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2011 DIGILAW 1983 (PNJ)

Atma Nand v. Ram Sarup

2011-11-04

K.KANNAN

body2011
JUDGMENT Mr. K. Kannan, J. (Oral): - The appeal is by the plaintiff on the concurrent finding of the Courts below dismissing the plaintiff’s action which was originally filed for injunction but later modified for the relief of recovery of possession. The plaintiff claimed right to the property as a purchaser through a registered document dated 02.02.1978 executed by one Subhash whose power of attorney was Paras Ram. Originally the relief of injunction was sought against defendant, who claimed under a rival sale executed on 10.02.1978 through power of attorney Ram Kumar. While the deed of power of attorney relied on by the plaintiff was a registered instrument, the power of attorney in favour of Ram Kumar, who had executed the document was purported to have been executed on 01.02.1978 and notarized on 06.02.1978. 2. At the trial Court, the plaintiff had filed the power of attorney as well as the sale deed and sought for the relief of recovery of possession saying that he had been wrongly dispossessed and the defendant, who claimed to be a purchaser through a transaction that was subsequent to the plaintiff’s sale deed had no right to be in possession of the property. The defence, inter alia, was that the sale in favour of plaintiff was itself not competently executed by the person to vest any right in the property. According to the defendant, the power of attorney in favour of Paras Ram contained no power to sell and the sale executed in his favour was itself invalid for the plaintiff to claim the right of recovery of possession. At the trial of the suit, the plaintiff also filed registration copy of the power of attorney to contend that some of the important lines in the power of attorney had been omitted in the original and he wanted to rely on the registration copy of the power of attorney to contend that the power of attorney had a competency to sell the property and act on behalf of the principal. The document was discarded by the trial Court which found that there was no justification for reception of secondary evidence and proceeded to dismiss the suit. 3. In an appeal the plaintiff filed an application under Order 41 Rule 27 to found a justification for reception of the registered copy which was omitted to be exhibited in evidence by the trial Court. 3. In an appeal the plaintiff filed an application under Order 41 Rule 27 to found a justification for reception of the registered copy which was omitted to be exhibited in evidence by the trial Court. The Appellate Court did not see the relevance of the registered copy but proceeded to dismiss the application on a more general ground that reception of additional evidence at the Appellate Court could not be a matter of course and there was no justification for not failing to secure the admission of the document in evidence before the lower Court. 4. The plaintiff is aggrieved by the judgment of the Appellate Court which confirmed the trial Court’s judgments and would urge the points that give rise to the following substantial questions of laws :- i) Whether the lower Appellate Court was justified in rejecting the certified copy of the power of attorney without going into the issue of the relevance of the same and the need for it to be taken on record in the light of the contention that the original power of attorney had contained some serious omissions which were required to be explained through the registration copy? ii) Whether the certified copy of the document, which was registered, was itself not a public document and per se admissible without any further proof? iii) Whether the plaintiff is entitled to the relief of recovery of possession on the basis of the sale deed which must be taken as having been executed by a person competent to execute a sale deed under the general power of attorney, where the power of manage which must be taken as empowering him to sell the property on behalf of the principal? 5. There can be no doubt about the fact that the registration copy of a sale deed is admissible, if it is duly authenticated and could be acted upon under Section 74 of the Indian Evidence Act. While Section 74 lends authenticity to a document which is duly certified, section 65 provides a justification for reception of secondary evidence. The original power of attorney was already in Court and it was the primary evidence. If the registration copy were also to be received, normally it could be done only under the circumstances which are delineated under Section 65. The original power of attorney was already in Court and it was the primary evidence. If the registration copy were also to be received, normally it could be done only under the circumstances which are delineated under Section 65. None of the grounds which are mentioned in Section 65 is sought to be relied on for admission of secondary evidence. On the other hand, the secondary evidence is brought to Court to explain the primary evidence. It is usual for any party to explain the original in its absence through secondary evidence. In this case, the original has been filed but an attempt is made to show that the original contained serious omissions and the absence of reference to the power to execute a sale deed in the original was a mistake of the typist, who had not typed the said power but the duplicate copy which was prepared at the same time and which was given to the Registrar’s Office contained a reference to the power of sale also. Rather than the copy being a true copy of the original, it was a new amplification of what the original deed was intended to contain. In other words, the plaintiff was trying to rely on a registration copy to say that the original contained an important omission and, therefore, the original alone could not have been relied on but understood with reference to a more correct copy. 6. If the original which is the primary evidence contained an omission then such an omission could be explained by oral evidence to the extent which is permitted under Sections 91 and 92 of the Evidence Act. Section 91 details the evidence of terms of contract, grants or other dispositions of property reduced to form of writing. Section 91 states that no evidence shall be given in proof of the terms of such contract, grant or other disposition except the document itself or secondary evidence of its contents in cases which secondary evidence is admissible under the provisions hereinbefore contained. Therefore, if secondary evidence were to be relied on, it should be under the circumstances which are permissible under Section 65. I have already observed that none of the grounds under Section 65 is satisfied to receive the registration copy. Therefore, if secondary evidence were to be relied on, it should be under the circumstances which are permissible under Section 65. I have already observed that none of the grounds under Section 65 is satisfied to receive the registration copy. The registration copy cannot therefore be substituted or relied on to explain otherwise than what the original itself contained in terms of Section 91. Section 91 contains three exceptions, none of which is attracted to this case. Section 92 of the Evidence Act excludes evidence of oral agreement in respect of any transaction which is required in law to be in writing and which is produced in writing. An oral evidence that power to sell was intended to be given, notwithstanding the omission of the power of sale in the original power of attorney, cannot be given to substitute what the original actually contained. 7. Again, if it had been a case of missing words here or there or the last line was omitted to have been typed by the typist but typed in the carbon paper and not brought in the original, then such an explanation might be considered. The registration copy contains a reference to execution of mortgage, gift or sale running to about 11 lines in the registration copy produced. The same is extracted in vernacular as under:- ......kar sakega, rasid de sakega appeal nigrani najar sani va adalat appeal dadar karne tatha unme parvi va javab ki karne ka va majaj hoga. Meri jaydad har kisam mankula va gair mankula ko bajariya va ya rahan ya hiba ya tabadala ya is ka digar tarik par intkal kar sakega. Dastavej intkal kar sakega. Rasid de sakega. Appeal nigrani najar sani va adalat appeal dadar karne tatha unme parvi va javab dehi karne ka va majaj hoga. Meri jayadad har kisam mankula va gair mankula ko bajriya va ya rahan ya hiba ya tabadala.....” 8. None of these lines is found in the original. Secondary evidence is bound to be true the original. Secondary evidence cannot amplify by additional words what the original did not contain. In this case, the registration copy does not confirm to the original and that is good enough reason to discard it although it is authenticated; it is simply not a true copy. The presumption of correctness of the registration copy is lost by what the original contains. Secondary evidence cannot amplify by additional words what the original did not contain. In this case, the registration copy does not confirm to the original and that is good enough reason to discard it although it is authenticated; it is simply not a true copy. The presumption of correctness of the registration copy is lost by what the original contains. I cannot accept a plea that 11 lines in the registration copy could have been omitted from the original without the knowledge of the principal himself. Assuming for argument’s sake that the omission was unintended but the principal had indeed granted such a power, it was imperative that the plaintiff had examined the principal to explain what the original was intended to be and that he had granted such a power of sale to his agent. No explanation has been given as to why the principal himself was not examined in this case. He should have been the most competent to speak about the omission in the original power of attorney. I cannot, therefore, find any justification for relying on the registration copy of the original which was filed in Court to hold that the agent had any power to execute the sale deed in favour of the plaintiff and to give a basis of the plaintiff to sue for recovery of possession. Such a power to sell cannot be inferred by the general terms contained to manage the property. 9. The two Courts below have held that the plaintiff had not established his right on the basis of a sale deed executed. The counsel for the appellant argued that the trial Court had found that the sale in favour of the defendant was also not true, since the power of attorney was not registered. I am not prepared to accept such a finding, for, the power of attorney does not require to be registered, as wrongly observed by the trial Court. Only in cases where under Section 32 of the Registration Act, the person that presents the document for registration and admits the same before the Registering Officer, is different from a person, who had executed the document, the power of attorney would be required to be registered. If the document is executed by a power of attorney and also presented by him before the Registering Officer neither Section 32 nor 33 will be attracted. If the document is executed by a power of attorney and also presented by him before the Registering Officer neither Section 32 nor 33 will be attracted. This position of law is explained by the Hon’ble Supreme Court in Rajni Tandon Versus Dalal Ranjan Jayprakash Tiwari- [2009(5) Law Herald (SC) 3048] : (2010) 5 SCC 104. In this case, Ram Kumar as a power of attorney for Subash has executed the sale in favour of the defendant and has also presented the document for registration. The sale is perfectly valid even power of attorney was not registered. This is only stated in the passing to explain the position of law which has been wrongly stated by the trial Court. 10. On the substantial questions of law which I have framed, the plaintiff cannot obtain any favourable relief. The suit stands rightly dismissed by the two courts below and the appeal is also dismissed. No costs. --------------