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2019 DIGILAW 1251 (GAU)

Tarif Uddin (Md. ) v. Mafizuddin (Md. )

2019-11-19

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. This regular second appeal is by the defendant against the judgment and decree passed by learned Civil Judge, Barpeta in Title Appeal No. 1/2005 arising out of T.S. No. 92/1999. 2. The respondent, as plaintiff filed T.S. No. 92/2009 for declaration of right, title, and interest and recovery of possession of the suit land. The case of the plaintiff was that he purchased the suit land measuring 1 Bigha 2 Kathas 5 Lechas covered by Dag No. 91 and Patta No. 158 from the owner Pran Krishna Das by registered sale deed No. 795/516 dated 26.03.1987 and took possession thereof. The name of the plaintiff was also mutated in respect of the suit land. The defendant dispossessed the plaintiff from the suit land on 15.12.1998 and therefore, the plaintiff filed the suit for the relief as indicated above. 3. The defendant contested the suit by filing written statement and also raised a counter claim. The pleaded case of the defendant was that the suit land was originally covered by annual patta in the name of Pran Krishna Das, who sold the suit land along with his other lands to the defendant in the year 1967 by registered deed No. 8278/67 dated 14.12.1967 and since then he has been possessing the suit land. The annual patta of the suit land was converted to periodic patta in the year 1987. After receipt of the summon of the suit, the defendant came to know about the sale deed in favour of the plaintiff. It was stated by the defendant that the suit land having been sold by Pran Krishna Das to the defendant in the year 1967, he did not have saleable right over the suit land and therefore, the alleged sale deed executed in favour of the plaintiff in the year 1987 did not convey any title. Therefore, the defendant also made a counter claim seeking declaration of his title and the cancellation of the sale deed in favour of the plaintiff and confirmation of possession. In the written statement against the counter claim the plaintiff denied the sale deed No. 8278/67 in favour of the defendant. It was further stated that the defendants filed a suit against Pran Krishna Das, which was dismissed and therefore, the counter claim was barred by res judicata. In the written statement against the counter claim the plaintiff denied the sale deed No. 8278/67 in favour of the defendant. It was further stated that the defendants filed a suit against Pran Krishna Das, which was dismissed and therefore, the counter claim was barred by res judicata. On the basis of the above pleadings, learned trial court framed the following issues:- "1. Whether the suit is barred by limitation? 2. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? 3. Whether the plaintiff has right, title and interest over the suit land and the plaintiff was dispossessed by the defendant on 15.12.98 from the suit land? 4. Whether the defendant purchased the suit land from Prankrishna Das alongwith other land vide registered sale deed No. 8278/67? 5. If so, the defendant has right, title and interest over the land described in the counter claim? 6. Whether the registered sale deed No. 795/516 dated 26.03.87 is illegal and inoperative in the eye of law? 7. Whether the plaintiff is entitled to decree as prayed for? 8. Whether the defendant is entitled to get decree as claimed in the counter claim? 9. What other relief or reliefs the parties are entitled to?" 4. Both the parties adduced evidence and after hearing the parties, learned trial court dismissed the suit of the plaintiff and decreed the counter claim of the defendant Aggrieved by and dissatisfied with the judgment of the learned trial court, the plaintiff preferred an appeal and the learned first appellate court having allowed the appeal reversed the judgment and decree passed by the learned trial court and decreed the suit of the plaintiff. 5. Aggrieved, the defendant preferred the instant second appeal, which was admitted to be heard on the following substantial question of law: "Whether the learned first appellate court erred in law in reversing the judgment passed by the learned trial court on the ground of non-production of the original of Ext.-A, which was admitted without any objection." 6. I have heard Mr. J. Ahmed, learned counsel for the appellant and Mr. A.C. Sarma, learned senior counsel for the respondent. 7. Learned counsel for the appellant, Mr. J. Ahmed placing reliance on a decision of the Apex Court in Dayamati Bhai (Smt.) Vs. I have heard Mr. J. Ahmed, learned counsel for the appellant and Mr. A.C. Sarma, learned senior counsel for the respondent. 7. Learned counsel for the appellant, Mr. J. Ahmed placing reliance on a decision of the Apex Court in Dayamati Bhai (Smt.) Vs. KM Shaffi reported in (2004) 7 SCC 107 contended that once the document is admitted without any objection from the adverse party, no objection as to the mode of proof of such document can be raised at the stage of second appeal. 8. Mr. A.C. Sarma, learned senior counsel for the respondent in his endeavour to support the impugned judgment submitted that the certified copy of the sale deed, Ext.-A was not proved in accordance with the procedure by bringing the volume books or the witnesses from the office of the Registrar and therefore, Ext.-A, on the basis of which, the learned trial court decreed the counter claim is not admissible in evidence and therefore, the learned first appellate court rightly reversed the findings of the learned trial court. 9. The undisputed facts in the instant case are that one Pran Krishna Das was the original owner of the suit and that both the parties made their claim of title in respect of the suit land by right of purchase from Pran Krishna Das. There is also no dispute as to the identity of the suit land. That the suit land was originally annual patta land is also not in dispute. The learned trial court came to the finding relying on a decision of this Court in Govinda Ch. Das Vs. Boloram Bow reported in 2000 (2) GLT 669 : 2000 (3) GLJ 159, that defendant had title over the suit land the plaintiff did not acquire any title over the suit land by the subsequent sale deed. In Govinda Ch. Das Vs. Boloram Boro (supra), this Court, relying on a earlier Division Bench judgment reported in AIR 1951 Assam 20, Jainur Ali Vs. Sufia Bibi held that: "this Division Bench judgment is an authority for the proposition that the sale of an annual patta land is a valid sale that can be enforced against the transferor and against his heirs. Das Vs. Boloram Boro (supra), this Court, relying on a earlier Division Bench judgment reported in AIR 1951 Assam 20, Jainur Ali Vs. Sufia Bibi held that: "this Division Bench judgment is an authority for the proposition that the sale of an annual patta land is a valid sale that can be enforced against the transferor and against his heirs. He will acquire good title even when it is converted into periodic patta in the name of the vendor." The factual position of the present case is also similar, inasmuch as, there is no dispute that Pran Krishna Das was the owner of the suit land, which was originally annual patta land and converted to a periodic patta land in the year 1987. Learned trial court came to the finding that the defendant acquired valid title over the suit land by right of purchase in the year 1967 on the strength of the sale deed Ext.-A and therefore, even if the land was converted to periodic patta, later on, in the name of the vendor Pran Krishna Das, he did not have the saleable right over the suit land and as such, the subsequent sale deed 795/516 executed in the year 1987 in favour of the plaintiff did not convey any title. Evidently in the instant case, the original sale deed No. 8278/67 (Ext.-A) in favour of the defendant was not proved. The defendant proved the certified copy of the sale deed as Ext.-A, stating that the original of Ext. A was destroyed. The learned trial court did not find any fault with the certified copy of the registered sale deed executed by Pran Krishna Das in favour of the defendant, which was proved as Ext. A and accordingly, declared title of the defendant over the suit land on the strength of Ext. A. While decreeing the counter claim of the defendant, the learned trial court had also taken note of the evidence of PW-2, who admitted that after purchase, the defendant has been in possession of the suit land since 1967, inasmuch as, such evidence of the PW-2 belied the averments in the plaint as regards defendant dispossessing the plaintiff on 15.12.1998. However, the learned first appellate court reversed the judgment of the learned trial court, having come to a finding, that the defendant did not challenge the registered sale deed, Ext. However, the learned first appellate court reversed the judgment of the learned trial court, having come to a finding, that the defendant did not challenge the registered sale deed, Ext. 1 in favour of the plaintiff and also failed to produce the original registered sale deed in his favour executed by the vendor Pran Krishna Das. The learned first appellate court held that Ext.-A, certified copy of the registered sale deed in favour of the defendant has not been proved in due manner and therefore, declined to rely on the Ext. A, certified copy of the sale deed as secondary evidence. 10. Section 61 of the Evidence Act provides, that contents of a document may be proved either by primary or secondary evidence. Sections 62 & 63 of the Evidence Act defines the primary and secondary evidence respectively. Section 64 of the Evidence Act provides, that document must be proved by primary evidence except in the cases, where secondary evidence can be given to prove a document. Sections 65 & 66 of the Evidence Act provides the procedure as to how and when the secondary evidence of a document can be given. Sections 77 & 78 of the Evidence Act provides the mode of proving public document. Therefore, as a general rule, ordinarily a document has to be proved by primary evidence, except in the circumstances laid down in Sections 65 and 66 of the Evidence Act, which provides the procedure for proving secondary evidence, Sections 77 & 78 of the Evidence Act provides the mode of proving public document. Therefore, it is not correct to say, that the document can be proved only by primary evidence or only by producing the original document itself. In the present case, evidently the original sale deed in favour of the defendant was not proved. However, the certified copy of the sale deed No. 8278/67 was proved as Ext.-A. The defendant stated in his evidence that the original sale deed was destroyed and this evidence of the defendant, that the original sale deed (Ext.-A) was destroyed remained uncontroverted . It is the trite law, that certified copy of the sale deed is admissible as secondary evidence in view of sub-section (2) of Section 74 read with section 77 of the Evidence Act. It is the trite law, that certified copy of the sale deed is admissible as secondary evidence in view of sub-section (2) of Section 74 read with section 77 of the Evidence Act. Evidently the Ext.-A, certified copy of the registered sale deed No. 8278/67 was proved and admitted in evidence without any objection from any quarter. In view of the above, the question that arises in this appeal is as to whether admissibility of Ext.-A can be challenged in this second appeal, when evidently no objection was raised when Ext.-A was tendered and admitted in evidence. The Apex Court, in Dayamati Bhai (Smt.) Vs. K.M. Shaffi (supra) reiterating the ratio laid down in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr. reported in (2003) 8 SCC 752 observed in paragraph 13 and 14 as under: "13. We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ex. P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Another reported in [ (2003) 8 SCC 752 ] to which one of us, Bhan, J., was a party vide para 20: "20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [ 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 abovesaid 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. We do not have any dispute with the proposition of law so laid down in the abovesaid 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 latter case, the objection should be taken when 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 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. 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. To the same effect is the judgment of the Privy Council in the case of Gopal Das & Anr. v. Sri Thakurji & Ors. reported in [ AIR 1943 PC 83 ], in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage." 11. What therefore, follows is that the objection as to admissibility of a document may be classified in two categories. Firstly, the objection that the document sought to be proved is itself inadmissible in evidence. Secondly, the objection pertaining to the mode of proof and not to the admissibility of the document itself. The second category of objection relating to the mode of proof or manner of proof of a document cannot be raised at any subsequent stage, unless, such objection as to the manner or mode of proof is raised at the time of admitting the document in evidence. Once the document is admitted in evidence without any objection, as to mode of proof or manner of proof, such objection cannot be raised at any subsequent stage. However, the objection as to admissibility of the document of the first category, which pertains to the admissibility of the document itself, can be raised at any stage even in the second appeal. From the contention raised by the learned counsel for the respondent and also the findings and observation of the learned first appellate court it is apparent, that the rejection of the document (Ext. A) by the first appellate court was not on the ground, that Ext.-A itself was inadmissible in evidence. Learned first appellate court refused to rely on Ext.-A on the ground, that the original document had not been proved and that Ext.-A was not proved in the manner it was required to be proved. A) by the first appellate court was not on the ground, that Ext.-A itself was inadmissible in evidence. Learned first appellate court refused to rely on Ext.-A on the ground, that the original document had not been proved and that Ext.-A was not proved in the manner it was required to be proved. Therefore, apparently the objection against Ext.-A was only in respect of manner of proof or mode of proof of a document Since the objection pertains to mode of proof or manner of proof of Ext.-A, being the certified copy of the sale deed, such objection in view of settled position of law, as indicated above, cannot be raised in the second appeal, inasmuch as, such objection was not raised at the time of admitting the Ext.-A in evidence. As regards the admissibility of the document, as already indicated above, certified copy of the sale deed is an admissible document and therefore, only because of procedural lapse or not following the procedure to prove the document, Ext. A, it cannot be rejected or such objection as to mode of proof cannot be raised at the appellate stage, when evidently the objection relating to mode of proof or manner of proof of Ext.-A was never raised when it was tendered and admitted in evidence. In view of above legal position, I find sufficient force in the submission of the learned counsel for the appellant that the learned first appellate court fell in error, by refusing to rely upon Ext.-A, the certified copy of the sale deed on the ground, that Ext.-A was not proved in due manner, when evidently no such objection was raised at the time of proving Ext-A. The substantial question of law is accordingly answered in affirmative and in favour of the appellant/defendant. 12. As already indicated above, the original owner Pran Krishna Das sold the suit land to the defendant as far back as in 1967 and as there, the subsequent sale deed executed in 1987 could not convey any title to the plaintiff for want of title and saleable right of the vendor at the time of executing the subsequent sale deed, in 1987. Therefore, the learned trial court rightly dismissed the suit of the plaintiff and decreed the counter claim of the defendant. 13. Therefore, the learned trial court rightly dismissed the suit of the plaintiff and decreed the counter claim of the defendant. 13. In view of the foregoing discussion and the answer to the substantial questions of law, this second appeal appears to be without merit and accordingly dismissed. The judgment and decree passed by the learned first appellate court is set aside and the judgment and decree passed by the learned trial court is restored. Decree be prepared accordingly. 14. Appeal stands allowed. No cost. 15. Send back the record.