Pnnia Sethi vs Khetramohan Mohanty and Others

S. Acharya, J.—The unsuccessful Plaintiff in both the Courts below has preferred this second appeal.

The suit land admittedly belonged to one P. Nageswar Rao. According to the Plaintiff, P. Nageswar Rao sold the suit land along with some other lands to the Plaintiff by the registered sale deed Ext. 4 dated 5-1-1943 and delivered possession of the same to the Plaintiff, and the Plaintiff, since the date of purchase, has all along been in possession of the same. The Plaintiff, after purchasing the same, sold the house, which was on one of the plots purchased by him to some other person, but remained in possession of the suit and the rest - of the property purchased by him under Ext. 4 Defendant No. 3 purchased the plot of land adjacent to the suit property, from P. Nageswar Rao, and after purchasing the same he and his agents, Defendants 1 and 2, tried to forcibly construct a house on the suit property. Hence this suit for declaration of title, confirmation of possession and for permanent injunction restraining the Defendants from entering upon the suit land.

Defendants 1 and 3 in their joint written statement allege that the suit site is a part of the lands covered under the sale deed Ext. A executed by P. Nageswar Rao in favour of Defendant No. 3, and the Defendants are in possession of the suit land and all that Defendant No. 3 purchased under Ext. A. According to them, the Plaintiff did not purchase the suit site, and if he purchased the same he was neither given possession nor was he even in possession of the same. They also allege that they are not aware of any sale of the suit site in favour of the Plaintiff. They deny the Plaintiff''s allegation of trespass on the suit site and allege that they are in continuous possession of the property purchased by them since 1944.

Both the Courts below, on an incorrect and illegal approach to the evidence on record and on a wrong notion of the law on the subject, have arrived at the finding that the Plaintiff has not been able to prove the execution of the sale deed Ext. 4 in this case, and only on the basis of that incorrect finding they hold that the Plaintiff''s title to the suit land has not been proved. Moreover, the trial Court, without any convincing discussion and consideration of the evidence on record, and proceeding on the basis that the suit site being a vacant site is not capable of any physical possession, has arrived at the finding that the Plaintiff is not m possession of the suit site. The appellate Court has not given any finding regarding the possession of the suit site by any of the parties.

It must be noted at the outset that the Defendant in their written statement do not specifically allege that the said sale deed, under which the Plaintiff asserts his title to the suit land, was not executed by P. Nageswar Rao. They only say that they do not know anything about such a sale deed, and even if any such sale was effected by P. Nageswar Rao, the Plaintiff was not given possession of the suit land. As execution of the said sale deed, Ext. 4, by P. Nageswar Rao was not specifically denied by the Defendants, it was left to the Plaintiff to prove that document in any manner permissible under the law. The Plaintiff, examined as P.W. 2 has categorically stated that in his presence the executant signed the sale deed Ext. 4. No doubt, he is a person who can just sign his name. On that ground the Courts held that he is incapable of proving the execution of the document. An illiterate person can prove the fact that another person scribed a particular document or appended his signature to the same, if really the former saw the latter actually writing that document and/or putting his signature to the same. Section 67 of the Evidence Act provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person''s handwriting must be proved to be in his handwriting. Section 67, therefore, does not lay down that the signature and/or the handwriting on a document must be proved only by a literate person. 1 he fact that a particular person wrote out or appended his signature on a particular document can be proved by the direct evidence of those in whose presence the document was written out or signed, irrespective of the fact whether the latter is an illiterate or literate person. A document executed by an illiterate person by affixing his thumb mark can be and is generally proved by a witness who saw the executant putting his thumb mark to the said document. In that case it is not required of that witness to say that he identifies that thumb mark because of the peculiar feature in it or because he has acquired special knowledge for identifying finger prints.

In Bheek Chand and Others Vs. Parbhuji, , it has been held as follows:

.... Section 67 of the Evidence Act does not lay down any particular kind of proof for proving that a particular writing or signature is in the hand of a particular person. The fact that a particular person has written a particular writing can be proved by the direct evidence of those persons who have seen him making the writing on the particular document irrespective of whether or not they can read what was written. It has to be remembered that a document can be executed not only by affixing one''s signatures, but also by making a mark on it. When a document bearing a thumb mark of a person is proved it is not necessary that the person proving the affixation of the thumbmark should be able to identify the thumb-mark. All that is required is that he should be able to identify the document on which he states that the thumb mark was affixed....

On stating the law as above on the point it was held in that case that the Court below committed serious error in holding that a person not knowing English or Sindhi himself could not prove that the writings in English cr Sindhi were made by the scribe.

In Gajraj and Ors. v. Board of Revenue 1966 All. L.J. 149, it has been held:

In order to prove the writing of a person it has been held that it is not necessary that the person must know the language in which the document has been written. If he has deposed that execution had been made in his presence and he had seen the executant putting his signature in his presence it has been held that the document stands proved. On the same reason if a person is illiterate and has seen somebody putting his signature on a document in his presence, in my opinion he has proved that document.

The above mentioned views fully accord with my view on this point.

Mr. Mohapatra, the learned Counsel for the Respondents, cited the decisions reported in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , Nagendra Prasad Vs. Kempananjamma, and Salaik Chand and Others Vs. Mt. Tamiz Bano and Others, in support of his contention that a person who is not able to identify the signature or the writing of a person and/or who is an Illiterate person cannot prove the writing of a document by the scribe or the executant thereof. The a bow-mentioned decisions are not directly on the point, and the documents in respect of which those decisions were arrived at were all special types of documents which were required to be proved in accordance with the provisions of Sections 68 to 71 of the Evidence Act. Documents of the nature specified u/s 68 of the Evidence Act have to be proved in the special manner prescribed under Sections 68 to 71 of the Act, and so considerations requiring the proof of such documents will not apply to other ordinary documents which are to be proved as per Section 67 of the Evidence Act.

In this case the Plaintiff (P.W.2), who had filed the sale deed Ext. 4, has testified to the fact that the executant of the sale deed Ext. 4 signed the deed in his presence. As stated earlier, the Defendants in their written statement did not challenge the fact that the sale deed had not been executed by P. Nageswar Rao. So it was not necessary for the Plaintiff to prove that actually P. Nageswar Rao and none else, executed the deed. In the context of the facts averred in the Written statement it was sufficient if the witness could identify the deed and he could say that the executant signed the deed in his presence The Plaintiff''s admission of the fact that he could not identify all the signatures in, the sale deed is of no consequence.

Mr. Mohapatra urged that the Plaintiff had not seen the execution of the sale deed as he in cross-examination stated that The sale deed was written in Telgu. There is no substance in the said submission. The Plaintiff''s statement that the sale deed was, executed in his presence has not been successfully assailed in cross-examination and the Plaintiff himself filed the sale deed in the trial Court. The sale deed has been written in Oriya, but the signature of the executant therein is in Telgu. From all these and from the context which the above-quoted sentence appears it is quite evident that the Plaintiff by that sentence wanted to say that the sale deed was signed in Telgu.

Before registering a document the registering officer as per Section 34 of the Registration Act has to enquire whether or not the document was executed by the person by whom it purports to have been executed. Therefore it must be presumed, until the contrary is proved, that due enquiry was made about the identity of the executant. That presumption corroborates the Plaintiff''s evidence that P. Nageswar Rao executed the sale deed Ext. 4.

On the above considerations and on the evidence on record I am satisfied that the execution of the sale deed Ext. 4 has been proved in accordance with law, and the finding of the Court below, that the said document has not been proved, is incorrect and has to be set aside.

As stated above, both the Courts below have dismissed the Plaintiff''s suit on the sole basis of their incorrect finding that the said sale deed has not been proved in this case, and they have not discussed any other aspects of the case. The finding of possession in paragraph 6 of the trial Court''s judgment is rather abrupt, slipshod, and is without discussion or consideration of the relevant evidence on record. The appellate Court has not at all given any finding to that effect. On the finding that Ext. 4 has been proved in accordance with law, it is necessary to decide all the other issues framed in this case: It is stated by the learned Counsel appearing for both the parties that once it is held that Ext. 4 has been proved in this case it would be meet and proper to remand this case to the Court below for disposal on deciding, on a proper assessment of the evidence on record, all the other issues involved 10 the case. As the Courts below have not at all applied their mind to the other aspects involved in this case I deem it proper to remand this case to the first appellate Court for early disposal of the same in accordance with law keeping in view the abovementioned finding that Ext. 4 has been properly proved in this case.

In the result, therefore, the appeal is allowed, the judgment and decree of the Courts below are set aside and the case is remanded to the first appellate Court who on giving an opportunity of hearing to both the parties should dispose of the matter in accordance with law on the evidence already on record keeping in view the findings and observations in this judgment. Costs will abide the final decision in the case.