1 S.A No.469/1994
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SECOND APPEAL NO.469/1994
APPELLANTS : JAMUNA PRASAD AND OTHERS.
Vs.
RESPONDENTS : SHIVNANDAN AND OTHERS.
Present : Hon'ble Shri Justice R.S. Jha. For the appellants : Shri K. N. Agrawal, Advocate.
For the respondents 1 & 2 : Shri P.S. Das with Ku. Sonal Das, Advocate. -------------------------------------------------------------------------------------------- JUDGMENT
(29/07/2011)
This second appeal has been filed by the appellants being
aggrieved by the judgment and decree dated 17.8.1994 passed in
Civil Appeal No.7A/91 by the First Additional District Judge, Satna
affirming the judgment and decree dated 31.8.1984 passed in Civil
Suit No.26A/1984 by the First Civil Judge Class-II, Satna decreeing
the suit filed by the respondent nos.1 & 2 plaintiff.
2. The brief facts, leading to the filing of the present appeal, are
that the deceased respondent no.3 (who is now represented by his
legal representative) Gopal @ Ramgopal Ahir was the owner of the
suit land bearing Khasra No.54 (New Khasra No.54/2) area 5 acres
and Khasra No.55 area 0.80 acre of Village Kakraad, Choubeypur,
Tehsil Raghurajnagar, District Satna. It was alleged in the plaint by
the plaintiff/respondent nos.1 & 2 that the said land was sold by
Gopal to them by a registered sale deed dated 2.8.1967 for a
consideration of Rs.4,000/- and possession thereof was also handed 2 S.A No.469/1994
over to them. However, subsequently, the appellants who were
defendant nos.2 & 3 in the suit took forcible possession of the land
from the plaintiff/respondent nos.1 & 2 sometime in the year 1976. It
was also stated that in the meanwhile there was some dispute
regarding mutation of the land which was also agitated and pursued
before the revenue authorities by the appellant no.4 defendant and
Gopal as the appellant no.4 Jamunia claimed half share of the
property. It was alleged that as forcible possession of the land was
taken over by appellant no.1, therefore, a suit for declaration of title,
possession, permanent injunction and mesne profit was filed by the
plaintiff/respondent nos.1 & 2 before the trial court.
3. The defendant no.1 vendor, Gopal did not file a written
statement inspite of service and was, therefore, proceeded exparte
while the defendant nos.3, 4 & 5 filed a written statement and
opposed the claim of the respondent nos.1 & 2 plaintiff and it was
stated that the possession of the property in question had always
been with the defendants but was wrongly recorded in the name of
the plaintiff/respondent nos.1 & 2 in the year 1967-68 in respect of
which the matter was taken up before the revenue authorities who
decided the same against the respondent no.1 plaintiff. It was also
contended that the defendants had in fact purchased part of the
property from Jamunia, sister of defendant no.1 on 18.7.1972, who
was the joint owner of the property and thereafter obtained
possession of the property. It was also contended that the alleged
sale deed in favour of plaintiff/respondent nos.1 & 2 dated 2.8.1967
was also void as the defendant no.1 Gopal had no right or title to sell
the same.
3 S.A No.469/1994
4. It is pertinent to note the fact that though the defendant no.1
Gopal did not file a written statement and was proceeded exparte, he
was produced as a witness by the defendant and has been
examined as D.W-4 and in his statement he has denied the
execution of the sale deed or the fact that he had ever sold the
disputed property to respondent nos.1 & 2/plaintiffs and has also
stated that he has no knowledge about the sale deed.
5. The trial court, on analysis of the evidence and the documents
on record, decreed the suit filed by respondent nos.1 & 2 plaintiffs
holding that they had acquired title over the land on the basis of the
sale deed dated 2.8.1967. The appeal, filed by the appellants, also
suffered dismissal as the first appellate court affirmed the findings
recorded by the trial court and confirmed the judgment and decree,
being aggrieved by which, the appellants have filed the present
appeal.
6. It is contended by the learned counsel for the appellants that
the respondent nos.1 & 2 plaintiffs did not produce the original sale
deed but have filed a certified copy of the same which has been
taken on record by the trial court on the ground that it is a public
document inspite of an objection by them. It is further urged that in
the absence of laying any foundation for not producing the original
sale deed, the certified copy could not have been taken on record nor
could the suit be decreed by the courts below as the respondents
failed to prove the sale deed. It is also contended that the suit was in
fact barred by limitation which issue has also not been addressed
rightly by the courts below.
4 S.A No.469/1994
7. The learned counsel for the respondent nos.1 & 2 per contra,
submits that the documents produced by them, Exhibit P-12, is a
certified copy and has, therefore, rightly been taken on record in view
of the provisions of the Indian Evidence Act, 1872 (hereinafter
referred to as 'the Evidence Act') and the Registration Act, 1908
(hereinafter referred to as 'the Registration Act'). It is also contended
that as the document in question was a certified copy of the sale
deed, therefore, it could have been taken on record without laying
any foundation for the same or obtaining any permission to adduce
secondary evidence in this regard. It is also contended that as the
suit, filed by them, was basically for possession, the same was within
time and the findings recorded by the trial court and the appellate
court in this regard being in accordance with law, do not warrant any
interference.
8. This second appeal, filed by the appellants, was admitted for
hearing on the following substantial questions of law:-
"i) Whether the Court below erred in taking into consideration the sale deed on the ground that it was a public document though that sale deed was not filed and no permission to adduce secondary evidence in this regard sought ?
ii) Whether the suit filed by the respondent was within limitation ?"
9. In addition, with the consent of the learned counsel for the
parties, the following additional substantial question of law is also
framed by this Court in the present appeal:-
"iii) Whether in the absence of proof of
execution of the sale deed the suit filed by the 5 S.A No.469/1994
respondent plaintiff could have been decreed by the courts below ?"
10. The learned counsel for the parties have argued extensively on
the aforesaid substantial questions of law as well as on the additional
question of law.
11. The question as to whether the certified copy of the sale deed,
Exhibit P-12, could have been taken into consideration on the ground
that it was a public document can be properly adjudged only on an
analysis of the relevant statutory provisions namely Sections 64, 65,
74, 75, 76 and 79 of the Indian Evidence Act, 1872 and Sections 51
to 57 of the Registration Act, 1908.
12. Sections 64, 65, 74, 75, 76 and 79 of the Evidence Act, are in
the following terms:-
64. Proof of documents by primary evidence - Documents must be proved by primary evidence except in the cases hereinafter mentioned.
65. Cases in which secondary evidence relating to documents may be given - Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(a) When the original is shown or appears to be in the possession or power-
of the person against whom the document is
sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it,
and when, after the notice mentioned in Section 66, such person does not produce it;
6 S.A No.469/1994
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of Section 74;
(f) 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;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
74. Public documents -The following documents are public documents:-
7 S.A No.469/1994
(1) Documents forming the acts, or records of the acts- (i) of the sovereign authority,
(ii) of official bodies and the 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.
75. Private documents -All other documents are private.
76. Certified copies of Public Documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
79. Presumption as to genuineness of certified copies - The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer [of the Central Government or of a State Government, or by 8 S.A No.469/1994
any officer [in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government]:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed, the official character which he claims in such paper."
13. Sections 51, 52, 55 and 57 of the Registration Act, 1908 are in
the following terms:-
51. Register-books to be kept in the several offices.- (1) The following books shall be kept in the several offices hereinafter named, namely:-
A- In all registration offices-
Book 1, "Register of non-testamentary documents relating to immovable property".
Book 2, "Record of reasons for refusal to
register".
Book 3, "Register of wills and authorities to adopt", and
Book 4, "Miscellaneous Register"
B- In the offices of Registrars-
Book 5, "Register of deposits of wills".
(2) In Book 1 shall be entered or filed all documents or memoranda registered under sections 17,18 and 89 which relate to immovable property, and are not wills.
(3) In Book 4 shall be entered all documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property.
(4) Nothing in this section shall be deemed to require more than one set of books where the office of the 9 S.A No.469/1994
Registrar has been amalgamated with the office of a Sub-Registrar.
52. Duties of registering officers when document presented.-(1)(a) The day, hour and place of presentation, [the ;photographs and finger prints affixed under section 32A,] and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;
(b) a receipt for such document shall be given by the registering officer to the person presenting the same; and
(c) subject to the provisions contained in section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.
(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.
55. Indexes to be made by registering officers, and their contents.-(1) Four such indexes shall be made in all registration offices, and shall be named, respectively, Index No.I, Index No.II, Index No.III and Index No. IV.
(2) Index No.I shall contain the names and
additions of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No.1.
(3) Index No. II shall contain such particulars mentioned in section 21 relating to every such 10 S.A No.469/1994
document and memorandum as the Inspector-General from time to time directs in that behalf.
(4) Index No. III shall contain the names and additions of all persons executing every will and authority entered in Book No. 3, and of the executors and persons respectively appointed thereunder, and after the death of the testator or the donor (but not before) the names and additions of all persons claiming under the same.
(5) Index No. IV shall contain the names and additions of all persons executing and of all persons claiming under every document entered in Book No. 4.
(6) Each Index shall contain such other particulars, and shall be prepared in such form, as the Inspector-General from time to time directs.
57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries.-(1) Subject to the previous payment of the fees payable in that behalf, the Book Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all times open to inspection by any person applying to inspect the same; and, subject to the provisions of section 62, copies of entries in such books shall be given to all persons applying for such copies.
(2) Subject to the same provisions, copies of entries in Book No.3 and in the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies.
(3) Subject to the same provisions, copies of entries in Book No.4 and in the Index relating thereto shall be given to any person executing or claiming 11 S.A No.469/1994
under the documents to which such entries respectively refer, or to his agent or representative.
(4) The requisite search under the section for entries in Book Nos. 3 and 4 shall be made only by the registering officer.
(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."
14. It needs no emphasis to state that transactions envisaging
transfer of immoveable property of the value of more than Rs.100/-
are required to be compulsorily registered in view of the provisions of
Sections 2(6) and 17 of the Registration Act and in the absence of
such a registration the documents cannot be received as evidence of
any transaction effecting such property. The manner of registration
of documents is clearly prescribed under sections 51 to 57 of the
Registration Act, which have been reproduced above. A conjoint
reading of the aforesaid provisions makes it clear that the Registering
Officer shall, after registering documents, allow inspection of the
books and indexes and give certified copies of entries made therein.
Section 57(5) of the Registration Act lays down that all certified
copies issued under the provisions of Section 57 shall be issued
under the signature and seal of the Registering Officer and shall be
admissible for the purpose of proving the contents of the original
documents.
15. The provisions of section 64 of the Evidence Act are very clear
and are to the effect that the documents must be proved by primary 12 S.A No.469/1994
evidence "except" in cases thereinafter mentioned ie. in Section 65 of
the Evidence Act. Section 65 of the Evidence Act enumerates the
exceptions to Section 64 of the Evidence Act in which secondary
evidence may be given of the "existence", "condition" or "contents" of
a document. Section 74 of the Evidence Act enumerates the
documents which are public documents and while Sub Section (1) of
Section 74 provides that all documents forming the acts, or records of
the acts of the sovereign authority, of the official bodies and tribunals
and of public officers, legislative, judicial and executive would be
public documents, Section 74(2) of the Evidence Act, provides that
all public records kept in any state of private documents would also
be public documents. Section 76 of the Evidence Act makes
provisions for issuance of certified copies of public documents and
Section 77 lays down that such certified copies may be produced in
proof of the contents of the public document or part of the public
document which they purport to be copies. Section 79 of the
Evidence Act provides that there shall be a presumption as to the
genuineness of the certified copies which by law are declared to be
admissible as evidence of any particular fact and which are duly
certified by the officer concerned.
16. From a conjoint reading of the aforesaid provisions of law it is
clear that while the general rule regarding proof of documents, based
on the principle of best evidence, is that they must be proved by
primary evidence, ie., by production of the original document itself,
there are exceptions to this rule which are enumerated in Section 65
of the Evidence Act which permit giving of secondary evidence in
respect of existence, condition or contents of the document in 13 S.A No.469/1994
various eventualities which are mentioned in Clauses (a) to (g) of that
section.
17. A perusal of section 65 of the Evidence Act makes it further
clear that each clause mentioned therein i.e. clauses (a) to (g), refers
to a different situation and, barring certain cases, each clause is
separate and exclusive in the sense that each clause enumerates a
distinct type of case in which secondary evidence may be given.
18. Section 65(a) permits giving of secondary evidence instead of
primary evidence of the content of the document in cases where the
original is shown or appears to be in the possession or power of
some other person who has not produced the same inspite of a
notice under section 66 of the Evidence Act. The second exception
incorporated in Section 65(b) of the Evidence Act permits giving of
secondary evidence instead of primary evidence in the form of a
written admission in cases where the existence, condition or content
of the original document have been proved to be admitted in writing.
Section 65(c) of the Evidence Act, permits adducing of secondary
evidence instead of primary evidence of the content of the document
in cases where the original has been destroyed, lost or cannot be
produced in a reasonable time for some reason not arising from the
default of the person offering it in evidence.
19. Section 65(d) of the Evidence Act enumerates the fourth
exception to Section 64 of the Evidence Act and permits adducing of
secondary evidence of the content of the document in cases where
the original is of such a nature as not to be easily movable. Section
65(e) read with the third paragraph, permits giving of secondary 14 S.A No.469/1994
evidence only by way of a certified copy of a document in cases
where the original is a public document within the meaning of section
74 of the Evidence Act, i.e. in cases where the original is forming the
acts or records of the acts of the sovereign authority, of official bodies
and tribunals and of public officers, legislative, judicial and executive
or where it is a public record kept [in any State] of a private
document. Section 65(f) read with the third paragraph of Section 65
of the Evidence Act, permits giving of secondary evidence only by
way of a certified copy of a document in cases where the original is a
document of which a certified copy is permitted by the Evidence Act
or by any other law in force in India to be given in evidence. Section
65(g) of the Evidence Act, permits giving of secondary evidence in
cases where the original consists of numerous accounts or other
documents which cannot conveniently be examined in Court, and
where the fact to be proved is the general result of the whole
collection by any person who has examined them and who is skilled
for the examination of such documents.
20. It is, therefore, clear that a person proposing to give secondary
evidence by invoking clauses (a), (b) and (c) of Section 65 of the
Evidence Act, has to first lay a foundation to the effect that the
document is not in his possession and has not been produced inspite
of a notice by the person who is in possession of the same; that the
existence, condition or contents of the original have been proved to
be admitted in writing or that the original has been destroyed, lost or
cannot be produced, respectively. It is further clear from a perusal of
Section 65(e) and (f) that the aforesaid requirement, which are
prescribed in Section 65 (a), (b) and (c), are not required to be 15 S.A No.469/1994
established when the person seeks to give secondary evidence by
producing a certified copy of a document alone and no other kind of
secondary evidence of a document which is a public document within
the meaning of Section 65(e) of the Evidence Act or by giving a
certified copy of a document alone and no other kind of secondary
evidence of a document which is a certified copy of an original
permitted by the Evidence Act or by any other law to be given in
evidence under Section 65(f) of the Evidence Act as the
preconditions mentioned in Section 65(a), (b) and (c) of the Evidence
Act cannot be read into Section 65(e) or (f) by any stretch of statutory
interpretation.
21. What emerges from the aforesaid analysis of Section 65 of the
Evidence Act is that secondary evidence in the form of a certified
copy alone and no other kind of secondary evidence may be given of
the existence, condition or contents of a document when the original
is a public document within the meaning of Section 74 ("clause (e) of
Section 65") or when the original is a document of which a certified
copy is permitted by any law to be given in evidence ("clause (f) of
Section 65").
22. At this stage it would also be appropriate to address the issue
regarding "Public Documents" and "certified copies". From a perusal
of Section 74 (2) of the Evidence Act, it is clear that all public records
kept in any state of private documents are public documents and that
certified copies of such public documents can be obtained under
section 76 of the Evidence Act, which can be produced in proof of the 16 S.A No.469/1994
contents of the public documents as provided under section 77 of the
Evidence Act.
23. As sale deeds are required to be compulsorily registered under
the provisions of the Registration Act and as records of these
documents maintained thereunder are public records of private
documents maintained by the registering officer and as certified
copies thereof are admissible in evidence as to the content of the
document as provided by Section 57 of the Registration Act, it is
evident that the records maintained by the Registering Officer are
public records of private documents and are, therefore, public
documents as defined under section 74 of the Evidence Act.
24. In view of the aforesaid analysis I am of the considered opinion
that while a sale deed perse is a private document but once it is
registered and entered in Book-I by the Registering Officer under
Section 51 of the Registration Act, the records thereof maintained by
such Registering Officer is a public document as defined by Section
74 of the Evidence Act and, therefore, a certified copy of the same
can be given as secondary evidence of the existence, condition or
contents of the same.
25. Quite apart from the above, it is also clear from a perusal of the
provisions of Section 57 of the Registration Act, that books and
indexes maintained under the provisions of the Registration Act are
open to inspection by any person at all times and copies of entries in
such books and indexes shall be given to all persons applying for
such copies with the sign and seal of the registering officer and that
all such certified copies bearing the sign and seal of the registering 17 S.A No.469/1994
officer shall be admissible for the purpose of proving the contents of
the original documents. On a conjoint reading of the provisions of
Section 57(5) of the Registration Act alongwith the provisions of
Sections 65(f) and 76 of the Evidence Act, it becomes clear that a
certified copy of the sale deed which is compulsorily required to be
registered and entered in the books and indexes maintained under
the Registration Act, issued under the sign and seal of the registering
officer, is permitted by the aforesaid section i.e. Section 57(5) of the
Registration Act and Section 65(f) of the Evidence Act, to be given
in evidence of the content of the document apart from and in addition
to the fact that certified copies of public documents can also be given
in evidence under Section 65(e) of the Evidence Act.
26. At this stage it would be appropriate to refer to certain
decisions of this Court as well as of the Apex Court on this point.
This Court in the case of Rekha and others vs. Smt. Ratnashree,
2006 (1) MPLJ 103, has held that a certified copy of a registered
instrument which is secondary evidence of the entries in a public
document, that is the entries in Book I in the Registration Office can
be marked as secondary evidence without laying foundation for
receiving the same though they would be admissible only for the
purpose of proving the contents of the original document but will not
be proof of execution of the original document in the following terms
in paras 18.2 and 19(i):-
"18.2 If the person producing the certified copy of a registered instrument, without establishing the existence of any of the grounds under clause (a), (b) or (c) of section 65, seeks to mark the certified copy, then it will not be secondary evidence of the 18 S.A No.469/1994
original sale-deed, but only be secondary evidence of the entries in a public document, that is the entries in Book I in the Registration Office which issued the certified copy. Such certified copy marked without laying foundation for receiving secondary evidence, though admissible for the purpose of proving the contents of the original document, will not be proof of execution of the original document.
18.3 xxx xxx xxx
19. We may summarize the position thus:
(i) Production and Marking of a certified copy as secondary evidence of a
public document under section 65(e) need
not be preceded by laying of any foundation for acceptance of secondary
evidence. This is the position even in
regard to certified copies of entries in Book I under Registration Act relation to a private document copied therein."
27. The Supreme Court in the case of Land Acquisition Officer &
Mandal Revenue Officer vs. V. Narasaiah, 2001 (3) SCC 530,
while negativing the contention to the effect that certified copies of the
sale deed could not have been taken into account for determining the
sale price as shown therein, as the vendor and vendee were not
examined and while analysing the provisions of Section 51-A of the
Land Acquisition Act, 1894, has held that the preposition of law that
certified copies issued under section 57(5) of the Registration Act
could be taken on record as secondary evidence under section 65(f)
of the Evidence Act existed even prior to the introduction of Section 19 S.A No.469/1994
51-A of the Land Acquisition Act, in the following terms in paras 11,12
& 13:-
"11. If the only purpose served by Section 51-A is to enable the Court to admit the copy of the document in evidence there was no need for a legislative exercise because even otherwise the certified copy of the document could have been admitted in evidence. Section 64 of the Evidence Act says that "documents must be proved by primary evidence except in the cases hereinafter mentioned." Section 65 mentions the cases in which secondary evidence can be given of the existence, condition or contents of a document. One of the cases included in the list is detailed in clause (f) of the section which reads thus:
"65.(f) 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."
12. Section 57 of the Registration Act, 1908 enables anyone to apply for a copy of the entries in Book No.1 (the said Book is meant for keeping the register of the documents as well as non-testamentary documents relating to immovable property). When any person applies for a copy of it the same shall be given to him. Sub-section (5) of Section 57 of that Act says that: "57.(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 document."
13. If the position regarding admissibility of the contents of a document which is a certified copy falling within the purview of section 57(5) of the Registration Act was as adumbrated above, even before the introduction of section 51-A in the L.A. Act, could there 20 S.A No.469/1994
be any legislative object in incorporating the said new provision through Act 68 of 1984? It must be remembered that the state has the burden to prove the market value of the lands acquired by it for which the State may have to depend upon the prices of lands similarly situated which were transacted or sold in the recent past, particularly those lands situated in the neighbouring areas. The practice had shown that for the State officials it was a burden to trace out the persons connected with such transactions mentioned in the sale-deeds and then to examine them in court for the purpose of proving such transactions. It was in the wake of the aforesaid practical difficulties that the new Section 51-A was introduced in the L.A. Act. When the Section says that certified copy of a registered document "may be accepted as evidence of the transaction recorded in such document" it enables the court to treat what is recorded in the document, in respect of the transactions referred to therein, as evidence."
28. The aforesaid view taken by the Supreme Court in the case of
Narasaiah (supra) that giving a certified copy of a registered
document in evidence is permissible in law in view of the provisions
of Section 64 and 65(f) of the Evidence Act and Section 57(5) of the
Registration Act, has been affirmed subsequently by a Constitutional
Bench in the case of Cement Corporation of India Ltd. vs. Purya
and others, (2004) 8 SCC 270, in the following terms in para-20:-
"20. The above view of the Court in Kurra Sambasiva Rao's case (1997) 6 SCC 41), in our opinion, is not the correct position in law. Even prior to the insertion of Section 51-A of the Act the provisions of the Evidence Act and the Registration Act did permit the production of a certified copy in evidence. This has been clearly 21 S.A No.469/1994
noticed in the judgment in Narsaiah's case wherein the Court relying on Sections 64 and 65(f) of the Evidence Act read with Section 57(5) of the Registration Act held that production of a certified copy of a registered sale document in evidence was permissible in law even prior to insertion of Section 51-A in the LA Act. We are in agreement with the said view expressed by this Court in Narasaiah's case.
29. Similarly, in the case of Tukaram S. Dighole v. Manikrao
Shivaji Kokate, 2010 (4) SCC 329 it has again been held by the
Supreme Court that Section 65 (e) of the Evidence Act carves out an
exception to the rule that documents must be proved by primary
evidence and permits production of secondary evidence even when
the original document is still in existence and available in the
following terms in para-18:-
"18. Chapter 5 of the Evidence Act deals with documentary evidence. Section 61 thereof lays down that:
"61. Proof of contents of
documents.- The contents of documents
may be proved either by primary or by
secondary evidence."
As per Section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents 22 S.A No.469/1994
may be given, carves out an exception to the extent that when the original document is a "public document" secondary evidence is admissible even though the original document is still in existence and available."
30. In view of the aforesaid decision of this Court and the
decisions of the Supreme Court, the first substantial question of law
framed by this Court is answered against the appellants and it is held
that the certified copy of the sale deed which was produced by the
respondent nos.1 & 2 plaintiffs has rightly been taken on record by
the courts below even in the absence of laying any foundation in that
respect or having obtained prior permission to adduce secondary
evidence in this regard in view of the clear provisions of Section 57(5)
of the Registration Act and Sections 64, and 65 (e) & (f) of the
Evidence Act.
31. I next proceed to answer substantial question no.3 framed by
this Court.
32. In view of the provisions of law quoted above, it is clear that
while secondary evidence in the form of a certified copy of a public
document or a certified copy as mentioned in Section 65(f) of the
Evidence Act can be given for the purposes of the existence,
condition or contents of the original document, however the mere
production of the same would not by itself prove or establish that the
document was executed by the person named therein unless and
until proof of the same as required by Section 67 of the Evidence Act
is produced as has been held by this Court in the case of Rekha
(supra) in paras-15, 17, 18.1, 18.2 and 19(iii):- 23 S.A No.469/1994
"15. We have already held that a certified copy of a registered instrument/document issued by the Registering Officer, by copying from Book I, is a certified copy of a public document. It can therefore be produced in proof of the contents of the public document or part of public document of which it purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book-I), under section 65(e) read with section 77 of the Act without anything more. No foundation need be laid for production of certified copy of secondary evidence under section 65(e) or (f). But then it will only prove the contents of the original document, and not be proof of execution of the original document. [vide section 57(5) of Registration Act read with section 77 of Evidence Act]. This is because registration of a document is proof that someone purporting to be 'X' the executant admitted execution, but is not proof that 'X' executed the document. We will elaborate on this aspect when dealing with Point No. (iv).
17. The position is therefore is that a certified copy of a sale-deed issued by the Registration Officer under the Registration Act can be produced and marked as secondary evidence of a public document (that is entries in Book I maintained under section 51 of the Registration Act containing the copy of the registered document). Such certified copy issued by the Registration Officer in view of the certificates copied therein and the certificate made while issuing the certified copy will prove (i) that the document has been presented before the Registration Officer for registration; (ii) that execution had been admitted by the person who claimed to be the executant of the document and (iii) that the document passed thereafter registered in the Registration Office and entered 24 S.A No.469/1994
(copied) in Book I. It is not however proof of the fact that original sale-deed was duly executed by the actual person described as executant. Production of a certified copy of a public document under section 65(e) or production of a certified copy under section 65(f) is completely different from production of a certified copy as secondary evidence of a private document (for e.g., a sale deed) under clauses (a), (b) and (c) of section
65.
18.1 The second step is to prove the execution of the deed (whether what is produced in the original of certified copy or other secondary evidence thereof given under clause (a), (b) or (c) of section 65) as required by section 67 of the Act, where the document is not one which is required by law to be attested or as required by section 68 of the Act where the document is one which by law is required to be attested. This is because registration is not proof of execution. A private document cannot be used in evidence unless its execution is admitted by the party against whom it is intended to be used, or it is established by proof that it is duly executed. Due execution is proved by establishing that the signature (or mark) in token of execution was affixed to the document by the person who is stated to have executed the document. This is normally done either (i) by examining the executant of the document; or (ii) by examining a person in whose presence the signature/mark was affixed to the document; or (iii) by referring the document to a handwriting expert and examining such expert; or (iv) by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or (v) by requesting the Court to compare the signature of the executant in the document with some admitted signature of the 25 S.A No.469/1994
person shown as executant; or (vi) by proving admission by the person who is said to have signed the document, that he signed it.
18.2. If the person producing the certified copy of a registered instrument, without establishing the existence of any of the grounds under clause (a), (b) or (c) of section 65, seeks to mark the certified copy, then it will not be secondary evidence of the original sale- deed, but only be secondary evidence of the entries in a public document, that is the entries in Book I in the Registration Office which issued the certified copy. Such certified copy marked without laying foundation for receiving secondary evidence, though admissible for the purpose of proving the contents of the original document, will not be proof of execution of the original document.
19. We may summarize the position thus:
(i) xxx xxx xxx
(ii) xxx xxx xxx
(iii) Production and marking of an original or certified copy of a document does not dispense with the need for proof of execution of the document. Execution has to be proved in a
manner known to law (section 67 and 68 and
ensuing sections in chapter V of Evidence Act)."
33. In the instant case, it is evident from the oral and documentary
evidence on record that while the plaintiffs did produce the certified
copy of the sale deed which was taken on record, he has not
examined any person including the witnesses to the sale to prove the
document. On the contrary, the vendor Gopal, who has been
examined as D.W-4, has himself categorically denied the execution of
the sale deed as well as his signatures thereon in his statement. It is
also clear that the respondent nos.1 & 2 plaintiffs did not confront him 26 S.A No.469/1994
with the signature in the sale deed for the purposes of proving his
signature in the sale deed or the execution thereof and none of the
attesting witnesses were examined inspite of the fact that the plaintiff
Kallu, P.W-3, in para-4 of his statement has categorically stated that
one of the attesting witness Brijwasi has died while the other attesting
witnesses Ramdayal was alive.
34. It is further apparent that the trial court as well as the first
appellate court have decreed the suit filed by the respondent nos.1 &
2 plaintiffs only on the ground that Gopal D.W-1 did not file a written
statement and was exparte but have totally ignored the fact that he
did appear as a defence witness and has categorically denied the
execution of the sale deed and that the respondent/plaintiffs failed to
prove the execution of the documents in accordance with the
provisions of Section 67 of the Evidence Act. It is, therefore, clear
that the respondent nos.1 & 2 plaintiffs have failed to prove the
document, i.e. proving the fact that it was executed, signed and
executed by Gopal, the vendor, who was defendant no.1 in the suit
and, therefore, while the courts below have not gone wrong in taking
the certified copy of the sale deed on record as secondary evidence
of the existence, condition or contents of the document, they have
gone wrong in decreeing the suit filed by respondent nos.1 & 2
plaintiffs simply on that basis inspite of the fact that the
respondent/plaintiffs have failed to prove the signature or execution of
the document as required by Section 67 of the Evidence Act.
35. In view of the aforesaid, the third substantial question of law is
answered in favour of the appellants and consequently, the judgment 27 S.A No.469/1994
and decree of the trial court as well as that of the first appellate court
are hereby set aside on the ground that the respondent nos.1 & 2
plaintiffs have failed to prove the execution of the sale deed in their
favour and in such circumstances a decree of declaration of title,
possession, etc. could not be passed in their favour. In view of the
aforesaid findings it is not necessary to record any finding in respect
of the second substantial question of law as the appeal is being
allowed on the other grounds.
36. In the light of the aforesaid discussion, the appeal filed by the
appellants succeeds. The judgment and decree of the trial court
dated 31.8.1984 passed in Civil Suit No.26A/1984 by the First Civil
Judge Class-II, Satna and the judgment and decree dated 17.8.1994
passed in Civil Appeal No.7A/91 by the First Additional District Judge,
Satna are hereby set aside.
37. The appeal is, accordingly, allowed. In the facts and
circumstances of the case there shall be no order as to the costs.
Before I part with the case, I would be failing in my duty if I do
not place on record and appreciatingly acknowledge the immense
and immeasurable salutary assistance and contribution that has been
given to this Court by Shri Ravish Agrawal, learned Senior Counsel
who graciously accepted the request of this Court to assist this Court
in deciding this appeal.
( R. S. JHA )
JUDGE
29/07/2011
mms/-