Madhuri Kumari & Ors. vs Mukti Narain Singh & Ors.

Heard the learned counsel for the appellants and learned counsel for the respondents.

The present first appeal has been filed under Section 96 of the Code of Civil procedure (hereinafter referred to as ‘CPC’) against the judgment dated 12.12.2008 and decree dated 23.12.2008 passed by the learned Subordinate Judge 1st, Rosra, Samastipur (hereinafter referred to as ‘Trial Court’) in Title Suit No. 35 of 2002 wherein and whereunder the suit for declaration of title and confirmation of possession adjudicated in favour of the plaintiffs.

For the sake of convenience, the parties where required shall be referred to in terms of their status before the learned Trial Court.

Factual matrix, as in accordance with the plaint, in brief, is that the disputed property comprises portions of C.S. Plot Nos. 476 & 477 situated at Mauza Damodarpur. According to them, Plot No. 476 originally belonged to Lalji Purbey, who had acquired the same in a family partition prior to the Cadastral Survey and remained in exclusive possession thereof. Lalji Purbey died issueless, leaving behind his widow, Reshma Purbain, one daughter, Sakhibati Devi, and four daughter’s sons, namely, Dayanand Mandal, Jageshwar Mandal, Dwarika Mandal and Jai Narayan Mandal, all of whom had been residing with and were maintained by him. It is the plaintiffs’ case that after the death of Lalji Purbey, his widow executed a registered Will dated 14.08.1948 in favour of the aforesaid grandsons, which was subsequently recognized in probate proceedings, whereupon they succeeded to the estate left by Lalji Purbey. It is further pleaded that Plot No. 477 had been separately purchased by Dayanand Mandal under a registered sale deed dated 21.04.1917, and after the death of Dayanand Mandal and the other co-sharers, Jageshwar Mandal became the owner thereof. Thereafter, Jageshwar Mandal executed three registered sale deeds dated 07.01.1987 in favour of the plaintiffs and delivered possession of an area measuring 4 Kathas, whereafter the plaintiffs claim to have remained in peaceful possession. According to the plaintiffs, Defendant No. 1 subsequently interfered with their possession, asserting an independent claim over the suit property, which led to proceedings under Sections 144 and 145 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.PC’). The Executive Magistrate, while dropping the proceeding, observed that the dispute was of a civil nature, whereafter the plaintiffs instituted the present suit seeking declaration of their right, title and possession over the suit land, permanent injunction restraining Defendant No. 1 from interfering with their possession, and, in the alternative, recovery of possession in the event it was found that they had been dispossessed during the pendency of the litigation.

Defendant No. 1 entered appearance and contested the suit by filing a written statement denying the plaintiffs’ title and possession. It was submitted that Plot No. 476 had never fallen to the share of Lalji Purbey in the alleged pre-survey partition and, on the contrary, belonged to the branch of Ram Lal Purbey, from whom the defendant derived title. It was further asserted that defendant and his predecessors had acquired title over different portions of Plot No. 476 through various registered sale deeds and had remained in continuous possession thereof. It was specifically submitted that in respect of Plot No. 477, although the property had been purchased in the name of Dayanand Mandal under the sale deed dated 21.04.1917, Dayanand Mandal was then a minor and the real purchaser was his father, Bulaki Mandal, who subsequently conveyed the said property by a registered sale deed dated 10.04.1924 in favour of the defendant’s predecessor-in-interest. On the strength of the said conveyance, subsequent transfers, revenue records and long possession, Defendant No. 1 claimed exclusive title and possession over both Plot Nos. 476 & 477 and asserted that Jageshwar Mandal had no subsisting title to execute the sale deeds in favour of the plaintiffs.

However, Defendant No. 2 and certain other defendants supported the case of the plaintiffs by admitting that Lalji Purbey had been in exclusive possession of Plot No. 476, that the Will executed by Reshma Purbain was genuine, and that Jageshwar Mandal had validly executed the sale deeds dated 07.01.1987 in favour of the plaintiffs after receiving valuable consideration and delivering possession. However, some of the intervening defendants elaborated the genealogy of Lalji Purbey and asserted that the title of his grandsons flowed from the Will executed by Reshma Purbain and the probate granted thereon, while also maintaining that Lalji Purbey had obtained the northern portion of Plot No. 476 in the family partition preceding the Cadastral Survey.

In view of pleadings of both the parties, learned Trial Court framed issues for determination on 08.10.2004, as under:

Both the parties exhibited oral as well as documentary evidence. Plaintiffs examined all together 11 witnesses, PW-1 Tetar Yadav, PW-2 Rambalak Mahto, PW-3 Vishnu Kumar Rai, PW-4 Jatadhari Singh, PW-5 Ramratan Pashwan, PW-6 Rambali Singh, PW-7 Rameshwar Mahto, PW-8 Ravi Kumar, PW- 9 Mohan Singh, PW-10 Mukhti Narayan Singh, and PW-11 Nand Lal Jha. In support of their case, plaintiffs have exhibited altogether eleven documentary evidence, mentioned as under:

In support of his case, Defendant 1^st party (appellants herein) has exhibited, Exhibit A/1-original sale deed (Kewala) document dated 10.4.1924, Ram Pratap Purbey versus Bulaki Mandal; Exhibit A-1/1 original sale deed (Kewala) document dated 1.5.1980 Dev Narayan Purbey versus Ramesh Chandra Purbey; Exhibit A-1/2 original sale deed (Kewala) dated 1.5.1980 Dev Narayan Purbey versus Mosmat Saraswati Devi; Exhibit 1-1/3 original sale deed (Kewala) dated 26.6.80 Om Prakash Purbey versus Bimla Devi; Exhibit 1-1/4 original sale deed (Kewala) dated 27.8.05 Lalji Purbey versus Ramesh Chandra Purbey; Exhibit B-1 original partition deed dated 28.11.1951; Exhibit C/1 survey slip; Exhibit C1-1/1 survey slip; Exhibit D-1 complaint petition; Exhibit E-1 to Exhibit E-1/3 land revenue receipts; Exhibit F-1 certified copy of the order dated 30.05.1989 passed by the land reform deputy collector; Exhibit G-1 certified copy of the order of the District Judge Darbhanga; Exhibit H- order/certified copy of the order of Probate No. 3/9 of 1931 of District Judge Darbhanga; Exhibit I-1 to Exhibit I-1/1 certified copy of Register D; and Exhibit J-1 certified copy of Form ‘M’ have been filed.

Moreover, on behalf of the plaintiffs, a total of 11 witnesses has been examined, out of which witness nos. 1 to 5 are formal witnesses. On behalf of the Defendant 1^st Party, a total of 8 witnesses has been examined, in which witness nos. 3, 5, and 8 of the defendant’s side are formal witnesses. Lastly, on behalf of the Defendant 2^nd Party, a total of 7 witnesses have been examined, in which witness nos. 1, 5, and 7 are formal witnesses, while the remaining are material witnesses.

After framing the aforesaid issues, the learned Trial Court proceeded to appreciate the oral and documentary evidence adduced by the respective parties. Upon an elaborate consideration of the pleadings, the evidence of the witnesses and the documentary exhibits brought on record, the learned Trial Court recorded findings that Lalji Purbey had acquired right, title and possession over C.S. Plot No. 476 pursuant to the partition preceding the Cadastral Survey; that the property validly devolved upon his successors through the registered Will dated 14.08.1948 and the probate proceedings; that Jageshwar Mandal possessed a valid and subsisting title to execute the registered sale deeds dated 07.01.1987 in favour of the plaintiffs; and that the plaintiffs had consequently acquired valid right, title and possession over the suit property. The learned Trial Court further held that Defendant No.1 failed to establish any lawful title or possession over the disputed land and, accordingly, decreed the suit by declaring the plaintiffs’ right, title and possession over the suit property and granting a decree of permanent injunction against Defendant 1^st party.

Aggrieved by the aforesaid judgment and decree, Defendant 1^st party (appellants herein) has preferred the present First Appeal, assailing the findings recorded by the learned Trial Court on both facts and law. During the pendency of the appeal, the appellants also filed an application under Order XLI Rule 27 of the CPC seeking leave to adduce additional documentary evidence, contending that certain old public and registered documents relating to the title and possession over the suit property could not be produced before the learned Trial Court despite due diligence, whereas the said application has been opposed by the plaintiffs-respondents on the ground that it is a belated attempt to fill up lacunae in the appellant’s case and to delay the disposal of the appeal.

Learned counsel for the appellants submitted that the impugned judgment and decree are contrary to the pleadings, evidence and settled principles governing suits for declaration of title. It is submitted that in a suit seeking declaration of title, confirmation of possession and consequential relief, the entire burden lies upon the plaintiff to establish his own title independently and the weakness, if any, in the defendant’s case cannot be made the foundation for granting a decree. He submitted that the learned Trial Court completely overlooked this cardinal principle and proceeded to decree the suit without the plaintiffs having discharged the burden of proving a valid and subsisting title over C.S. Plot Nos. 476 & 477. It is further submitted that the plaintiffs derived their alleged title only through Jageshwar Mandal and, therefore, unless the title of the vendor itself was satisfactorily established, no declaration could have been granted in favour of the plaintiffs.

14.i. Learned counsel for the appellants further submitted that the plaintiffs themselves took mutually destructive and inconsistent stands regarding the source of title over the suit property. In the original plaint, Plot No. 477 was pleaded to have been acquired by Dayanand Mandal from the joint family funds and treated as joint family property, whereas by way of amendment the plaintiffs completely abandoned the earlier case and pleaded that the property was the self-acquisition of Dayanand Mandal from his independent income and that he was a major on the date of purchase. Likewise, with respect to Plot No. 476, the plaintiffs simultaneously claimed title by inheritance through Lalji Purbey and, alternatively, by adverse possession. It is submitted that such mutually inconsistent pleas could not legally coexist and the amendment introduced an altogether new and prejudicial case, depriving the appellants of an accrued defence. Learned counsel, moreover, submitted that even though no separate challenge was made to the interlocutory order allowing amendment, the legality thereof could validly be examined by the Appellate Court under Section 105 of the CPC while deciding the present appeal.

14.ii. Learned counsel next submitted that the plaintiffs utterly failed to establish that Dayanand Mandal was major or had any independent source of income at the time of the purchase of Plot No. 477 in the year 1917. It is argued that no admissible documentary evidence proving his age or independent financial capacity was produced. On the contrary, the probate records and the evidence of Jageshwar Mandal himself indicated that Dayanand Mandal was a minor when the sale deed dated 04.04.1917 was executed and continued to be a minor when Bulaki Mandal, acting as his guardian, executed the registered sale deed dated 10.04.1924 in favour of Ram Bilas Purbey. It is submitted that Dayanand Mandal never challenged the said sale deed during his lifetime and, consequently, Jageshwar Mandal acquired no title over Plot No. 477 capable of being conveyed to the plaintiffs. He also submitted that the learned Trial Court gravely erred in declaring the registered sale deed dated 10.04.1924 to be void and fraudulent despite the absence of any substantive prayer for its cancellation, although the document, at best, was voidable and remained valid until set aside by a competent Court. The plaintiffs’ suit, therefore, could not have been decreed without first seeking cancellation of the said registered instrument.

14.iii. Learned counsel for the appellants specifically submitted with regard to Plot No. 476 that there was absolutely no reliable evidence to establish that Lalji Purbey had ever been allotted 19 Kathas 17 Dhurs in any pre-Cadastral Survey partition. It is submitted that the Cadastral Survey Khatian, the revenue records and other contemporaneous documents did not record Plot No. 476 in the name of Lalji Purbey and, had such partition actually taken place, his name would necessarily have been reflected in the official records. It is further submitted that neither any rent fixation order, Jamabandi, rent receipts nor any continuous revenue record stood in the name of Lalji Purbey or his successors, whereas the appellants had produced registered sale deeds, partition deed, survey records, rent receipts and revenue orders demonstrating continuous title and possession of his predecessors. It is also submitted that the learned Trial Court wrongly relied merely upon boundary descriptions in certain sale deeds to infer title in favour of Lalji Purbey, while ignoring the documentary evidence produced by the appellants and erroneously holding that the appellants had no title or possession over the suit property. It is lastly submitted that the additional documents sought to be produced by the appellants under Order XLI Rule 27 of the CPC, including the Cadastral Survey Khatian, map, old registered sale deeds and rent fixation records, were public documents discovered subsequently despite due diligence and were necessary for a complete and effective adjudication of the real controversy between the parties.

14.iv In support of the aforesaid submissions, learned counsel for the appellants placed reliance upon the decisions of the Supreme Court in Union of India v. Vasavi Co-operative Housing Society Ltd., reported in (2014) 2 SCC 269, on the burden of proof in a suit for declaration of title; Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd., reported in 2022 SCC OnLine SC 1128, regarding the principles governing amendment of pleadings; Achal Mishra v. Rama Shanker Singh, reported in (2005) 5 SCC 531, on the power of the Appellate Court under Section 105 of the CPC to examine interlocutory orders; State of M.P. v. Usha Devi, reported in (2015) 8 SCC 672, as followed by the Co-ordinate Bench of this Court in Lalita Devi v. Jugal Kishore Singh, holding that a plaintiff must prove his case notwithstanding absence of a written statement; Inderjit Singh Grewal v. State of Punjab, reported in (2011) 12 SCC 588, Subodh Kumar v. Bhagwant Namdeo Rao Mahatre, reported in (2007) 10 SCC 571, Ram Kishun v. Smt. Nero Devi, reported in AIR 1965 Pat 486, Md. Noorul Huda v. Bibi Raifunnisa, reported in (1996) 7 SCC 767, and Sita Sharan Prasad v. Manorma Devi, reported in 2012 (2) PLJR 190, to submit that a registered instrument carries a presumption of validity, a voidable document remains effective until set aside, and no declaration of title could be granted in the absence of an appropriate prayer for cancellation of the sale deed dated 10.04.1924. In light of the above discussed facts and legal principles, learned counsel for the appellants submitted that the impugned judgment and decree are not sustainable in the eyes of and the same is liable to be set aside.

Learned counsel for the respondents supported the impugned judgment and decree passed by the learned Trial Court and submitted that the same had been rendered after a comprehensive appreciation of the pleadings, oral testimony and documentary evidence adduced by both sides and, therefore, warranted no interference in the present first appeal. It is submitted that the respondents had duly established that C.S. Plot No. 476 originally belonged to Lalji Purbey as his Bakast land and, after his death, devolved upon his widow Reshma Purbain, who executed a registered Will dated 14.08.1948 in favour of her four grandsons. It is submitted that the said Will was subsequently probated and, upon the death of the other co-sharers, the entire property devolved upon Jageshwar Mandal, who validly executed the registered sale deeds dated 07.01.1987 in favour of the plaintiffs, whereupon possession was also delivered. It is further submitted that although the appellants had raised claims over the suit land, the proceedings under Sections 144 and 145 of the Cr.PC culminated in an order directing the parties to seek adjudication before the Civil Court, compelling the respondents to institute the present suit for declaration of title, confirmation of possession and consequential relief.

15.i. Learned counsel for the respondents further submitted that the principal defence now sought to be advanced by the appellants stood completely demolished by their own pleadings. It is contended that in the written statement the appellants unequivocally admitted the averments made by the plaintiffs that Dayanand Mandal had acquired C.S. Plot No. 477 through a registered sale deed dated 04.04.1917 as his self-acquired property and also admitted the pleadings relating to Lalji Purbey’s share and possession over C.S. Plot No. 476. It is submitted that in view of such clear and unambiguous admissions contained in the written statement, by virtue of Section 58 of the Indian Evidence Act, 1872, (hereinafter referred to as ‘Act’) the respondents were not required to adduce any further evidence to prove those admitted facts. It is also submitted that the appellants were estopped from taking a contrary stand during the appeal by contending that Dayanand Mandal was a minor or that Lalji Purbey had no concern with Plot No. 476, such inconsistent pleas being barred by the doctrine of estoppel arising from admissions in pleadings. Consequently, the challenge to the respondents’ (plaintiffs’) title over both the suit plots were wholly untenable.

15.ii. Learned counsel for the respondents next submitted that the learned Trial Court rightly appreciated the oral and documentary evidence while deciding the issues relating to title and possession. He submitted that the documentary evidence, including the Khesra Panji, the registered sale deeds, the probate proceedings, the Will and the admissions made by the appellants in cross-examination, clearly established that Lalji Purbey had a share in C.S. Plot No. 476 and that the southern boundary of Plot No. 477 consistently described the adjoining land as the Bakast land of Lalji Purbey. It is further submitted that even the Will executed by Reshma Purbain was witnessed by Rash Bihari Purbey, an ancestor of the appellants, thereby demonstrating their knowledge of the title of Lalji Purbey and his successors. Learned counsel also pointed out that despite admittedly acquiring knowledge of the registered sale deeds dated 07.01.1987 immediately after their execution, the appellants never instituted any suit for cancellation or declaration against those sale deeds within the prescribed period of limitation. Accordingly, the title of the plaintiffs (respondents herein) flowing from the said registered conveyances remained unimpeached and fully operative in law.

15.iii. Lastly, learned counsel for the respondents submitted that the appellants had failed to demonstrate any perversity or legal infirmity in the appreciation of evidence by the learned Trial Court so as to warrant interference in a first appeal. It is submitted that the revenue entries relied upon by the appellants neither created nor extinguished title and, therefore, could not override the evidence establishing the lawful title of the plaintiffs (respondents herein). It is further contended that the application filed by the appellants under Order XLI Rule 27 of the CPC for adducing additional evidence deserved rejection since it sought merely to fill up lacunae in the defence and was unsupported by the exceptional circumstances contemplated under the provision. In support of the aforesaid submissions, reliance was placed upon Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and Ors., reported in (1974) 1 SCC 242; AIR 1974 SC 471, on the binding nature of admissions in pleadings; the Full Bench decision reported in 1974 PLJR 27 and Guru Amarjit Singh v. Rattan Chand and Ors., reported in (1993) 4 SCC 349; AIR 1994 SC 227, holding that revenue entries are not documents of title; Madhusudan Das v. Smt. Narayani Bai, reported in AIR 1983 SC 114, regarding the limited scope of appellate interference with findings of fact; and Govind Singh v. Union of India, reported in 2026 INSC 211, following Union of India v. Ibrahim Uddin and Anr., reported in (2012) 8 SCC 148, laying down the restrictive principles governing reception of additional evidence under Order XLI Rule 27 of the CPC. It is, therefore, prayed that the present first appeal be dismissed and the judgment and decree passed by the learned Trial Court be affirmed.

Having heard the learned counsel for the parties at length and upon careful perusal of the pleadings, oral and documentary evidence available on the record, the impugned judgment and decree, as well as the rival submissions advanced on behalf of the parties, this Court is of the considered view that the following points arise for determination in the present first appeal:

Before adverting to the merits of the rival contentions, it would be apposite to notice the scope of a first appeal under Section 96 of the CPC. A first appeal is a valuable statutory right wherein the Appellate Court is both a Court of fact as well as of law. It is, therefore, incumbent upon the Appellate Court to independently re-appreciate the entire oral and documentary evidence on record, examine the findings returned by the learned Trial Court and arrive at its own conclusions on the issues arising in the appeal. At the same time, where the findings recorded by the learned Trial Court are based upon a proper appreciation of evidence and do not suffer from perversity, misreading of evidence, or any error of law resulting in miscarriage of justice, the Appellate Court would be slow to interfere merely because another view is possible on the same set of evidence. In the present case, this Court has, therefore, undertaken an independent scrutiny of the pleadings, evidence and the reasoning assigned by the learned Trial Court to determine whether the impugned judgment and decree suffer from any legal or factual infirmity warranting interference in exercise of the appellate jurisdiction under Section 96 of the CPC.

The general rule is that the Appellate Court should permit the finding of fact rendered by the learned Trial Court to prevail unless the learned Trial Court fails to consider the evidence and materials on record to reach on the said finding and the same is improbable. The Hon’ble Apex Court in Madhusudan Das (supra) has held that:

Moreover, the Hon’ble Apex Court in Santosh Hazari v. Purshottam Tiwari, reported in (2001) 3 SCC 179, has observed as under:

Accordingly, this Court has independently examined the pleadings of the parties, the oral and documentary evidence adduced before the learned Trial Court, the impugned judgment and decree, as well as the submissions advanced on behalf of the respective parties. The dispute essentially centers around the rival claims of title over C.S. Plot Nos. 476 & 477 of Mauza- Damodarpur detail description of the landf provided under schedule II of the plaint. While the plaintiffs claim title through Lalji Purbey, the registered Will dated 14.08.1948, the probate proceedings and the subsequent registered sale deeds executed by Jageshwar Mandal on 07.01.1987, the appellants traces his title through Ram Lal Purbey and the registered sale deed dated 10.04.1924. Therefore, the burden was upon the parties to establish the validity of their respective claims by cogent and reliable evidence.

Upon a careful scrutiny of the materials available on record, it appears that the learned Trial Court has placed reliance upon the contemporaneous documentary evidence, particularly the Cadastral Survey Khesra Panji, the registered sale deed dated 21.04.1917 (Ext. 2/C), the registered Will executed by Reshma Purbain, the probate proceedings and the subsequent registered sale deeds dated 07.01.1987. These documents consistently indicate that Lalji Purbey had an identifiable and separate interest over the northern portion of C.S. Plot No. 476 and that after his demise, the said property devolved upon his successors, who ultimately transferred the same in favour of the plaintiffs. Significantly, the recital in the registered sale deed relied upon by the appellants himself also describes the southern boundary of Plot No. 477 as the Bakast land of Lalji Purbey, thereby lending substantial corroboration to the plaintiffs’ case.

Further, in para no. 19 of the written statement it is clearly admitted that para no. 18 of the plaint is correct, which distinctly indicate the admission on the part of the defendants/appellants that the suit land to be the Bakast land (ancestral land) of the plaintiff and also by purchase by his ancestor and S.P. no. 476 was allotted to Lalji Purbey exclusively as his Bakast land over which he had residential house, Bari and several kinds of trees and Lalji purbey remained in possession without any interruption of anyone. Moreover, it is also admitted that from sale deed no. 1308 of 1917 executed by Bhaio Purbey to Dayanand Mandal and sale deed no. 1282 of 1924 executed by Ram Pratap Purbey to Ram Bilash Purbey and record of C.S. khesra bearing no. 477 confirm Lalji Purbey was in possession of south part of S.P. No. 477 that is S.P. No. 476 measuring area 19 katha 17 dhur from all these facts it is evident that that Lalji Purbey acquired indefeasible and prescriptive right title and possession.

Law has been well settled with respect to the burden of proof in title suit, as held by the Hon’ble Apex Court in Vasavi Co-operative Housing Society Ltd. (supra), as under:

It further transpires from the records that the appellants have failed to produce any convincing documentary evidence demonstrating that the entirety of Plot No. 476 exclusively fell to the share of Ram Lal Purbey in the alleged pre-Cadastral Survey partition. Despite asserting that the Cadastral Survey records stood exclusively in the name of Ram Lal Purbey, no corresponding Khatian or contemporaneous record substantiating such plea has been produced. On the contrary, the documentary evidence relied upon by the plaintiffs and the admissions elicited during the cross-examination of Defendant 1^st party probabilise the plaintiffs’ case that Lalji Purbey possessed an independent share in the disputed property.

The learned Trial Court has, therefore, rightly rejected the plea of the Defendant 1^st party (appellants herein) regarding exclusive title over Plot No. 476.

The Hon’ble Apex Court in Nagindas Ramdas (supra) has observed as under:

So far as Plot No. 477 is concerned, the registered sale deed dated 21.04.1917 unequivocally records the acquisition of the property in the name of Dayanand Mandal. The contention of the appellants that Dayanand Mandal was a minor and that Bulaki Mandal was competent to transfer the property under the registered sale deed dated 10.04.1924 has rightly not found favour with the learned Trial Court. Apart from making such assertion, no reliable documentary evidence has been produced by the appellants to conclusively establish the minority of Dayanand Mandal on the date of acquisition or to demonstrate that Bulaki Mandal possessed any lawful authority to alienate the property. Equally significant is the fact that the sale deed dated 07.01.1987 executed by Jageshwar Mandal in favour of the plaintiffs remained unchallenged by the appellants for decades, despite his admitted knowledge thereof, thereby lending further strength to the title of the plaintiffs.

However, it is to be noted that the reliance put on by the appellants upon revenue records are not sufficient to establish title. The Hon’ble Apex Court in Guru Amarjit Singh (supra) has held that the revenue entries neither create nor extinguish title. The Hon’ble Apex Court has observed as under:

The evidence on record further discloses that the vendor of the plaintiffs, namely Jageshwar Mandal, entered appearance as Defendant 2^nd party and unequivocally supported the case of the plaintiffs by admitting the execution of the registered sale deeds, receipt of consideration and delivery of possession. The oral evidence of the plaintiffs’ witnesses regarding possession is also corroborated by the Amin’s report and other documentary evidence. The learned Trial Court has undertaken an elaborate discussion of the evidence of the respective witnesses and assigned cogent reasons for accepting the evidence adduced on behalf of the plaintiffs while discarding the inconsistent version projected by the appellants. This Court does not find any material contradiction or perversity in such appreciation of evidence.

The Hon’ble Apex Court in Prem Singh and Ors. v. Birbal and Ors., reported in (2006) 5 SCC 353, has observed that a registered deed remains operative until avoided in accordance with law and the same carried a presumption of validity. It has been held as under:

Moreover, the submission of the appellants that the learned Trial Court erred in relying upon the probate proceedings and the Will also does not merit acceptance. The probate order, coupled with the registered Will and the surrounding documentary evidence, has been considered by the learned Trial Court not in isolation but along with the entire chain of title and possession. Likewise, the reliance placed upon revenue receipts and survey slips by the appellants is of little assistance, as such revenue entries are not documents of title and cannot, by themselves, displace the effect of registered conveyances and other substantive evidence establishing ownership. The conclusions arrived at by the learned Trial Court are thus founded upon a holistic appreciation of the evidence on record.

Moreover, it is well established law that the contents of documents may be proved either by primary evidence or by secondary evidence which has been provided under Section 61 of the Act. Further, Section 63 of the Act provide the meaning of secondary evidence. Section 63 of the Act read as under:

The Hon’ble Apex Court in the case of Kalyan Singh v. Chhoti AIR 1990 SC 396 held that “when the document is registered, the ordinary copy is not admissible as secondary evidence. So, only certified copy of a registered copy is to be admitted as secondary evidence in the absence of the original deed”. In the instant case the additional evidence produced by the appellants under Order XLI Rule 27 of the CPC, including the Cadastral Survey Khatian, map, old registered sale deeds and rent fixation records is not the certified copy of the document so the additional evidence is not admissible.

Subsequently, this Court finds no merit in the application filed by the appellants under Order XLI Rule 27 of the CPC. The additional documents sought to be produced were admittedly old documents, and the appellants have failed to establish that, despite exercising due diligence, the same could not have been produced before the learned Trial Court. More importantly, this Court is satisfied that the evidence already available on record is sufficient for an effective adjudication of the controversy and that the proposed additional evidence is neither indispensable for pronouncing judgment nor falls within any of the contingencies contemplated under Order XLI Rule 27 of the CPC. The application, therefore, deserves rejection.

The Hon’ble Supreme Court in Ibrahim Uddin and Anr. (supra) has observed with respect to remissness in not producing evidence in Trial Court, as under:

In view of the foregoing discussion and upon an independent reappraisal of the entire evidence available on the record, this Court is of the considered opinion that the learned Trial Court has meticulously appreciated the evidence in its proper perspective and has recorded findings which are based on cogent reasons and supported by the materials on record. The appellants have failed to demonstrate that the findings recorded by the learned Trial Court suffer from any perversity, illegality, misreading of evidence or erroneous application of law warranting interference by this Court in exercise of its appellate jurisdiction under Section 96 of the CPC. This Court finds itself in complete agreement with the conclusions arrived at by the learned Trial Court. Consequently, all the points for determination are answered against the appellants and in favour of the plaintiffs/respondents.

In view of the aforesaid facts, circumstances, and settled principles of law coupled with the mandate of law as enumerated by the Hon’ble Apex Court, this Court is not inclined to reverse the findings arrived at by the learned Trial Court after discussing the oral and documentary evidence. The learned counsel for appellants has not succeeded to convince this Court that impugned judgment and decree passed by the learned Trial Court is not sustainable in the eyes of law. The learned Trial Court has rightly decided the issues and the findings so given are quite correct and proper which requires no interference by this Court. The judgment and decree passed by the learned Trial Court is sustainable in law.

Accordingly, the impugned judgment dated 12.12.2008 and decree dated 23.12.2008 passed by the learned Subordinate Judge 1^st, Rosra, Samastipur in Title Suit No. 35 of 2002 stand intact. The findings of the learned Trial Court in the impugned judgment and decree are hereby affirmed.

Resultantly, the present First Appeal No. 13 of 2009 being devoid of merit, is hereby, dismissed.

The Interlocutory Application(s), if any, stands disposed of.

If any interim order or injunction order passed regarding disputed land be deemed to be set aside in the light of above findings.

Let the Trial Court records be transmitted forthwith along with a copy of this judgment to the concerned Court for needful.

There shall be no order as to costs.