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2008 DIGILAW 210 (ORI)

GAJANAND AGARWAL v. GOLAKHA PRASAD

2008-03-12

A.K.PARICHHA

body2008
JUDGMENT : A.K. Parichha, J. - This appeal is directed against the Judgment and decree passed by Learned District Judge, Khurda in Title Appeal No. 43 of 1998 confirming the Judgment and decree of Learned Civil Judge (Sr. Division), Bhubaneswar in Title Suit No. 168 of 1990. 2. The Appellant, as Plaintiff, brought the above noted Title Suit for declaration of his right, title, interest, confirmation of possession over the suit land and in the alternative for restoration of possession on the same, if found dispossessed in the mean time. He also prayed for a declaration that he has right title over the suit land by adverse possession and for an injunction restraining the Defendant-Respondent from entering into the suit land and interfering with his possession. The case of the Plaintiff in brief was that the suit land measuring AC. 13.880 decimals appertaining to Plot No. 121/1277, Khata No. 203 in Mouza - Kantabada originally belonged to one Braja Bhukan Lal, who died leaving his three sons, namely Ramlal, Jagannath and Chaitan. Jagannath died leaving behind his widow Manati and a minor daughter Bijayalaxmi ' Laxmi. These legal heirs sold the suit land along with other lands to the Plaintiff under a registered sale deed dated 13.9.1966, Ext.1 for a consideration of Rs. 6,500/- and delivered possession thereof. The Plaintiff put green fence around the suit land and planted eucalyptus trees. He got this land mutated in his name in Mutation Case No. 19 of 1984. The Defendant out of jealousy and ill motive threatened to cut down eucalyptus trees and dispossess the Plaintiff from the suit land and initiated a proceeding u/s 144, Cr. P.C., vide Criminal Misc. Case No. 351 of 1990. In that case Learned Executive Magistrate prohibited both parties from entering upon the suit land. But the Defendant in violation of such prohibitory order constructed a hut on the suit land over an area of 25' x 22' compelling the Plaintiff thereby to file the suit asking for the above noted reliefs. 3. Defendant in his written statement traversed the pleading of the Plaintiff claiming, inter alia, that Braja Bhakunlal and Raghu Nandan Prasad were the two sons of Saluk Chand. These two brothers purchased suit land along with the other lands from Damodar Maharana vide registered sale deed No. 2862 dated 5.6.1931 (Ext. H) and took over possession of the same. 3. Defendant in his written statement traversed the pleading of the Plaintiff claiming, inter alia, that Braja Bhakunlal and Raghu Nandan Prasad were the two sons of Saluk Chand. These two brothers purchased suit land along with the other lands from Damodar Maharana vide registered sale deed No. 2862 dated 5.6.1931 (Ext. H) and took over possession of the same. In the year 1939 Raghunandan and Braja Bhakunlal effected partition by metes and bounds under a registered partition deed dated 19.07.1939, (Ext.J.), wherein the suit land fell to the share of Raghunandan Prasad, the father of the Defendant. Raghunandan accordingly possessed the suit land exclusively till his death and after him the Defendant as his sole heir continued in khas possession of the suit land residing thereon with his family and raising eucalyptus plantation etc. The Defendant remained absent from kantabada for a long period and during his long absence, the heirs of Braja Bhakunlal by playing fraud and suppressing notice clandestinely recorded their names in respect of the suit land in the records of 1962 Settlement and then sold Ac. 65. 215 decimals of land including the suit land surreptitiously to the Plaintiff and he (Defendant) in good faith attested the sale deed without knowing the contents thereof. After obtaining the sale deed the Plaintiff tried to forcibly dispossess the Defendant for which he (Defendant) initiated proceeding u/s 144, Cr.P.C., wherein the Plaintiff filed show cause admitting that he is not aware if the suit land belongs to the Defendant. Learned Executing Magistrate converted that proceeding into one u/s 145, Cr.P.C. and finally declared possession of the Defendant, vide order Ext.D. It was further pleaded that Defendant filed appeal against the order of the Revenue Officer passed in Mutation Case No. 19 of 1984 and the Sub-Collector in his Order Dated 18.5.1992, (Ext. G) in Mutation Appeal No:29 of 1990 set aside the order of the Tahasildar passed in Mutation Case No. 19 of 1984 and directed mutation of the suit land in favour of the Defendant by correcting the records. In Ceiling Case No. 223 of 1975 also the Tahasildar, Bhubaneswar, who sat on Judgment, excluded the suit land from the ceiling proceeding of the Plaintiff holding that the suit land belongs to the Defendant. In Ceiling Case No. 223 of 1975 also the Tahasildar, Bhubaneswar, who sat on Judgment, excluded the suit land from the ceiling proceeding of the Plaintiff holding that the suit land belongs to the Defendant. The Defendant specifically pleaded that neither the vendors of the Plaintiff nor the Plaintiff had/have any subsisting title or possession over the suit land. From the pleading of the parties, Learned Civil Judge framed nine issues and accepted evidence of the parties. On consideration of all oral and documentary evidence he dismissed the claim of the Plaintiff with the findings that the vendors of the Plaintiff had no subsisting title, the Plaintiff never possessed the suit land, the suit land fell to the share of Raghunandan Prasad in the family partition dated 28th July, 1939, the Defendant inherited the suit land from his father and continued his possession thereon. The Plaintiff carried appeal against the said Judgment and decree. But Learned first Appellate Court also agreed with the findings of the Trial Court and dismissed the appeal. The Plaintiff has, therefore, filed the present second appeal. 4. At the time of admission, the following substantial questions of law were formulated for consideration: (i) Whether Learned Courts below failed to apply the principle as envisaged u/s 110 of the Evidence Act to conclude prima facie ownership of the Plaintiff over the suit land in view of the long continuous possession? (ii) Whether Learned Courts below were justified in rejecting the application of the Plaintiff filed under Order 41 Rule 27, C.P.C. for acceptance of the unregistered sale deed dated 10.5.1944 and two rent receipts as additional evidence? (iii) Whether Learned lower Appellate Court was justified in refusing to admit the sale deed dated 10.5.1944 on the ground that it was unregistered even though it was a document valued less than Rs. 100/- and was not compulsorily registerable as per Section 17 of the Registration Act? (iv) Whether Learned lower Appellate Court erred in law in refusing to accept an unregistered sale deed dated 10.5.1944 which was more than 30 years old ignoring presumption available u/s 90 of the Evidence Act? 5. Mr. 100/- and was not compulsorily registerable as per Section 17 of the Registration Act? (iv) Whether Learned lower Appellate Court erred in law in refusing to accept an unregistered sale deed dated 10.5.1944 which was more than 30 years old ignoring presumption available u/s 90 of the Evidence Act? 5. Mr. S.S. Rao, Learned Counsel appearing on behalf of M/s. S.P. Mishra and associates, the Counsel for the Appellant, argued that the unregistered sale deed dated 10.05.1944 was produced by the Plaintiff-Appellant with an explanation that he came to know about the existence of that document on 22.10.1998 during his talk with Ramlal and because the document was a vital piece of evidence in support of the transfer of the suit land by the Defendant's father in favour of Braja Bhakunlal, it should have been accepted as additional evidence. He stated that the document was valued at Rs. 50/- and was not compulsorily registerable as per Section 17 of the Registration Act. So, there was no justification of discarding the same on the ground that it was unregistered. According to him, this document was more than 30 years old and, therefore, as per Section 90 of the Evidence Act, the Courts below should have presumed the genuineness of its contents. Mr. Rao, further argued that the rent receipts produced by the Plaintiff indicated the payment of rent for the suit land by the Plaintiff and his vendors and were good piece of evidence in support of possession of the Plaintiff over the suit land, but those documents were unreasonably rejected. Mr. Rao also argued that even if the sale deed Ext. 1 is found to be a void document not conveying any title yet the Plaintiff being in possession of the suit land on the basis of a void document could claim title over the land by adverse possession. He relied on the cases of Kalipada Chakraborti and Another Vs. Palani Bala Devi and Others, ; Hari Sahu and seven Ors. v. Dinabandhu Sahu and Ors. 2004 (II) OLR 88 ; Mrutunjoy Lenka and Ors. v. Gagan Kishore Swain (dead) and after him his L.Rs. and Ors. He relied on the cases of Kalipada Chakraborti and Another Vs. Palani Bala Devi and Others, ; Hari Sahu and seven Ors. v. Dinabandhu Sahu and Ors. 2004 (II) OLR 88 ; Mrutunjoy Lenka and Ors. v. Gagan Kishore Swain (dead) and after him his L.Rs. and Ors. 1994 (1) OLR 515 , wherein it was observed that an application under Order 41 Rule 27, C.P.C. is not only to be allowed on the ground that the Court requires the document for proper adjudication, but it can also be for other purposes and that when a party expresses that he was not in possession of the document at the time of trial, opportunity should be given and delay can be compensated with cost. He also relied on the case of Kelu Rout Vs. Jayananda Rout and Another wherein it was said that a document of value less than Rs. 100/- is not required to be registered u/s 17 of the Registration Act and such document can be looked into in view of Section 49 of the said Act. 6. Mr. B.H. Mohanty, Learned Counsel appearing for Respondent supported the impugned Judgment and decree and argued inter alia that undisputedly in the family partition in 1939 the suit lands fell to the share of Raghunandan and he possessed his share as exclusive owner, so the legal heirs of Braja Bhakunlal had no salable right in the suit land and accordingly, the title of the suit land never passed to the Plaintiff. He indicated that although there was no pleading in the written statement that Raghunandan sold the suit land to his brother Braja Bhakunlal or that he delivered possession of the same at the fag end of the trial the Plaintiff took the plea that there was exchange of land between Raghunandan and Braja Bhakunlal and that in that exchange Braja Bhakunlal got the suit land and then at the Appellate stage the Plaintiff tried to introduce the unregistered sale deed of 1944 on the plea that Raghunandan had sold the suit land to Braja Bhakunlal in 1944. Mr. Mohanty argued that in absence of any pleading or any foundation evidence, Learned Courts below had no scope of accepting such plea or allowing the unregistered sale deed and rent receipts as additional evidence. Mr. Mr. Mohanty argued that in absence of any pleading or any foundation evidence, Learned Courts below had no scope of accepting such plea or allowing the unregistered sale deed and rent receipts as additional evidence. Mr. Mohanty stated that the prayer for additional evidence was rightly rejected as the Plaintiff could not satisfy the essential ingredients of Order 41 Rule 27, C.P.C. Mr. Mohanty also argued that a thirty years old document no doubt carries a presumption that the signature appearing on the document belongs to the person, who allegedly executed the same, but such presumption does not extend to the genuineness and correctness of the contents of the document. He stated that the unregistered sale deed was inadmissible and unacceptable as it was contrary to the pleading of the Plaintiff and was also an unregistered one. He further contended that when the Executive Magistrate in a proceeding u/s 145 Cr.P.C. found that the Defendant was in possession of the suit land and when the Plaintiff failed to prove his long and continuous possession and was himself unsure about the ownership over the suit land, there was no scope for the Courts below to hold his title on the basis of adverse possession. Regarding signature of the Defendant on the sale deed (Ext.1) as witness, Mr. Mohanty argued that an attesting witness is not supposed to know the contents of the documents and therefore, no adverse inference can follow against the Defendant and such signature cannot be taken as admission of the contents of the document. In support of his submissions, he cited the cases of Kirtan Behari Acharya Vs. State of Orissa and Others, which says that evidence in derogation of specific pleading of a party is inadmissible and irrelevant: State of Himachal Pradesh Vs. Keshav Ram and others which says that settlement entry neither creates nor extinguishes title: Sudarsan Rout v. Jairam Sahu and Ors. 19 (1953) CLT 278 which says that sale of land valued at less than Rs. 100/- can be made only by registered document or by delivery of possession without any document; Chanchal Devi and Others Vs. Puri Bank Ltd. and Others which propagates that once there is a registered document, subsequent revenue papers will follow such document. 7. Order 41 Rule 27, C.P.C. reads as follows: 27. Production of additional evidence in Appellate Court. 100/- can be made only by registered document or by delivery of possession without any document; Chanchal Devi and Others Vs. Puri Bank Ltd. and Others which propagates that once there is a registered document, subsequent revenue papers will follow such document. 7. Order 41 Rule 27, C.P.C. reads as follows: 27. Production of additional evidence in Appellate Court. (I) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was, passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 8. The provision essentially says that if a party produces evidence, but the same was refused by the Trial Court unreasonably and illegally, if the existence of the document was beyond the knowledge of the party and despite due diligence he could not procure the document earlier and when the Court considers an evidence necessary for just and proper adjudication of the lis, then and then only additional evidence produced can be accepted in evidence. No doubt, the Court has discretion to admit a document/evidence by way of additional evidence for any other purpose, if in its opinion, such step is necessary to meet the ends of justice. Admittedly, the unregistered sale deed was never produced before the Trial Court and was never rejected by the Trial Court. The document is said to be of the year 1944 and, therefore, it cannot be said that the document was not in existence. The documents were allegedly with Ramlal, the son of Braja Bhakunlal and the vendor of the Plaintiff. Admittedly, the unregistered sale deed was never produced before the Trial Court and was never rejected by the Trial Court. The document is said to be of the year 1944 and, therefore, it cannot be said that the document was not in existence. The documents were allegedly with Ramlal, the son of Braja Bhakunlal and the vendor of the Plaintiff. So, it is not believable that Ramlal did not disclose about existence of such a document when he and other heirs of Braja Bhakunlal sold the suit land to the Plaintiff despite the admitted position that there was a partition through a registered document in 1939 and that in that partition the suit land fell to the share of Raghunandan. No evidence was led to show that despite due diligence the Plaintiff was unaware about the existence of that document. To top it all, there was no pleading in the written statement that there was any such sale of the suit land by Raghunandan in favour of Braja Bhakunlal. In such a backdrop, there was no scope of entertaining the unregistered sale deed as additional evidence at the Appellate stage. Learned first Appellate Court thus did not commit any legal error in refusing to accept this unregistered sale deed as additional evidence. 9. Even though, Learned first Appellate Court rejected the prayer of the Plaintiff-Appellant made under Order 41 Rule 27, C.P.C., yet it considered about the evidentiary value of alleged sale deed to indicate that the document does not help the Plaintiff's case. Admittedly, the document is unregistered one. The first Appellate Court observed that a combined reading of Section 54 of the Transfer of the Property Act and Sections 17 and 49 of the Registration Act, 1908 makes it clear that the documents in the supplementary list, that is, the documents of which registration is necessary under the Transfer of the Property Act, but not under the Registration Act, fall within the scope of Section 49 of the Registration Act, and if not registered, are not admissible as evidence of any transaction affecting any immovable property comprised therein. Such observation, of the Learned first Appellate Court is supported by the observation of the Apex Court made in the case of Raghunath and Others Vs. Kedar Nath Law is settled that sale of an immovable property below Rs. Such observation, of the Learned first Appellate Court is supported by the observation of the Apex Court made in the case of Raghunath and Others Vs. Kedar Nath Law is settled that sale of an immovable property below Rs. 100/- can be effected by a registered document or by delivery of possession. If a registered document is not there or if actual delivery of possession is not proved, then the sale becomes invalid. In such legal backdrop, there is no scope of transfer of any immovable property through an unregistered document. Therefore, the unregistered document which was sought to be introduced by the Plaintiff as additional evidence was of no avail and was rightly ignored by Learned first Appellate Court. There is also no evidence to show that Raghunandan sold the suit land by way of delivering possession of the land. So, either way the alleged sale of the suit land. by Raghunandan to Braja Bhakunlal was not legally established. 10. It is canvassed by Learned Counsel for the Appellant that even though the sale deed was unregistered, it was a document of more than 30 years old and carries presumption available u/s 90 of the Evidence Act and, therefore, it should have been admitted in evidence without proof as it had come from the proper custody. Section 90 of the Evidence Act reads as under: Where any document, purporting or proved to be 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 person's handwriting and, in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. A plain reading of the Section would show that the presumption u/s 90 of the Evidence Act does not extend to the contents of the document. So, it is not correct to say that the unregistered document of sale being thirty years old should have been read as evidence of the sale transaction or for collateral purpose, such as possession of the Plaintiff. Such conclusion is supported by the observations made in Raghunath and Others Vs. Kedar Nath, ; Mohinuddin and Another Vs. So, it is not correct to say that the unregistered document of sale being thirty years old should have been read as evidence of the sale transaction or for collateral purpose, such as possession of the Plaintiff. Such conclusion is supported by the observations made in Raghunath and Others Vs. Kedar Nath, ; Mohinuddin and Another Vs. President, Municipal Committee, Khargone, & Chinnasami Chetty and Others Vs. Manickammal and Another, . 11. Learned Counsel for the Appellant argued that the Defendant-Respondent himself signed on the sale deed, Ext.I, as a witness and such act on his part amounts to his admission that the suit land was no more his property, but was the property of Braja / Bhakunlal and his legal heirs. As was said in the case of AIR 1945 82 (Privy Council) and reiterated by the High Court of Jammu & Kashmir in the case of Sarwar Shah v. Abdullah Shah and Anr. 1963 J & K 14 and the High Court of Calcutta in the case of Basant Kumar Kejriwal v. Suman Kejriwal and Ors. 2005 (3) CCC 35 (Cal.), an attesting witness merely testifies that the executant of the document signed the document in his presence and that an attesting witness is not supposed to know the contents of the document which is executed by the executant. It was clearly said in these cases that mere attestation without anything else cannot justify the inference that attestetor knew the contents of the deed. The evidence in the present case show that the Defendant-Respondent signed Ext.1 as an attesting witness, but he stoutly denied to have known the contents of the deed. Though the Plaintiff made attempt to show that the contents of the deed were read over and explained to the attesting witness", there was no evidence worthy of acceptance in this regard. Therefore, mere attestation by Defendant will not presupposes that he knew the contents of the document and thus admitted his lack of ownership over the suit property. 12. On the score of possession, Learned Counsel for the Appellant high lighted the entries of settlement record, the mutation order and the rent receipts. In the sale document Ext. 1, Ac. 65.215 dec. including the suit land were shown -old. 12. On the score of possession, Learned Counsel for the Appellant high lighted the entries of settlement record, the mutation order and the rent receipts. In the sale document Ext. 1, Ac. 65.215 dec. including the suit land were shown -old. Once there is registered document subsequent revenue papers are bound to follow the document until it is shown that the properties shown in the registered document were not actually sold. This view is fortified by the observation of this Court in the case of Smt. Chanchala Devi and others (supra). Even though mutation of the suit land was initially allowed in favour of the Plaintiff, the same has been struck down in the appeal. Similarly, in the settlement record also necessary corrections have been made and the name of the Defendant has been recorded against the suit land. Rent receipts are consequential documents. Once a mutation is allowed or settlement patta is granted, rent can be paid by any person. In view of the' initial recordings in the settlement records and the mutation order, the Plaintiff-Appellant paid rent for some years. Such payment of rent cannot presuppose possession of the Plaintiff over the suit land. In the proceedings u/s 144/145 Cr. P.C. the possession of the Defendant-Respondent over the suit land was found and from the oral and documentary evidence the Courts below came to the concurrent conclusion that the Defendant-Respondent was in possession of the suit land which situates in a different village than the other lands noted in the sale deed, Ext.1. The approach and analysis made by the Courts below in this regard appears reasonable and is in no way perverse. In such a situation, the principles and presumption of Section 110 of the Evidence Act could not have been extended in favour of the Plaintiff-Appellant. 13. For all the aforesaid reasons, the substantial questions of law raised by the Appellant are answered against him. Therefore, the Judgment and decree of the Courts below are confirmed and the appeal is dismissed on contest with cost. Final Result : Dismissed