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2019 DIGILAW 488 (JHR)

Nilam Nutan Kunkal v. Nand Kishore Jha

2019-02-15

SUJIT NARAYAN PRASAD

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JUDGMENT Sujit Narayan Prasad, J. - This writ petition is under Article 227 of the Constitution of India against the order dated 27.01.2018 passed in Title Suit No.196/2016, whereby and whereunder, petition filed under Section 76 of the Indian Evidence Act that the registered sale deed, bearing No. 3354 dated 04.07.2012 has been taken on record for marking it as exhibit. 2. The contention of the learned counsel for the petitioner is that the insertion of the sale deed dated 04.07.2012, in exercise of power, conferred under Section 76 of the Indian Evidence Act, is highly unwarranted, since the said document is foreign to the pleading, whose assertion is that he is in possession of Flat No.4, while the sale deed dated 04.07.2012 speaks about the registration of the flat being G/5, while according to the petitioner, there is no existence of flat being G/5, therefore, this registered sale deed is not relevant for the purpose of adjudication of this case. It has been submitted that the said sale deed has been constructed by merging G/4 and G/3, while it is the assertion of the petitioner that since he is occupier of G/4 so there cannot be any flat by way of merging G/4 and G/3. 3. Having heard learned counsel for the parties and gone through the pleading made in the writ petition as well as the impugned order, it is evident that a suit has been filed, being Original Title Suit No.196/2016 for declaration of right, title and interest of the petitioner/defendant in the suit property and to recover possession thereof, while the matter was proceeding, two applications have been filed by the plaintiffs, under Order -26, Rule-9 of the Code of Civil Procedure and another under Section 76 of the Indian Evidence Act. 4. The petitioner is not aggrieved with the order passed by the trial court under Order-26, Rule-9 of the Code of Civil Procedure, however, he being aggrieved with the order passed by the trial court under Section 76 of the Indian Evidence Act, has invoked jurisdiction of this Court under Article 227 of the Constitution of India. 5. 4. The petitioner is not aggrieved with the order passed by the trial court under Order-26, Rule-9 of the Code of Civil Procedure, however, he being aggrieved with the order passed by the trial court under Section 76 of the Indian Evidence Act, has invoked jurisdiction of this Court under Article 227 of the Constitution of India. 5. It is evident from the petition, under Section 76 of the Indian Evidence Act that certified copy of registered sale deed bearing No.3354 dated 04.07.2012 has been sought to be incorporated by a document by marking as exhibit since the same contains that the Flat No.4 and 3, situated in Gautam Navlakha Apartment, Sonari, Jamshedpur have been merged into one flat which has been sold by its previous owners M/s Rohit Kumar and Shashikala. The said applications have been allowed by the trial court. The petitioner''s contention is that he is in possession of Flat No.G/4, therefore, there cannot be a flat being G/5 by merging G/4 to G/3 and, therefore, the registered sale deed dated 04.07.2012 is highly unwarranted. This Court thinks it proper go through the reference of Section 76 of the Indian Evidence Act, 1872 which speaks as: "76. Certified copies of public documents.-Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written, at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall be called certified copies. 6. The Court by allowing the said application has considered the application under Section 76 of the Indian Evidence Act, since the certified copy of the sale deed is the document, bearing No.3354 dated 04.07.2012 and, therefore, treating the same under category of public document which has been allowed, now question is, what prejudiced will be caused to the petitioner, if the said document will be allowed to be incorporated for just and proper decision by the trial court. 7. 7. The sole controversy involved, as would appear from the material available on record in the writ petition that the suit is for declaration of right over the Flat No.4, to which the petitioner, is claiming to be the rightful owner, since he is in possession of the said flat. His concerned is that when he is in possession of G/4 flat how can there be a flat being G/5 by merging G/4 to G/3 as per the contents of the sale deed dated 04.07.2012. It is not in dispute that any adjudication is to be made in any court of law and if the Court thinks that a document is relevant for proper adjudication, the Court has the power to look into the said document before arriving at logical conclusion. 8. Here in the instant case, the registered sale deed has been sought to be inserted treating the said document a public document, under Section 76 of the Indian Evidence Act, 1872, since the said document pertains to the issues involves here therefore, if the Court has taken the said document on record, it cannot be said that any illegality has been committed, rather it will be said that the Court in order to settle the dispute for all time to come has taken the same on record. It is also evident from the impugned order that the trial court has observed in the impugned order that marking of document as exhibit does not mean that it is relevant for the purpose of adjudicating the dispute, relevancy of the said document is to be seen at the time of judgment, if the same would be treated to be an illegal order, the trial court will be deprived from appreciating the factual aspects accordingly, in the considered view of this Court, the trial court has not committed any error in passing the impugned order warranting this Court to interfere with the same in exercise of power, conferred under Article 227 of the Constitution of India. Accordingly, the writ petition fails and is dismissed.