In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 1661 of 2005 Date of decision: July 20, 2009 Narinder Nath Kapoor .. Appellant Vs. Prem Nath Khanna and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ashok Aggarwal, Sr. Advocate with Mr. Suman Jain, Advocate for the appellant. Mr. Chetan Mittal, Sr. Advocate with Mr. Vishal Garg, Advocate for the respondents. A.N. Jindal, J This appeal is directed against the judgment and decree dated 31.3.2005 passed by the learned Additional District Judge, Kurukshetra, vide which the appeal filed by the plaintiffs-respondents (herein referred as the plaintiffs') against the judgment dated 20.8.2002 passed by the Civil Judge (Sr. Division), Kurukshetra, was accepted and the suit was decreed. The allegations as set out are that Kaushalya Devi, mother of the plaintiffs, had purchased land measuring 79 kanals 12 marlas, being ¾ share of the land measuring 106 kanals 3 marlas, vide registered sale deed dated 7.1.1967, situated within the revenue estate of village Dhurala, Tehsil Thanesar, District Kurukshetra. On the same day, the above said land was leased out by its earlier owners namely Kewal Krishan, Rajinder Krishan sons of Dwarka Dass and Smt. Kaushalya Devi widow of Dwarka Dass, for a period of 20 years i.e. from Rabi 1967 to Kharif 1987 and the possession was delivered to the defendant No.1 as lessee. Similarly, plaintiff No.1, Prem Nath and Kaushalya Devi his mother also purchased 5/25 share out of the land measuring 206 kanals 3 marlas as fully detailed in the plaint. Accordingly, defendant No.1 started paying lease money to Kaushalya Devi as well as the plaintiff No.1 and paid lease amount up to Rabi, 1980 against receipts. Kaushalya Devi died on 9.6.1980 leaving behind the plaintiffs as her legal heirs. Thereafter, the defendant No.1 stopped paying the lease money to the plaintiffs. Later on, taking undue advantage of the absence of R.S.A. No. 1661 of 2005 -2- *** the plaintiffs from the village, started claiming ownership over the suit land and filed civil suit No.655 dated 6.3.1987 against Kewal Krishan and Rajinder Krishan, claiming ownership over the suit land by way of adverse possession, and obtained an ex-parte decree dated 10.2.1988 on wrong pleadings, as such the same is not binding upon the proprietary rights of the plaintiffs and does not confer any right or title upon the defendant No.1. In his written statement, the defendant while contesting the suit set up a plea regarding adverse possession stating that he is in peaceful, continuous and uninterrupted possession of the suit land without payment of rent to anybody including the plaintiffs or their predecessors Kewal Krishan etc. sons of Dwarka Dass. The plaintiffs and everybody in the village was in the knwoledge of his interrupted continuous possession which has now ripped into ownership. In the alternative, he set up the plea that he is inlawful possession of the land as lessee. He also pleaded that the suit is time barred; not maintainable having not been filed by the duly authorised person and the decree passed in his favour is binding upon Kewal Krishan, Rajinder Krishan, Kaushalya Rani and their successors. Malook Singh was not authorised to file the suit to challlenge the decree. On merits, it was submitted that the sale deeds in queestion were executed in favour of the plaintiff and his mother were sham transactions in order to save the land being declared as surplus. Replications have also been filed. In the wake of the various pleas raised by the parties, the following issues were framed :- 1. Whether Malook Singh is duly authorised general attorney of plaintiff?OPP 2. Whether the judgment and decree dated 10.2.1988 passed in civil suit No.655 of 1987 are null and void as alleged?OPP 3. If issue No.1 is proved, then whether the plaintiffs are entitled for joint possession of the suit land as alleged?OPP 4. Whether defendant No.1 has become owner of the suit land by way of adverse possession?OPD R.S.A. No. 1661 of 2005 -3- *** 5. Whether civil court has no jurisdiction to entertain and try the suit?OPD 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the suit is time barred?OPD 8. Whether plaintiffs have got no locus-standi to file the suit?OPD 9. Relief. In support of their case, the plaintiffs examined Krishna Singla, H.R.C. Registrar Office, Kurukshetra (PW1), Santokh Singh (PW2), Balbir Singh Patwari (PW3), Jaimal Singh (PW4), Amarjit Singh (PW5), Risal Singh (PW6), Tirath Singh (PW7) and Malook Singh attorney of the plaintiffs (PW8). After producing documents i.e. lease deed Ex.P1, certified copy of the sale deed Ex.P2, lease deed dated 6.1.1967 Ex.P3, another certified copy of the sale deed Ex.P4, copy of the mutation Ex.P5 to Ex.P8, certified copy of the general power of attorney Ex.PW8/A, certified copy of the judgment dated 10.2.1988 Ex.PW8/B, copy of the jamabandi for the year 1965-66 Ex.P9, copy of the plaint filed in civil suit titled Narinder Nath vs. Kewal Krishan etc. Ex.P10, copy of the jamabandi for the year 1985-86 Ex.P11 and copy of the death certificate Ex.P12, the plaintiffs closed the evidence. In order to rebut the evidence, the defendant examined Kartar Singh (DW1), Narinder Nath Kapoor himself (DW2), Jagdamba Prasad Clerk (DW3), Sunhera Ram (DW4) and Mihan Singh (DW5). After tendering into evidence documents i.e. copy of the special power of attorney Ex.D1, copy of power of attorney Ex.D1A, copy of sale deed Ex.D2, certified copy of the judgment dated 10.2.1988 Ex.D2/A, copy of decree sheet dated 10.2.1988 Ex.D3, copy of the agreement Mark-A, the defendant closed the evidence. Learned trial court decided issues No.1, 2 and 3 against the plaintiffs while issues No.4, 6 and 8 were decided against the defendant No.1 and issues No.5 and 7 were answered against the defendant No.1. R.S.A. No. 1661 of 2005 -4- *** Consequently, the suit of the plaintiff was dismissed with costs. However, during appeal while holding that the plaintiffs having purchased the property on the basis of the sale deeds, were owners of the same and possession of the defendants since 1966 had not rippened into adverse possession, accepted the appeal and decreed the suit of the plaintiffs. The substantial questions of law which arises in this case are as under :- 1. Whether Malook Singh being the special power of attorney by way of deed dated 26.4.1990 could replace the plaintiff to prove the nature of the transactions which were in the specific knowledge of the plaintiffs? 2. Whether sale deeds dated 17.10.1966 and 7.1.1967 allegedly executed by Kewal Krishan and Rajinder Krishan in favour of Surinder Nath Kapoor and Narinder Nath Kapoor as well as Prem Nath Khanna were sham and bogus transactions and have been executed in order to avoid land ceiling laws as pleaded in the written statement by the defendant No.1? 3. If the transactions are found to be sham, then what would be the effect of the judgment and decree suffered by Kewal Krishan and Rajinder Krishan? 4. Whether copies of the alleged sale deeds were admissible in evidence without any further proof? 5. Whether the plea of adverse possession as set out by the defendant No.1 as an alternative plea could damage his plea of lessee? 6. Whether the plaintiffs could be considered as owners on the basis of the copy of the copy of the sale deeds which were never acted upon? 7. Whether the sale deeds were executed in favour of Prem Nath Kapoor and Kaushalya Rani with an intention to confer absolute title upon them? R.S.A. No. 1661 of 2005 -5- *** The plaintiffs through their attorney Malook Singh have claimed ownership over total land measuirng 79 kanals 12 marlas being ¾ share in the land measuring 106 kanals 3 marlas and 5/25 share out of the land measuring 206 kanals 3 marlas situated at village Dhurala, on the basis of the attested copy of the sale deed dated 17.10.1966 as well as 7.1.1967, having purchased the same from Kewal Krishan and Rajinder Krishan sons of Dwarka Dass son of Diwan Chand and Kaushalya Rani. Similarly, Surinder Nath Kapoor purchased 165 kanals 18- ½ marlas being 20/25th share out of the land measuring 206 kanals 3 marlas, so also 1/4th share of the land measuring 106 kanals 3 marlas i.e. 26 kanals 11 marlas situated in village Dhurala, on the basis of the sale deeds of even dates. The plaintiff Kaushalya Rani is the father's sister of Surinder Nath Kapoor and Narinder Nath Kapoor and the plaintiff Prem Nath Khanna and Pran Nath Khanna are the sons of Kaushalya Rani, so the defendant Surinder Nath Kapoor and Narinder Nath Kapoor are the brothers. Surinder Nath Kapoor has been residing at Singapore and has attained the citizenship of that country. The plaintiffs have pleaded that they do not know about the whereabouts of Surinder Nath Kapoor. The relationship of the plaintiffs and the defendants is so close that they could utilize or insert the name of anybody in the transactions. Kaushalya Rani was the daughter of that house. In those days and even to-day, daughters use to relinquish their rights in the property and offer their names to be used for the welfare of the family. The plaintiffs in order to seek possession or joint possession over the suit land had to stand on their own legs to prove their case while leading best evidence in their possession. The proof of title was sine qua non to seek possession. The original sale deeds (basis of their claim) ordinarily should have been in their possession and power which were never produced. The sale deeds did not see the light of the day for about 24-25 years since the date of their execution till filing of the suit, rather the allegations have been made against the defendant No.1 that the sale deeds were handed over to him for entering and to get sanctioned the mutations are not correct. Halqa Partwari has been examined in order to prove that mutations No.920 and 921 were rejected on 1.3.1968 on the ground that they were null and void. Had the sale deeds been produced before the R.S.A. No. 1661 of 2005 -6- *** Patwari, then he would have proved the same. No admissible copies of the mutations were produced on the record from the revenue record in order to establish that the sale deeds were ever handed over to Halqa Patwari for entering the mutation in their favour. The court had moved on the assumption that the defendant admits the execution of the sale deeds is also not factually correct. The lower appellate court has tried to record ownership of the plaintiffs from certain admissions while taking certain extract from the written statement, but the court at the time reaching the conclusion regarding such admissions was to examine the written statement as a whole and not a line of it. Admissions have been duly explained in the written statement and it was stated that the sale deeds are sham transactions. Those were never intended to confer title upon the plaintiffs and their names were inserted only to avoid implication of surplus laws. The value of admissions have been elaborately discussed in case Shamsher Singh vs. Gobind Singh 2009 (1) RCR (Civil) 911 wherein it was observed that value and effect as stated, an admission has to be clear, certain and definite and not ambiguous, vague or confused. Statement to operate as an admission must be clear in its meaning. The admission is not conclusive proof of matter admitted, though it may in certain circumstances operates as estoppel. (see K.S. Srinivasan v. Union of India, AIR 1958 SC 419). It has also been held in case of Nagubai Ammal and others v. B. Shama Rao and others, AIR 1956 SC 593, that an admission is not a conclusive as to the truth of a matter stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to its detriment, which it might become conclusive by way of estoppel. It is further held that it must be shown that there is a clear and unambiguous statement by the opponent, then it would be conclusive unless explained. While examining, the contents of the written statement I am led to see whether there was admission regarding sale deed and payment of lease money. The contents of the reply, if read as a whole, do not amount to admissions at all by the respondents regarding the execution of the sale R.S.A. No. 1661 of 2005 -7- *** deeds and the payment of the lease money. As explained above, it has been duly observed that the defendant has explained that these sale deeds were sham transactions which were never acted upon and were never intended to confer title upon the plaintiff. As regards the payment of lease money, it has come in the plaint that the lease money was being paid to the deceased Kaushalya Rani against proper receipts. In the natural course in such circumstances, the plaintiffs should have been in possession of the receipts with regard to payment of lease money, but no such receipts were brought on record. To the contrary, while appearing in the witness box Narinder Nath Kapoor has categorically stated that he never paid lease money to Kaushalya Rani or to any of her heirs. The relevant extract of statement of Narinder Nath Kapoor regarding the sales and the lease is reproduced as under :- “Earlier I was cultivating the land in Tehsil Nakodar which was in the name of his father's sister Kaushalya and her sons. A suit for ejectment was filed against him in the year 1977 and an ejectment order was passed against him. However, in appeal, it was decided in his favour and revision was also dismissed by the Commissioner. There was a compromise between Kaushalya Rani and him in the year 1968. The original compromise is in the case of ejectment and copy of which is mark-A. He had purchased this land as per agreement (objected to beyond pleadings). He had paid the consideration for the sale deeds and got transferred it in the name of his brother Surinder Nath Kapoor and father's sister Kaushalya Rani. He had got transferred in their names only to avoid the surplus laws.” Thus, the observations made by the court are clearly not correct as he has worked on the assumption that the defendant admits the execution of the sale deeds which is not factually correct. No original sale deeds have come on record. Actually, ownership could be proved on the basis of the primary evidence. Any way, the condition precedent to lead secondary evidence was to prove the loss and destruction of the document. Had the R.S.A. No. 1661 of 2005 -8- *** plaintiff been the true owners on the basis of the aforesaid sale deeds, then certainly they must have been in possession of those documents and would not have parted the possession and remained silent for getting return of these documents for 24-25 years. The alleged mutations further go a long way to prove that the sale deeds were not actual and genuine documents, but were the documents showing sham transactions. Even after rejection of the mutations as alleged no efforts were made by the plaintiffs for making the revenue record up to date so that they could be indicated as owners therein. The plaintiffs have also not stepped into witness box to say that they are the owners of the property having purchased the same through Narinder Nath Kapoor defendant No.1. They have placed reliance only on the copies of the copies of the sale deeds kept in the public record. The sale deed, admittedly is not a public document, therefore, its execution needed to be proved by leading evidence. In Shamsher Singh's case (supra), the court dealt with the method to prove the execution of the document, secondary evidence of which was permitted to be led, and observed that “mere permission to lead secondary evidence would not dispense the appellant to prove the contents thereof, its existence and execution. It is further to be shown that copy has come from proper custody. The question of drawing presumption from a copy, as such, can arise only if it is proved to be executed by the executant.” It was further observed that “even if presumption is drawn, it would not amount to proving the contents of the document to be true.” Again, the court in para No.28 of the judgment observed as under :- “The proof of contents of a document may either be proved by primary or secondary evidence. The primary evidence means the document itself produced for inspection of the court whereas secondary evidence is defined under Section 63 of the Evidence Act. Concededly the document in original has not been produced and as such the primary evidence is not forthcoming to prove the contents of the adoption deed. Even mere marking of a document as an exhibit, which is even not the case in hand, does not dispense with its proof. In this regard Sait Tarajee Khimchand and others v. Yelamarti R.S.A. No. 1661 of 2005 -9- *** Satyam & others, AIR 1971 SC 1865 may be referred. There is, thus, no valid case made out by the appellant for placing reliance on the adoption deed either on the ground that it is proved or admitted or on the ground that it is a secondary evidence and presumption would arise about it under Section 90 of the Evidence Act........” In this regard Hon'ble Division Bench of Madhya Pradesh High Court made an elaborate discussion in case Rekha vs. Smt. Ratnashree, 2006 (1) RCR (Civil) 685 and observed that the certified copy of the sale deed is not a public document merely on the assumption that it is a certified copy of the sale deed being public document and certified copy is also a public document. Similarly this Court in case Ved Parkash vs. Rattan Lal Aggarwal, 2005(1) RCR (Civil) 366 observed as under :- “7. The argument that the certified copy of the mortgage deed is a public document being a private record kept by public authority is not sustainable in law in view of the Full Bench judgment of this Court in Gutari's case (supra). It has been held therein that what is kept in the records of the Registering Authority is a copy of the original as the original is returned to the party and, therefore, certified copy is from a copy kept in the public record and the said certified copy is made admissible in evidence in terms of the provisions of Section 57(5) of the Registration Act. In the absence of Section 57(5) of the Registration Act, certified copy of such a document would not have been admissible at all. It is held to the following effect:- “.....The explanatory paragraph to Section 65 envisages, as already observed in the earlier part of the judgment, that secondary evidence of the original documents mentioned in clauses (e) and (f) of Section 65, could be adduced only in the form of certified copies and no others. Copies of the true copies given by the Registering authority of the original documents are not R.S.A. No. 1661 of 2005 -10- *** certified copies of the original documents and, therefore, would not be admissible as secondary evidence of the original document. In fact, but for the provision of sub- section (5) of Section 57 of the Registration Act, such a certified copy of a true copy could not have been received in Court to prove the contents of the original document. The said provision of sub-section (5) of Section 57 was incorporated not to enact law of the kind which permitted the giving in evidence of a certified copy of the original, as envisaged by clause (f) of Section 65 of the Act, but to overcome the difficulty of non-reception in evidence of a certified copy of a true copy, the same not being certified copy of the original, which alone qualified to be called secondary evidence in terms of Section 63 of the Act.” 8. Still further, while examining the argument that each of the clauses of Section 65 of the Evidence Act has to be read disjunctively and one is not to see as to whether the requirement of any other clause or the rest of the clause is complied with or not before the secondary evidence of the kind permitted by the explanatory paragraph of Section 65 can be let in. It was held that if the other party pleads that the document is forged one, the Court could summon the original and in case the original is not forthcoming on the ground of its loss etc., then unless such a fact is proved the Court would be entitled to draw adverse inference against such a party despite the fact that there is present on the record a certified copy of the original document. It was held as under:- “.....Even in cases where a given document comes within the purview of clauses (d), (e) (f) and (g) of Section 65, there too if the other party pleads that the document is forged one, the Court could summon the original and in case the original is not forthcoming on the ground of its loss etc., then unless such a fact is proved the Court R.S.A. No. 1661 of 2005 -11- *** would be entitled to draw adverse inference against such a party, despite the fact that there is present on the record a certified copy of the original document.” 9. In view of the aforesaid Full Bench decision of this Court, certified copy of registered mortgage deed cannot be held to be a public document certified copy of which can be produced in evidence as secondary evidence in terms of Section 65(f) of the Evidence Act.” The plaintiffs have claimed ownership over the suit property on the basis of two sale deeds allegedly executed in the year 1966 and 1967 in their favour. The power of attorney was appointed in the year 1990, therefore, the cannons of law required the plaintiffs to come to the court to remove the ambiguity as to where the original sale deeds have gone, in what circumstances, in what manner these were executed, who paid the price, why they did not claim possession, why do not they own the sale deeds, why they did not ask for lease money and also rebut the evidence by the defendant No.1 that he had purchased the property but their names were got inserted just to avoid the surplus laws. What to talk of examining Prem Nath Khanna (as Kaushalya Rani had already died) none of the plaintiffs who though were residing in Delhi and are claiming ownership over the suit land and the trial court was not beyond their access, have not examined themselves and also not examined any of the witness to the sale deed and other sort of evidence in order to prove that these transactions are genuine so as to confer absolute title upon them. The Appellate Court appears to have proceeded on the assumption that the defendant No.1 had admitted the existence of the sale deeds in favour of the plaintiff so there was no requirement of further proof and the admission made by the defendant No.1 was sufficient to record their title enabling them to ask for possession, whereas, the case set up by the defendant No.1 from the very beginning is that the sale deeds dated 17.10.1966 and 7.1.1967 respectively are sham transactions and these were neither acted upon nor produced before the revenue authority for attestation R.S.A. No. 1661 of 2005 -12- *** of the mutations or carrying out