1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Appeal from Original Decree No. 154 of 2012 Against the judgment and decree dated 25.07.2012 and 07.08.2012
respectively passed in Partition Suit no.54 of 2001 by the learned XI Sub-Judge, Ranchi.
1/[ENTITY], widow of Late [ENTITY] 1/B. Raju Sahu 1/C. Deepak Sahu 1/D. Rina Devi widow of Late Prabhat Sahu 1/D-1 Mr. Rajul Sahu 1/D-2 Mr. [ENTITY] Both sons of Late Prabhat Sahu (Prabhat Sahu, S/o Late [ENTITY] !-D died in the year 2011 during the pendency of P.S. 54/2001 leaving behind his legal heirs 1/D to 1/D-2) 1/E. [ENTITY] 1/[ENTITY] W/o Dayanand Sao Sl. No.1/D is mother of Sl. No.1/D-1 & 1/D-2 who are minors and represented by their mother and next friend and mother's interest is not adverse to the interest of their minor sons.
Sl. No.1/B, 1/C, 1/E, 1/G sons & daughter of late [ENTITY], Sr. No.1/A to 1/E & 1/G R/o & P.S. Hindipiri, Tiwary Tank Street, Dist. Ranchi, Now R/o Namkum, Mahwatoli, P.O. - Namkum, P.S. - Namkum, District - Ranchi Appellants/Defendants.
-Versus-
1. [ENTITY], S/o late [ENTITY], R/o Village - Namkum, P.S. - Namkum, P.O. - Namkum, District -
Ranchi Respondent/Plaintiff.
2. [ENTITY], S/o Late [ENTITY], R/o Hindpiri, Tiwary Street, P.S. - Hindpuri, P.O. - Namkum, District - Ranchi Defendant No.2/Respondent
3. [ENTITY], S/o Late [ENTITY], R/o & P.S. - Hindpiri, Tiwary Tank Street, District - Ranchi and now resident of Namkum, Mahuwa Toli, P.O. - Namkum, P.S. - Namkum, District - Ranchi Defendant no.1/f/Proforma Respondents.
CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
For the Appellants : Mr. [ENTITY], Advocate. For the Respondents : Mr. [ENTITY], Advocate.
C.A.V. On.15.06.2015 Pronounced on 27.08.2015 [ENTITY],J: The present appeal is directed against the judgment and decree dated 25.07.2012 and 07.08.2012 respectively passed in Partition Suit no.54/2001 by the learned Sub- Judge-XI, Ranchi.
2. The aforesaid suit was instituted by [ENTITY] plaintiff, for grant of a decree for partition and carving out 1/4 th share in the suit property, i.e., the plots of land appertaining to [ENTITY] no.66 and 67 respectively situated at village Namkom, District- Ranchi.
The plaintiff's case is that the suit land was recorded in the revisional survey in the name of [ENTITY] and [ENTITY]-sons of [ENTITY]. That [ENTITY] died leaving behind his only son, viz. [ENTITY], original defendant no.1(since deceased) and [ENTITY] died leaving behind two sons, [ENTITY] (plaintiff) and [ENTITY] (defendant no.2). That after the death of the recorded tenants, the plaintiff and defendant came in joint possession of the suit property. The further case of the plaintiff is that he requested for partition of the suit property on several occasions but the defendants did not pay any heed whereafter due to inconvenience felt in the jointness, the plaintiff preferred the suit for partition of the suit property, as described in Schedule A, of the plaint.
3. The original defendant no.1, [ENTITY] (since deceased), in his written statement, stated that the property in question is the ancestral property which was purchased out of the fund of [ENTITY], the father of the defendant. It is stated that a mutual partition took place on 05.05.1991 and the plaintiff has disposed off portion of the suit property in collusion with defendant no.2 prior to the institution of the suit. He admitted in para 13 that the suit property is joint and is coparcenary. That since the plaintiff has sold some portions of land therefore the same may be adjusted. That half share of rest of the property should be divided between plaintiff and defendant no.2 and half share should be allotted to him.
4. That during the pendency of the suit the original defendant no.1-[ENTITY] died and his legal heirs/representatives were substituted as defendant no.1/A to 1/G by order dated 17.02.2004.
The substituted defendant i.e., the legal representative of defendant no.1(since deceased), filed written statement contesting the claim of the plaintiff stating that the plaintiff and defendant no.2 or their predecessors in interest have no right, title or interest in the suit property, which is the exclusive property of the substituted defendants no.1/A to 1/G, who are the absolute owners of the said property. That the suit property, in the cadestral survey record of right stood in the name of [ENTITY], [ENTITY] and [ENTITY]-all sons of [ENTITY]. That [ENTITY] and [ENTITY] died issueless much before the preparation of the revisional survey record and their interest devolved upon their brother- [ENTITY], who also died before the revisional survey. That [ENTITY] was survived by his widow-[ENTITY], who inherited the suit property as the only legal heir and after her death, her only daughter-[ENTITY] became the sole owner of the suit property. [ENTITY], i.e., father of original defendant no.1, was the husband of [ENTITY]. It is alleged that [ENTITY], the brother of [ENTITY], after the death of [ENTITY], took undue advantage of the illiteracy of [ENTITY] and fraudulently got entered his name and the name of his deceased brother-[ENTITY], in the [ENTITY] and succeeded in his ill motive to grab the suit property and sold the land to different purchasers, who have not been made party to the present suit. Thus the substituted defendants have pleaded that the suit property was the exclusive property of original defendant no.1. However, the substituted defendants have admitted that portions of suit property was sold by the plaintiff. It has been prayed that the suit be dismissed, as the plaintiff and defendant no.2 had no right, title and interest in the suit property.
5. Defendant no.2 did not file any written statement, consequently by order dated 20.07.2004 he was debarred from filing the written statement.
6. The trial court, on the basis of the pleadings, framed 7 (seven) issues and after considering the material evidence and the pleadings, and placing reliance on the written statement of original defendant no.1, who admitted the jointness of suit property, and on consideration of the certified copy of the sale deed(Ext.2) of 1925, held that there was unity of title and possession of the parties and each branch of the family had equal share and accordingly decided issue no.1 in favour of the plaintiff. The remaining six issues were also decided against the contesting defendants whereafter preliminary decree was passed holding that the plaintiff was entitled to 1/4th (one fourth) share in the suit property and ordered for preparation of the final decree.
7. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants/appellants, i.e., the legal heirs and representatives of original defendant no.1, have preferred the present appeal impugning the legality and correctness of the judgment.
8. Mr. [ENTITY], the learned counsel for the appellants has assailed the impugned judgment inter alia, on the grounds:-
Firstly that the trial court has not considered the pleadings/written statement of the appellants and has committed gross error in law by placing reliance on the written statement filed by original defendant no.1, i.e, the father of the defendant/ appellants. That the learned trial court failed to appreciate the fact that the written statement of the substituted defendants/appellants was filed under [SECTION] of [ACT] and not under [SECTION] of [ACT] and has committed gross error in law by ignoring the written statement of the substituted defendants. It is canvassed that since no objection was raised by the plaintiff/respondent to the written statement filed by the substituted defendants hence it is deemed that the additional written statement was accepted and the plaintiff's witnesses were cross-examined by the substituted defendants in terms of the contents of additional written statement. That the substituted defendants led evidence in terms of the additional written statement and the witnesses were cross-examined by the plaintiff/respondent and defendant no.2/respondent. It is contended that in the given circumstances it is implicit that the trial court had granted leave to the defendant/appellant under [SECTION] [ACT] to file additional written statement in their personal capacity.
To substantiate the argument he has relied on the decisions reported in:-
(I) AIR 1929 MADRAS 451
(ii) 2010(2) SCC 432(para-2,8,9,10,11,25,33)
(iii) AIR 1992 DELHI 162 (para-10)
(iv) 2008(1) [CASE NUMBER].
Secondly, learned counsel for the appellant has contended that the trial court has erred in law by relying on Ext.2, the certified copy of sale deed purportedly executed by [ENTITY] in favour of [ENTITY] and [ENTITY]. That the certified copy is a secondary evidence and could not have been admitted in evidence, without it being proved in accordance to law as the plaintiff/respondent has not been able to satisfactorily explain the existence or whereabout of the original deed of sale dated 19.01.1925. It is argued that in the absence of any proper explanation, the certified copy of the deed of sale is inadmissible in evidence and was liable to be rejected under [SECTION] of [ACT] To buttress his argument he has placed reliance on the following decisions:-
1. 2011(4) SCC 240(para-12)
2. 2007(5) SCC 730(para-6,7,8,9)
3. 2000(3) PLJR 149 (SC) (para-2,3)
4. [ENTITY]
5. [PRECEDENT].
Learned counsel for the appellant has urged that mere marking of an Exhibit does not dispense with its proof and has referred to the decisions reported in:-
1) 2013(3) JLJR 470(SC)
2) 1972(4) SCC 562
3) AIR 1989 Patna 66
4) 1993 Orissa 103.
It is contended that the argument of the plaintiff/respondent that appellant/defendants no.1/A to 1/G and their predecessor in interest should have taken recourse of law for cancellation of Ext.2, within a statutory period of 3 years cannot be entertained as the plaintiff has to prove his case on his pleadings and cannot take benefit of the weakness of the defendant's case. In support of his contention he has relied on the decisions reported in :-
1) 2014 SCCR 91
2) AIR 1957 Patna 64
3) 2013 (3) PLJR 922.
Lastly, learned counsel for the appellants has stressed that plaintiffs have not pleaded as to how [ENTITY] and [ENTITY] acquired the suit property, thus in the absence of any evidence regarding the purchase of the suit property, the court ought not to have attached any evidentiary value to the sale deed(Ext.2). It is urged that there is variance between the pleadings and proof and the court cannot go beyond the pleadings and the trial court has erred in law by not appreciating this settled principles of law. To fortify his contention learned counsel has placed reliance on the decisions reported in:-
1) 2011(8) SCC 613
2) 2013(1) PLJR 48(SC)
3) 2013(3) PLJR 922
4) AIR 1975 Patna 168
5) AIR 1974 Patna 254(para-8).
It is also argued that defendant no.2/respondent no.2 was debarred from filing his written statement, neither did he examine himself as a witness to support the case of the plaintiff hence the court should have drawn an adverse inference against the plaintiff and defendant no.2. To substantiate the argument he has referred to the decisions reported in the case of Most.
[PRECEDENT] and in the case of [PRECEDENT].
It is argued that the plaintiff and defendant no.2 have not been able to establish that it was a joint property or unity of title and thus the judgment and decree is fit to be set aside being not sustainable in law or on facts.
9. Per contra, Mr. [ENTITY], learned counsel on behalf of the respondent, has submitted that there is a presumption of jointness in Hindu family and the entry made in the revisional survey record of rights is final and conclusive which was never challenged by the appellant or their predecessor in interest. It is contended that [ENTITY], the original defendant i.e. father of the substituted appellant/defendants 1/A to 1/G had admitted the status of jointness and the right to partition as also the fact that the plaintiff and defendant no.2 were entitled to of the share of the suit property and of the share should be apportioned in favour of original defendant no.1. That the substituted defendant/appellants, in their written statement, have also admitted regarding selling of some land by the plaintiff and in this way they have admitted the jointness. It is submitted that the trial court, by order dated 17.03.2004, allowed the substituted defendants either to adopt the written statement filed by original deceased defendant no.1 or to file additional written statement. That the said order was passed in terms of [SECTION] of the [ACT]. That in terms of the aforesaid provision,the defendant/appellants, who were substituted as legal representatives could have only taken such plea which was taken or could have been taken by the original defendant and they could not have taken a stand contradictory to the stand taken by the original defendant.
It is argued by the learned counsel for the respondent that the certified copy of the registered sale deed is a public document and the same was brought on record by the plaintiff on the basis of the petition filed on 07.08.2007. That after hearing the parties, the learned trial court, vide order dated 01.08.2011, allowed the petition with a direction that no formal proof was required and a cost of Rs.400/- was imposed which was deposited on 10.08.2011 by the plaintiff and the certified copy was taken into evidence and marked as Ext.2. That the defendant, though had objected, but withdrew the sum of Rs.400/-, impliedly the substituted defendants waived their objection to such marking of the document as Ext.2. Learned counsel has relied on the decision in the case of [ENTITY] reported in (2003) SCC 752 in support of his argument.
It is submitted that the certified copy of the sale deed is admissible as secondary evidence in terms of [SECTION] Clause
(e) and (f) which provides for accepting the secondary evidence when the original is a public document within the meaning of [SECTION] of the [ACT] and is admissible for proving the contents under [SECTION] Clause (1) and (5) of the [ACT].
10. Learned counsel has contended that the plaintiff had to establish only a high degree of probability that there was unity of title with him. It is pointed out that in para 10 of the written statement, the defendants have stated that " during the lifetime of [ENTITY], her husband, [ENTITY] died and [ENTITY] the brother of [ENTITY] took advantage of the illiteracy of [ENTITY] and fraudulently got prepared the revisional survey record of right with respect to the suit property, in his name and in the name of his deceased brother-[ENTITY] and got entered the names in the sirista of State of Bihar and paid rent thereon and succeeded in his ill motive to grab the suit property and sold the lands to different purchasers, who have not been made party to the present suit."
It is contended that since the substituted defendants have raised a new defence accordingly to counter the claim of the defendants the certified copy of the sale deed, dated 19.01.1925, i.e. Ext.2, was brought on record. It is contended that the record of rights(Ext.1) and the sale deed Ext.2) and pleadings of the parties shows that [ENTITY] and [ENTITY] were in joint possession of the property and after their death, their heirs would be deemed to be in joint possession over the suit property. Learned counsel for the respondent/plaintiff, while placing reliance on the decision in the case of [ENTITY] (Supra), has submitted that the plaintiffs have discharged the onus, which was cast upon them, and it was for the appellant/defendants to disprove the same by leading cogent evidence to shift the onus back on the plaintiff.
It is argued that the plaintiff had set out the necessary facts in terms of [SECTION] for making out his case. At that point of time, the plaintiff cannot be expected to know about the defence which the defendant would take in his written statement. That there is no provision in the [ACT] that a plaint is required to be amended with respect to or in reply to the statement made in the written statement. It is only in cases where a written statement contains either a claim of set off or counter claim, the plaintiff is required to file his written statement when such set off or counter claim pleaded by the defendant is treated as a cross suit. It is submitted that the plaintiff had pleaded that the suit property was a raiyati land of [ENTITY] and [ENTITY] which was admitted by the original defendant No.1 who had also admitted the claim of partition set up by the plaintiff. However, the substituted appellant, for the first time in their additional written statement, set up a completely contradictory claim that [ENTITY] was the absolute owner and after her death, the property devolved upon her daughter-[ENTITY] and original defendant, [ENTITY], being the son of [ENTITY] inherited the entire property and the substituted defendants are the absolute owners of the suit property without bringing on record any cogent evidence to substantiate such claim.
On the above grounds, learned counsel for the plaintiff/respondent has submitted that there is no infirmity or illegality in the impugned order and judgment. It is urged that the appeal being devoid of merit is fit to be dismissed.
11. Having heard the submissions of the learned counsels, it is evident that the learned counsel for the appellant has laid much emphasis on the fact that the additional written statement filed by the substituted defendants/appellants, were not considered by the trial court rather the learned trial court erred in law by placing reliance on the written statement of original defendant no. 1. In this context it is revealed from the lower court record that by order dated 17.03.2004, the substituted defendants were allowed either to adopt the written statement filed by their father i.e. deceased defendant no.1 or to file additional written statement. It is evident from the record that the said order was passed in terms of [SECTION], [SECTION] of [ACT] which reads as follows:-
"(2) any person, so made a party, may make any defence appropriate to his character, as legal representative of the deceased defendant".
From plain reading of the provision, it is abundantly clear that once such substituted legal representatives of the deceased original defendants was brought on record, they could only have taken such plea or defence which was appropriate to their character as a legal representative of the deceased, in other words the substituted defendants could not have taken any defence which was contradictory or in conflict to the defence taken by their predecessor- in- interest . In this connection, it would be pertinent to refer to the decision of the Supreme Court in the case of [PRECEDENT] wherein it has been held that [SECTION] authorizes the legal representative of a deceased defendant/respondent to file an additional written statement or statement of objection raising all pleas which the deceased defendant had or could have taken except those which were personal to the deceased. In the aforesaid case, the defendant was admittedly a tenant and therefore the legal representatives could not have taken the defence that they were possessing the property as trespassers. The above view has also been taken by the Hon'ble Supreme Court in the case of [PRECEDENT].
The decision reported in [PRECEDENT] relied on by the learned counsel is not applicable to the facts of the present case, as in the said decision, the prayer of the substituted legal heirs/legal representatives, to file separate written statement, was rejected by the trial court and the High Court set aside the said rejection order. It is apparent that the decision does not augment the argument advanced by the learned counsel for the appellant. Likewise the decision in the case of [PRECEDENT] is also not applicable to the facts of the instant case. In the said case it was held that [SECTION] has no application in a case where the legal representatives of the deceased defendant have filed a written statement under [SECTION] without leave of the court. In the decision in the case of [PRECEDENT], the question involved was with respect to the jurisdiction of the High Court in passing an order while exercising power under [SECTION] and [SECTION] of the [ACT], without adverting to the provisions of [SECTION] [ACT] In the said case it was found that the plea raised by the appellants i.e. substituted legal representatives of the defendant was not inconsistent with the averments contained in the original written statement of defendant [ENTITY]. It is amply clear that the reliance placed by the learned counsel for the appellants on the aforesaid decision does not support the contention of the appellant rather it reiterates and affirms the settled principle that the substituted defendants cannot take a plea or defence which is contradictory to the defence taken by the original defendant.
In the present case it is not disputed that the Revisional Survey Record of Right was in the name of the grandfather of the appellants and they have succeeded to the interest of their father meaning, thereby, they have derived their interest and right from their father and they do not have any independent right i.e. a right independent of their deceased father- [ENTITY], the original defendant no. 1. In such a fact situation a plea contrary to the pleading of the predecessor-in-interest of the appellant i.e. [ENTITY], has rightly been ignored by the trial court and the decisions relied on by the learned counsel for the appellants is not applicable to the facts of the present case.
12. In the case of [PRECEDENT] which has been relied on by the learned counsel for the appellant in support of his argument, that an express permission is not required and such permission can be inferred from the proceedings of the court. This has been cited to support his contention that the written statement was filed under [SECTION] and not under [SECTION]. The perusal of the facts of the said decision shows that learned counsel has misconceived the facts and misdirected himself by placing reliance on the decision as the facts are not applicable to the case in hand.
13. Since the learned counsel has laid much emphasis upon the provisions of [SECTION] and contended that the legal representatives were permitted to file additional written statement, hence, they had every right to take any stand. In this context, it would be relevant to refer to the provisions of [SECTION] which read as follows:-
"Subsequent pleading-no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same".
From the plain reading it is apparent that the provision contemplates that the defendant does not have the right to file a written statement rather the provision is used to meet out circumstances whereby subsequent development of certain facts are required to be incorporated in the pleadings. However, except for the aforesaid circumstances, no party can be allowed to file written statement except by leave of the court and upon such terms as the court thinks fit by fixing time of not more than 30 days.
I am in agreement with the argument advanced by the learned counsel for the respondent/plaintiff that assuming that the substituted legal representatives were allowed to file additional statement in terms of [SECTION], then a question would arise as to whether a person, who is allowed to file additional written statement can take a contradictory stand to the stand or defence taken by a person from whom he claims to derive his right, title and interest. Additional written statement impliedly means a statement which is in addition to a written statement which has been filed earlier and it can not be interpreted to mean a contradictory written statement. Thus, the original defendant, who had already taken a particular stand then neither he nor the persons who have stepped in his shoes or are claiming under him can be allowed to amend their pleadings so as to deny the admissions made in the written statement by taking a contrary plea and thereby change the very nature of the case as that would amount to allowing a thing to be done indirectly which was impermissible to be done directly.
14. In response to the argument that the court below did not consider the additional written statement, it is noticed that the substituted defendants/appellant, have not disputed the fact that their father i.e. [ENTITY], the original defendant(since deceased) had filed the written statement admitting that both the plaintiff and defendant no.2 were entitled to share in the suit property. The substituted defendants have not been able to bring on record any material evidence or cogent reason to show as to under what circumstances their father had made such admission. It is also noticed that the substituted defendant/appellants have admitted in their written statement that the plaintiffs have sold the land to different purchasers. This averment in fact supports the admission made by the original defendant that there was jointness of the parties in the property.
In the backdrop of the emergent facts, the pleadings and the judicial pronouncements, the contention of the learned counsel that the additional written statement was filed under [SECTION] is rather misplaced and is responded to accordingly.
15. The other dominant issue harped and emphasised upon by the learned counsel for the appellants, pertains to the certified copy of the sale deed(Ext.2), purportedly executed by [ENTITY] in favour of [ENTITY] and [ENTITY]. It has been argued that the trial court has committed gross error in law by admitting the certified copy of sale deed without appreciating the fact that such secondary evidence is inadmissible in evidence in the absence of proof that the original has been lost.
The question raised by the learned counsel needs determination. In this context it is pertinent to notice as is evident from the trial court's records that on 07.08.2007 the plaintiff filed the petition for admitting the certified copy of the aforesaid sale deed as evidence. After hearing the parties, the trial court, vide order dated 01.08.2011, allowed the petition with direction that no formal proof was required for admissibility of the document and imposed a cost of Rs.400/- on the plaintiff. On 10.08.2011, the plaintiff deposited the cost of Rs.400/- and on 18.08.2011 the certified copy was marked Ext.2. On the same date, the defendant filed a petition for withdrawal of Rs.400/-, the cost deposited by the plaintiff. It is noticeable that the objection of the defendant was only to the extent as to whether the certified copy could be directly taken into evidence or a formal proof was required upon which the trial court held that there was no requirement of a formal proof. This order dated 01.08.2011 of trial court was never challenged by the substituted defendants. On the contrary, they withdrew the cost of Rs.400/- deposited by the plaintiff. The conduct of the defendant, in not challenging the order as well as withdrawing the deposited cost leads to the inference that defendants/appellant waived the objection for taking Ext.2 in evidence.
In the case of [ENTITY]), referred to by the learned counsel for the
respondent/plaintiff, the Hon'ble Supreme Court has held and observed that objection to admissibility of secondary evidence can only be raised at the time when the same is being tendered into evidence and while elaborating, has observed that there are two kinds of objection, first is when the document sought to be proved is in itself admissible and the second is when the objection is directed not against the admissibility of the document but against the mode of proof thereof, on the ground of irregularity or insufficiency. In the first case it has been held that even after the document has been marked as an exhibit the objection can be raised even in appeal or revision. However, in the second case it has been held that since it is directed against the mode of proof of the documents, such objection has to be raised when evidence is being admitted, but not after the document has been admitted and marked as an exhibit. It is noticed that the objection of the defendant/appellant, in the present case, was directed against the mode of proof. It is emphatically argued that the said document was taken into evidence without calling for the original. It was incumbent upon the defendants, to have challenged the order of the trial court whereby it directed the admission of the document as evidence without any formal proof which they failed to do. On the contrary they withdrew the cost deposited by the plaintiffs thereby waiving the objection.
For better appreciation on the point of admissibility of a certified copy as evidence it is pertinent to refer to the provision of [SECTION], Clause 5 of the [ACT] which reads as under:-
"5. all copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents"
[SECTION] of the [ACT] enumerates the duties of the registering officer and [SECTION] makes it obligatory for the registering officer to get the document copied, which had been registered for admission, in the appropriated book or register. The registering officer is a public authority and the act of entering a copy of the document admitted for registration, in the book maintained thereof, is in nexus to the act done in discharge of his official/ public duty.
On perusal of [SECTION] of the [ACT] and the clauses contained therein, it is clear that seven different circumstances and conditions have been enumerated whereby on fulfillment of required condition and the contingencies, secondary evidence of documents are admissible. It provides that each of the sub clause (a) to (g) stipulates the contingency, the separate requirement and conditions for accepting a secondary evidence. Thus the conditions prescribed or contemplated in one sub clause cannot be applicable to the other sub-clause. Therefore, if a document or matter falls within [SECTION], then the party has to meet and satisfy the conditions prescribed therein and he cannot be permitted to bring such secondary evidence into evidence by fulfilling the requirement stipulated either under [SECTION] or other sub-clauses. [SECTION] prescribes that when the original is a public document within the meaning of [SECTION], a certified copy of the document can be admitted but no other kind of secondary document is admissible. The interpretation of the provision is that once it is proved that the original is a public document, within the meaning of [SECTION], then a party is only required to produce a certified copy of the document.
Public document is defined in [SECTION] of the [ACT] reads as follows:-
"[SECTION]: Public documents- the following documents are public documents:-
(1). Documents forming the acts, or record of the acts-
(i) of the sovereign authority
(ii) of official bodies and tribunals, and
(iii)of public officers, legislative, judicial and executive, [of any part of India or of the commonwealth], or of a foreign country.
(2) public records kept [in any State] of private documents".
[SECTION] deals with public record which are kept [in any State] of private documents.
As discussed above under [SECTION], the Registering Authority is required to keep a copy of the documents. The record is kept as a record of private document. [SECTION] of the [ACT] provides for the issuance of a certified copy by a public officer of a public document, in his custody, with a certificate and his signature and name and seal. [SECTION] provides for proof of documents by production of certified copy and [SECTION] prescribes for presumption regarding the genuineness of the certified copy.
I am in agreement with the contention of the learned counsel for the respondent-plaintiff that even if, for argument's sake, it is assumed that the sale deed is not a public document in terms of [SECTION], then [SECTION] of the [ACT] would be applicable which reads as hereinunder:-
"[SECTION] when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India], to be given in evidence."
From the discussion and analysis of the provisions of [ACT] and conjoint reading of [SECTION] of [ACT] and [SECTION], [SECTION] and [SECTION] of the [ACT], it is amply clear that the entry of private document i.e. a sale deed made in the book maintained by the registering authority, comes within the purview of public document and the certified copy of the document is admissible in evidence.
16. The Hon'ble Supreme Court, in the decision reported in [PRECEDENT] while affirming the view of the decisions reported in [PRECEDENT] has held that there is a presumption as to the genuineness of the contents of the document, certified copy of which is produced in the Court and can be relied on, if its presumption is not rebutted. It has been held that certified copy of registered sale deed is admissible evidence subject to the limitation of its being a secondary evidence.
17. Looking to the facts of the present case, it is not disputed that the sale deed(Ext.2) is of the year 1925 which was sought to be proved. This document relates to both the parties and being an ancient document of 80-90 years, the absence of custody of the original document can be considered and well understood. It is well settled that in civil cases, there is preponderance of evidence. Admittedly the document relates to the suit property, and if the defendant/appellant, wanted to challenge the document, it was incumbent upon the defendant/appellant to rebut it by calling for the original in order to prove that the executor of the deed had not executed the same, but the defendant/appellants have not done so. At the cost of repetition, as discussed in the foregoing paragraphs it is noticed that the order was passed by the trial court that no formal proof was required with respect to the certified copy, while admitting into evidence, on payment of cost of Rs. 400/- by the plaintiff/respondent. The said order was never challenged. On the contrary the defendant/appellant accepted the payment of Rs. 400/-. In other words the defendant/appellant had no objection to the certified copy being taken into evidence as Exhibit-2.
18. The decisions reported in [PRECEDENT] relied on by the learned counsel for the defendant/appellant, is distinguishable from the facts of the present case. In the said decision, a declaration was sought that a registered sale deed of 1950 was forged, null and inoperative, which is not the case of the defendant/ appellant at hand. Learned counsel has also relied on the decision reported in [PRECEDENT]. In the said case, the fact involved was on the admissibility of photo-copy of power of attorney. The respondent had denied the execution of power of attorney authorising alienation of the suit property by the power of attorney holder. The facts in the decision reported in [PRECEDENT] was in context with the scope and object of secondary evidence wherein it was held that the conditions laid down in [SECTION] must be fulfilled before secondary evidence can be admitted. In the said case, the secondary evidence was admitted under [SECTION] and the Apex court held that clause (b) to Clause(g) specifies some other contingency wherein secondary evidence relating to a document may be given. Thus, the ratio laid down by the Apex court in the aforesaid case is of no help to the appellant rather it supports the contention of the plaintiff/respondent that certified copy is admissible under [SECTION] of [ACT] . In the decision reported in [PRECEDENT] the matter was with respect to the photo-copy of documents wherein the allegation was that the original documents were tampered with and the photo-copies were fictitious. The said decision, relied on by the learned counsel, has been filed without any purpose, and it would be wastage of time to go into details, as this is not the case of the defendant/appellant in the instant case.
19. Learned counsel for the defendant/appellant has argued that only [SECTION] of the [ACT] prescribes for admission of certified copy of sale deed and there is no other provision for admissibility of certified copy of sale deed in any other Act. In support of his contention, he has relied on the decision reported in [PRECEDENT].
The contention of the learned counsel is rather misplaced and misdirected that certified copy of sale deed are admissible only under [SECTION] of the [ACT]. In the aforesaid decision, the Hon'ble Supreme Court discussed and deliberated as to why the necessity arose for insertion of [SECTION] in the [ACT] whereby certified copy of sale transaction was made admissible in evidence without the necessity of examining the vendor or the vendee to prove the contents of the documents.
In the said decision, the Supreme Court, in para 20, held that even prior to insertion of [SECTION] of the Act, the provisions of the [ACT] and the [ACT], did permit the production of a certified copy in evidence and the Apex Court upheld the judgment in the case of [PRECEDENT] wherein the Court relied on [SECTION] and [SECTION] of the [ACT] read with [SECTION] of the [ACT] and held that production of a certified copy of a registered sale document in evidence was permissible in law even prior to insertion of [SECTION] in the [ACT]. The said decision in fact negates the argument advanced by the learned counsel for the defendant/appellant. It fortifies the legal position that certified copy of sale deed is admissible in evidence.
20. In view of the discussions made above, the certified copy of sale deed(Ext.2) has been rightly admitted by the trial court in the absence of any rebuttal by the defendants and is in accordance with the provision of law accordingly it does not merit any interference by this court.
21. There is no dispute to the contention of defendant/appellant that the plaintiff has to stand and fall on its own footing, and it cannot take advantage of the weakness of the defendants. It is well settled that unlike in criminal case, in a civil case the plaintiff is not expected to prove his title beyond any reasonable doubt rather he has to establish a high degree of probability lending assurance of the availability of title with him. If he succeeds in establishing title this would be enough to shift the onus on the defendant. If the defendant does not succeed in shifting back the onus, the plaintiff's burden of proof can safely be deemed to have been discharged. This premise of settled principle has been upheld in para-30 of the decision reported in [PRECEDENT]. In the said decision, while referring to the provisions of [SECTION] of the [ACT], it has been elaborated that a fact is said to be "proved" when, if considering the matters before it, the Court either believes it to exist, or considers its existence, so probable that a prudent man ought, under the circumstances of a particular case, to act upon a supposition that it exists.
Considering the well settled principle it has to be seen whether in the instant case the plaintiff has been able to establish such degree of probability substantiating that there was unity of title with him or not. Admittedly the plaintiff and the defendants are governed by Hindu Law in matters of inheritance and succession. The plaintiff's contention is that [ENTITY] no. 66, 67 was recorded in the name of [ENTITY] and [ENTITY] and for proving such a statement, certified copy of the sale deed dated 19.01.1925 has been produced in evidence as discussed in the foregoing paragraphs. The said sale deed has never been challenged by the substituted defendants/appellants and in fact the defendants/appellants against the claim of partition by the plaintiffs, came up with the defence that the property in question was the exclusive property of their predecessor-in-interest, viz, [ENTITY]. It is the case of the defendant/appellant that [ENTITY], the brother of [ENTITY] had fraudulently got his name entered in the Record of Rights. Since the appellants/defendants have raised such plea the burden of proving the same was on them.
In this context the contention of the learned counsel for the plaintiff/respondent is accepted that if this was the plea of defendant/appellant, then according to [SECTION] of the [ACT], any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument may cause serious injury, may sue for declaring such instrument as void or voidable and the Court, in its discretion, if adjudges it to be void or voidable , will order for its cancellation and in cases of registered instruments, the Court is required to send a copy of the decree to the officer, in whose office the instrument has been so registered, and the officer maintaining a copy of the instrument in the books,shall endorse a note of such cancellation. The limitation prescribed for challenging such instrument is three years from the date of knowledge of the person challenging the said instrument in terms of [SECTION] of the [ACT].
In the case at hand, admittedly, the defendant/appellant or their predecessor, despite having
knowledge of the sale deed of the year 1925, have never challenged the said registered sale deed. No evidence has been brought on record by the appellants to substantiate the allegation that the property was fraudulently entered in the Record of Rights. Even during the revisional survey, in the year 1930-32, the names [ENTITY] and [ENTITY] were recorded in the RS Record of Rights, which was in the knowledge of the appellants, as it would be evident from paragraph 10 of their written statement wherein they have alleged "During the lifetime of the said [ENTITY], her husband [ENTITY] died. [ENTITY], brother of [ENTITY] took advantage of the illiteracy of the said [ENTITY] and fraudulently got prepared the Revisional Survey Record of Rights with respect to the suit property, in his name and in the name of his deceased brother, [ENTITY] and got entered the names in the sirista of the State of Bihar and paid rent thereof and succeeded in his ill motive to grab the suit property and sold the land to different purchasers, who have not been made party to the present suit." Such a statement of appellants would only lead to the presumption of jointness in the absence of any evidence in rebuttal brought on record by the appellants during evidence and trial before the trial court.
It is also necessary to mention that the Record of Rights is prepared by following the procedure prescribed under [SECTION] and [SECTION] of the [ACT]. The presumption is of the correctness of the entry until it is proved by evidence to be incorrect. Under [SECTION] of the [ACT], any party aggrieved by any wrong or erroneous recording, is vested with the right to challenge the same and it is not disputed that neither the appellants nor their predecessors have challenged such entry. The substituted appellants/defendant have not denied the pleading of the original defendant no. 1, i.e., their deceased father [ENTITY], who has admitted the jointness. Moreover the appellants have impliedly admitted that some portions of the property was sold by the plaintiff/respondent to different purchasers.
Thus, the preponderance of the evidence leads to the conclusion that [ENTITY] and [ENTITY] were in joint possession of the suit property and after their death, their heirs would be deemed to be in joint possession of the suit property. It is apparent that the plaintiff has discharged the onus and the argument that the plaintiff have taken advantage of the weakness of the defendant's case is rather fallacious. It would be a wastage of time to refer to the decisions relied on by the appellants as on going through the said decisions, it is apparent that the facts of the aforesaid decisions are not applicable to the facts of the present case.
22. The contention of the learned counsel for the appellant, that P.W.-5, in para 23 of his cross-examination, has stated that [ENTITY] died before the preparation of Record of Rights of the revisional survey and this lends credence to the pleading of the appellant that [ENTITY] took advantage of the illiteracy of [ENTITY], widow of deceased [ENTITY] and fraudulently got the Revisional Survey Record of Rights in the name of his deceased brother [ENTITY] in the year 1932-34 is rather misplaced because the appellants, as discussed above, have not brought any cogent evidence to substantiate this plea. It can also be viewed from another angle that had [ENTITY] a malafide intention, he could have easily got the name of [ENTITY] deleted from the record of rights. In fact, Ext. D, i.e., the certified copy of the revisional survey Khatiyan of [ENTITY] no. 66 which has been brought on record by the appellant shows that the said suit property was in the joint name of [ENTITY] and [ENTITY] and the said document has been relied on by the appellants. Ext. A is the original Khatiyan of Cadestral Survey of [ENTITY] no.14 and P.W.-1, [ENTITY], the substituted defendant no. 1/B, has deposed in para-23 of his evidence that the suit lands of [ENTITY] no. 66 and 67 have been carved out of the Cadestral Survey of [ENTITY] no. 13. Ext. B is dated 19.10.1922, and is a karpardarjinama executed by [ENTITY], in favour of her son-in-law [ENTITY] to look after and manage the suit property and this would not rebut the sale deed executed in 1925. The appellants have not challenged the sale deed, which was executed by [ENTITY] whereby she had sold the land of [ENTITY] no. 13 to [ENTITY] and [ENTITY]. The trial court has discussed the oral and documentary evidence and rightly held that no amount of oral evidence can outweigh the documentary evidence brought on record. Thus, the finding of the trial court that there is unity of title and possession of the parties over the suit land, with each branch having equal share, is in consonance with the evidence on record and does not require any interference by this Court.
23. Learned counsel has also argued that the plaintiff in his deposition, has not been able to state about the boundary of the land and this shows that the plaintiff was not in possession of the said land. Such argument of the learned counsel is not acceptable as it is settled principle of law that the possession of one co-sharer is considered in law as the possession of all the co- sharers or co-heirs until and unless the co-heirs bring an evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment to the knowledge of the other co-sharers. The decisions relied on by the learned counsel is of no help. The statement by the defendant in their written statement that the plaintiff/respondent have sold some land to other purchasers leads credence to the factum of joint possession. The defendant/appellants have not brought on record any sale deed or document on record of the persons or the purchasers to whom some portions of the suit land was sold by the plaintiff/respondent. Thus, the argument advanced by the learned counsel is not sustainable.
24. Lastly, it has been argued by the appellants that the plaintiffs have not pleaded as to how [ENTITY] and [ENTITY] had purchased the suit property thus the evidence regarding the sale deed was not admissible and the trial court has committed error in law by admitting the said evidence. Such argument of the learned counsel has already been answered in the foregoing paragraphs. At the cost of repetition, it is to be pointed out again that the plaintiff had pleaded that the suit property was the raiyati land of [ENTITY] and [ENTITY]. Original defendant no.1, [ENTITY], in his written statement, admitted the claim of partition and co-parcenary in the property of the plaintiff. The substituted defendants, for the first time, in their additional written statement, took a contradictory stand that [ENTITY] was the absolute owner and after her death the property devolved upon her only daughter [ENTITY], who was married to [ENTITY]. After their death, their only son [ENTITY] inherited the entire property of his mother. On death of [ENTITY], the substituted defendants claimed themselves as the absolute owner of the suit property. Needless to say, such contradictory stand was not required to be taken by substituted defendants, as they claimed their right, title and interest through [ENTITY] i.e., their father, who had never made any such statement.
As discussed and contended it was only to counter such contradictory statement of the defendant that the plaintiff, in order to rebut and to counter the contradictory statement made by the appellant/defendant, had brought on record the sale deed, for which no pleading was required as the parties were well aware about each other's case.
In the case of [PRECEDENT] it has been held in para 6 as under:-
" whenever the question about lack of pleading is raised the inquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In [PRECEDENT], constitution Bench of this Court considering this question observed:-
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another."
25. Therefore, in the light of the evidence on record, it is abundantly clear that the defendants have failed to prove that the suit property was their exclusive property. On the other hand, the documentary evidence on record establishes the case of the plaintiff that there was unity of title and possession over the suit land. In view of the discussions made above and the judicial pronouncements, it is held that there is no illegality, infirmity in the judgment and decree passed by the trial court and the same is affirmed and decreed accordingly.
26. In the result, the appeal is hereby dismissed.
([ENTITY], J) [ENTITY]/AFR