Reserved HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 44/2002 1. Madan Singh S/o Late Kalam Singh 2. Murari Chowmein seller S/o late Kalam Singh Residents of village Dhak-patti, Rajpur, District Dehradun ...Defendants-Appellants Vs. 1. Smt. Shanti Devi wife of late Ram Ratan Trihan Resident f 120/4, Narain-purwa, Lajpat Nagar Kanpur, U.P. through his Power of Attorney Sri Ramesh Chandra Gupta 2. Satya Prakash Goel S/o late Nathu Mal Residernt of 7, Kutchery Road Dehradun ....Plaintiff-Respondents 3.1.2008 Hon’ble Rajesh Tandon, J. Heard Shri Ramji Srivastava, counsel for the appellants and Shri V.K. Kohli, counsel for the respondents. GROUNDS FOR THE APPEAL 2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 19.3.2002 passed in Civil Appeal No. 153 of 2001 passed by the Civil Judge, Dehradun. 3. Second appeal was admitted on the following substantial questions of law mentioned in the memorandum of appeal:- (1) Whether the photo-copy of the sale-deed dated 29.6.1968 which is neither certified nor attested can be read in evidence without being proved by the oral testimony of the plaintiff for recording her title on the land in suit? (2) Whether the evidence allegedly relied upon by the plaintiff was barred by Section 90 of the Indian Evidence Act? (3) Whether the photo-copy of the unregistered agreement can form the basis of the suit for declaring the title and getting possession on the land in suit? (4) Whether the onus has been wrongly shifted on the Defendants to prove their own title and on its basis the suit can be dismissed? FACTUAL MATRIX OF THE CASE 4. Briefly stated, a suit was filed by the plaintiff being suit no. 360 of 1995 before the Court of Civil Judge (Jr. Division), Dehradun for a decree for ejectment of the defendants as well as for recovery of damages at the rate of Rs.50/- per month. According to the plaint averments, the plaintiff no. 1 Smt. Shanti Devi has become the owner of the property situate at Municipal No. 1, Mussoorie Road, Rajpur, Dehradun having an area of 4 bigha, 1 biswa and 13 biswansi by virtue of registered sale deed date 29.6.1968. The aforesaid property is in the possession of plaintiff no. 2 as purchaser by sale agreement dated 21.1.1998. The defendants have unauthorisedly occupied some part of southern portion of the aforesaid property and, therefore, they are liable to be evicted. The plaintiff is entitled to get a sum of Rs.50/- per month towards damages. The plaintiffs have served a notice upon the defendants for the ejectment from the aforesaid land in dispute but the defendants have not vacated the same and, as such, the present suit has been filed. 5. The defendant no. 1 has filed a written statement stating therein that the plaintiffs are not the owners of the land in dispute. The plaintiff no. 2 cannot institute the suit on the basis of agreement and he is not entitled to claim the title. The khokha situate at land in dispute has been purchased by the defendant no. 1 on 12.11.1994 by Puranchand on a sale consideration of Rs.8,000/- and since then he is in possession of the land of dispute as the owner. The plaintiffs have no right to file the suit. Suit is not maintainable in the eyes of law and is liable to be dismissed. 6. The defendant no. 2 has field a written statement stating therein that the plaintiff no. 1 is not the owner of the alleged property and various proceedings are pending between the plaintiff no. 1 and other parties with regard to the aforesaid property. The sale agreement of the plaintiff no. 2 is totally invalid and he is also in unauthorised occupation of the aforesaid property. The defendant no. 2 is in possession of the land in dispute form the last 20-21 years and he has become the owner of the land in dispute on the basis of adverse possession. The suit of the plaintiffs is liable to be dismissed. 7. On the pleadings of the parties, following issues have been framed:- 1. As to whether the plaintiff no. 1 is the owner of the property alleged in the suit and the plaintiff no. 2 is in possession of the suit property on his behalf? 2. As to whether the defendants have unauthorisedly occupied the property in dispute shown by red colour and if yes, as to whether the plaintiffs are entitled to get back the possession of the land in dispute from the defendants? 3. As to whether the plaintiffs are entitled to get the damages from the defendants with regard to property in dispute? 4. As to whether the defendant no. 1 is the owner of the property in dispute being purchaser? 5. As to whether the defendant no. 2 has become owner of the property in dispute on the basis of adverse possession? 6. To what relief the plaintiffs are entitled to? 8. The plaintiffs have examined Satya Prakash as P.W.1. Towards the documentary evidence, the plaintiffs have produced notice i.e. paper no. 7 ga, receipts i.e. paper no. 8 ka and 9 ka, A.D. card i.e. paper nos. 10 ka and 11 ka, copy of sale deed i.e. paper no. 40 ga, copy of agreement i.e. paper no. 41 ga, copy of power of attorney i.e. paper no. 43 ga and copy of tax assessment for the years 1973-78, 1979- 84, 1984-89, 1989-94 and 1994-99. 9. The defendants have examined Madan Singh as D.W. 1. Towards the documentary evidence, the defendants have produced medical certificate as per list 25 ga and original receipt dated 12.11.1994 as per list 56 ga. 10. While deciding as to whether the plaintiff no. 1 is the owner of the property alleged in the suit and the plaintiff no. 2 is in possession of the suit property on his behalf, as to whether the defendant no. 1 is the owner of the property in dispute being purchaser and further as to whether the defendant no. 2 has become owner of the property in dispute on the basis of adverse possession, the trial court has relied upon paper no. 40 ga which is certified copy sale deed dated 29.6.1968. This sale deed discloses that the plaintiff no. 1 is the owner of the property mentioned in the plaint by virtue of the aforesaid sale deed. The trial court has also relied upon paper no. 41 ga i.e. agreement to sale by which the plaintiff no. 1 has transferred the property in suit to the plaintiff no. 2. Thereafter, reliance has been placed by the trial court on paper no. 49 ga which is tax assessment for the years 1973-78, 1979-84, 1984-89, 1989- 94 and 1994-99 wherein name of Shanti Devi has been shown. So far as the receipt i.e. paper no. 57 ka produced by the defendants is concerned, the same discloses that that the shop has been constructed on 12.11.1994 on ‘kuchhi’ Government land and in the possession since the year 1985 and Madan Singh has sold the same to Puran Singh. The trial court has recorded the finding that the aforesaid receipt and the statement of D.W.1 Madan Singh are contradictory to each other. The trial court has recorded the finding to the following effect:- On the one hand, D.W.1 in his cross examination states the land in dispute as khokha and on other hand receipt shows that the shop is constructed in ‘kuchhi’. 11. Further, so far as receipt paper no. 57 ka is concerned, the trial court has recorded the finding that merely on the basis of the aforesaid receipt, the defendant no. 1 cannot be said to be the owner of the property in dispute. Further, the trial court has placed to credence on the statement of D.W.1 who has failed to state that as to who is the owner of the land in dispute where the khokha has been placed. Therefore, the defendants cannot be said to be the owner in possession over the property on the basis of adverse possession. On the basis of the aforesaid, the trial court has concluded that the defendants are not owners in possession of the property in dispute and the defendant no. 2 has not become the owner in possession of the property in dispute on the basis of adverse possession. Further, finding has been recorded that the plaintiff no. 1 is the owner of the property in dispute and the plaintiff no. 2 is in the possession of the property in dispute. 12. While deciding as to whether the defendants have unathorisedly occupied the property in dispute shown by red colour and if res, as to whether the plaintiffs are entitled to get back the possession of the land in dispute from the defendants, the trial court has recorded the finding that the defendants have unauthorisdly occupied the property in dispute which has been shown by red colour in the plaint map. Therefore, the trial court has concluded that the plaintiffs are entitled to get back the possession of the property in dispute form the defendants. 13. While deciding as to whether the plaintiffs are entitled to get damages to the extent of Rs.50/- per month from the defendants., the trial court has recorded the finding that it has not been disputed that the monthly rent of the property is to the extent of Rs.50/-. Therefore, the trial court has recorded the finding that the plaintiffs are entitled to get the damages to the extent of Rs.50/- per month from the defendants. 14. On the basis of the aforesaid, the trial court has decreed the suit. 15. Aggrieved by the judgment and decree passed by the trial court, the defendants preferred the appeal. 16. Before the appellate court, counsel for the defendants has argued that the trial court had fixed 19.4.2001 for arguments but the trial court has heard ex parte arguments on behalf of the plaintiffs and finally disposed of the suit without giving any opportunity for arguments to the defendants. The appellate court has taken into consideration the order sheet of the original suit which shows that on 3.4.2001 the evidence of the defendant was closed, and 12.4.2001 was fixed for argument on which date the defendant Madan Singh ws present in the court. No application for setting aside the order dated 3.4.2001 has been filed. Thereafter on 12.4.2001, 19.4.2001 was fixed for argument in the presence of defendant Madan Singh. In view of the aforesaid, the appellate court has recorded the finding that there is no force in the contention advanced by the counsel for the defendant that without giving any opportunity for arguments to the defendants, the trial court has disposed of the suit finally. 17. The appellate court has further recorded the finding as under:- On the plaint there are signatures of Power of Attorney Holder of Smt. Shanti Devi and plaintiff no. 2. The plaintiff no. 2 has verified the plaint. On behalf of the plaintiff a document i.e. paper no. 35 C/2 has been filed alongwith the appeal. The aforesaid document has been filed in suit no. 456 of 1992 Lalit Kapur v. Satya Prakash which shows that according to the agreement the plaintiff no. 2 S.P. Goyal was given the possession of khasra no. 78 area 0.47 acre. In the file of original suit certified copy of sale deed i.e. paper no. 40 C Ex. Ka-8 which is forty years old has been filed. Alongwith the same map is annexed. Agreement 41 C has been filed on behalf of the plaintiff which is agreement between the plaintiff no. 1 and plaintiff no. 2. Paper no. 42 C is Power of Attorney by which the plaintiff no. 1 has appointed Ramesh Chand Gupta as her power of attorney holder. Thus, on the basis of agreement between the plaintiffs, it is proved that the possession of the property in dispute was given to the plaintiff no. 2. The trial court has not erred while giving its finding in this regard that the plaintiff has cause of action to fie the suit. 18. Before the appellate court, the defendant-appellants have also argued that the defendant no. 1 has purchased the khokha in dispute from Puran Singh on a sum of Rs. 8,000/-. The defendant-appellants have pressed his ownership on the property in dispute on the basis of receipt 7 A which shows that ‘ljdkjh tehu dPph cuh gqbZ pknj lfgr ,d nqdku tks fd 8 gtkj :i;s udn mldk dCtk enu flag dks ns fn;k gS vkSj og bl nqdku dk ekfyd gks x;k gS’. The appellate court has recorded the finding that aforesaid receipt shows that the Pooran Singh has given the possession of the khokha to the defendant no. 1 and no ownership right has been given to the defendant no. 1. Further, the appellate court has relied upon paragraph 13 of the written statement filed by the defendant no. 1 to the effect that the khokha in question is situate at the distance of three meters from the road. The appellate court has further recorded the finding that the defendants have failed to prove that the khokha in dispute is not situate at the land of the plaintiffs. 19. The appellate court has further placed reliance on paper no. 40 C/6 which is map annexed with the sale deed 40 C and similar to the plaint map. On the basis of the same, the appellate court has recorded the finding that the plaintiffs have succeeded in proving that the land in dispute belongs to plaintiff no. 1. The appellate court has also recorded the finding that the defendant no. 1 has not become the owner in possession of the land in dispute on the basis of adverse possession. 20. In view of the aforesaid, the appellate court has dismissed the appeal. I do not find any infirmity in the aforesaid findings. SUBMISSION REGARDING THE SALE DEED 21. Counsel for the appellants has submitted that the plaintiff no. 1 has neither filed any evidence nor the original sale-deed dated 29.6.1968 and, as such, the same cannot be relied upon in accordance with the bar contained under Section 90 of the Indian Evidence Act. 22. Sub-section 2 of Section 90 of the Indian Evidence Act provides as under:- “Where any such document as is referred to in sub- section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, it is that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested”. 23. I have perused paper no. 40 C 2 which is the sale deed in question. The aforesaid sale deed is duly attested and, therefore, sub-section 2 of Section 90 of the Indian Evidence Act is applicable in the present case and, therefore, the submissions made by the counsel for the appellant are negatived. 24. In the judgment of State of Haryana v. Ram Singh reported in [2001 (44) ALR 719], the Apex Court relying upon the judgment of Ramappa v. Bojappa AIR 1963 SC 1633, 1637, has held that a certified copy of the registered sale deed is admissible in evidence and does not need to be proved by calling a witness and it is open to the court to accept the certified copy as reliable evidence and without examining parties to the documents. The observations made by the Apex Court are quoted below:- “4. Counsel for the State was right when he submitted that the High Court erred in rejecting Exhibits R/2 and R/3 as inadmissible only on the ground that the parties to the documents had not been examined by the State. It is not the law that a certified copy of a registered agreement for sale is inadmissible in evidence unless the parties to the documents are examined to prove it. That would be contrary to what Sections 77 read with Section 74 (2) and 76 of the Evidence Act, 1872 and more specifically Section 51 A of the Act provides. As far as the provisions of the Evidence Act are concerned, a certified copy of the registered sale deed is admissible in evidence and does not need to be proved by calling a witness. (see Ramappa v. Bojappa AIR 1963 SC 1633, 1637). 5. Section 51 A of the Act is to the same effect. In Land Acquisition Officer and Mandal Revenue Officer v. V. Narasaiah (supra), it was held by the virtue of Section 51-A, a certified copy of a document registered under the Registration Act, 1908 including a copy under Section 57 of the Act may be accepted as evidence of the transaction recorded in such documents. It is open to the court to accept the certified copy as reliable evidence and without examining parties to the documents. This does not however preclude the Court from rejecting the transaction itself as being mala fide or sham provided such a challenge is laid before the Court.” 25. In view of the aforesaid, the submissions made by counsel for the appellant that the sale deed dated 29.6.1968 cannot be read in evidence without being proved by oral testimony of the plaintiff for recording her title on the land in suit, is liable to be rejected and the substantial question of law to that effect, therefore, is decided against the appellant. 26. As far as the substantial question of law as to whether the evidence allegedly relied upon by the plaintiff was barred by Section 90 of the Indian Evidence Act is concerned, as has already been stated in preceding paragraphs that in view of Sub-section 2 of Section 90 of the Indian Evidence Act, the evidence allegedly relied upon by the plaintiff was not barred by Section 90 of the Indian Evidence Act. As such, the substantial question is decided against the appellants. The plaintiff no. 2 is in possession of the property on behalf of the plaintiff no. 1 and a sale agreement has been made in his favour, therefore, the suit filed on behalf of the plaintiff no. 1 and 2 both are maintainable. SUBMISSION REGARDING ADVERSE POSSESSION 27. So far as the adverse possession over the property is concerned, the Apex Court in Karnataka Board of Wakf v. Government of India and others (2001) 10 SCC 779 has held as under:- “10. Now we will turn to the aspect of adverse possession in the context of the present case. The appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession are mutually exclusive. This finding of the High Court that the title of the Government of India over the suit property by way of adverse possession is assailed.” 11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile title in denial of the true owner. It is well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (see S.M. Karim v. Bibik Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkataryappa v. State of Karnataka (1997) 7 SCC 567.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128.] 28. In view of the aforesaid principle, the defendant- appellants have failed to prove that they have become the owners of the property in dispute on the basis of adverse possession. The substantial question of law involved in the second appeal, therefore, is decided against the defendant- appellants. 29. On the basis of the aforesaid as well as the concurrent findings recorded by the courts below, the substantial questions of law are decided against the defendant- appellants. SCOPE OF SECTION 100 OF THE CODE OF CIVIL PROCEDURE 30. The Apex Court has interpreted the scope of Section 100 of Code of Civil Procedure view with regard to interference on the findings of fact. In Shah Mansukhlal Chhaganial (D) through LRs V. Gohil Amarsing Govindbhai (D) through LRs reported in [2007 (66) ALR 310], the Apex Court has held as under:- “Yet again in Roop Singh v. Ram Singh 2000 (3) SCC 708=2000 (39) ALR 484 (SC), this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads: “7. It is to be reiterated that under section 100, CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100, CPC. That apart, at the time of disposing of the matter, the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact finding Courts after appreciating the evidence held that the defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by the two Courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings.” 31. In Boodireddy Chandraiah v. Arigela Laxmi and another [2007 (03) RD 610], the Apex Court has observed as under:- “6. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the First Appellate Court. It is true that the Lower Appellate Court should not ordinarily reject witnesses accepted but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in second appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set