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2025 DIGILAW 394 (JHR)

Kishori Sahu v. Arun Kumar son of Satyadeo Prasad

2025-02-12

ANUBHA RAWAT CHOUDHARY

body2025
JUDGMENT : Anubha Rawat Choudhary, J. 1. This appeal has been filed against the judgment and decree dated 22.12.2021 passed by learned District Judge VII, Hazaribagh whereby Civil Appeal No. 80 of 2011 has been dismissed. The trial court judgment was passed in Title Suit No. 88 of 2008 by learned Munsiff, Hazaribagh whereby the suit was dismissed. The plaintiff is the appellant before this Court. 2. Learned counsel for the appellant has submitted that the appellant had filed suit for cancellation of sale-deed no. 5740 dated 14.05.1987 and also sale-deed no. 16122 dated 12.04.2003 declaring them as null and void and also for declaration of his right, title, interest and possession in connection with the property covered by the said sale-deeds. The appellant had also prayed that in case the plaintiff is found dispossessed from the property, appropriate relief be granted for recovery of possession. 3. Learned counsel for the appellant further submits that the plaintiff was claiming title over the property by virtue of the registered sale-deed dated 11.09.1975 (Exhibit-1) executed by one Karamchand Ram. The learned counsel has submitted that the suit proceeded ex-parte. He submits that the cause of action arose when the defendants claimed title over the property and a proceeding under section 144 of Code of Criminal Proceeding was also initiated in the year 2008. 4. The learned counsel submits that the sale-deed of the plaintiff was of the year 1975 which was a 30 years old document and therefore, the recital of the document was required to be presumed to be correct. He has referred to section 48 of the Registration Act. Learned counsel has submitted that the entire fact regarding partition amongst the family of the vendor of the plaintiff way back in the year 1959 was narrated in the sale-deed (Exhibit-1) but in spite of such presumption, the learned Court has refused to decree the suit primarily on the ground that neither the property was mutated in the name of the vendor of the plaintiff nor the same was mutated in favour of the plaintiff and the learned Court has held that amicable partition itself was not proved. The learned counsel further submits that once the sale-deed was registered and the document was 30 years old and the suit proceeded ex-parte, the learned trial Court ought to have decreed the suit. The learned counsel further submits that once the sale-deed was registered and the document was 30 years old and the suit proceeded ex-parte, the learned trial Court ought to have decreed the suit. He has also submitted that the learned appellate Court has also not considered this aspect of the matter and therefore, though there are concurrent findings by both the learned Courts, but this appeal is fit to be heard by framing a substantial question of law. 5. Learned counsel for the appellant has also referred to Section 74 of the Indian evidence Act and submits that the registered sale-deed is a public document and neither its execution nor its content is required to be formally proved. The learned counsel submits that the learned Courts have not considered Section 48 of the Registration Act which gives credence to a registered document and have also not considered Section 54 of the Transfer of Property Act which defines ‘sale’ and further not considered Section 90 of the Indian Evidence Act which deals with presumption regarding 30 years old document. 6. Learned counsel for the appellant has referred to the substantial question of law as proposed i.e., substantial question of law nos. B, C and F. 7. This Court finds that the plaintiff filed suit for declaration of his title and confirmation of possession and if dispossessed during pendency, he put to be in possession after evicting the defendant. The plaintiff also prayed for a declaration that registered sale deed No. 5740 dated 14.05.1987 and registered sale deed No. 16122 dated 12.04.2003 is null and void with respect to the property in Schedule A to the plain. 8. The specific case of the plaintiff was that the property was recorded in cadastral survey and settlement operation in joint name of Ramcharan Kandu and Baijnath Kandu; Ramcharan Kandu died leaving behind his four sons Badho Sao, Budhan Ram, Yamuna Sao and Khublal Sao and Baijnath Kandu died leaving behind his two sons Dhanu Sao and Lochan Sao. 8. The specific case of the plaintiff was that the property was recorded in cadastral survey and settlement operation in joint name of Ramcharan Kandu and Baijnath Kandu; Ramcharan Kandu died leaving behind his four sons Badho Sao, Budhan Ram, Yamuna Sao and Khublal Sao and Baijnath Kandu died leaving behind his two sons Dhanu Sao and Lochan Sao. It was a specific case of the plaintiff that in the year 1959 the sons of Ramcharan Kandu and Baijnath Kandu amicably partitioned the entire suit land and Dhanu Sao son of Baijnath Kandu was allotted the suit land besides other land and he came in exclusive possession of the same and in state of separation, Dhanu Sao died leaving behind his only son Karmachand Ram who disposed of the suit land for valuable consideration vide registered sale deed No. 18454 dated 11.09.1975 in favour of the plaintiff. It was also asserted that the plaintiff had also acquired legal valid and good title by adverse possession which ripened on 11.09.1975. 9. The cause of action to file the suit arose when the defendant No. 2 in February, 2008 came to the suit land and started digging for foundation of compound wall. The defendant No. 2 in his show cause in the proceeding under Section 144 Cr.P.C. bearing case No. 22 of 2008 disclosed certain sale deeds including sale deed No. 5340 dated 14.05.1987 executed by four sons of late Lochan Ram in favour of defendant No. 1 and sale deed No. 5559 dated 18.05.1987 whereby four sons of late Lochan Ram transferred the land in favour of one Subodh Kumar Sinha, who in turn executed sale deed No. 16122 dated 12.11.2003 in favour of defendant No.1 and defendant No. 1 also got his name mutated in the mutation proceedings. 10. The entire case of the plaintiff rested on amicable partition as he asserted that in the year 1959 there was amicable partition between the sons of Ramchandra Kandu and Baijnath Kandu and consequently the sole surviving descendants of Dhanu Sao i.e. Karmachand Ram, who is grandson of Baijnath Kandu, sold the property by registered deed in the year 1975. 11. The entire case of the plaintiff rested on amicable partition as he asserted that in the year 1959 there was amicable partition between the sons of Ramchandra Kandu and Baijnath Kandu and consequently the sole surviving descendants of Dhanu Sao i.e. Karmachand Ram, who is grandson of Baijnath Kandu, sold the property by registered deed in the year 1975. 11. At the stage of trial, the certified copy of sale deed dated 11.09.1975 was marked as Exhibit-1 but the certified copy of sale deed No. 5740 dated 14.05.1987 and 16122 dated 12.04.2003 for which declaration was sought to be void and illegal were not exhibited. The proceeding was ex-parte against the defendants still the learned trial court dismissed the suit by observing that the plaintiff did not produce any oral or documentary evidence on the basis of which it could be held that the plaintiff had right, title, interest and possession with respect to the suit property described in Schedule A. 12. The learned court recorded that the Exhibit-1 i.e. registered sale deed dated 11.09.1975 could only prove that the suit property as sold by Karmachand Ram to the plaintiff by registered sale deed and held that no one can transfer any title better than what he has and held that till the right, title and interest further the exclusive right title and interest of the vendor of the plaintiff Karmachand Ram was not proved by the plaintiff, the right title of the plaintiff over the suit property cannot be declared. The learned trial court recorded that merely on the basis of oral evidence, the title cannot be proved and required documents in support of their contention were not proved or produced by the plaintiff. In the present case the trial court held that the certified copy of the sale deed dated 11.09.1975, (Exhibit-1) proved that Karamchand Ram had sold the property to the plaintiff by registered deed but the reference to family arrangement of 1959 did not reveal as to who was allocated which portion of the property and no rent receipt or document was produced to show that such property was exclusively allotted to the vendor of the plaintiff. The trial court also recorded that total area of the land was 0.16 acre out of which0.08 acre was sold by registered sale deed no. The trial court also recorded that total area of the land was 0.16 acre out of which0.08 acre was sold by registered sale deed no. 5740 dated 14.05.1987 to defendant No. 1 and the remaining land of 0.08 acre was sold by Subodh Kumar Sinha vide registered sale deed no. 16122 dated12.11.2003. Under such circumstances the suit was dismissed. 13. The learned appellate court considered the appeal and framed the points for determination as under: - “ I) Whether the plaintiff/appellant is entitled to the relief claimed for? II) Whether the plaintiff/appellant vide his application dated 7.02.18 be permitted to lead additional evidence at this state. III) Whether the Suit as framed is maintainable? IV) Whether learned trial court has committed any error of fact or of law in passing impugned judgment.” 14. The point of determination no (II) dealing with the prayer to lead additional evidence was rejected by the learned appellate court by citing reasons and no arguments have been advanced by the learned counsel for the appellant with regards to the point of determination no. (II). Otherwise also this Court finds that sound reasons have been assigned to reject the prayer of leading additional evidence at the appellate stage. 15. While deciding point of determination No. (I), the learned appellate court, interalia, recorded as under: - a. The plaintiff failed to prove the C.S Khatiyan in support of the fact that the suit land was jointly recorded in the name of Ramcharan Kandu and Baijnath Kandu the ancestor of the vendor. b. The plaintiff has proved the sale deed dated 11.09.1975 but has not produced any rent receipt in support of the fact that after execution of sale deed his name was mutated and entered in the revenue register after finding him in possession over the suit property. b. The plaintiff has proved the sale deed dated 11.09.1975 but has not produced any rent receipt in support of the fact that after execution of sale deed his name was mutated and entered in the revenue register after finding him in possession over the suit property. c. Ramcharan Kandu and Baijnath Kandu were said to having equal share in the entire 16 decimal of land i.e. suit land and consequently, only 8 decimal devolved upon the two sons of Baijnath Kandu and they got only 4 decimal each in their respective share but the plaintiff had pleaded that the entire suit land was allotted in the share of Dhanu Sao son of recorded Raiyat Baijnath Kandu only and the plaintiff had not proved from any document that Dhanu Sao was allotted the entire suit land in family partition in the year 1959 and that the plaintiff has also not made any descendants of the recorded raiyat either party or witness in the suit. d. The learned appellate court has recorded that the plaintiff had not proved any rent receipt in support of the fact that after getting entire suit land in share, Dhanu Sao came in possession over the same and paid rent to the State Government. e. The learned court ultimately held that the plaintiff has failed to adduce any documentary evidence in support of the fact that the vendor of the plaintiff namely Karmachand Ram was having his right, title, interest and possession over the entire suit land and consequently the plaintiff has also failed to establish his right, title, interest and possession over the suit land. 16. The learned counsel for the appellant has tried to impress upon this Court that the recital of the registered sale deed dated 11.09.1975 which was a 30 years old document indicated that there was a partition way back in the year 1959 as was narrated in the sale deed and therefore there was material to show that there was partition and since the document was 30 years old document, the learned court wrongly refused to decree the suit on the ground that neither the property was mutated in the name of vendor of the plaintiff nor the same was mutated in favour of the plaintiff and the learned court held that the amicable partition itself was not proved. It is a specific argument of the appellant before this Court that with respect to 30 years old document, there is a presumption in terms of Section 90 of Indian Evidence Act and accordingly the recital in the sale deed was also requited to be presumed to be correct in terms of Section 90 of the Indian Evidence Act. 17. This Court finds that the said issue is squarely covered against the appellant vide judgment passed by the Hon’ble Supreme Court reported in (2012) 8 SCC 148 (Union of India Vs. Ibrahim Uddin and Another) wherein it has been held in paragraph 85.3 that presumption under Section 90 of the Indian Evidence Act with respect to 30 years old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained therein. It has also been held that the contents of the document are true or it had been acted upon, have to be proved like any other fact. Paragraph 85.3 of the aforesaid judgment is quoted as under: - “ 85.3 The alleged partition in the year 1819 among the ancestors of Respondent 1-plaintiff even if had taken place, cannot be a proof of title of Respondent 1-plaintiff over the suit property as the pedigree has not been proved. Presumption under Section 90 of the Evidence Act in respect of 30 years’ old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. That the contents of the document are true or it had been acted upon, have to be proved like any other fact. More so, in case the will is ignored, there is nothing on record to show as to how Respondent 1-plaintiff could claim the title.” 18. That the contents of the document are true or it had been acted upon, have to be proved like any other fact. More so, in case the will is ignored, there is nothing on record to show as to how Respondent 1-plaintiff could claim the title.” 18. So far as the argument of the learned counsel for the appellant with regards to proof of contents of the registered sale deed dated 11.09.1975 by referring to Section 74 of the Indian Evidence Act is concerned, it is well settled that registered sale deed is a public document under Section 74 (2) of the Indian Evidence Act and Sub- Section 5 of section 57 of the Registration Act thereof makes it admissible in evidence for proving the contents of its original. It would be relevant to refer to the judgement passed by the Hon’ble Supreme Court in Civil Appeal No. 14630 of 2015 decided on September, 20 of 2023 reported in 2023 SCC OnLine SC 1183 [Appaiya -vs- Andimuthu @ Thangapandi and Others]. In the said case, two sale deeds Exhibit A-1 and Exhibit A-5 of the year 1928 and 1963 respectively with respect to the same property were subject matter of consideration and there was no dispute in connection with identity of the property involved in the said case. In the aforesaid factual background, the Hon’ble Supreme Court considered the provisions of Section 65, 74, 77 and 79 of Indian Evidence Act and also the provisions of Section 57(5) of the Registration Act and held that Section 77 of the Indian Evidence Act provides for production of certified copy of a public document as secondary evidence in proof of contents of its original and Section 79 provides for presumption as to the genuineness of certified copies of a document of such nature to be admissible as evidence. The Hon’ble Supreme Court further held that the registered sale deed, falls within the definition of a public document and the question was as to whether certified copy of the registered sale deed can be admissible in evidence for the purpose of proving the contents of its original document. The Hon’ble Supreme Court further held that the registered sale deed, falls within the definition of a public document and the question was as to whether certified copy of the registered sale deed can be admissible in evidence for the purpose of proving the contents of its original document. In this context the Hon’ble Supreme Court noted that the certified copy issue by the registering authority is not a copy of the original document but is a copy of the registration entry which is itself a copy of the original and is a public document under Section 74 (2) of the Indian Evidence Act and Sub-Section 5 of section 57 of the Registration Act thereof makes it admissible in evidence for proving the contents of its original and ultimately it was held that the certified copy is admissible for proving the contents of the original document. Paragraphs 28 and 29 of the aforesaid judgment is quoted as under: - “ 28. In the aforesaid context it is relevant to note that the sons of Vellaiya Thevar, named above, sold the property having an extent of 2 acres and 61 cents comprised in Survey No. 845/1 of Thimmarasanayakanur Village to Puliyankaladi in the circumstances specifically mentioned thereunder, as per registered sale deed No. 1209/1928 dated 27.08.1928. It is nobody's case that the siblings of Vellaiya Thevar challenged Ext.A1 in any court of law till 15.07.1963, the day on which Puliyankuladi as per Ext.A5 sale deed No. 1759/1963 of SRO Andipatti sold it to appellant/plaintiff. Add to it, its execution is not in dispute, as noted earlier. Evidently, what was sold under Ext. A5 registered sale deed by Puliyankaladi to the appellant/plaintiff is the same property comprised in Survey No. 845/1 of Thimmanayakanur village of Madurai District having an extent of 2 acres and 61 cents as disclosed under the said sale deed. In short, what is discernible from the materials on record is that both Exts.A1 and A5 sale deeds were not subjected to any kind of challenge till today. At any rate, no document revealing successful challenge against those registered documents are brought on record by the respondent-defendant. 29. Having regard to all the aforesaid circumstances and in the light of the various provisions of the Evidence Act mentioned hereinbefore we will firstly consider the question whether the appellant/plaintiff had succeeded in proving the contents of Ext.A1. At any rate, no document revealing successful challenge against those registered documents are brought on record by the respondent-defendant. 29. Having regard to all the aforesaid circumstances and in the light of the various provisions of the Evidence Act mentioned hereinbefore we will firstly consider the question whether the appellant/plaintiff had succeeded in proving the contents of Ext.A1. Going by Section 65(e) when the original of a document is a public document within the meaning of Section 74, secondary evidence relating its original viz., as to its existence, condition or contents may be given by producing its certified copy. Ext.A1, indisputably is the certified copy of sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti. In terms of Section 74(2) of the Evidence Act, its original falls within the definition of public document and there is no case that it is not certified in the manner provided under the Evidence Act. As noticed hereinbefore, the sole objection is that what was produced as Ext.A1 is only a certified copy of the sale deed and its original was not produced in evidence. The hollowness and unsustainability of the said objection would be revealed on application of the relevant provisions under the Evidence Act and the Registration Act, 1908. It is in this regard that Section 77 and 79 of the Evidence Act, as extracted earlier, assume relevance. Section 77 provides for the production of certified copy of a public document as secondary evidence in proof of contents of its original. Section 79 is the provision for presumption as to the genuineness of certified copies provided the existence of a law declaring certified copy of a document of such nature to be admissible as evidence. When that be the position under the aforesaid provisions, taking note of the fact that the document in question is a registered sale deed, falling within the definition of a public document, the question is whether there exists any law declaring such certified copy of a document as admissible in evidence for the purpose of proving the contents of its original document. Subsection (5) of Section 57 of the Registration Act is the relevant provision that provides that certified copy given under Section 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document. Subsection (5) of Section 57 of the Registration Act is the relevant provision that provides that certified copy given under Section 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document. In this context it is to be noted that certified copy issued thereunder is not a copy of the original document, but is a copy of the registration entry which is itself a copy of the original and is a public document under Section 74(2) of the Evidence Act and Sub-section (5) thereof, makes it admissible in evidence for proving the contents of its original. There is no case that foundation for letting in secondary evidence was not laid and as noted earlier, both the trial Court and the First Appellate Court found it admissible in evidence. Thus, the cumulative effect of the aforementioned sections of the Evidence Act and Section 57(5) of the Registration Act would make the certified copy of the sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti, produced as Ext.A1 admissible in evidence for the purpose of proving the contents of the said original document. When this be the position in the light of the specific provisions referred hereinbefore under the Evidence Act and the Registration Act, we have no hesitation to hold that the finding of the High Court that the certified copy of Ext.A1 owing to the failure in production of the original and proving through an independent witness is inadmissible in evidence, is legally unsustainable. In the other words, the acceptance of the admissibility of Ext.A1 found in favour of the appellant/plaintiff by the trial Court and confirmed by the First Appellate Court was perfectly in tune with the provisions referred hereinbefore and the High Court had committed an error in reversing the finding regarding the admissibility of Ext.A1.” 19. In the other words, the acceptance of the admissibility of Ext.A1 found in favour of the appellant/plaintiff by the trial Court and confirmed by the First Appellate Court was perfectly in tune with the provisions referred hereinbefore and the High Court had committed an error in reversing the finding regarding the admissibility of Ext.A1.” 19. This court finds that in the present case the learned courts have not rejected the plea of family partition in the year 1959 on the ground that the recital in the registered sale deed of the year 1975 has no evidentiary value but they have considered the plea of family partition of the year 1959 and found that the separate possession arising out of the partition could not be proved and by referring to the claim of the plaintiff it has been observed that there was no explanation as to how the plaintiff claimed the entire 16 decimal of the suit property when the vendor of the plaintiff could at best get 4 decimal only if the family partition of the year 1959 was taken into consideration and it was also not proved that the entire suit land was allotted to the father of the vendor in family partition of the year 1959. 20. This Court finds that in the present case the entire case of the appellant rested on the mutual partition of the year 1959 but no evidence was produced from the side of the appellant to show that family partition of the year 1959 was acted upon by producing any evidence regarding separate possession of the co-sharers pursuant to partition including the evidence of mutation in their individual name. No document was produced to show that the property was mutated in the name of vendor of the sale deed. 21. This Court finds that the appellate court has clearly held that the plaintiff has proved the sale deed dated 11.09.1975 which was its certified copy but has disbelieved the family partition in the year 1959 which appeared in the recital of the registered sale deed dated 11.09.1975 by citing reasons as mentioned above particularly that no separate possession could be proved by the plaintiff. The learned appellate court also observed that Ramcharan Kandu and Baijnath Kandu were said to be having equal share in the entire 16 decimal of land i.e. suit land and consequently, only 8 decimal devolved upon the two sons of Baijnath Kandu and they got only 4 decimal each in their respective share but the plaintiff had pleaded that the entire suit land was allotted in the share of Dhanu Sao son of recorded Raiyat Baijnath Kandu only and the plaintiff had not proved from any document that the entire suit land was allotted to Dhanu Sao in family partition of the year 1959 and that the plaintiff had also not made any descendants of the recorded raiyat either party or witness in the suit. The learned appellate court held that the plaintiff failed to prove his case and dismissed the appeal filed by the plaintiff. 22. This court finds that the reasons for dismissing the appeal was not based on inadmissibility of the registered sale deed dated 11.09.1975 or inadmissibility of the recitals of the registered sale deed dated 11.09.1975 in evidence but was based on the fact that the plaintiff could not prove separation arising out of the family partition mentioned in the registered sale deed dated 11.09.1975 which was mentioned to be of the year 1959 and also that the plaintiff could not explain how the plaintiff claimed the entire 16 decimals of land arising out of such family partition. 23. The fact also remains that the plaintiff had, interalia, sought a relief that the sale deed No. 5740 dated 14.05.1987 and sale deed No. 16122 dated 12.04.2003 be declared illegal void and not binding upon the plaintiff. But the two sale deeds under challenge were neither exhibited before the learned trial court nor at the appellate court. Further the two sale deeds under challenge were not even included in the list of additional evidence sought to be introduced at the appellate stage. The appellate court’s judgement reveals that the additional evidence sought to be introduced was with respect to two other sale deeds bearing no. 5559 and 5340 both of 1989 and the prayer to adduce additional evidence was rejected by the appellate court by citing reasons. 24. This Court finds no substantial question of law is involved in this second appeal which is hereby dismissed. 25. Pending I.A., if any, is closed.