Sudhan Debbarma And Ors vs Arun Debbarma And Ors

[1] Heard Mr. A De, learned counsel appearing for the appellant and Mr. D.K Biswas, and Mr. G K Nama, learned counsel appearing for the respondents No. 1 to 5 and the respondents No.6(a) and 6(b).

[2] This is an appeal under Section100 of the CPC from the judgment dated 24.07.2018 delivered in Title Appeal No.40 of 2015 by the Additional District Judge, Court No.4, West Tripura, Agartala. The pre-admission notice was issued and all the parties are thus before this court, even though presence of the respondents at this stage is not required. The following substantial questions of law, as re-phrased, have been proposed by the appellants:

(1) whether a copy of Chita Khatian in respect of Jote No.71 (Exbt-1) which has been obtained under the Right to Information Act is admissible straight way in the evidence?.

(2) Whether for non-payment of fees as required under Section76 of the Indian Evidence Act or under Section49 of TLR & LR Act, the Chita Khatian (Exbt-1) is inadmissible in evidence?.

[3] The other substantial questions as proposed under Section100 (4) of the CPC are not substantial questions of law as those questions are structured inquiry to the pure and simple questions on fact and are therefore discarded.

[4] It further appears from the memorandum of appeal that the proposed substantial questions of law are embedded in the question of admissibility of the documents obtained through the process of Right to Information Act. That has emerged to be the foundation to challenge the said judgment. However, before this court proceeds further, it is apposite to refer to the substantial questions of law as proposed by the appellants.

[5] Section76 of the Evidence Act provides that 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 therefore, 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 authorised by law to make use of a seal, and copies so certified shall be called certified copies. Any officer who by the ordinary course of official duty, is authorized to deliver such copy shall be deemed to have the custody of such documents within the meaning of the said provision. No doubt, Chita Khatian is a public document. Whenever the 'certification' is made in the manner as prescribed under Section 76 of the Evidence Act, it turns to be certified copy the said document, available with the memorandum of appeal, being marked as Annexure-2.

[6] It appears that the State Public Information Officer (SPIO) the Deputy Director, Land Records and Settlement, Govt. of Tripura has certified the document as 'true copy' following the due process of comparison and preparation. Section49 of the TLR & LR Act, 1960 has provided the mode in respect of granting certified copies as under:

Certified copies of entries in the record of rights may be granted by such officers and on payment of such fees as may be prescribed.

[7] This provision is in respect of Records Of Right (ROR) within the meaning of TLR & LR Act, 1960 and only in respect of the records of right as created under the provisions of TLR & LR Act. A Chita Khatian is no doubt an equivalent of record of land in the pre-TLR and LR Act regime, but this cannot be termed as a record of right within the meaning of TLR & LR Act, 1960. The State Public Information Officer (SPIO) is a public officer having control and custody over records including the public document and he is competent to disclose such document subject to restriction enforced by the Right to Information Act. The copy of such records is supplied on payment as prescribed by the rules made under the Right to Information Act.

[8] It has been witnessed that a certificate has been given by the State Public Information Officer stating that the said document is a true copy and he has subscribed his name and official title. That apart, the official seal as a proof of his authority, has been used on such copy. The fundamental question that thereafter arises is that whether within the meaning of Section76, a Chita Khatian (Exbt-1) can be treated as a certified copy for the reason that process of authentication as provided by Section76 of the Evidence Act has been strictly observed.

[9] Before this court proceeds to appreciate the principal substantial question of law as proposed, the resume of facts relevant in the context may be noted. The appellants instituted the suit being Title Suit no.179 of 2013 in the court of Civil judge, Senior Division, West Tripura, Agartala (Court No.1) for declaration of right, title and interest over the land measuring 3.22 acre comprised in old Chita Khatian no.71 corresponding to present khatians No. 1418/1 and 1418/2 pertaining to old plot No.442, corresponding to CS Plots No.6262, 6264, 6265, 6266, 6267, 6268 and 6263 situated at Mouja Teliamura under Teliamura Revenue Circle, Khowai Distict, herein after referred as the suit land. In the suit, recovery of possession evicting the defendants (the respondents herein) by removing all obstructions has been asked for, as consequential relief.

[10] One Ram Singh Tripura, grand-father of the plaintiff was the owner in possession of the land measuring 60 kanis under Pulinpur, Pargana Birchandrapur, Khowai and that land was recorded in Chita Khatian No.71 in the year 1347 Tripuraabdo (Tring). The suit land is the part and parcel of that 60 kanis of land. The ancestors of the plaintiff had allowed Baisharat Debbarma, Bisha Ch. Debbarma and others to reside and look after the suit land. Bisha Ch. Debbarma had managed to record his name illegally against the suit land in the record of right. (see Khatian No516) and he permitted one Bisharat Debbarma to reside in the said suit land. Bisharat Debbama had managed as well to get his name recorded in the record of right. After death of Bisharat Debbarma, his legal heirs, the defendants No. 1 to 5 and legal heirs of Bisha Ch. Debbarma, the defendant No. 6 [now represented by his legal heirs, the defendants No. 6 (a) and 6(b)] continued the possession and refused to vacate the land on demand.

[11] The plea of the plaintiff is that their grandfather never transferred the said land in favour of the defendants or their predecessors. The creation of the khatians are grossly illegal and those cannot be treated as valid document for any purpose. The plaintiffs made a robust attempt for correction of the records of right. On their complaint on 19.09.2011, the District Collector initiated a revision case being Revenue case No. 365 of 2011 under Section95 of the TLR & LR Act. Finally, the said proceeding was dismissed by the District Collector, Khowai having the said proceeding been transferred to him for bifurcation of the erstwhile West Tripura District. Even the land has been demarcated by the Sub-Divisional Magistrate, Teliamura. The plaintiffs were advised that the nature of dispute as raised can only be decided by a civil court of the competent jurisdiction and the suit was therefore instituted by the plaintiffs.

[12] The defendants by filing the written statement denied the allegation of illegality and has categorically stated that Bisharat Debbarma, the predecessor in interest, had the title and he was in possession of the suit land along with other land. After death of their predecessor, the defendants succeeded the property and following the due process, the record of right has been mutated. They have denied that the predecessor of the defendants No.6(a) and 6(b) [the defendant No.6] was a permissive occupier of a piece of land measuring 0.01 acre under Khatian No. 1418.

[13] Having appreciated the rival pleadings, the issues were framed and those are as follows:

(1) Is the suit maintainable in its present form and nature;

(2) Have the Plaintiffs have any cause of action to institute the instant suit;

(3) Whether the Plaintiffs have any right, title and interest over the suit land;

(4) Whether the Plaintiffs are entitled to get a decree, as prayed for;

(5) What other relief/reliefs the parties are entitled to get?

[14] It appears that in support of their claim on title, the plaintiff only produced the copy of the chita Khatian of jote no. 71 standing in the name of Ram Singh Tripura containing 22 sheets (Exbt-1). On the other hand, the defendant admitted the certified copies of Khatian bearing 1411/1, 1418/2 of Mouja Teliamura (Exbt- A series) in the evidence, the certified copy of the order dated 14.05.2013 delivered in Revenue case No.365 of 2011 (Exbt-B series), original copy of the registered sale deed bearing No. 1-3640 dated 18.11.1960 (Exbt-C), certified copy of the order dated 06.10.1969 (in four sheets) in connection with case No.50 of 1969 (Exbt-D series), the certified copy of Khatians bearing No.993, 966, 927, 930, 928, 909, 955, 972, 1197, 1185 of Mouja Teliamura (Exbt-E Series). Maintainability of the suit was not a serious question and as such the civil court decided issues No. 1 and 2 in favour of the plaintiffs.

[15] By the judgment dated 12.08.2015, the suit was dismissed observing that the only document in support of title as adduced in the evidence is the chita Khatian No.71 (Exbt-1 series). The trial judge has recorded the following reasons for not accepting that document as admissible:

"The object of enacting Right to Information Act is to provide for setting out practical regime of right to information for citizens to secure access to information under the control of Public Authorities in order to promote transparency and accountability in the working of every public authority. Hon'ble Supreme Court in the case of Institute of Chartered Accountants of India Vs. Shaunak H. Satya reported in AIR 2011 SC 3336 had stated, inter alia, the object of the Act is to harmonise the conflicting public interests, i.e., ensuring transparency to bring an accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information in actual practice does not harm or adversely effect other public interest which include efficient functioning of the Governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand.

No provisions either in the RTI Act nor in the rules made thereunder has been made to show that the information obtained through right to information Act are admissible in evidence in any judicial proceeding or in any other proceeding requiring judicial scrutiny. However, the Exbt.1 appears to have been certified to be a true copy by the Officer concerned appointed on the strength of the provisions contained in the RTI Act. A question, therefore, definitely arises whether the certified copy furnished under the provisions of RTI Act is a certified copy within the meaning of Indian Evidence Act. To have an answer of it let's have a reference to Section76 of the Indian Evidence Act which talks about certified copies. The text of Section76 runs as under:-

"S.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. "

Section76 of Indian Evidence Act as extracted herein above enacts that the custodian of a public document which any person has a right to inspect shall give a certified copy on demand on payment of legal fees. Section77 says that such certified copies may be proved in proof of the contents of the public documents or their parts. The certified copies are by statute deemed to be originals. The use of word " may" in Section77 led us to hold the view that production of certified copies is only one mode of proof. If then, a certified copy should for want of some formality ceased to be a certified copy.

It is a fact that the Exbt. 1( series) being the entries in the Revenue Record are the public documents which have been obtained from the Office of Land Records and Settlement, Govt. of Tripura, Agartala and they are the proper custodian of the documents. The Office of the Director of Land Records and Settlement, Govt. of Tripura, Agartala is/are also authorised to furnish certified copies of entries in the record of right on payment of fees as per Section49 of the TLR & LR Act. No such fees appears to have been charged /paid while the copies of those documents were obtained. Therefore, Exbt.1( series) cannot be held to be the certified copies within the meaning of Section76 of the Indian Evidence Act.

It is a fact that the certified copies of Public document can be produced as Secondary evidence of public document and such document produced can be presumed to be genuine as per Section79 of the Indian Evidence Act. In that event the copies so produced must be the copies within the meaning of Section76 of the Indian Evidence Act. The copies of the documents as furnished through Right to Information Act can be said to have furnished just for information of the parties and not for any other purpose and that is why the legal fees occurring in Section76 of the Indian Evidence Act or the fees prescribed under the TLR &LR Act and rules made there-under was not charged while the copies were furnished. Fees,if any,charged for furnishing those copies that may considered to be the fees prescribed under RTI.Act for preparation of photocopies through mechanical process,but not the stamp duty payable under the TLR & LR Act. Situated thus, we hold that the Exbt. 1( series) having obtained without observing legal formalities held to be inadmissible and cannot be acted upon. [Emphasis added]

[16] The said finding in the judgment dated 12.08.2015 has been affirmed by the first appellate court by observing as under:

"It is also clear that the plaintiff-appellant failed to show any provision of the Right to Information Act or rules, made wherein it is stated that information obtained through Right to Information Act are admissible as primary evidence in any judicial proceeding or in any other proceeding requiring judicial scrutiny." [Emphasis added]

[17] Having held thus, the the appellate court returned the finding that there is no infirmity in the decision arrived by the Civil Judge Senior Division. Against the said finding of affirmation, the present appeal has been structured, particularly on the proposed substantial question of law as re-phrased and noted above.

[18] Mr. A De, Learned counsel appearing for the appellant has quite emphatically submitted that the first appellate court has affirmed the finding of the trial judge as reproduced before, that the quthenticated copies of Chita Khatian (Exbt-1 series) being the entries in the revenue records has been procured from the office of Land Records and Settlement, Govt. of Tripura, Agartala as the said office is the custodian of those records. The Director of Land Records and Settlement Govt. of Tripura, is also authorised to provide the certified copies of the those entries on payment of fees prescribed. In terms of Section 49 of TLR& LR Act, as no such fees appear to have been charged/while the copies of those document were obtained the copies (Exbt-1 series) cannot be held to be the certified copies within the meaning Section 49 of the TLR & LR Act, even not under Section 76 of the Indian Evidence Act.

[19] The civil judge has further observed that the certified copy of the public document can be produced as the secondary evidence of public document and such document so produced can be presumed to be genuine as per Section79 of the Indian Evidence Act. In that event the copies so produced be treated as the copies within the meaning of Section 76 of the Indian Evidence Act. Fees if any charged, for furnishing those copies under the Right to Information Act are the costs for preparation of photocopying but not the stamp duty payable under TLR & LR Act. Hence, the civil judge has denied to consider those copies (Exbt-1 series) as admissible or to act thereupon.

[20] Mr. De, learned counsel quite strenuously submitted that the first appellate court has simply affirmed the said observation copiously. The first appellate court has thereafter observed that copies of the document [Exbt-1 series] as furnished to the plaintiffs under the RTI Act can be said to have furnished as 'information' and not for any other purpose. Fee as prescribed were as copying cost, not as the stamp duly payable under the TLR & LR Act. It has been observed by the first appellate court:

"Situated thus we hold that the Exbt-1 series having obtained without observing legal formalities held to be inadmissible and cannot be acted upon."

[21] As consequence of the above observation, the first appeal filed by the appellant was dismissed. Mr. De, learned counsel has submitted that those are completely mechanical observations. The copies obtained under the RTI Act, 2005 can be admitted as the secondary evidence. In support of this contention, Mr. De, learned counsel has referred to a decision of the Madhya Pradesh High Court in Narayan Singh Vs. Kallaram @ Kalluram Kushwaha and Others reported in 2015 (2) MPLJ 337 where it has been observed as follows:

"7. I deem it proper to reproduce the relevant provisions of Evidence Act and the Act of 2005 before dealing with rival contentions of the parties.

Section 65 (f) of Evidence Act reads as under: "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;

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible."

"Right to Information" is defined in Section2 (j) of the Act of 2005. Relevant portion reads as under:-

"(j) "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to- -

(i) xx xx xx

(ii) taking notes, extracts, or certified copies of documents or records.

Clause (f) of Section 65 of Evidence Act makes it crystal clear that a certified copy permitted under the Evidence Act or by any other law in force can be treated as secondary evidence. Right to Information Act, in my view, falls within the ambit of "by any other law in force in India". The definition of "right to information" makes it clear that certified copies of documents are given to the citizens under their right to obtain information. In my view, the court below has rightly opined that the documents can be admitted as secondary evidence. I do not see any merit in the contention that the documents obtained under the Act of 2005 are either true copies or attested copies. The definition aforesaid shows that the same are certified copies. Even otherwise, it is interesting to note that in Black Dictionary, the meaning of "certified copy" is as under:-

"Certified copy" - a copy of a document or record, signed or certified as a true copy by the officer to whose custody original is entrusted."

Since the documents are covered under Section 65 of the Evidence Act, there was no need to compare the same with the originals." [Emphasis added]

[22] Mr. D.K. Biswas, learned counsel appearing for the respondents while defending the judgment of the first appellate court has, with leave of the court submitted quite categorically that when the primary evidence, in compliance of the requirement of Section 64 of the Evidence Act, cannot be produced a certified copy or a mechanical copy can be admitted in the evidence, subject to fulfilling the condition as laid down in Section 65 of the Evidence Act. Section 65 of the Evidence Act can be applied (a) when the original is sown 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 if any person legally bound to produce it, and when after the notice mentioned in Section 66 such person does not produce it, (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 and when the party offering evidence of its content 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 be easily moveable, (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 the Act, meaning the Indian Evidence Act, or by any other other law in force in India, to be given in evidence, or by any other law enforceable in India (g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved in the general result of the whole collection.

[23] It has been further provided that in cases as illustrated by (a), (c), (d), secondary evidence of the content of the document as admissible In case of (d) the written admission is admissible. In case of (e) and (f), a certified copy of the document, but no other kind of secondary evidence is admissible. In case of (g) evidence may be given as to be general result of the document by any person who has examined them and who is skilled in the examination of such document.

[24] Mr. Biswas, learned counsel has submitted that for purpose of definition of the certified copy of the public document the courts are to be governed by the definition as provided under Section 76 of the Evidence Act. Only such certified copies may be produced in proof of the contents of the public document or part of the public document of which they purport to be the copies.

[25] Mr. A. De, learned counsel in rejoinder has contended that the defendant did not raise any objection as to admissibility of Chita Khatian [exbt-1 series] but the civil judge has declared the said document as inadmissible. Mr. De, learned counsel has therefore submitted that when the defendant did not raise any objection as regards the admissibility of the document, the civil judge ought not have declared the said document as inadmissible.

[26] The two substantial questions of law may also be paraphrased as (1) whether a copy of Chita Khatian which is a public document authenticated by the State Public Information Officer (SPIO) is admissible for proving the contents thereof and (2) whether non-compliance of the provision of Section 76 of the Evidence Act or Section 49 of the TLR & LR Act would denude a document, even though it has been authenticated by a public officer to be termed as the certified copy of the public document as defined under Section 76 of the Evidence Act.

[27] This court has keenly read with all humility the decision in Narayan Singh (supra), but it has appeared that observation made therein is contrary to the provision of Section65 of the Evidence Act as discussed, and particularly read with Section 76 of the Evidence Act. Fundamental burden is understood to have been discharged if the primary evidence meaning the original document itself is produced for inspection of the court. The problem starts when the primary evidence cannot be produced before the court. For that purpose in the Evidence Act a unique provision has been incorporated providing production of the secondary evidence relating of the original document, subject to the conditions as laid down in Section 65 of the Evidence Act. Section 65(e) and Section 65(f) of the Evidence Act are relevant for our purpose as the Chita Khatian is a public document within the meaning of Section 74 of the Evidence Act being the records of the public officer as discussed Section 65(e) and Section 65(f) of the Evidence Act provide that the secondary evidence of the document is admissible as the original is a document of which a certified copy is permitted by the Evidence Act (see Section 76 of the Evidence Act) or by Section 49 of the TLR & LR Act, 1960.

[28] Therefore, implications are obvious. Except the certified copies within the meaning of Section 76 of the Evidence Act or Section 49 of the TLR & LR Act no other copy would be treated as the secondary evidence in the category of the certified copy which falls in the category of the secondary evidence in view of Sections 74, 76, 77, 78 and 79 of the Evidence Act, inasmuch as it has been clearly provided in the cases of Section 65(e) and Section 65(f), a certified copy of the document but no other kind of the secondary evidence is admissible. When a certain procedure is expressly provided by the statute no other procedure can be followed by the court as those procedures are laid down for maintaining the integrity of the document. The words 'a certified copy of the document but no other kind of secondary evidence' as appearing in section 65 of the Evidence in respect of the cases (e) or (f) shall only mean certified copy under Section 76 of the Evidence Act or under Section 49 of the TLR & LR Act or pari materia provisions in any other statute. The provision of the statute means similar provisions [of Section 76 of the Evidence Act] for granting certified copy to serve the purposes of sections 77, 78 and 79 of the Evidence Act. The certified copy as supplied under the RTI Act will fall under any other 'secondary evidence' inasmuch as the distinction between the secondary evidence has to be maintained. It is noteworthy that stamping on each page of certified copy has its value so far the process of authentication is concerned. As such, the copy obtained by the process of Right to Information Act 2005 can be treated as the secondary evidence, but the secondary evidence will serve the category of the secondary evidence viz. the certified copy in view of the express provision of the Evidence act as discussed above.

[29] Hence, the substantial question No. 1 is answered in the negative. The substantial question No.2 has as well to be answered in the negative for the reason that the very provision of Section 76 of the Indian Evidence Act or Section 49 of the TLR & LR Act expressly provide for stamping of the certified copy and payment of fees to be mandatorily made by the person seeking such certified copy. Non-payment of fees would mean that the procedure remained incomplete. The certified copy can only be authenticated by the person authorized to authenticate the certified copy by affixing the seal of authority and recording on the body of the certified copy a certificate. Such process is essential including the process of comparison wherever the same is required. This is not strictly a substantial question as there is no ambiguity in the procedural law.

[30] As the Chita Khatian (Exbt-1 series) has been declared inadmissible, the plaintiff-appellant has failed to prove his title over the suit land. It is to be noted that the process required to be followed by the plaintiffs for admission of any ordinary secondary evidence was not followed. Thus, the suit has been dismissed by the courts below and there is no infirmity in such dismissal.

Having observed thus, this appeal is dismissed being devoid of merit.

Draw the decree accordingly.