State of Kerala v. Karthiyani — 1999 DIGILAW 237 (KER)

Judgment :- C.S. Rajan, J. An interesting question which concerns the Court, clients and counsel arises in this case. Invariably in land acquisition cases, both the claimant and the Land Acquisition Officer will not examine any witnesses in order to. prove the documents in which they rely. In this case the learned Government Pleader has specifically raised the question that the executants of the documents on which the respondent/ claimant relies on has not been examined and therefore, the Court below erred in relying on the valuation contained in the above document. The learned Government Pleader has relied on a number of decisions of the Supreme Court to drive home the above point. 2. In the ruling reported in Inder Singh v. Union of India (1993) 3 SCC 240, neither the claimants nor the Land Acquisition Officer had examined witnesses in proof of the sale transactions. Considering the above question the Supreme Court observed as follows: "Neither the appellants nor the Land Acquisition Officer had examined witnesses in proof of the sale transactions referred in mutation entries Exts. P4 to P8 on behalf of the appellants and R1 and R2 on behalf of the respondent. It is settled law that claimant is entitled to just and reasonable compensation and under S.23 to determine the market value of the lands the prevailing prices as on the date of the publication of the notification under S.4(1), the sale transaction of the same lands or sales of lands situated in the neighborhood would furnish as evidence of comparable sales. The price which a hypothetical willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value. It would be possible to have reliable evidence when sale transactions are proved by either the vendor or the vendee and if either of them was not available, the attesting witness who had personal knowledge of the transaction is to be examined by producing either the original sale deed or certified copies thereof as evidence. Under S.51-A of the Act as amended in 19 84 the certified copies have been permitted to be brought on record as evidence of sale transaction recorded therein. Under S.51-A of the Act as amended in 19 84 the certified copies have been permitted to be brought on record as evidence of sale transaction recorded therein. The examination of the witnesses is to find that the sale transactions are bona fide and genuine transactions between willing vendor and willing vendee as reasonable prudent men and the price mentioned is not throw away price at arms length or depressed sales or brought into existence to inflate market value of the lands under acquisition and the sales are accommodating one. Equally it must be brought on record the comparative nature of the lands covered under the sale deed and the acquired lands whether adjacent or actual distance or possessed of similar advantage and whether transactions themselves are genuine and bonafide transactions. This proposition of law, since settled law, in fairness, has not been disputed across the bar. The contention is that at the relevant time it was not being insisted upon. Therefore, none of the witnesses was called upon to prove the sale deeds or to prove the sale transactions". 3. In the ruling reported in State of U. P. v. Rajendra Singh (1996) 1 SCC 341 also neither the Vendor nor the Vendee was examined. Therefore, the Supreme Court held that the sale transactions are not evidence unless the Vendor or the Vendee has been examined in the Court. The following paragraph in the above judgment is extracted below: "3. It is settled law that in reference under S.18 claimant being dissatisfied with the award of Land Acquisition Officer, when the proceedings are taken under S.20 of the Act, burden is ivy s on the claimant like plaintiff to adduce reliable and acceptable evidence to prove proper, stand adequate compensation to the acquired land. If such an evidence was adduced, burden ills on to the State to disprove it. It is further settled law that the sales transactions filed either little narration of award or documents, without examination of either the vendee or the vendor not evidence. It is the duty of the Court to carefully assess the evidence on the touchstone human conduct and prudent purchaser. It is further settled law that the sales transactions filed either little narration of award or documents, without examination of either the vendee or the vendor not evidence. It is the duty of the Court to carefully assess the evidence on the touchstone human conduct and prudent purchaser. Admittedly, in this case, though reference to four les transactions has been made by the reference Court, neither the vendee nor the vendor was a mined nor was it established that the sale consideration which passed thereunder is true and e prices of which the sales came to be executed were real ones between willing vendor and billing vendee. Equally, burden is on the claimant to establish that the lands relating to the sales sections and the lands under acquisition are possessed of same value, nature of the lands a same and capable of fetching the same price, and so also other situations as comparable natures. Unfortunately, neither the reference court nor the High Court has looked into this legal pact of the matter and proceeded on the terms of those sale deeds". 4. The same proposition of law was reiterated by the Supreme Court in a later ling reported in G. Narayana Rao v. Land Acquisition Officer (1996) 10 SCC 607 the following words: "2. It is seen that, admittedly, neither the vendor nor the vendee of the sale deeds, Exts.12 and A22 was examined. It is settled law from the decisions of this Court starting from Elector v. Dr. Hari Singh Thakur and that of the A.P. High Court in Tahsildar, Land Acquisition v. P. Narasimha Rao Hi at either the vendor or the vendee should be examined in proof the documents to establish passing of the real consideration under the documents, the nature the respective lands and whether the documents are genuine documents etc. It is for the Court consider all the relevant facts to accept the correctness of the sale deeds and then consider aether they should form the basis to determine compensation. In the absence of proof of the over facts there would be no evidence for the Court to place reliance on untested documents." Still later the Supreme Court had occasion to consider the same question in the cision reported in Special Deputy Collector v. Kurra Sambasiva Rao (1997) 6 SCC, wherein the Supreme Court held as follows: "8. In the absence of proof of the over facts there would be no evidence for the Court to place reliance on untested documents." Still later the Supreme Court had occasion to consider the same question in the cision reported in Special Deputy Collector v. Kurra Sambasiva Rao (1997) 6 SCC, wherein the Supreme Court held as follows: "8. The best evidence of the value of property are the sale transactions in respect of the quired land to which the claimant himself is a party; the time at which the property come to sold; the purpose for which it is sold; nature of the consideration, and the manner in which ; transaction came to be brought out. They are all relevant factors. In the absence of such ale deed relating to the acquired land, the sale transactions relating to the neighbouring lands the vicinity of the acquired land. In that case the features required to be present are: it must within a reasonable time of the date of the notification; it must be a bonafide transaction; it could be a sale of land similar to the land acquired or land adjacent to the land acquired; and should process similar advantageous features. These are relevant features to be taken into consideration to prove the market value of the acquired land as on the date of the notification published under S.4(1) of the Act. This would be established by examining either the vendor or the vendee. If it is proved that they are not available, the scribe of the document may also be examined in that behalf. S.51A of the Act only dispenses with the production of the original sale deed and directs to receive certified copy for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is preduded from using the same for other purposes vis-a-vis this land. The marking of the certified copy per se is not admissible in evidence unless it is duly proved and the witnesses, viz., the vendor or the vendee are examined. This principle has been repeated in a catena of subsequent decisions of this Court." 5. The marking of the certified copy per se is not admissible in evidence unless it is duly proved and the witnesses, viz., the vendor or the vendee are examined. This principle has been repeated in a catena of subsequent decisions of this Court." 5. Pitted against these authoritative pronouncements of the Supreme Court, the learned counsel for the respondents placed reliance on S.51A of the Land Acquisition Act which reads as follows: "51'A. Acceptance of certificate copy as evidence- In any proceeding under this Act, a certified copy of the document registered under the Registration Act, 1908 (16 of 1908), including a copy given under S.57 of that Act, may be accepted as evidence of the transaction recorded in such document." Therefore, according to the learned counsel, a certified copy of a registered document can be accepted as evidence of the transaction recorded in such document under the above section. The learned counsel so relied on a decision of the Allahabad High Court reported in Tata Chemicals Ltd., Bombay v. Sadhu Singh (AIR 1994 All. 66). The Allahabad High Court quoting S.51A of the Land Acquisition Act held that certified copies of registered sale deeds are admissible in evidence without examining vendors or vendees as witnesses. But in view of the ruling of the Supreme Court referred to above, we reject the above submission of the learned counsel. 6. According to us, S.51A of the Land Acquisition Act only dispenses with the production of the original sale deed and permits the court to receive certified copy of the above document. This may be because the parties to that document may be reluctant to hand over the original document to a third party in order to produce before the Court. They may reasonably apprehend that when the original document is produced before the Court and marked in evidence, it may be difficult to get back the original in case the necessity arises. Moreover the Court may not return a document unless the Court proceedings are over. Merely because a certified copy is produced before the Court it does not mean that the contents of the above document are proved without examining the necessary witnesses. It must be remembered that the burden is always on the claimant to adduce reliable and acceptable evidence to prove payment of proper, just and adequate compensation to the acquired land. Merely because a certified copy is produced before the Court it does not mean that the contents of the above document are proved without examining the necessary witnesses. It must be remembered that the burden is always on the claimant to adduce reliable and acceptable evidence to prove payment of proper, just and adequate compensation to the acquired land. The claimant also must prove that the lands under acquisition have the same value and have comparable features. They must also prove that the nature of the lands are same and capable of fetching a similar price. These matters cannot be proved by merely producing the sale deeds. It must be accompanied by oral evidence. Therefore, according to us, the best evidence in such cases will be that of the vendee or vendor. The evidence of the scribe also can be pressed into service for the above purpose. Sometimes witnesses to the document can also give evidence if they are familiar with the transactions. In the present case Ext. Al sale deed has been proved by AW2 who is a witness to the transaction. AW2 is not only an attest or to the document but is also a father of the vendee of the document. He has also deposed that he had full knowledge about the transaction. He also deposed that the vendee of document was in dire necessity of money for construction of the building and therefore, she had offered to sell the property. Considering the evidence of AW2, the lower Court has found that there was no undue bargaining on the part of the vendee and that the transaction took place in the ordinary course of business. The witness is also familiar with the properties. The argument of the learned Government Pleader in the Court below that the vendee had purchased the property by offering a fancy price was not accepted. We do not find any reason to upset the above finding of fact. Under these circumstances, we do not find any reason to interfere with the decree and judgment of the lower Court. The appeal is dismissed without costs.