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2019 DIGILAW 924 (GAU)

Promoda Ingti Saikia v. Sanjib Kumar Deka

2019-08-22

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. Heard Ms. P. Bhattacharjee, learned counsel for the appellants and Mr. P. Roy, learned counsel for the respondents. 2. This regular second appeal is directed against the judgment and decree dated 06.03.2010 passed in Title Appeal No. 76/2008, whereby the learned Civil Judge No. 2, Kamrup, Guwahati, concurring with the finding of the learned Munsiff, dismissed the appeal and decreed the suit of the plaintiff. 3. The respondent herein as plaintiff filed the suit (T.S. No. 52/2005) against the present appellant as defendant praying for declaration of right, title, interest and recovery of possession. The case of the plaintiff was that the plaintiff purchased the suit land covered by K.P. Patta No. 98 and Dag No. 811 by registered sale deed No. 8265 dated 09.12.2002 and took over possession of the same and has been possessing the suit land by constructing residential house. Subsequently, the land was also mutated in the name of the plaintiff. The defendant trespassed into the suit land on 09.10.2003 demolishing the fencing constructed by the plaintiff. Hence the suit. 4. Initially, the suit proceeded ex-parte, as the defendant did not appear inspite of service of notice and eventually an ex-parte decree was passed. Later on, the petitioner filed an application for setting aside the ex-parte decree and the said ex-parte decree was set aside in Misc. (J) Case No. 162/2006. However, after setting aside the ex-parte decree, again the defendant defaulted and consequently the suit proceeded ex-parte and the learned Munsiff after hearing the plaintiff decreed the suit. The ex-parte decree so passed, was carried forward to appeal by the defendant/petitioner and the First Appellate Court also dismissed the appeal and upheld the judgment and decree passed by the learned Munsiff. 5. Aggrieved by the appellate decree, the defendant/appellant has preferred the instant regular second appeal, which was admitted to be heard on the following substantial questions of law. Whether the learned courts below erred in law in declaring title of the plaintiff over the suit land on the basis of Exhibits Nos. 2 and 3? 6. Learned counsel Ms. P. Bhattacharjee, submits that the learned Trial Court did not accept the Ext. 1, certified copy of the sale deed, holding it to be inadmissible. However, passed the decree on the basis of the Ext. 2 & 3 being the mutation certificate and revenue paying receipt. 2 and 3? 6. Learned counsel Ms. P. Bhattacharjee, submits that the learned Trial Court did not accept the Ext. 1, certified copy of the sale deed, holding it to be inadmissible. However, passed the decree on the basis of the Ext. 2 & 3 being the mutation certificate and revenue paying receipt. The learned first appellate court held, that the certified copy of the sale deed proved as Ext. 1 was admissible and therefore having relied upon all the three exhibits being the certified copy of the sale deed in favour of the plaintiff, as well as Ext. 2 & 3, being the mutation certificate and rent paying receipt, upheld the decree passed by the learned Munsiff. The contention raised by the learned counsel for the appellant is that when the original sale deed was not produced and execution of the deed was not proved, learned appellate court ought not to have relied upon the Ext. 1 being the certified copy of the sale deed. Once, the certified copy of the sale deed is rejected, no decree could be passed on the basis of Ext. 2, the mutation certificate, as the entry in the record of rights does not confer title. Both the trial as well as the first appellate court fell in error by decreeing the suit of the plaintiff in absence of proof of title, submits Mrs. Bhattacharyya. 7. It is no doubt true, that in a suit for declaration of title and recovery of possession on the basis of title, it is incumbent upon the plaintiff to establish his title, irrespective of defence or defect in the case of the defendant, inasmuch as, the plaintiff has to stand on his own leg and cannot rely upon the weakness of the defendant s case. Having gone through the evidence on record, I find that the plaintiff has pleaded in the plaint and also deposed in court, that he purchased the suit land by registered Sale Deed No. 8265 dated 09.12.2012 and proved the certified copy of the sale deed (Ext.1) in addition to other documents i.e. Ext. 2 & 3 being mutation certificate and revenue paying receipt. Therefore, it cannot be said that the decree was passed solely on the basis of Exts. 2 & 3. It is not the law that execution of the sale deed has to be proved in all cases. 2 & 3 being mutation certificate and revenue paying receipt. Therefore, it cannot be said that the decree was passed solely on the basis of Exts. 2 & 3. It is not the law that execution of the sale deed has to be proved in all cases. When execution is not disputed, it may not be necessary to prove the execution, if the other evidences including the certified copy of the sale deed are sufficient to prove the title of the plaintiff. 8. In the instant case, apparently, the defendant did not file any written statement and the suit proceeded ex-parte and therefore, there was no denial with regard to the execution of the sale deed and for that matter title of the plaitniff. It is also submitted by the learned counsel for the appellant, that before tendering any secondary evidence, the court is required to be satisfied as to the procedure laid down in Section 65 of the Evidence Act. Section 65 of the Evidence Act provides only certain procedural requirement as to the mode of prove of secondary evidence. It is now settled position, that when a document as secondary evidence is tendered and admitted in evidence without any objection as to the mode of proof, such objection with regard to mode of proof cannot be raised subsequently, including in the second appeal. The Apex Court in RVE Venkatachala Gounder V. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752 succinctly distinguished the objection as to the admissibility of a document in two categories i.e. (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. 9. The first category deals with the documents which are inherently inadmissible in evidence. When a document is inherently inadmissible in evidence, even if such document is admitted in evidence, without any objection, a party is not debarred from raising objection as to the admissibility of such document at any later stage, but when the document is otherwise admissible and the only objection is regarding the mode of proof, which is primarily procedural in nature, such objection cannot be raised, unless it is raised, at the time of admitting the document. In the instant case, evidently, Ext.1 is a certified copy of the sale deed and there is no gainsaying that the certified copy of a sale deed is admissible as secondary evidence in view of sub-section (2) of Section 74 read with Section 63 (1) of Evidence Act. When the certified copy of the sale deed is otherwise admissible and no objection was raised at the initial stage for whatever reasons, such objection cannot be allowed to be raised at the second appellate stage. 10. This court in Sheo Prasad Chouhan Vs. Joyradha Das & Ors, (2015) 5 GauLT 347 dealing with the presumption associated with the certified copy of a registered sale deed held, that in view of the scheme of the Registration Act, when a document is registered under the provision of Registration Act, its due execution and registration has to be presumed. This presumption is, however, a rebuttable presumption and a party is entitled to rebut the presumption associated with a registered document by producing cogent evidence to the contrary. In the instant case, when the certified copy of the sale deed, which carries a presumption of genuineness was tendered and proved as Ext.1 without any objection for whatever reason, unless such presumption is rebutted, the certified copy of the sale deed cannot thrown out. Besides proving the certified copy of the sale deed plaintiff also adduced evidence by proving Ext.2, to show, that his name was mutated in respect of the suit land. There is no quarrel about the legal proposition, that mutation entry or entry in the records of right does not create an extinguish title. But at the same time, one must bear in mind, that record of rights prepared under Section 40 & 41 of the Assam Land and Revenue Regulation, carries a presumption of correctness as per Clause (2) of Section 41 of the Assam Land Revenue Regulation, which provides that a record a right shall be presumed to be correct, unless contrary is proved. Apparently, there is no material on record to suggest that the presumption of correctness of the Ext.2 was rebutted. Therefore, the record of right prepared under the statutory provision cannot be brushed aside and it must be given due weightage. [See (Amiya Bala Dutta Vs. Mukut Adhikary, (1999) 1 GauLR 229]. Apparently, there is no material on record to suggest that the presumption of correctness of the Ext.2 was rebutted. Therefore, the record of right prepared under the statutory provision cannot be brushed aside and it must be given due weightage. [See (Amiya Bala Dutta Vs. Mukut Adhikary, (1999) 1 GauLR 229]. Therefore, Ext.2 obviously lent support to the claim of title of the plaintiff over the suit land by way of purchase vide Ext.1. 11. In view of the above evidence, when the learned court passed the decree declaring title of the plaintiff, it cannot be said that such decree was passed only on the basis of the Exts. 2 & 3. The evidence and materials brought on record clearly shows that the plaintiff has been able to establish his title over the suit land by adducing both documentary and oral evidence and as such, the decree passed in favour of the plaintiff cannot be faulted. The substantial question raised herein is answered accordingly and decided against the appellant. 12. In the teeth of the foregoing discussion and the decision with regard to the substantial question, this second appeal is held to be without merit and accordingly dismissed. 13. No costs. 14. Send down the LCR.