkhu Mian, two shares and ganga Mian, Mangal Mian one share, the entire area of this Khata being 7 bigha 4 Katha 17 Dhurs. The defendants first party are the heirs of the recorded tenant and that the recorded tenants, namely, Jhumak mian, Gango Mian and Mangal Mian sold 18 Kathas and 3 Dhurs of land from eastern side to Saklu Singh by a registered sale deed dated 3 (11.1917 for a sum of Rs.100/- and gave possession to the purchaser; The said land was under Tauzi No.4965 under zamindari of Doman Singh. One Shri awadh Lal Jha, a practising Mokhtar at Madhepura purchased some portion of Zamindari interest in the aforesaid tauzi. Said Saklu Singh transferred 18 katha 3 Dhur of plot No.1227 in favour of Smt. Mulukrani Ojhain, wife of Shri Awadh Lal Jha and she came in possession of the same. She has a separate land of 8 Katha 4 Dhurs in separate Tauzi and got her name mutated with respect to the purchased land from Saklu Singh and a total jamabandi of 1 Bigha, 6 Katha and 7 dhurs was created in her name and she was also granted rent recepts. The defendants second party are the sons and heirs of Smt. Muluk Rani Ojhain. 3. The plaintiffs-appellants purchased from the defendants second party the heirs of Muluk Rani Ojhain an area of 18 Katha 3 Dhurs of plot no.1227 by two registered sale deeds dated 25.1.1974 and 23.2.1974 on payment of sufficient consideration and the plaintiffs came in possession and are growing crops. Thereafter the elaintiffs filed an objection petition efore the Circle Officer, Kahara for creating a Jamabandi and their names were mutated. Thereafter the elaintiffs filed an objection petition efore the Circle Officer, Kahara for creating a Jamabandi and their names were mutated. Against that order the defendants filed an appeal which was dismissed. There were proceedings under Sec.144/145 Cr. P. C. The land was attached under Sec.145 (1) Cr. P. C. on 3.8.1977. As the defendants first party is falsely claiming the suit land and has obtained some fabricated rent receipts, consequently the plaintiffs had to file the present suit for declaration of the plaintiffs right and title. 4. The defendants Salim Mian and amru Mian have filed written statement contesting the suit. The other defendants, however, did not contest the suit. It was stated in the written statement that the sale deeds alleged to have been obtained by the plaintiffs were illegal and fabricated and that the plaintiffs have no cause of action and the suit was barred by limitation, estoppel and waiver and the suit is bad for nonjoinder of the necessary party. 5. The Trial Court decreed the suit on 24.9.1987. The defendants preferred a first appeal and it was allowed on 19.6.1989. Against that decree the present Second Appeal has been filed by the plaintiffs. 6. Mr. Devendra Kumar Sinha, the learned counsel for the appellants, has very ably argued the appeal with clear conception of the law applicable. Mr Sinha strenuously contended that the certified copies of the registered sale deeds dated 25.1.1974 and 23.2.1974 executed in favour of jayamanti Devi (appellant No.2) wife of (appellant No.1) particularly when the original sale deeds were public documents within the meaning of section 74 of the Indian Evidence Act, 1872 (for short "the Act") and were proved to have been lost in view of section 65 (c), (e) of the Act were admissible in evidence. The presumption under Sec.90 of the act can be raised. Further the presumption under Sec.60 (2) of the Indian Registration Act, 1908 , can also be raised. In other words, Section 90 of the Act has to be read conjointly with Sections 65 (c) (e) and 74 of the act and Sec.60 of the Registration act. The presumption under Sec.90 of the act can be raised. Further the presumption under Sec.60 (2) of the Indian Registration Act, 1908 , can also be raised. In other words, Section 90 of the Act has to be read conjointly with Sections 65 (c) (e) and 74 of the act and Sec.60 of the Registration act. No suit for cancellation of the said registered sale deeds dated 25.1.1974 and 23.2.1974 in favour of the appellants, was filed by the contesting respondents within a period of three years as provided under article 59 of the Limitation Act, 1963 and the remedy, right and title of the contesting respondents became timebarred. The Lower Appellate court has allowed the appeal and dismissed the suit on irrelevant consideration and it did not advert to the reasons given by the Trial Court to appreciate the oral evidence on record. 7. The learned counsel for the respondents, on the other hand, refuted the submissions of the learned counsel for the appellants and urged that the certified copies of the registered sale deeds could not be admissible in evidence and no presumption could be raised under sectiqn 90 of the Act in respect of the certified copy of the sale deeds and that the sale-deeds were neither given effect to nor the vendor or vendee came in possession. Consequently there was no necessity to file the suit for cancellation of the sale deeds. The findings recorded by the lower appellate Court are findings of facts and need not the interferred with in this Second Appeal. No substantial questions of law are involved in this appeal. 8. Having evaluated the submissions of the learned counsel for the parties, the questions that arise for consideration are whether the certified copies of the said registered sale deeds which were public documents were admissible in evidence and if so, whether the presumption under section 90 of the Act read with section 60 (2) of the Registration Act, would be made applicable in respect of the certified copies and whether remedy, right and title of the contesting defendants-respondents were barred by limitation ana whether the findings of the Lower Appellate court could be said to be vitiated in the circumstances of the case. 9. 9. As regards the first point, section 90 of the Act posits that if any document, purporting or proved to the thirty years old, is produced from any custody which the Court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed but this presumption, according to the learned counsel for the respondents, could not be extended to the certified copies. Sec.90 of the Act contains substantially a rule of procedure. Even though the Evidence Act is a complete code and does not permit any importation of English Common Law. But the provisions of the Act are not exhaustive of the rule of evidence and the Court can apply in certain cases the aid of principles of jurisprudence and even the salutary principles of interpretation so as to carry out the objects of the legislature. One has to be cautious while interpreting and Act which is more than a century old. 10. "neque leges neque sena tus consulta ita scribi possunt ut omnis casus qui qu andoque in sediriunt compre he ndantur sed sufficit eaquae plae rumque accidunt contineri" is an old Latin Maxim, which connotes that neither laws nor acts of Parliament can be so written as to include all actual or possible future cases or problems, it is sufficient if they provide for those things which frequently or ordinarily happen. (See Morgans Legal maxims ). In Jurisprudence by R. W. M. Dias (4th Edition London Butter Worths) it has been stated under Chapter Seven statutory Interpretation page 220, that another difficulty is caused by the fact that the Statutes seek to control the future, so the wording has to be in broad terms of classes and categories. These (the Statutes and Enactments)are man-made and there are bound to be Casus Omissi, which means that a measure of discretion is imported into every decision as to whether the provisions applies to the case in hand or not. . . . But the judicial activity, an example of the result of failure to think in a time continuum. These (the Statutes and Enactments)are man-made and there are bound to be Casus Omissi, which means that a measure of discretion is imported into every decision as to whether the provisions applies to the case in hand or not. . . . But the judicial activity, an example of the result of failure to think in a time continuum. Statutes are designed to operate over an indefinite period fo time, so they should only be approached in that time. In my opinion, therefore, while interpreting Sec.90 of the Act, special care has to be taken to secure tne ends of justice as it was enacted more than a century ago, hence the present problems can be considered that even original might be lost and only a certified copy or the sale deeds from the office of the Registrar could be made available and filed. Even the framers of the Act could not have contemplated more than one hundred years ago. In case the interpretation on section 90 of the Act as suggested by the learned counsel for the respondents, is accepted, the system or process would become unworkable and that interpretation has to be given which renders the system or process workable, and in case it renders, the system unworkable, in that event that has to be avoided. The principles of equity of Statute is still very common in somewhat different form. In the instant case the Court would be justified in considering the spirit and meaning of the Statute apart from the words. In other words. construction must be according to intent and special circumstance than the words employed. [see B. K. Garad V/s. N. M. C. B. Ltd. AIR 1984 S. C.192 and State Board of s. H. S. E. V/s. P. B. Seth, AIR 1984 S. C.1543]. 11. The procedural law is meant to further the ends of justice and not to frustrate the same. An interpretation which furthers ends of justice has to be preferred. The procedure is hand-made to justice. The rules of procedure cannot be an end but it is just a means to achieve the ends of justice. With these salutary principles of interpretation, the arguments of either side whether in respect of certified copy of the registered sale deed the presumption under Sec.90 of the Act can be raised shall be considered. 12. The rules of procedure cannot be an end but it is just a means to achieve the ends of justice. With these salutary principles of interpretation, the arguments of either side whether in respect of certified copy of the registered sale deed the presumption under Sec.90 of the Act can be raised shall be considered. 12. In the present case it was stated on behalf of the appellants that the original sale deeds dated 25.1.1974 and 23.2.1974 in their favour were lost and they had obtained certified copies of the aforesaid sale deeds from the office of the Registrar and the certified copy obtained from the office of registrar was admissible in evidence, and the same presumption would apply as it is used to apply in respect of the original sale deed. Sec.65 (c) (e) of the Act provides that secondary evidence can be given relating to the documents which have been destroyed or lost or which are public documents within the meaning of Sec.64 of the Act. In the instant case it was proved by the plaintiffs that the original sale deeds (Exts.1/d and 1/c)were lost. Under Sec.65 of the Act secondary evidence of the original sale-deeds dated 25.1.1974 and 23.2.1974 was admissible. As these sale deeds were registered, hence there was a presumption under Sec.60 (2) of the Indian Registration Act, 1908 and registration certificate was issued. In view of Sec.60 (2) of the registration Act once the certificate was issued, sealed and dated by the registering Officer and its certified copy along with the sale deed was obtained and filed it would certainly be admissible in evidence for the purpose of providing that the document has been duly registered in the manner provided by the Registration Act. As the sale deeds dated 25.1.1974 and 23.2.1974 obtained by the appellants from the heirs of Smt. Muluk Rani ojhain were registered documents and even prior to that, a sale deed in favour of Smt. Muluk Rani Ojhain dated 18.12.1925 was also a registered document and even the first sale deed in favour of Saklu Singh dated 30.1.1917 executed by Jhumak Mian, gango Mian and Mangal Mian in respect of 18 Katha and 3 Dhurs of land was also a registered sale deed and in respect of such sale deeds certificate of registration was granted by the Registrar in view of the provisions of Sec.60 of the registration Act, 1908. Such certificates along with the certified copy would be admissible for the purpose of proving that the documents have been duly registered in the manner provided by this Act and that the facts mentioned in the endorsements referred to in Sec.59 of the Registration Act, 1908 , have occurred. Sec.59 of the Registraation Act posits that the Registering officer shall affix his signature and date to all endorsements made under sections 52 and 58, relating to the same documents. In my opinion, the certified copies of the sale deeds were admissible under Sec.90 of the Act read with Sec.60 (2) of the Registration Act. In this view of the matter it cannot be said that the certified copies of the registered documents were not admissible in evidence. 13. The next corollary emanating from the first one is as to whether the presumption under Sec.90 of the act could be raised in respect of the certified copy. Even though this question is not free from doubt, but earlier it was held in 1880 that the certified copy where a will of more than thirty years old being lost, but the certified copy of the same was produced without proof of the execution of the original and the same was admitted in evidence. [see Khetter Ch. V/s. Khetter Paul, 5 C 886]. Thereafter k was held in Ishri Prasad v. Lalli Jas (22 A 294) and in pannambalath V/s. Karoth [ (2) MLJ 981] and in Subramanya V/s. Seethaya (46 M 92- (F. B.) that the presumption under sec.90 of the Act can be raised in respect of the certified copy. 14. In Brij V/s. Basant (AIR 1929 all 561) a Division Bench (Dr. Shah mohd. Sulaiman and C. H. B. Kendal, JJ.)it was observed as follows:- "genuineness of even unregistered document can be presumed from its copy, though such presumption can only be made after careful consideration of the entire evidence and circumstances of the case. " 15 In Gaya Prasad V/s. Jaswant Rai [air 1930 Allahabad 550] the same division Bench observed, while interpreting Sec.90 of the Act and other relevant provisions, as follows:- "before any presumption under Section 90 of the Evidence Act can be raised from a certified copy of the document, the party trying to draw the presumption, must first lay foundation by leading secondary evidence under Sec.65 (c) of the Act and lead other evidence. " In this case sufficient foundation has been laid" to lead secondary evidence. 16 In the present case nothing has been shown from the side of the respondents as to why the presumption contemplated under Sec.90 of the act could not be raised in respect of the certified copies of the registered sale deeds. Needless to say that a certificate of registration is granted under Sec.60 of the Registration act only after complying with a number of other formalities and test to ensure that proper executant has executed the document. It was responsibility of the Registrar or any other appropriate official authorised to act as Registrar to ensure due execution of the sale deeds. In my humble opinion, therefore, in case the certified copies of the registered sale deeds have been obtained from the office of the Registrar and the same have been furnished before the Trial court and oral evidence and other evidence led in this regard have been relied upon by the Trial Court. All such evidence was sufficient as required under Sec.65 (c) of the Act. In Gangamoyi V/s. Troilukhya (33 LA.60) their Lordships of the Privay council stressed on the solemn act of registration. Apart from the presumption under Sec.90 of the act, certificate of registration (vide section 60 (2) of the Registration Act)was itself sufficient proof about due execution of the sale deeds in favour of the appellants. Under these circumstances I have no manner of doubt, that the presumption contemplated under Sec.90 of the act can be made available, in case the documents were proved to have been lost under Sec.65 (c) of the Act, and they were registered documents and certified copy was obtained from the Office of the Registrar. The only irresistable conclusion is that the sale deeds have been proved according to law and they are valid and legal. 17. Now coming to the next question as to whether the remedy and right of the contesting defendants-respondents were barred by limitation. The registered sale deeds dated 25.1.1974 and 23.2.1974 were obtained by the plaintiffs-appellants from the heirs of smt. Muluk Rani Ojhain. The vendors have not contested the suit. An application for mutation was made by the vendees which was objected to by the vendors including the contesting respondents after permitting the parties to lead evidence. The registered sale deeds dated 25.1.1974 and 23.2.1974 were obtained by the plaintiffs-appellants from the heirs of smt. Muluk Rani Ojhain. The vendors have not contested the suit. An application for mutation was made by the vendees which was objected to by the vendors including the contesting respondents after permitting the parties to lead evidence. The Anchal adhikari allowed the application for mutation and the name of the vendees were mutated in the relevant revenue papers and the same order was maintained by the Deputy Collector land Reforms. It is, accordingly, evident that the vendors and the contesting respondents were aware about the execution of the sale-deeds in favour of the appellants from the date it was executed or in any case from the date they objected to the mutation proceeding initiated by the vendees. The suit must have been filed for cancellation of the said sale-deeds within a period of three years in view of Art.59 of the Limitation Act, 1963 , admittedly no such suit has been filed. 18. In Smt. Ramti Devi V/s. Union of india and others [judgments Today 1995 (1) S. C.223] their Lordships of the apex Court ruled as follows :- "since the appellant is seeking to have the document avoided or cancelled, necessarily a declaration has to be given by the Court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties, so the suit necessarily has to be laid within three years from the date when the cause of action has occurred since the cause of action arose on 29.1.1947, the date on which sale-deed was executed and registered and suit was filed on 30.7.66 and is hopelessly time-barred. The Court below were right in dismissing the suit. " In this way no suit for cancellation of the sale-deeds having been filed till this date within three years as provided under Article 59, the remedy and rights of the respondents became time-barred. The Court below were right in dismissing the suit. " In this way no suit for cancellation of the sale-deeds having been filed till this date within three years as provided under Article 59, the remedy and rights of the respondents became time-barred. 19 What requires emphasis is that no suit was filed by either vendor or any other interested party for cancellation of the registered sale-deed dated 30.1.1917 executed by Jhumak mian, Gango Mian and Mangal Mian in favour of Saklu Singh in respect of the land measuring 18 katha and 3 dhurs ; and similarly the vendor Saklu singh, who had purchased the said land in 1917, sold the same to Muluk rani Ojhain by a registered sale deed dated 18.11.1925, but no suit for cancellation of this sale deed also was filed within a period of three years, as contemplated by Articles 91 and 114 of the Indian Limitation Act, 1908. No suit was filed after sale deeds dated 25.1.1974, 23.2.1974. Once the sale deeds were registered it was presumed that it became known to every body including the vendors, in view of the provision of Sec.3 of the Transfer of Property Act. As no such suits were filed for cancellation of the aforesaid sale-deeds within three years, either from the date of sale or the cause of action, hence the remedy, rights, title and claim of the contesting respondents are now barred by limitation. 20. Reverting to the next question as to whether the Lower Appellate court has adverted to the reasons given by the Trial Court in respect of appraisal of oral and documentary evidence and whether the reasons have been assigned in the judgment of the lower Appellate Court. Order XLI rule 31 of the Civil Procedure Code provides that the judgments of the appellate Court must be in writing and shall state points for determination and reasons for decision. In the instant case even though the Lower appellate Court has written a long judgment but it has not assigned reasons in its judgment, nor it has adverted to the reasons assigned in believing or disbelieving the oral statements of the witnesses or other evidence led by either side, particularly the statements of the P. Ws. Recently in s. V. R. Mudahar V/s. Mrs. Recently in s. V. R. Mudahar V/s. Mrs. Rajbu Buhari [air 1995 S. C.1607] the dictum has been laid down by the Apex Court that it is the duty of the Appellate Court in a judgment of reversal to consider the reasons given by the Trial Court. 21. At one stage I was considering to remand the matter to the Lower appellate Court for fresh consideration but as the substantial questions of law are involved in this case, including whether the certified copies of the registered sale deeds were admissible in evidence and whether in respect of such certified copies the presumption under Sec.90 of the act in respect of due execution of the sale deeds will be raised and whether the remedy, claim, right and title of the vendees and contesting respondents were barred by limitation and whether the reasons have been assigned by the Lower Appellate Court while reversing the findings of the Trial court, which were incorrectly decided by the Lower Appellate Court and those questions go to the route of the matter. In this view of the matter there is no justification to remand the matter to the Lower Appellate Court for a fresh decision, particularly when the remedy, claim and rights of the respondents are timebarred. 22. In view of the premises aforesaid the decree of the Lower appellate Court cannot be maintained. Resultantly the present Second Appeal succeeds and the same is allowed and the decree of the Lower Appellate court is set aside and that of the Trial court is restored and the suit of the plaintiffs-appellants is decreed with costs throughout. Appeal Allowed.