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2021 DIGILAW 180 (ORI)

Rajendra Pr Nag v. Indumati

2021-04-09

D.DASH

body2021
JUDGMENT D. Dash, J. - The Appellants, by this Appeal under section 100 of the Code of Civil Procedure (for short 'the Code') assail the judgment and decree dated 30.07.2005 and 12.08.2005 respectively passed by the learned Additional District Judge, (F.T.C.), Bolangir in Title Appeal No. 08/06 of 2002-2005. By the said judgment, the First Appellate Court in that Appeal under section-96 of the Code has set aside the judgment and decree dated 29.11.2001 and 06.12.2001 respectively passed by the learned Civil Judge (Junior Division), Bolangir. One Ujal Nag as the original Plaintiff had filed the suit against Rajendra Prasad Nag who happens to be his nephew (son of his brother namely Kandarpa). During suit, the original Plaintiff Ujal having died his four daughters have been substituted as Plaintiffs whereas one son and a daughter are arraigned as the Defendant Nos.2 & 3. The Suit having been dismissed by the Trial Court, the Plaintiffs carried the First Appeal. The lower Appellate Court having allowed the Appeal, has decreed the Suit. This Appeal had been filed by the Defendant No.1 and he having died, his legal heirs are pursuing this Appeal. It may be further stated that during pendency of this Appeal, the original Appellant (Defendant No.1) having died his daughters have came to be substituted as Appellants. Thereafter, one of the daughters having died, her name has been expunged as dead since all her legal heirs are on record. The Respondent No.1 (Plaintiff No.1) having died, her legal representatives have also come on record as Respondent No.1(a) to 1(c). The defendant no 2 having died; her name has been expunged as dead. 2. In order to bring in clarity and avoid confusion; the parties hereinafter have been referred to as per their position assigned as would have been so assigned had the event taken place during suit. 3. Facts of the case run as under:- Plaintiff-Ujal and Kandarpa, the father of the Defendant No.1 are two brothers. They were living separately and had no ancestral property. The Defendant No.1 survived Kandarpa being his only son. It is the case of the Plaintiff that he had two wives namely, Mathura and Ainla. They use to reside separately; one at Bolangir, and the other one at Mathura. Plaintiff used to reside with first wife for the sometime and second wife at her place of residence during the rest. The Defendant No.1 survived Kandarpa being his only son. It is the case of the Plaintiff that he had two wives namely, Mathura and Ainla. They use to reside separately; one at Bolangir, and the other one at Mathura. Plaintiff used to reside with first wife for the sometime and second wife at her place of residence during the rest. It is stated that the Plaintiff became blind when he attained the age of eighteen and for that he used to take the help of his brother Kandarpa as well as his nephew this Defendant No.1 for attending to his official matters. It is also the case of the Plaintiff that the Defendant no1 and his father, Kandarpa were residing in their house at Bolangir which adjoins the suit land described in Schedule-'A' of the plaint; over which a house was also situating. It is stated that the Plaintiff is the rightful owner in possession of the suit land. When the matter stood thus, during the second phase of the current settlement operation, the Defendant No.1 falsely staked his claim over the suit land and house on the strength of purchase and possession of the same pursuant to that. The Plaintiff was totally surprised by the advancement of such false claim from the side of his nephew. The Defendant No.1 then in the settlement operation of the year, 1971 falsely claimed that Schedule-'A' property has been purchased under a registered sale-deed for consideration of Rs.580/- from the Plaintiff. According to Plaintiff, he had never sold the property nor executed any sale-deed. It is alternatively, stated that if at all any sale-deed is there, it has been obtained by fraud, misrepresentation and impersonation as against him. The possession of the Defendant No.1 is also denied. It is stated that about 10 years prior to the suit, when Purandar Nag, elder brother of the Defendant No.1 wanted to live with a lady of another community, he faced resistance and difficulty for keeping her. So he was so permitted by the Plaintiff to reside in his house standing on the suit land. According to the case of the Plaintiff, the Defendant No.1 has no right, title, interest and possession over the suit land. So he was so permitted by the Plaintiff to reside in his house standing on the suit land. According to the case of the Plaintiff, the Defendant No.1 has no right, title, interest and possession over the suit land. With all these pleadings, the Plaintiff by instituting the suit on 23.07.1973 has prayed for declaration of his right, title, interest and possession over the suit land and house standing thereon by declaring the sale-deed as null and void. 4. The Defendant No.1 in his written statement had denied the claim of the Plaintiff that he was blind since he attained eighteen years of age. He also denied that Plaintiff was ever taking any help of Kandarpa or himself in any such matter whatsoever at any given time. Admitting that the Plaintiff was the owner of the suit land, it is stated that he had sold the same to him by executing registered sale-deed on 15.03.1962 for a consideration of Rs.580/-. He denied the claim of Plaintiff's title over the suit land. It is stated that after Plaintiff sold the property by the registered sale deed, the title of the suit land has been resting upon him. It is stated that he is a bonafide purchaser for value and in possession of the same on the strength of the purchase. The Defendants has also denied that any such fraud had been practised upon the Plaintiff in bringing out the said sale deed. It is his case that there was no misrepresentation or impersonation. It is averred that it is the Plaintiff who having decided to sale the suit land on the agreed consideration; voluntarily out of his own will has executed the sale deed which has been duly registered. The saledeed is asserted to be valid and binding on the Plaintiff and his legal heirs/ successors. With all these, the Defendant No.1 has prayed for dismissal of the Suit. 5. On the above rival pleadings, the Trial Court framed five issues. Going to answer Issue No.3 as to the validity of the registered sale-deed dated 15.03.1962, upon examination of the evidence, answer has been returned against the Plaintiff in holding the sale-deed to be genuine and valid in the eye of law. 5. On the above rival pleadings, the Trial Court framed five issues. Going to answer Issue No.3 as to the validity of the registered sale-deed dated 15.03.1962, upon examination of the evidence, answer has been returned against the Plaintiff in holding the sale-deed to be genuine and valid in the eye of law. Consequently, the other Issue as to the title and possession over the suit land has been answered in favour of the Defendant No.1 holding him to be rightful owner in possession of the suit land having purchased the same for consideration. 6. Being aggrieved by the above judgment and decree passed by the Trial Court, the unsuccessful Plaintiffs had carried the First Appeal. In the First Appeal, the judgment and decree passed by the Trial Court have been set aside and the Appeal has been allowed. The Suit of the Plaintiff thereby having been decreed; this Second Appeal had been filed by the unsuccessful Defendant No.1 and now it is being perused by his legal representatives. 7. The substantial question of law formulated for being answered in this Appeal is as under:- "Whether the finding of the First Appellate Court in not accepting the registered sale-deed, Ext.A as genuine one duly executed by the Plaintiff and as such binding on all concerned is based on proper appreciation of evidence on record keeping in view the settled law in the field?" I have heard Mr. Swarup Ranjan Singh Samanta, learned counsel for the Appellants (Defendants) and Mr. Trilochan Nanda, learned counsel for the Respondent (Plaintiffs) at length. I have also gone through the written notes of submission placed by them. 8. The fate of this Appeal is dependent upon the finding as to the acceptance of the registered sale-deed dated 13.03.1962 as genuine and valid and as such whether is binding on all concerned. This would provide the answer as to whether the Plaintiff's title over the suit land has come to rest upon the Defendant No.1 by virtue of the said sale-deed or not and after him upon his legal representatives as arraigned. 9. The original Plaintiff is seen to be the executant of this registered sale-deed dated 15.03.1962. This would provide the answer as to whether the Plaintiff's title over the suit land has come to rest upon the Defendant No.1 by virtue of the said sale-deed or not and after him upon his legal representatives as arraigned. 9. The original Plaintiff is seen to be the executant of this registered sale-deed dated 15.03.1962. As stated in the plaint, during the second phase of current settlement, the Plaintiff came to know that the original Defendant has projected the claim of purchase of the suit land from him for consideration of Rs.580/- by this registered sale-deed which was around the year, 1971. His specific case is that he had never sold the suit property nor had executed any such sale-deed. It has been further stated that sale-deed if at all is there, it has been obtained by fraud, misrepresentation and impersonation being the handiwork of the Defendant No.1. He also stated to have never delivered the possession of the suit land to the Defendant No.1 whose possession of the property is also denied. It is his case that Defendant No.1's brother Purandar for some reason had been permitted by him to reside in the house standing over the suit land. With these pleadings, the prayer has been advanced in the plaint to declare the sale deed as null and void and consequentially, to hold that the Plaintiff has the title and possession over the suit land. 10. The Defendant No.1 from his side has proved the certified copy of the registered sale-deed Dt.15.03.1962. Perusal of the said certified copy reveals that it had been obtained on 25.06.1969 much prior to the institution of the suit on 23.07.1973. This document has been admitted in evidence without objection and marked as Ext.A. The First Appellate Court has rejected this document Ext.A on the ground that the Defendant No.1 has not assigned any reason by stating the date and place or manner in which the original sale-deed was lost and therefore he is not permitted to lead the same i.e. certified copy of the registered sale-deed dated 25.06.1969 under Ext-A as secondary evidence. The First Appellate Court is of the view that the Defendant No.1 should have properly established the foundation for leading the secondary evidence and merely by stating that it has been lost is not enough for admission of secondary evidence. The First Appellate Court is of the view that the Defendant No.1 should have properly established the foundation for leading the secondary evidence and merely by stating that it has been lost is not enough for admission of secondary evidence. Going to rule upon the challenge that the original Plaintiff has not executed the sale deed by putting his thumb impression, as regards the comparison of the thumb impression of the Plaintiff on the Vakalatnama as not tallying with the thumb impression on the LTI register of the Sub-Registrar, Bolangir as reported by the Handwriting expert; the First Appellate Court has, however, said that in the absence of evidence to establish the authenticity of the LTI on the Vakalatnama, the report of the handwriting expert under Ext.4 cannot be relied upon when he has not examined any such admitted thumb impression of original Plaintiff or his sample LITs taken in presence of the Court. The First Appellate Court has also expressed the view that the LTI on the Vakalatnama as that of original Plaintiff cannot be assertively held so and thus that is not free from doubt. Having said so, it has concluded that the report of the handwriting expert vide Ext.4 does not come to be aid of the Plaintiffs. 11. The First Appellate Court next has gone to discuss the evidence on record in finally holding that the Defendant No.1 has failed to prove due execution of the said registered sale-deed by the Ujal Nag, the original Plaintiff as also the factum of passing of consideration and delivery of possession of the suit land pursuant to the said sale. 12. The case projected by the Plaintiff in the plaint is that, the registered sale-deed had never been executed by him and it has been brought into existence by impersonation. It has further been stated that fraud has been practised in the matter and there has also been misrepresentation. When these pleas taken to impeach the registered saledeed dated 15.03.1962, the entire plaint being gone through, all those pleadings as required to be pleaded in terms of Order -6 Rule-4 of the Code are found to be missing. It would be profitable at this stage for proper appreciation to reproduce the relevant paragraph of the plaint:- "5. When these pleas taken to impeach the registered saledeed dated 15.03.1962, the entire plaint being gone through, all those pleadings as required to be pleaded in terms of Order -6 Rule-4 of the Code are found to be missing. It would be profitable at this stage for proper appreciation to reproduce the relevant paragraph of the plaint:- "5. That during the Second phase or the current settlement operation, the defendant falsely stated that he has purchased the suit land claimed that he is in possession of the suit house as described in the Schedule 'B' below and shown in the map appended to the plaintiff. Such a false claim came as a surprise to the plaintiff as well as to the neighbours and relatives. The defendant falsely claimed in 1971 during the current Settlement Operation that he has purchased Schedule 'A' property for a consideration of Rs.580/- by way of a registered sale deed. It is false to say that at any point of time the plaintiff has sold the suit property or has executed the alleged sale deed. If at all there is any sale deed, it is an out of fraud, misrepresentation and false impersonation at the instance of the defendant. In fact the defendant has never sold nor has given delivery of possession of the suit property. The defendant is never in possession or the suit property. As a matter of fact about ten years back when Purandar Nag, elder brother of the defendant, took a Harijan lady and he could not keep her in their house, he was permitted by the plaintiff to keep the Harijan lady for two years in & room of the plaintiff on the suit house. The defendant has no right, title or possession over the suit property. No title or possession has passed to the defendant by virtue of the alleged sale deed, for which there was no necessity, no consideration passed and no sale was affected." 13. The Plaintiff has not raised any objection when the certified copy of the registered sale-deed dated 25.06.1969 has been admitted in evidence and marked, Ext.A being so taken as the secondary evidence. In that situation, in my considered view, there was no scope for the First Appellate Court, again to consider the question whether the foundations for admission of the secondary evidence have been duly laid or not. In that situation, in my considered view, there was no scope for the First Appellate Court, again to consider the question whether the foundations for admission of the secondary evidence have been duly laid or not. The First Appellate Court is not right to conclude that this Ext.A ought not to have been admitted as secondary evidence, and put the said certified copy of the registered sale deed beyond the arena of consideration of evidence for the reason that the Defendant No.1 has not stated all such details as to the loss of the original. This Ext.A being perused, it is seen that certified copy of the said registered sale-deed had been obtained way back in the year, 1969 which is not only much prior to institution of suit but also was even prior to the commencement of the settlement operation in the year 1971 to the knowledge of the Plaintiff, wherein the Defendant No.1 staked his claim over the property by virtue of that sale deed. 14. The law as to the admission of certified copy of a document under Section- 65 of the Evidence Act is well established through catena of decisions of this Court as well as the decisions of the Hon'ble Apex Court. Under section-64 of the Evidence Act documents are to be proved by primary evidence. Section-65 of the Evidence Act permits secondary evidence to be given of the existence, condition or contents of the document under the circumstances mentioned. Section- 65(c) of the Evidence Act says that the contents of the document are admissible where the original is lost. Under Section- 65(f) secondary evidence is also admissible where the original of a public document within the meaning of section 74 of the Act which provides amongst others that public records kept in any State of private documents are public documents. S.52(1)(c) of the Registration Act, 1908 requires every document admitted to registration shall be copied in the Book appropriated therefor. Section 51(2) thereof provides for sale deed to be entered in Book. Thus, the Book in the registration office where copies of sale deeds admitted to registration are made is a public document. Under S.57 of the said Act, authority is given to grant certified copy of an entry in the register. Section 51(2) thereof provides for sale deed to be entered in Book. Thus, the Book in the registration office where copies of sale deeds admitted to registration are made is a public document. Under S.57 of the said Act, authority is given to grant certified copy of an entry in the register. When the original sale deed whose copy is maintained in the registration office is lost, secondary evidence can be given in respect of the contents thereof by the entry in the Register in the registration office. Instead of proving the entry in the register original, certified copy of entry of the sale deed in such register can be proved. These provisions are there to protect persons who inspite of best efforts are unable on account of circumstances beyond their control to place before the Court, the primary evidence as required under section 64 of the Act. At the same time, it does not intend to render assistance to persons to be benefited who deliberately or without any endeavour to get at the primary evidence or with sinister motives do not produce in a Court a document which they could have, if attempted. Therefore, no objection can be taken for admitting certified copy of entry in a Book maintained in the registration office as secondary evidence of the contents of a sale deed in case grounds for admitting secondary 'evidence have been made out.' 15. In case of Annapurna Sahuani Vrs. Narendra Prasad Sahu, (1967) AIR Orissa 129; the Division Bench has accepted the certified copy of adoption and gift deed marked without objection. In that case, the First Appellate Court having entertained said objection had refused to take the certified copy as secondary evidence. It had been found by the Appellate Court that the secondary evidence could not have been entertained by the Trial Court as the exceptions provided in Section-65 of the Evidence Act were made out. The Division Bench however accepted the admissibility of the secondary evidence since the document was admitted in evidence in the Trial and marked without objection. It was held:- "The objection relates only to the mode of proof. Law is well settled that if the objection is confined only to the mode of proof, it must be taken at the earliest point of time when the documents are tendered in evidence in the trial Court. It was held:- "The objection relates only to the mode of proof. Law is well settled that if the objection is confined only to the mode of proof, it must be taken at the earliest point of time when the documents are tendered in evidence in the trial Court. The objection is not permissible to be raised at a subsequent stage or in appeal." 16. In Dula Dei Vrs. Jadi Bewa, (1965) AIR Orissa 113 certified copy of a sale deed was marked as exhibit without objection. The same having been held by the First Appellate Court not to have been properly proved, in Second Appeal, the Court held:- "The learned lower appellate Court made an error of law in so discarding the document. It is settled law as decided by their Lordships of the Privy Council that where the objection to be taken is not that the document is in itself inadmissible, but that the mode of proof put forward is irregular or insufficient, 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, a party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the made of proof. Thus, the proper time to object to the admissibility of evidence is at the trial when the evidence is tendered and it is then that the Court should rule as to the admissibility of the evidence, hence where a document is once admitted in evidence without any objection by a party in the first Court, the party is precluded from objection to the admissibility of the document in appeal." The same views have been expressed in case of Collector, Cuttack Vrs. Rajib Bhol, (1972) AIR Orissa 200 and Dinabandhu v. Bajeni Bewa,1976 18 OJD 92. In view of the aforesaid discussion, it is to be held that certified copy of the registered sale deed dated 25.06.1969 (Ext.A) has been rightly admitted in evidence and the admissibility of that document could not have been assailed in Appeal. Therefore, the view taken by the First Appellate Court is discarding the Ext.A from consideration is thus untenable. In view of the aforesaid discussion, it is to be held that certified copy of the registered sale deed dated 25.06.1969 (Ext.A) has been rightly admitted in evidence and the admissibility of that document could not have been assailed in Appeal. Therefore, the view taken by the First Appellate Court is discarding the Ext.A from consideration is thus untenable. The evidence adduced by the Plaintiff that the LTI as it appears in the concerned LTI register maintained in the Sub-Registrar office is not the LTI of original Plaintiff are found to be deficient so as to conclusively hold that the said fact has been established. The First Appellate Court had rightly held so, as no such other proven document containing the LTI of original Plaintiff or even the sample LTI of the original Plaintiff taken in presence of Court were there before the Handwriting expert to compare with the LTI appearing in the register. Thus the view that the report of the handwriting expert is of no proof of impersonation is seen to be free from any such infirmity. 17. As the record reveals, the disputed document is a registered one. Thus, we are guided by the settled legal principle that subject document is attached with the presumption of genuineness and therefore the initial onus was on the Plaintiff who had challenged the stated registered document. As has been said the Plaintiff has failed to prove that he had not physically executed this Ext. A. Now as regards the mental act; the execution of the document being denied by the Plaintiff, the initial burden of proof was upon the Plaintiffs as it is their case that the document was the product of forgery and misrepresentation etc. So, they were to prove by examining the witnesses to establish said allegation about its non-execution by him. In the instant case, when the Defendant No.1 has examined one of the attesting witnesses, the Plaintiffs who could have examined the other one have chosen not to do so. Even assuming that the burden had shifted upon the Defendants, the one witness identifying the executant having been examined when has deposed in support of due execution etc. In the instant case, when the Defendant No.1 has examined one of the attesting witnesses, the Plaintiffs who could have examined the other one have chosen not to do so. Even assuming that the burden had shifted upon the Defendants, the one witness identifying the executant having been examined when has deposed in support of due execution etc. which unveiled that the stated document was prepared on the basis of instructions of the Plaintiff and had been duly executed by him in his presence which have not been shaken or discarded the finding has to emerge that the document stood proved and the burden was duly discharged by the Defendant No.1. The decisions cited by the learned counsel for the Respondents (Plaintiffs) in case of Rankanidhi Sahu @ Brajamohan Sahu Vrs. Nandakishore Sahuy,1989 1 OrissaLR 309; Krushna Patra and another Vrs. Kami Bewa and another,1988 1 OrissaLR 582; Narayan Parida Vrs. Artabandhu Jena, (1993) 2 OrissaLR 485 and Ram Chandra Singh Vrs. Savitri Devi & others, (2003) 8 SCC 319 having been rendered on different factual settings of those cases are found to be of no help to the case of the Plaintiffs. For all the above discussion and the reasons, the substantial question of law finds its answer to the effect that the said document is genuine one duly executed by the original Plaintiff and as such binding on all concerned. Having returned the answer as above; the judgment and decree passed by the First Appellate Court are hereby set aside and those passed by the Trial Court stand restored. Consequently, the Plaintiffs are held not entitled to the reliefs prayed for and hence are non-suited. 18. The Appeal is accordingly allowed. In the peculiar facts and circumstances, there shall however, be no order as to cost. 19. As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587, dated 25th March, 2020.