RSA 42/2002 BEFORE THE HON’BLE MR. JUSTICE N.KOTISWAR SINGH Heard Mr. G.P. Bhowmik, learned counsel appearing for the appell ant and Ms. D. Sinha learned counsel appearing for the respondents. [2] The present second appeal has been preferred against the judgmen t and decree dated 12.9.2001 passed by the learned District Judge, Tinsukia, in Title Appeal No.3 of 2000 dismissing the appeal and upholding the judgment and decree of the Title Suit No. 8/94 passed by the learned Civil Judge (Junior Div ision), Tinsukia. [3] The facts of the case as may be relevant for the purpose of the present second appeal may be stated as follows. [4] The plaintiffs, namely, Shri Puspadhar Baruah ( plaintiff No.1) and Smt. Niroda Gogoi, ( plaintiff No.2) had filed a suit for declaration of r ight, title and interest over the suit land and for confirmation of possession o ver the suit land alternatively for delivery of khas possession. [5] The plaintiffs state that the plaintiff No.1 had purchased the s uit land from one Sri Siba Nath Sharma ( proforma Defendant No. 2) by a register ed sale deed on 22.8.77 after obtaining necessary permission from the authorit ies and took possession thereafter. The said Sri Siba Nath Sharma had purchased the said suit land from Smt. Jina Gohain, the proforma Defendant No. 3 and appe llant herein vide registered sale deed in the year 1975 and thereafter, he was i n possession of the suit land till he sold the same to the plaintiffs, as stat ed above. [6] The plaintiffs state that they continued to be in peaceful posse ssion of the suit land having a kutcha construction and some trees standing ther eon and by paying land revenues. After purchasing the said suit land from Sri Si ba Nath Sharma as stated above, the plaintiffs got the suit land mutated in thei r names in the records of right. Smt. Jina Gohain (the proforma Defendant No. 3 ) retained possession of the land on the east of the suit land and her father, t he Defendant No. 1 stayed with her in the said eastern portion of the land to th e suit land. The plaintiffs claimed that on 18.5.87 in the night, the Defendant No.1 ( father of Smt. Jina Gohain) trespassed into the suit land and removed the four concrete posts standing on the boundary of the suit land and planted banan a plants and started fencing the suit land with old bamboo sticks. When the plai ntiff No.1 came to see the suit land, seeing the illegal activities of Defendant No.1, she reported the matter to the Tinsukia Police Station and the police aft er registering a case, arrested the Defendant No.1. The plaintiff also institute d a case u/s 141 Cr.P.C. on 20.5.87 and the Additional District Magistrate prom ulgated order prohibiting the Defendant No.1 from entering the suit land. The Defendant No.1 filed a revision petition being Criminal Revision No.64(2)87 befo re the learned District & Sessions Judge, which was also dismissed. However, ins pite of the prohibitory order, the Defendant No. 1 did not refrain from his ill egal activities and again on 8.6.87 obstructed the plaintiffs from entering the suit land and on 4.7.87. The plaintiffs also found that the strip of little high land demarcating the boundary of the suit land from the land belonging to the D efendant No.3 was removed without any trace by the Defendant No.1 and the Defend ant No.1 threatened them with dire consequences if they visited the suit land ag ain, which led to certain proceeding before the S.D.M(E) Tinsukia. Subsequently , the plaintiffs were compelled to file the present suit to claim their title ov er the suit land and for khas possession and permanent injunction. The Defendant No. 1, the father of Smt. Jina Gohain and the Defe ndant No. 3, Smt. Jina Gohain, separately contested the suit by filing their res pective written statements. The Defendant No. 1 resisted the suit by stating tha t the suit is barred by limitation and denied that the suit land was ever sold t o Defendant No. 2 (Siba Nath Sharma) by Smt. Jina Gohain and that the Defendant No.1 had been in possession of the suit land for more than 15 years without int erference from any quarter. The Defendant No. 1 also denied that the Defendant N o. 2 (Siba Nath Sharma) was in possession of the suit land at any point of time. [7] Defendant No. 3, Smt. Jina Gohain, in her written statement deni ed the execution of the aforesaid registered sale deed in favour of the Defend ant No. 2, Siba Nath Sharma and stated that the registered sale deed No.1771 of 1975 was false and fabricated. The Defendant No. 3 also stated that in the year 1975, her father had forcibly trespassed and dis-possessed her from the suit lan d and inspite of her request, did not vacate the land. However, she did not take any action against him as he was her father. Accordingly, she prayed for dismis sal of the suit and to declare the registered sale deed No.1771/1975 purportedl y executed in favour of the Defendant No. 2 and the subsequent registered sale d eed No.1311/1977 executed by the Defendant No. 2 in favour of the plaintiffs as null and void. As many as 10 issues were framed, of which Issue Nos. 6 and 7 ar e relevant for the purpose of the present appeal and reproduced hereinbelow:- 6. Whether the defendant No.3 sold the suit land to defendant No.2 vide sale de ed No.1771 of 1975 and if so, whether the plaintiff acquired ownership over the suit land by the sale deed No.1311 of 1977? 7. Whether the defendant No.1 is in continuous possession of the suit land since 1975 and whether he has right to posses the suit land? [8] The learned Trial Court, after considering the evidence on recor d, held that the suit land was sold by Smt. Jina Gohain, the Defendant No. 3 to Sri Siba Nath Sharma, the Defendant No.2 in the year 1975 by a registered sale deed. The learned Trial Court also held that the Defendant No.2, who was in poss ession of the suit land since 1973 till 1979 and was the lawful owner of the sui t land, after purchased by registered sale deed from the Defendant No.3 and muta ted his name in the records of right. The learned Trial Court also held that sub sequently the said suit land was sold by Defendant No. 2, Sri Siba Nath Sharma to the plaintiffs in the year 1977 by a registered sale deed and accordingly, d ecreed the suit by holding that the plaintiffs are entitled for declaration of r ights and title and decreed the suit in favour of the plaintiffs in the said Tit le Suit No.8 of 1994 vide judgment and decree dated 24.1.2000. [9] Against the aforesaid judgment and decree dated 24.1.2000 passe d by the learned Trial Court, the Defendant No.3 filed an appeal before the lear ned District Judge, Tinsukia. The learned Appellate Court dismissed the appeal a nd affirmed the judgment and decree dated passed by the learned Civil Judge (J r.Divn.), Tinsukia, vide judgment and order dated 12.9.2001 passed in Title Sui t No.8/94. [10] Against the aforesaid dismissal order dated 12.9.2001, the Defen dant No. 3 has filed the present second appeal. This Court while admitting the second appeal had framed three substantial questions of law on 03.4.2002 as fo llows :- i) Whether the finding of the learned Courts below that the sale deed Ext.2 was shown to have been proved was correct in law when Defendant No.3 had denied the execution of the sale deed and the scribe and the attesting witness had not bee n examined on behalf of any of the parties? (ii) Whether from the mere fact of registration of the sale deed, Ext. 2, the C ourt can on the basis of the provision of Section 60 of the Registration Act, 19 08 treat the sale deed Ext. 2 as proved? (iii) Whether the learned courts below have ignored altogether the material fact s relating to proceeding U/s.447 IPC and U/s. 145 Cr.PC involving the plaintiff and the defendant No.1 while recording the finding that the defendant No.1 was n ot in adverse possession in respect of the suit land for 12 years? [11] Learned counsel appearing for the appellant submits that the exe cution of the registered sale deed (Ext.2) by which the suit land was said to ha ve been sold by the appellant in favour of the Defendant No. 2 in the year 1975 cannot be said to have been proved in absence of examination of either the scri be or the attesting witness in view of the fact that the appellant had specifica lly denied the execution of the same as required under Section 67 of the Evidenc e Act. In this connection, learned counsel appearing for the appellant had reli ed on the following judgments rendered in Lourembam Heramot Singh -vs- Laisram A ngahal Singh & ors, reported in AIR 1979 Gauhati 68, Bhaiyalal -vs- Ram Din, re ported in AIR 1989 Allahabad 130, Bhutkani Nath & ors. -vs- Mt. Kamaleswari Nath & anr. reported in AIR 1972 Assam and Nagaland 15 (V.59 C6), P.G.D’ Ombrain & ors. etc., -vs- Collector of Kamrup Gauhati & anr. etc.. reported in AIR 1980 Gauhati 55 Bhaskar Sahu-v- Anama Swara & ors. reported in AIR 1987 Orissa 138. [12] The appellant therefore submits that in the present case, since neither the scribe nor the attesting witness of the aforesaid sale deed execute d in the year 1975 was examined, it cannot be said that the aforesaid sale deed allegedly executed by the Defendant No. 3 in favour of the Defendant No.2 has been proved. [13] The learned counsel appearing for the appellant, therefore, subm its that in view of the fact that the said registered sale deed stated to have been executed by the appellant in favour of the Defendant No.2 was not proved, t he Defendant No.2 had no right and title over the suit land and could not have sold the same to the plaintiff and as such, the sale deed executed by the Defen dant No.2 to the plaintiff cannot be acted upon. [14] As regards this sale deed executed in 1975 by the appellant in f avour of the Defendant No.2 which is the bone of contention between the rival pa rties, we may refer to the observations and findings as regards the same by the learned Trial Court. [15] The learned Trial Court referred to the documents in the Crimina l Revision No.64(2) of 1987 filed by the Defendant No. 1 before the District & S essions Judge challenging the order dated 25.5.87 and 6.3.87 passed by the SDM, Tinsukia in Misc. Case No.147/87 prohibiting the defendant from entering into th e suit land. In the said Cril. Revision No.64(2)/87, the Defendant No.1 himself had exhibited a number of documents. It has been observed by the learned Trial C ourt that in one such documents, petition dated 26.5.87, it appears that the Def endant No.1 and the proforma Defendant No. 3 admitted the sale of the suit land to Sri Siba Nath Sharma, Defendant No.2 by Smt. Jina Gohain in 1975 though the d elivery of possession was denied. Thus, according to the learned Trial Court, th is express admission of Defendant Nos.1 and 3 admitting the sale of land to Sri Siba Nath Sharma in the said document is a strong substantive evidence regarding the execution of sale deed No.1771/1975 by Smt. Jina Gohain, the Defendant No.3 in favour of the Sri Siba Nath Sharma, Defendant No. 2. The learned Trial Court also noted the answer given by Smt. Jina Gohain during her cross-examination th at she had no knowledge whether at the time of execution of the Exht.-2 (i.e. th e sale deed of 1975), the Sub-Registrar took her thumb impression or not, whic h impliedly means that she had exhibited the sale deed. The learned Trial Court also observed that the answer given by Smt. Jina Gohain that, it was not a fact that when she went to the Sub-Registrar Office to sell the land, her father als o went with her, also implies that she had sold the land to Sri Siba Nath Sharma . The learned Trial Court also observed that Smt. Jina Gohain denied her own sig nature in the written statement which was filed by her, which clearly indicates that she was a tutored witness to deny the signature in the Exbt.-2. The learned Trial Court also observed that Nilakanta Gohain, the Defendant No. 1, in his wr itten statement did not specifically deny the averment of the plaint in para No. 3 that he witnessed the execution of the sale deed executed by his daughter, S mt. Jina Gohain and that he identified Smt. Jina Gohain before the Sub-Registrar . He merely gave his reply in para No.3 of the written statement that the statem ent made in para 3 of the plaint is not within his knowledge. The learned Trial Court held that it was not a total specific denial but rather an evasive denial and held that as provided under Rule 5 of Order VIII of CPC , if averments are n ot specifically denied, they must be deemed to have been admitted and to say tha t the Defendant No.1 did not have any knowledge of the fact regarding his presen ce at the time of execution and identification does not amount to denial of the aforesaid particular fact averred in the plaint and accordingly, the learned Tr ial Court was of the view that the aforesaid fact pleaded in para No.3 of the pl aint must be deemed to have been admitted by the Defendant No.1. [16] We will now examine what the Appellate Court had stated regardin g the aforesaid issues. The learned Appellate Court, as regards the execution of the afo resaid sale deed of 1975 observed and held as below. The learned Appellate Court observed that the Defendant No. 2 as a purchaser of the suit land was present at the time of execution of the sale d eed/ document which the Defendants No.1 and 3 did not deny. The P.W. No. 2 (Defe ndant No.2, Siba Nath Sharma) had testified to the presence of Defendant Nos. 1 and 3 before the Sub-Registrar and proved their signatures, which were exhibited as Ext.2(1) to 2(9). The Ext. 2(12) and 2(14) were the signatures of the attest ing witnesses as well as the scribe who was an advocate of repute and the Appell ate Court held that even if the scribe and attesting witnesses were not examined , in view of the evidence of the P.W.No.2, the purchaser, as stated above, the s ale deed can be said to have been proved in accordance with the provisions of Se ction 67 of the Evidence Act. [17] The learned Appellate Court also referred to the findings of the learned Trial Court regarding the document i.e. petition dated 26.5.87 filed by the Defendant Nos. 1 and 3 in the Cril. Revision No.64(2)/87 in which it was s tated in para no.3 of the said application that though the land was sold in 1975 to Sri Siba Nath Sharma, possession of the same was not delivered to him. There fore, the learned Appellate Court also held that since the said document was f iled by the Defendant Nos. 1 and 3 themselves, there is at least admission to th e extent that the land was sold in 1975 to Sri Siba Nath Sharma, the Defendant N o.3 though delivery of possession was denied. The learned Appellate Court also observed that when the Ext.2 was exhibited in evidence as Ext.2 through Defenda nt No. 2, no objection was raised by any of the Defendants, therefore, since the document was admitted, its content also would stand admitted. It was never sugg ested to PW-2, Sri Siba Nath Sharma during the cross-examination by the PW-1, th e Defendant No.1 that the Ext.2 is a forged document. Accordingly, the learned A ppellate Court also held that the execution of the Ext.2 is proved and consequen tly, the good title passed through Ext.2 in favour of the Defendant No. 2 and co nsequently, through Ext.1, the Defendant No.2 Sri Siba Nath Sharma transferred h is title over the suit land in favour of the plaintiffs. [18] As regards the third substantial questions of law framed regardi ng the issue of adverse possession claimed by the Defendant No. 1 in respect of the suit land, we may refer to the observations and findings of the learned Tria l Court in this regard. The learned Trial Court observed that after the Defendant No. 2 purchased the suit land from the Defendant No. 3, he dug up a boundary drain bet ween the suit land and the land belonging to Defendant No.1, which was admitted by the Defendant witness, DW-2. (i) The learned Trial Court also observed that the statement of the DW-2 in the cross-examination that he did not know when the house which was constructed over the suit land broke down and also he did not know who resi ded in the house, would indicate that there was a house over the suit land. (ii) The learned Trial Court also found that the land revenue documents Ext.11-15 showed that the land revenue for the period 1972-1977 regar ding the suit land was paid by the Defendant No. 2, Sri Siba Nath Sharma and his name was mutated in the records of right on 5.8.87 and a copy of the Zamabandi was exhibited as Ext.4. The learned Trial Court also observed that even though the Defendant No. 1 claimed possession of the suit land since 1975, not a single revenue receipt was produced by him to show that he had paid the land revenue. (iii) The Defendant No. 3, during the cross-examination, admit ted that she does not know who is in possession of the suit land and also which one is the suit land. (iv) The learned Trial Court also pointed out to certain cont radictions and inconsistencies. Defendant No. 1 in the written statement claimed that he was in possession of the suit land since 1975 by planting trees but in his evidence, claimed that he was in possession of the suit land since 1970 afte r the date of purchase from the original owner. Though the Defendant No. 3 states in her written statement that in the year 1975 her father had forcibly dispossessed her from the suit land, in her testimony, she states that after her marriage, which was performed in 1973/ 74, her father kept the land for himself. In view of the above evidence and other evidence on record, the learned Trial Court held that the claim of the Defendant No. 1 that he was in po ssession of the suit land since 1975 is not proved. [19] We may now refer to the findings of the learned District Judge i n this regard. The Defendant No. 2 after purchase of the suit land from the Def endant No. 3 lived there with his family and in 1977 because of his shifting to Guwahati, he sold the land to the plaintiffs and delivered possession to them. The plaintiffs also adduced evidence through PW Nos. 3 and 4 to the effect that PW-4 lived in the suit land for 6 years and PW-4 is a tenant in one part for on e year. PW-2 also had divulged that he had seen one boundary drain dug in betwee n the compound of the Defendant No. 1 and the suit land which proves the case of the plaintiffs. [20] As regards the claim of adverse possession, the claim is to be a gainst the true owner but the title in respect of the suit land was denied in t he year 1987 when litigation started between the parties and the Defendant No. 1 had nothing to establish that he had been possessing the suit land adversely ag ainst the interest of the true owner. The learned Appellate Court also observed that there is no material to find that the mutation of the suit land in favour of the Defendant No. 2 or the plaintiffs was challenged by the Defendant No. 1 a nd the registered sale deed was also never challenged by the Defendant No. 3 and accordingly, the learned Appellate Court was also of the view that the claim o f the Defendant No.1 for adverse possession is not proved. [21] Heard the learned counsel appearing for the parties. The main co ntention of the appellant is that the documents exhibited as Ext.2, the sale dee d, which was executed by the Defendant No. 3 in favour of the Defendant No.2 was not proved inasmuch as neither the scribe nor the attesting witnesses were exam ined and merely because of the fact that the said document was a registered will not, ipso facto proved in view of the specific denial by the Defendant No.3. [22] To press home his arguments, the learned counsel appearing for t he appellant has relied on the judgments as mentioned above. In the case of Lourembam Heramot Singh (supra) , this Court had held that though the certified copy of a document is as good as the original an d correctness of a certified copy is presumed, mere registration is not a proof of its execution. Execution and contents of a certified copy must be proved acco rding to law in the ordinary way. The mere proof of admission of execution befor e the Registrar does not satisfy the requirements of Section 67 of Evidence Act which requires that the signature of the executant must be proved in his handwri ting. More than a mere admission of a signature is needed to amount to admission of execution of a document. However, the Court also held that there must be some evidence to show that the execution and genuineness of a document were proved. In the present case, as discussed above, even though the scribe and attesting witnesses were not examined, there were other evidence to show th at the said document Ext.2 was executed. Therefore, mere non-examination of the scribe and attesting witness would not render the said document, Ext.2 to not ha ve been proved in view of the fact that there are other evidence on record to pr ove its execution. In the case of Bhaiyalal (supra), the Court held that merely be cause of fact that the document had been exhibited, it does not follow that the Court stands precluded from examining the question on the basis of the evidence led by the parties whether the document in question was executed by the party b y which it purports to have been executed. The fact that document is exhibited only establishes that it has been formally proved. But where the execution of t he document is challenged, a Court of fact is clearly entitled to weigh the evid ence led by the parties to find out whether the document was really executed by the party who is alleged to have executed the same. The lower appellate Court wa s, therefore, entitled to draw adverse inference against the plaintiff-appellant from his failure to examine the scribe and the witnesses of the deed. In the present case, as discussed above, even though the scribe and attesting witnesses were not examined, there are other evidence on record, a s discussed above, to show that the said document was executed. Coming to the case of Bhutkani Nath (supra), this Court held t hat when the execution of a document is challenged, the certificate