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2011 DIGILAW 1410 (CAL)

Manojaditya Das Mahaparta v. STATE OF WEST BENGAL

2011-11-11

TAPAN KUMAR DUTT

body2011
JUDGMENT Tapan Kumar Dutt, J. 1. THIS Court has heard the learned Counsels for the respective parties. 2. THE facts of the case, briefly, are as follows: THE plaintiffs/appellants filed a suit being T.S. No. 426 of 1981 (which was placed before the learned 2nd Munsifs Court at Contari) for declaration of title and injunction in respect of certain lands. The plaintiffs' case was that the suit lands originally belonged to one Bikramaditya Das Mahanatra who sold the Ka schedule land by a registered kobala dated 02.07.1958 to the plaintiff No. 1 and the Kha schedule land to the plaintiff No.2 by another registered kobala dated 06.01.1961. The plaintiffs' case was that the plaintiffs are in possession of the suit lands on payment of rent and mutation of their names in the R.S. records and that the suit lands which have been recorded as 'Akrishi' are not liable to be vested under the West Bengal Estates Acquisition Act. The plaintiffs' case was that the State authorities subsequently refused to record the plaintiffs' names in the records of right and also refused to admit the title of the plaintiffs. It appears that only the State of West Bengal, the defendant No.1, contested the suit by filing a written statement denying the material allegations made in the plaint. The essence of the contentions raised by the said defendant was that the suit is not maintainable, the said Bikramaditya Das Mahapatra was not allowed to retain any non-agricultural land and the suit plots were not included in non-agricultural tenancy khatian. The said defendant's case was that the alleged purchases made by the plaintiffs were made after the date of vesting of the said lands in the State of West Bengal and as the suit lands had vested in the State of West Bengal the plaintiffs cannot get any relief in the suit. 3. THE learned trial Court by judgment and decree dated 4.7.1986 decreed the said suit on contest against the defendant No.1 and ex-parte against the rest. The learned trial Court declared the plaintiffs' right, title and interest in the Ka, Kha schedules land respectively and the defendants were restrained permanently by way of injunction from interfering with the plaintiffs' land is anyway whatsoever. 4. The learned trial Court declared the plaintiffs' right, title and interest in the Ka, Kha schedules land respectively and the defendants were restrained permanently by way of injunction from interfering with the plaintiffs' land is anyway whatsoever. 4. THE defendant No. 1, challenging the said judgment and decree passed by the learned trial Court, preferred T. A. 26 of 1987/T.A. 76 of 1987 which was placed before the learned Court of Assistant District Judge. Contai. The learned Lower Appellate Court by its judgment and decree dated 23rd December, 1987 allowed the title appeal by setting aside the judgment and decree passed by the learned trial Court and dismissed the said suit. It may be noted here that the learned trial Court in its judgment relied upon Ext. 6 and found that "it is clear from Ext. 6 that plots 488/1397 and 533 have been classified as Bans Bon in the name of Bikramaditya Das Mahapatra. This Ext. 6 is a finally published record of right....". It appears that the defendant No. 1 raised a plea to the effect that the said Ext. 6 has not been certified to be a true copy of the original one and the said document should be expunged, but the learned trial Court found "on careful scrutiny of the Ext.6 it appears to me that the document has been duly compared and attested by the competent authority and also have been duly stamped and there is no reason to disbelieve the document. Accordingly the objection raised by the defendant to expunge the Exhibit from the evidence is overruled. It further appears on scrutiny Ext. 7 a certified copy of a proceeding being No. 118 under section 44(1) of the West Bengal Estates Acquisition Act that the settlement-authority upon hearing the objection opened a khanda khatian being N0.V2 in respect of the suit plots 533 and 488/1397 on 16.07.1957 Accordingly a khanda Khatian V2 has been opened with the note A-Krishi Praja Vide Ext.6". It further appears from the learned trial Court's judgment that the defendant No.1 produced a series of records of right being Ext.A series where from it appears that a certain "khatian has a note of vesting in the name of defendant No.5". It further appears from the learned trial Court's judgment that the defendant No.1 produced a series of records of right being Ext.A series where from it appears that a certain "khatian has a note of vesting in the name of defendant No.5". The learned trial Court observed that it is not understood as to how the suit plots have been transferred and re-transferred in khatian No.1 and 1/1 from Khatian No.1/2 ignoring a proceeding by the self-same settlement authority under section 44(1). The learned trial Court further observed that the defendant No. 1 has "carefully avoided to produce relevant documents for such transposition and re-transposition of the suit plots from one khatian to another by repeatedly dishonouring their own decision. I have no hesitation to point out that the settlement authority have deliberately withheld the relevant documents in this regard". It appears from record that the defendant No.5 is the said Bikramaditya Das Mahapatra. 5.) THE learned Lower Appellate Court recorded in the impugned judgment that three points were argued before him on behalf of the defendant No. 1 who was the appellant before the learned Lower Appellate Court. 6. WITH regard to the first point the learned Lower Appellate Court held that the suit is maintainable. With regard to the second point the learned Lower Appellate Court observed that admittedly Ext.6 is an uncertified copy of records of right and the learned trial Court admitted it into evidence as a public document. The learned Lower Appellate Court further observed that a document to be treated as a certified copy of a public document must be certified to be so by an officer authorised under section 76 of the Indian Evidence Act, 1872 but in the instant case the said Ext.6 has not been so certified and hence it is inadmissible in evidence and is, therefore, liable to be expunged. The learned Lower Appellate Court expunged the said Ext.6 from records. 7. WITH regard to the third point the learned Lower Appellate Court observed that the learned trial Court wrongly held that the suit lands are non-agricultural in nature on the basis of the said Ext.6 which has been expunged by the learned Lower Appellate Court. The learned Lower Appellate Court found that the suit lands are agricultural lands on the basis of the Ext.A series. 8. The learned Lower Appellate Court found that the suit lands are agricultural lands on the basis of the Ext.A series. 8. THE plaintiffs have filed the present second appeal being S.A. No. 595 of 1989 challenging the aforesaid judgment and decree passed by the learned Lower Appellate Court. By order dated 29.04.2011 this Court passed an order that the appeal will be heard on the following, substantial questions of law. "1. Whether or not the learned lower Appellate Court was justified in expunging Exhibit 6 from the records when the learned trial Court had considered the said Exhibit 6 and found that there was no reason to disbelieve the document and that the said document has been duly compared and attested by the competent authority and also it was duly stamped. 2. Whether or not the learned lower Appellate Court was justified in coming to its conclusions without taking Exhibit 6 into consideration and whether or not the conclusion arrived at by the learned lower Appellate Court in the impugned judgment would have been otherwise if the said Exhibit 6 was taken into consideration." The learned counsel for the appellant submitted that the Ext.6 is finally published record of right and no objection was raised on behalf of the contesting defendant when the said document was admitted in evidence and the defendant No. 1 filed an application for expunging the said Ext.6 from records at a very belated stage when the suit was fixed for arguments. The said learned Counsel referred to Pages 7 and 8 of the paper book where the learned trial Court found that "following a direction from the Hon'ble High Court the settlement authorities recorded the suit plots in khatian No. 1/2 and also directed for correction of the records and realisation of rents from the present plaintiffs vide Ext.4. It further reveals from the series of rent receipt that the Government has accepted the plaintiffs as rightful owner in the suit land". 9. THE said learned counsel submitted that the document being Ext.6 came into existence earlier in point of time than the documents being Ext.A series and the authorities concerned did not follow any legal procedure while purporting to nullify the said document being Ext.6. The said learned counsel submitted that the authorities concerned purported to illegally transfer the suit lands from khatian N0.V2 to khatian No.1 and 1/1. The said learned counsel submitted that the authorities concerned purported to illegally transfer the suit lands from khatian N0.V2 to khatian No.1 and 1/1. He submitted that the non-agricultural land could not have been vested in the State of West Bengal. 10. WITH regard to the said Ext.6 the said learned Counsel referred to the meaning of the word 'attest" in Black's Legal Dictionary and submitted that the said word means to bear witness, testify, to affirm to be true or genuine or to authenticate by signing as a witness. The said learned counsel referred to section 79 with special emphasis on the proviso to the section and also to section 4 of the said Act of 1872 while making his submissions on the phrase "shall presume". He submitted that a perusal of Ext. 6 would show that it has been duly certified to be a copy of the finally published record of right wherein "Akrishi Praja" has been recorded and the said Exhibit has been duly copied, compared and attested by an appropriate person. He referred to section 114(g) of the said Act of 1872 and submitted that the defendant No. 1 could have produced the original of the said Ext.6 but it did not produce the same and thus adverse presumption should be drawn against the defendant No.1. The said learned counsel submitted that it has not been stated in the application for expunging Ext.6 that the officer who attested the said certified copy of the finally published record of right was not authorised to do so and it has also not been stated in such application that the defendant No. 1 raised any objection when the said document (Ext.6) was adduced in evidence. According to the said learned Counsel if there is nothing on record to show that the person who attested the said certified copy (Ext.6) was unauthorized to do so the learned Lower Appellate Court should have held that section 76 of the said Act of 1872 cannot help the contesting defendant. The said learned counsel cited a judgment reported at AIR 1959 SC 960 (Bhinka and Ors v. Charan Singh) (Paragraph 7) wherein it appears that the Hon'ble Court was pleased to hold that if a certified copy was executed substantially in the form and in the manner provided by law, the Court raises a rebuttable presumption in regard to its genuineness. The said learned counsel submitted that such presumption has not been rebutted by the contesting defendant. 11. THE said learned counsel submitted that Ext.6 was marked as an exhibit on formal proof being waived and he referred to order No. 34 dated 11.06.1986 passed by the learned trial Court in this regard. The said learned Court referred to Rule 4 of the West Bengal Estates Acquisition Rules, 1954 it has been, inter alia provided that if the land held by the intermediary be non-agricultural land, then, he shall hold it as a tenant under the West Bengal Non agricultural Tenancy Act, 1949, holding non-agricultural land for not less than twelve years without any lease is writing. 12. THE said learned counsel submitted that the learned Lower Appellate Court overlooked the provisions of sections 4 and 79 of the said Act of 1872 and acted illegally in expunging the said Ext.6. The said learned counsel referred to the judgment reported at AIR 1986 Kerala 196 (Thatha v. Paru andOrs). Paragraph 7 of the said reports is quoted as follows: "A legal presumption is created by section 79 of the Evidence Act as to the genuineness of every document, "purporting to be a certified copy" which purports to be duly certified by any officer duly authorised thereto. There is some importance to the proviso to that Section which says that it is enough that such document "is substantially in the form and purports to be executed in the manner directed by law in that behalf. When the law has created a legal presumption in favour of the genuineness of a document when it is in substantial compliance. though not in strict compliance with the provisions for the that a carbon copy as produced in this case can be treated as a certified copy. No particular form as such is prescribed in section 76 and hence if the copy produced contains the necessary particulars by which its authenticity can be inferred, the same can be treated as a certified copy of the order." 13. No particular form as such is prescribed in section 76 and hence if the copy produced contains the necessary particulars by which its authenticity can be inferred, the same can be treated as a certified copy of the order." 13. THE said learned Counsel cited another judgment reported at 2004(1) CHN (SC) 66 (R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V. P. Temple and Anr.) (paragraph 20) and submitted that in the instant case the dispute raised by the defendant No.1 at a belated stage was with regard to the mode of proof of the document (Ext.6) and not that the document itself was inadmissible. He submitted that the defendant No. 1 not having raised any objection when the said Ext.6 was admitted into evidence and/or at the earliest stage it could not have raised any objection subsequently in this regard. Paragraph 20 of the said reports is quoted below: 'THE learned counsel for the defendant-respondent has relied on Roman Catholic Missian v. State of Madras and Anr., AIR 1966 SC 1457 , in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes; (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit'", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the first case, merely because a document has been marked as "an exhibit'", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a Superior Court". 14. In the first case, acquiescence would be no bar to raising the objection in a Superior Court". 14. THE learned counsel for the appellants cited a decision reported at 2003(1) CHN 475 (R.S.I. Limited v. Property Company Private Limited and Anr). In Paragraph 24 of the said reports the Hon'ble Court was pleased to approve the view that once a document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence and it is not open to a party to object to the admissibility of documents which are marked as Exhibits without any objection from such party or, in other words, unless objected to by a party, the documents admitted in evidence are to be construed to have been satisfactorily proved. The said learned counsel submitted that the learned Lower Appellate Court wrongly described the suit lands as bamboo garden when according to Ext. A series it has been described as 'bans bon'. The said learned Counsel also submitted that when in the Khatian concerned the suit lands have been described as 'akrishi' it is not permissible to segregate the two plots in such Kathian and treat such plots as agricultural land. The said learned Counsel cited a decision reported at Calcutta Law, Times 1999(2) HC 30 [Sanat Kumar Mal and Ors. v. State of West Bengal and Ors.) and referred to Paragraphs 26 and 27 of the said reports wherein it has been observed that even if a bamboo garden may not be considered to be an orchard but the same cannot be considered to be agricultural lands also. It appears that in Paragraph 28 of the said reports the Hon'ble Court was pleased to observe, inter alia that lands upon which bamboo plants exist cannot be said to be agricultural lands. The said learned counsel cited a decision reported at AIR 1986 Cal 23 (Durgapada Jana v. NemaiCharanJanaandOrs.) and referred to Paragraphs 14 and 15 of the said reports. The Hon'ble Court was pleased to observe, inter alia in the said reports that when a document is admitted after formal proof being waived, it means admission by the party waiving such formal proof of the due execution of the document and if the execution itself is admitted by a party, the question of further proving the execution of the document by an attesting witness will not arise. In Paragraph 15 of the said reports the Hon'ble Court was pleased to refer to a judgment of the Privy Council and note that if a party raises an objection with regard to the mode of proof it is essential that such objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. 15. THE said learned counsel cited another decision reported at 86 CWN 326 [State of West Bengal Represented By The Land Acquisition Collector, Burdwan v. Chintaharan Mondal and Ors.) and referred to Paragraph 14 of the said reports in support of his submission that the defendant No. 1 should not have been permitted to raise objection with regard to the said Ext. 6 as the said defendant No. 1 did not raise any objection to the said document when it was marked as an exhibit. The learned counsel for the appellants submitted that the State of West Bengal has been collecting rents from the plaintiffs/appellants as already found by the learned trial Court, and the provisions of section 3A of the West Bengal Land Reforms Act, 1955 cannot adversely affect the plaintiffs/appellants. 16. THE learned counsel for the appellants cited a decision reported at AIR 1961 SC 1655 [Javer Chand and Ors. v. Pukhraj Surana). In Paragraph 14 of the said reports the Hon'ble Court has been pleased to observe "once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Count of superior jurisdiction." The learned counsel for the appellants submitted that document being Ext.6 was attested by a Government Officer and the defendant No. 1 could have asked the said Government Officer concerned to give evidence regarding Ext.6. He submitted that it has to be remembered that the defendant No. 1 did not make out any case that the said Ext.6 was obtained by the appellants by practicing any fraud. He further submitted that section 76 of the said Act of 1872 should be read with section 79 of the said Act. 17. He submitted that it has to be remembered that the defendant No. 1 did not make out any case that the said Ext.6 was obtained by the appellants by practicing any fraud. He further submitted that section 76 of the said Act of 1872 should be read with section 79 of the said Act. 17. THE learned counsel for the contesting defendant/respondent submitted that a certified copy of a document has to be issued in terms of section 76 of the said Act of 1872 and not otherwise. His submission was that in the present case, the provisions of section 76 of the said Act of 1872 was not followed and unless the word 'true copy' are written on the certified copy it cannot be said that Section 76 has been complied with. THE said learned Counsel for the contesting defendant/respondent submitted that the person who had attested the said Ext.6 should have come to the witness box since the said Ext.6 is not a certified copy. His submission was that the learned Lower Appellate Court has rightly held that the said Ext.6 was inadmissible in evidence. 18. THE two substantial questions of law which have been formulated in the instant appeal have already been quoted above. It appears that the main dispute is with regard to the said Ext.6. The learned trial Court has found that there is no reason to disbelieve the said document and that the said document has been duly compared and attested by the competent authority and it has also been duly stamped. It is also clear from the impugned judgment that the learned Lower Appellate Court came to in conclusion without taking Ext.6 into consideration and. in fact, by expunging said Ext.6 from records. The learned Lower Appellate Court was of the view that a document to be true as certified copy of a public document must be certified to be so by an officer authorised under the said Section 76 of the Indian Evidence Act. The learned Lower Appellate Court simply observed that the said document 'is not so certified' and hence it is inadmissible as a certified copy of a public document. On perusal of the said Ext.6 it appears that it has been copied by a certain person whose signature appears under the words 'copyed by'. The learned Lower Appellate Court simply observed that the said document 'is not so certified' and hence it is inadmissible as a certified copy of a public document. On perusal of the said Ext.6 it appears that it has been copied by a certain person whose signature appears under the words 'copyed by'. It further appears that it has been compared by the comparing clerk concerned and attested by the attestation officer. The stamp of the revisional settlement office, Midnapore-Pankura also appears on the said document. Relevant dates also appear on such document. It has also been noted on the said document that it happens to be a record of right finally published under the West Bengal Estates Acquisition Act. As the said document has been copied from the original document, compared and attested, this Court is of the view that there should be no difficulty in coming to conclusion that it is a true copy of the original document and the same can be treated as a certified copy of the original document. In this connection the meaning of the word 'attest' as already noted above should be taken into consideration. The word 'attest' implies that it is a true and/or genuine document. The term 'certified copy' can also be termed as an 'attested copy'. This Court is unable to accept the contention of the learned counsel for the contesting defendant/respondent that unless the words 'true copy' are written on the document it cannot be said that section 76 of the Indian Evidence Act has been complied with. When a document has been copied from the original, compared and also attested by a responsible authorised officer one can come to the conclusion that it is a certified copy and also a true copy of the original one. It is true that in section 76 of the Indian Evidence Act, the words 'true copy' find place but if a copy has been made from the original one and the same has been compared and attested by an authorized officer it will have the effect of being a true certified copy of the original one. It is true that in section 76 of the Indian Evidence Act, the words 'true copy' find place but if a copy has been made from the original one and the same has been compared and attested by an authorized officer it will have the effect of being a true certified copy of the original one. The proviso to section 79 of the Indian Evidence Act provides when the document is substantially in the form and has been executed in the manner directed by the law the Court can presume it to be genuine if the same has been duly certified by an authorised officer. In this connection Thatha's case (supra), as already discussed above, may be noted. 19. THE learned counsel for the appellants has rightly argued that since the defendant No. 1/respondent did not raise any objection when the said document (Ext.6) was adduced in evidence and marked as an exhibit, the said defendant could not have raised any objection in this regard at the point of time when the suit was fixed for argument. In this connection, R.V.E. Venkatachala Gounder's case (supra), R.S.I. Limited's case (supra) and Chintaharan Mondal's case (supra) may be noted as already discussed above. The observations of the Hon'ble Supreme Court in Javer Chand's case should also be borne in mind as quoted above. In the instant case, when the said Ext.6 was admitted in evidence it was done so on formal proof being dispensed with. In this connection, Durgapada Jana's case (supra) may be noted as already discussed above. 20. IN view of the discussions made above, this Court is of the view that the learned Lower Appellate Court committed an error in expunging the said Ext.6 from the records. This Court is of the view that the learned Lower Appellate Court should have taken into consideration the said Ext.6 and then ought to have decided the matter on merits. Thus, the learned Lower Appellate Court was not justified in coming to its conclusions without taking Ext.6 into consideration. This Court is of the view that the learned Lower Appellate Court should have taken into consideration the said Ext.6 and then ought to have decided the matter on merits. Thus, the learned Lower Appellate Court was not justified in coming to its conclusions without taking Ext.6 into consideration. The question as to whether or not the conclusion arrived at by the learned Lower Appellate Court in the impugned judgment would have been otherwise if the said Ext.6 was taken into consideration should be left to the learned Lower Appellate Court itself and for such purpose this Court is of the view the matter should now be remanded back to the learned Lower appellate Court for a fresh decision in the title appeal concerned after taking into consideration the said Ext.6. The question whether the suit lands are agricultural lands or non-agricultural lands will have to be decided by the learned Lower Appellate Court afresh after taking into consideration the said Ext.6. The expression "shall presume" appearing in section 79 of the said Act of 1872 should be considered taking into consideration the meaning given to it under section 4 of the said Act. In view of the discussions made above, the finding of the learned Lower Appellate Court on the third point, that is, with regard to the nature of the suit lands (whether such lands are agricultural or non-agricultural lands) is also set aside and the learned Lower Appellate Court will have to decide such point after taking into consideration the said Ext.6 along with the other materials on record. 21. IN view of the discussions made above, the impugned judgment and decree dated 23rd December, 1987 passed by the learned Lower Appellate Court in title appeal No.26 of 1987/title appeal No.76 of 1987 are set aside and the matter is sent back on remand to the learned Lower Appellate Court for a fresh decision of the aforesaid title appeal and the learned Lower Appellate Court for such purpose shall take into consideration the said Ext.6. The instant appeal being S.A. No. 595 of 1989 is thus disposed of. 22.) THERE will be no order as to costs. Appeal disposed of.