Gurmail Singh and Others vs Jarnail Singh and Others

PARMOD GOYAL, J. (ORAL)

Present appeal has been preferred by the appellants-defendants being aggrieved by judgment and decree dated 22.10.1999 passed by the then learned Additional District Judge, Faridkot, whereby first appeal preferred by respondent-plaintiff was allowed and judgment and decree dated 02.09.1997 passed by learned Civil Judge (Junior Division), Moga, whereby suit of respondent-plaintiff was dismissed, was set aside and suit of respondent-plaintiff was decreed.

It was the case of respondent-plaintiff that he being owner of land comprised in killa No.100/18 had sold 06 marlas of land out of same on 02.06.1986. The land was situated on the eastern side of killa No.100/18. Appellants-defendants No.1 to 3 were put in possession over land so sold by respondent-plaintiff and remaining land remained in possession of respondent-plaintiff, however, appellants-defendants No.1 to 3 have got a plan (tatima) prepared according to which 06 marlas of land out of killa No.100/19 has been shown on the eastern-southern side. It was asserted that respondent-plaintiff had never sold land falling on southern side, rather had sold land falling on the eastern side alone. On the basis of tatima, appellants-defendants No.1 to 3 are threatening to take possession on the southern side of killa No.100/18 to which they have no right, title or interest and accordingly declaration was sought by way of suit.

Appellants-defendants No.1 to 3 on notice had contested the suit by taking number of preliminary objections as regards to maintainability. It was asserted that 06 marlas of land was sold by respondent-plaintiff vide sale deed dated 12.06.1986. It was claimed that land was on ‘charda dakhan’ (eastern-southern) side and mutation was entered on the basis of sale deed dated 12.06.1986 and it is appellants-defendants who are owner in possession of land purchased by them vide registered sale deed. It was further claimed that through said land, irrigation through canal water is being effected. Land was purchased only for said purpose as purchased land connects land of respondent-plaintiff to the water channel.

From the pleadings of the parties, following issues were framed:-

Issue Nos.1 to 3 were decided against respondent-plaintiff and in favour of appellants-defendants by learned Court of First Instance, whereas issue No.4 was decided against appellants-defendants and accordingly, suit preferred by respondent-plaintiff was dismissed.

Learned Court of First Instance had considered the evidence in the shape of certified copies of sale deeds relied upon by both the sides and had allowed appeal and suit.

In present case, the original sale deed was lost as per the case of appellants-defendants and accordingly they proved certified copy of sale deed by placing the same on record as Ex.D2. On the other hand, respondent-plaintiff had relied upon certified typed copy of sale deed to claim that suit property sold was on the eastern side. Appellants-defendants had also examined DW1-Balwinder Paul, who had brought sale deed kept in Office of Sub-Registrar and placed same on record.

Learned trial Court had concluded that both the copies relied upon, one by respondent-plaintiff and another by appellants-defendants were certified copy issued by Office of Sub-Registrar. The copy (Ex.P2) relied upon by respondent-plaintiff was certified typed copy, whereas copy (Ex.D2) relied upon by appellants-defendants was photocopy of second copy kept in the Office of Sub-Registrar. Therefore, there is possibility of omission at the time of typing, while issuing duplicate/certified copy, which was typed and since the second copy Ex.D2 relied upon by appellants-defendants was photocopy of records kept with Office of Sub-Registrar, same was relied upon.

Learned Court of first instance had also taken into consideration fact that land of appellants-defendants and respondent-plaintiff is adjoining and purpose of purchasing only 06 marlas land was to connect land of appellants-defendants with the khal (water channel) existing at the spot, which can be joined if the land is on east south side and purpose of purchasing land was to get access to irrigation water and if land fell on eastern side then it would not connect existing khal (water channel) for irrigating the land of appellants-defendants. Accordingly, the suit preferred by respondent-plaintiff was dismissed.

Learned First Appellate Court, however, concluded that certified copy of sale deed (Mark A) kept in Office of Sub-Registrar and certified copy (Ex.D2) issued to appellants-defendants are not reliable as word southern was added subsequently and accordingly had relied upon certified copy (Ex.P2) relied upon by respondent-plaintiff to conclude that land on eastern side was sold. Learned First Appellate Court had accordingly accepted the claim of respondent-plaintiff and decreed the suit.

Learned counsel for appellants-defendants has argued that learned First Appellate Court had erred in not taking into consideration tatima prepared by Revenue Authorities in the year 1987 which was prior to issuance of typed certified copy of sale deed to respondent-plaintiff on 22.05.1990 as was stated by PW4. It has been also argued that Learned First Appellate Court had failed to take into consideration the fact that revenue authorities in the year 1987 had prepared tatima on the basis of sale deed, certified copy of which is duly proved by appellants-defendants after proving the loss of original sale deed and by ignoring tatima executed in the year 1987 by revenue authorities, reliance was wrongly placed upon typed certified copy of the sale deed which was obtained by respondent-plaintiff only in the year 1990 after three years of tatima in connivance with revenue authorities, which had issued typed certified copy instead of giving photocopy of sale deed available with office of Sub-Registrar.

Learned counsel for respondent-plaintiff, however, has argued that findings given by learned Court of First Instance were rightly ignored by First Appellate Court on the ground that it was duty of appellants-defendants to prove that they had purchased land on the eastern southern side by proving the original sale deed and since they had not discharged the burden therefore suit was rightly decreed.

On consideration of respective contentions, I find that following important questions of law arises in present case:-

In present case, dispute is simple. On one hand, respondent-plaintiff is asserting that he had sold 06 marlas of vide sale deed dated 12.06.1986 on the eastern side and on the other hand, appellants-defendants are asserting that they had purchased 06 marlas of land from respondent-plaintiff on eastern southern side in order to connect their adjoining land with the water channel. Land was sold vide registered sale deed.

Following facts are clearly made out from the pleadings and evidence placed on record by both the sides.

Learned Court of first instance had placed reliance upon (Ex.D2), which is certified copy of record kept with Office of Sub-Registrar, whereas certified copy of sale deed (Ex.P2), which was typed copy, was ignored on the ground that while typing, possibility of omission regarding direction could have been done. Learned First Appellate Court, however, had accepted typed copy and had concluded that there seems to be interpolation in the copy kept with the Sub-Registrar and certified copy issued to the appellants-defendants and accordingly had placed reliance upon (Ex.P2), typed copy of sale deed instead of photocopy of sale deed and copy available in the Office of Sub-Registrar (Mark A).

On appreciation of the respective arguments, I find that First Appellate Court had erred in accepting typed certified copy to reject the case of appellants-defendants. In present case, both typed certified copy of sale deed (Ex.P2) relied upon by respondent-plaintiff and photostat copy of sale deed dated 12.06.1986 (Ex.D2) were proved by respondent-plaintiff and appellants-defendants by way of secondary evidence.

Appellants-defendants before proving certified copy of sale deed (Ex.D2) had duly proved loss of original sale deed which was in their custody by proving DDR (Ex.DX) and thereafter, they had proved the certified copy issued by Sub-Registrar by summoning records from the Office of Sub-Registrar. DW1 was duly examined by appellants-defendants who had brought the sale deed kept in the office of Sub-Registrar and placed the same as Mark A. Ex.D2 is in fact, photocopy of sale deed (Mark A) kept by Sub-Registrar in his office. Apart from summoning records from Office of Sub-Registrar, appellants-defendants had also examined DW3-Naib Singh, one of the attesting witnesses who had duly proved the contents of Ex.D2 by asserting the same to have been signed by him. DW2 is the Deed Writer who had clearly stated in his testimony that sale deed Ex.D2 was duly executed and the land sold was eastern southern side of Killa No.100/18.

On the other hand, respondent-plaintiff had merely placed typed certified copy of sale deed, issued on 22.05.1990 after 04 years of sale deed dated 12.06.1986. Though respondent-plaintiff had examined PW4, official from Office of Sub-Registrar, namely Kushwinder Singh, Clerk, however perusal of testimony of PW4 goes to show that he had nowhere explained as to why he had issued typed copy when generally photocopy of record kept with Office of Sub-Registrar is issued as certified copy. In case of appellants-defendants, the certified copy issued to them is photocopy from the record of Sub-Registrar. PW4 had not explained as to why a typed certified copy was issued instead of photocopy of original record to establish the same. PW4 had also nowhere stated that a different copy than Mark A was available on record. PW4 had himself admitted that typed copy was compared with the copy of sale deed (Mark A) available with Office of Sub-Registrar. Therefore, Ex.P2 has to be in consonance with Mark A, the copy kept in the Office of Sub-Registrar and cannot be held to be proved by way of secondary evidence unless contents of Ex.P2 matches with Mark A, the copy of sale deed which was kept with Sub-Registrar. PW-4 has no where stated that copy available with Office of Sub-Registrar is not correct and true copy.

Learned First Appellate Court had erred in accepting Ex.P2 having been duly proved which actually had not been proved to be correct copy of document kept with Office of Sub-Registrar. In the copy available with Sub-Registrar, the land sold/suit land is towards eastern southern side whereas in typed copy word southern is missing. Therefore, the typed copy cannot be held to be correct copy of record kept by Sub-Registrar and accordingly cannot be treated to have been proved by secondary evidence.

In order to prove a document by way of secondary evidence, loss of document or any of the conditions specified in Section 63 of The Indian Evidence Act, 1872 needs to be established. It is also necessary to establish that the contents of original document were the same verbatim copy in the document which is adduced as secondary evidence. If the secondary document is at variance with its source, same cannot be held to be proved by way of secondary evidence. On the other hand sale deed (Ex.D2) which was also proved by way of secondary evidence by appellants-defendants is in accordance with law as by examining attesting witness and scribe as well as placing document available with Sub-Registrar, the appellants-defendants have duly proved that the contents of secondary documents are as per original documents of which secondary evidence is being adduced.

Learned Appellate Court has, therefore, erred in law by accepting Ex.P2 in secondary evidence despite the fact that contents of Ex.P2 were at variance with its main source i.e. sale deed kept with the office of Sub registrar and its contents were also not proved. The finding of learned First Appellate Court that there was addition in the copy of sale deed kept with the Sub-Registrar is without any basis, perverse and erroneous without there being any evidence to the effect. In fact, it is not the case of respondent-plaintiff that any addition was made in the records of Sub-Registrar nor it was proved, therefore, the conclusion drawn by First Appellate Court regarding addition of words in copy kept with Sub-Registrar and relying upon typed certified copy of sale deed, contents of which had not been proved to be same as original, is totally erroneous, perverse and cannot be accepted.

In view of above discussion, it is clear proved that Ex.P2 was wrongly relied upon by learned First Appellate Court to conclude in favour of respondent-plaintiff. Ex.P2 cannot be taken into consideration as its contents have not been proved as per law and cannot be treated to be proved document after execution of Ex.P2. The suit of respondent-plaintiff has to fail as he had to prove his case. Rather defence taken by appellants-defendants stands duly proved by way of Ex.D2 and Mark A.

Learned First Appellate Court had also failed to take into consideration the conduct of respondent-plaintiff while appreciating evidence in the facts and circumstances of the present case, which is very relevant while appreciating evidence led by the parties. In present case, land was sold on 12.06.1986 by way of registered sale deed. Mutation in pursuance of sale was duly recorded vide order dated 21.02.1997. Tatima was also prepared at the time of sanctioning of mutation on 21.02.1987, whereby eastern southern side of suit property was shown to have been sold vide sale deed dated 12.06.1986. Respondent-plaintiff had not taken any action till the year 1990. It was only in 1990, he obtained certified copy from the office of Sub-Registrar, however, said certified copy was not issued by taking photocopy of document available with Sub-Registrar but in an unusual manner, was issued after typing the same and said typed copy was in variance with copy kept with Sub-Registrar. The suit was filed on 30.07.1992 after two years of obtaining certified copy, whereas, appellants-defendants had taken certified copy only on 13.08.1992 after getting to know about filing of suit by respondent-plaintiff and after coming to know about misplacement of original sale deed. The manner in which mutation dated 21.02.1987 was challenged in the year 1992 ought to have been taken into consideration by learned First Appellate Court while appreciating evidence which it had not taken into consideration and had accordingly erred.

In view of above discussion, I find merit in present regular second appeal as judgment and decree dated 22.10.1999 passed by learned First Appellate is erroneous, perverse and cannot be upheld. Accordingly, present appeal is allowed, judgment and decree dated 22.10.1999 passed by learned First Appellate Court is set aside and judgment and decree dated 02.09.1997 passed by learned Court of First Instance is upheld. Suit of respondent-plaintiff is dismissed.

Pending application(s), if any, stand disposed of.