$ingh¢z Bench iii TEE HIGE CQRT (EF JEDEE§TE§RE AT EELA$?EIR§ $.Gg ECI‘Hm yEAL m. 59C ’ 52mg iSaamlé a§pggi $§ée3§ ggatimi 1m} af Civil ?imaiitge Ewe; $3.??E: LLéi‘iT gILEEEkTTEFF RE3P§M3E§IT3 : r {@EFEImAM’rr‘; I” x g$/ . a ’3/ @u a! 2, 1? madug-am % j n Eundez’lal H aiwa, aged abeut 5i} yeara aucupancm Rgnguhuref RIG mllaaa Keahkal Tahall Keahkai. Digit, Eaat’n, L {x EXER$§§S {211333 Eiggh S/O'Jangah' Gonii, aged about fig vear, wcuimtican agricuitum: Rjc) viiiag¢ KeQhkal ”Emmi: Reh‘kal. Diati. 1:35:33? L C} Euci‘niyarm Eai Dg’g Raghuwar 3a1wa aged ahaut SE3 yeara, Q A if R333 Viiia-ge Mudagara, Keghkais Tahail Bleahkal, Digit. Eagtaa‘? CLC}. rain§1dar5 Keghkal, Ei‘att. Baatai, CC: 55?. 0f Qhha‘ttiagaxh f‘nmugh tha f. 1 r, Eagtar atJagdalpur (L C1 f. $E§§EFR §FEA1 EIBIEER &E‘“’£i€§i§ EGG QF CML PRQLEBEEE {3&1}? / HI6H C OF CHHA ARH BILAsPUR SECOND APPEAL No. 559/2005 Jhudumm Vs. Chain Singh and o1‘hers Amranca : 5hri Vishnu Kashm, counsel for the app¢llant ORAL ORDER (12. 7.2006) Sunil Rumor Sinha, J. (1) Heard on admission. (2) This is 'l'he plaintiff's Second Appeal filed under Section 100 of 1h: Code of Civil Procedure againsf fhe judgment md decree da‘red 7.9.2005, passed in civil appeal No. 25-A/2004 by ‘llrie First Additional Disiricf Judge, Kanlter, Districf Knnker(C6) arising ouf of ’ the judgmeni mid decree du'led 2112004, passed in‘ civil sui'l' No.173-A/2003 by the Civil Judge Class-I, Kmker (C6). The plaihfiff lost in both ihe Couris. (3) The brief facts are fha'l the plaintiff filed a mi? for declorcfion of title and also for possession in relation ‘ro ‘rhe agricul'iural land, described in Schedule-A of 'lhe plainf. The plain? allegations are that this land was purchased by the plaintiff through a registered .sale deed dated 15.10.1991 (EXP-2) from its owners namely- Ramprasad and audhiyarin 8ai, defendant No.2 herein. For proving the transaction, the plaintiff filed a certified copy of the sate-deed and the copy has been marked as Ex.P~2. Thz ariginal sale- / deed was no'r filed by fhe plaintiff. However, one of 1he wi'rness namzly~Gopai was examined as PW—2 and $hridhar Panigmhi was also examined as PW-3 as The Scribe of fhe document (4) Evidence of fhese witnesses has been considered and discuseed by ihe Mal Court’in para 14 of ifs judgmenf daied 21.7.2004. I? is mentioned that éopal ((PW-Z), who was a wifness to this document, has statedin his examination—in—ohief that he has / signed the document. Later on, he said that he had put his thumb impression on the same. However, in the crossexamination vide para 3, he has admitted that Rampmsnd and Budhiyar-in Bai, both the sellers were unable to walk: therefore, they were brought on a vehicle. He has also admitted that Ramprasad and Budhiyarin Bai were saying that they will not go for registration. Ultimately, he admitted that Ramprasad had not put his thumb impression on the document before him and Budhiyarin Bai had also not put her thumb impression on the said document. Not only this, he has further stated that the registered sale-deed was not read over to him and it was also not read over to the executants. Lastly, vide para 3 of his statement, he has admitted that the document is a fraudulent document. His admission is recorded as under : ”‘usntttttswwti On this evidence, the teamed trial Court held that the plaintiff could not‘prove the execution of a valid sale-deed and therefore, the suit was dismissed. Thereafter, the plaintiff filed an appeal ahd the Appellate Court also tookvth’e similar view and ‘ dismissed the appeal of the plaintiff, confirming the judgment and decree passed by the trial Court. It is against this judgment and is? \ ‘ decree passed by fhe lower appellufe court ‘Hae pluinfiff has filed 'rhis Second Appeal. (5) Referring 1'0 fhe provisions of Section 68 of the Evidence Ac‘l‘, learned counsel for the uppellanf argues 1hnf document Ex. P—Z, being a sale-deed, was no'l’ required 1'o be proved by fhe allesfing wimesses and if fhe cerfified copy of ‘the same was produced before ‘I'he Trial Cour'l’, The Trial Courf should have held fhal' 'lhe document is proved and a valid title has been transferred. He submits that to this effect, the finding recorded by the trial Court vitiates. WW (6) So far as the applicability of Section 68 of the Evidence Act is concerned, it is clear that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least, has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. The proviso says that it shall not be necessary to call m al lesl ing Witness if proof of execution of any document not being a Will, which has been registered in accordance with the provisions of the Indim Registration Act, 1908, unless its execution by the person by whom it purports to have been executed, is specifically denied. Needless to say, since the document in question is a sale-deed, which never required any attestation its execution was not mbject to the strict provisions of Section 68. section 68 would not cover such transactions. However, in the present case, the question of mandatory‘requirement of examining a marginal witness of the document is not there. The said marginal witness namely-Gopal has been examined in this rase and on appreciation, it has been found by (ix \‘llll -L‘, ‘l‘J/I we 2 Conrts belaw 1hn1' he has no? proved n valid exeamon of the document On The contrary he hos admitted 141a? it was a forged document and in these circumstances, the Courts below have held that the execution of the document has not been proved and they have rejected the claim of the plaintiff. (7) There appears to be no infirmity in the concurrent findings recorded by the 2 Courts below. The appeal does not involve any substantial question of law.' The appeal has no merit; the same is dismissed at the motion stage itself. , V, ‘\\ Sdl- Sunil Kumar Sinha Judge“; ; sunita