Surendra Singh vs B.R.

Rajiv Sharma, J.—Heard Mr. V. K. S. Chaudhary, Senior Advocate duly assisted by Mr. R. S. Maurya, learned Counsel for tine Petitioner. Learned Counsel for the Respondents submits that he has no instructions from his client to argue the matter and as such, he cannot advance any submissions in rebuttal to the submissions advanced by the learned Counsel for the Petitioner. This writ petition pertains to the year 1984 and is quite old. The record reveals that the parties are litigating since 1970. Under these circumstances, the case is being decided finally with the assistance of the Standing Counsel as no useful purpose would be served by keeping the writ petition pending.

The instant writ petition arises out of the proceedings initiated by the Petitioners-Plaintiffs by filing a suit for declaring them as Sirdars and Defendants-Respondents not to be declared as bhumid-hars over the disputed plots.

Learned Counsel for the Petitioner submits that the Zamindar, namely, Arjun Singh has leased out a plot by means of dictating document, which has been scribed by one Jayanti Prasad on 6.10.1947 in favour of Plaintiff-Petitioner (Surendra Singh) and permission for construction of Kothari was also given to him. Further, he also used the well for irrigation of his agricultural fields. Subsequently, another lease deed was executed after Medhai Singh became Pradhan of the Gaon Sabha and Ram Chandra, S/o Anandi Lal, the Village Pat-wari on 18.9.1948 in favour of Ram Chandra, S/o Anandi Lal (sunar) and Din Dayal Jatav (tailor). During life time, no proceedings were initiated and after death of Arjun Singh in the year 1961, a dispute has arisen with regard to the possession of the property in question and as such, as stated above, a Suit was filed, which was contested by Ram Chandra/opposite party No. 6 and the same was dismissed, against which an appeal was filed which was decreed. In the decree, it has specifically been held that a patta executed by the Zamindar in favour of the Petitioners which was scribed by Jayanti Prasad and signatures of his father have also been verified by his son, is a genuine one and as such the findings of the Trial Court were reversed, whereby the same was held to be a fictitious document. Further, the Appellate Court held that the grant of subsequent patta in favour of Defendants-Respondents is invalid though registered on the ground of superimposition as they have got no rights. Further, it has been held by the First Appellate Court that the finding of the Trial Court, with regard to possession of the Petitioners over the disputed plots, is erroneous. Being aggrieved, Second Appeal was filed and the Board of Revenue interfered with the findings of fact and reversed the findings of fact so recorded and further, disbelieved the statements of Jayanti Prasad dated 30.1.1971, scriber of the document and Tej Singh, S/o Arjun Singh who had verified the signatures of Arjun Singh, which were recorded by the Trial Court are not admissible u/s 32 of Indian Evidence Act as there is material contradiction in the aforesaid two statements with regard to the execution of deed dated 6.10.1947.

Being aggrieved, the instant writ petition has been filed inter alia on the ground that it is not open for the Second Appellate Authority to interfere with the findings of fact, as substantial question of law can only be answered by the Second Appellate Authority. It has further been stated that the statements of Jayanti Prasad and Tej Singh have wrongly been misinterpreted while allowing the appeal insofar as Jayanti Prasad, who is "Scriber" of the document, proved that the document was written by him at the dictation of Arjun Singh sole Zamindar, but the same has not been signed before him, whereas his son Tej Singh, while proving the aforesaid document verified and proved the signatures of his father. Therefore, the document has been proved on the basis of statements and accordingly, a specific finding has been recorded by the First Appellate Court in this regard. Thus, it cannot be said that the statements are contrary to each other and as such, the findings so recorded by the Second Appellate Authority are erroneous and contrary to the material on record.

Learned Counsel for the Petitioner submits that according to the provisions of section 67 of the Indian Evidence Act, 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 such document as is alleged to be in that person's handwriting must be proved in his handwriting.

He further submits that the Second-Appellate Court has not relied upon the statements of Jayanti Prasad and Tej Singh, as admissible evidence, in view of the provisions of section 32 of the Indian Evidence Act. On perusal of the provisions of sections 32 of Indian Evidence Act, it reflects that the same are not attracted. However, during course of arguments, learned Counsel for the Petitioner submitted that it should be section 33 and not section 32, as relied upon by the Second Appellate Court. Sections 32 and 33 of the Indian Evidence Act are reproduced as under:

Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases--

(1) When it relates to cause of death.-- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) Or is made in course of business.-- When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.

(3) Or against interest of maker.--When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interest.--When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship.--When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) Or is made in Will or deed relating to family affairs.--When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any Will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

(7) Or in document relating to transaction mentioned in section 13, Clause (a).--When the statement is contained in any deed, Will or other document which relates to any such transaction as is mentioned in section 13, Clause (a).

(8) Or is made by several persons and express feelings relevant to matter in question.--When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.-- Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept our of the way by the adverse party or if his presence cannot be obtained without, an amount of delay of expense which, under the circumstances of the case, the Court considers unreasonable;

Provided--

That the proceeding was between the same parties or their representatives in interest;

That the adverse party in the first proceeding had the right and opportunity to cross-examine;

That the questions in issue were substantially the same in the first as in the second proceeding.

Explanation--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Even otherwise, there is a presumption u/s 90(1) of the Evidence Act (as amended by U. P. Act No. 24 of 1954), as the document was more than 20 years old and had been produced from proper custody, that the signatures and every part of such document which purports to be in the handwriting of any particular person is in that person's handwriting and in case of a document executed that it was duly executed by the person by whom it purports to have been executed.

With regard to section 33 of Evidence Act, learned Counsel for the Petitioner submits that the Respondents got impleaded as parties in the earlier proceedings u/s 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act raising the issue that that they were tenure holders in possession and not the Petitioner. One of the Respondents Medhai Singh (Respondent No. 6) and the successor Patwari had raised the proceedings under Rule 115-C of Uttar Pradesh Zamindari Abolition and Land Reforms Rules, which were registered in the name of Gaon Sabha and State (Respondents 7 and 8). All these parties were party to the previous proceedings and the evidence was adduced by the Petitioner in the earlier proceedings against all the Respondents and as such, it is not open to them to again relegate the same. In support of his submissions, he has relied upon the case of V.M. Mathew Vs. V.S. Sharma and others, Relevant paragraphs 14 and 15 of the judgment are reproduced as under:

The presumptions under the Evidence Act are only the inferences which a logical and reasonable mind normally draws. Facts and circumstances (from) which certain inferences follow are indicated in various provisions of the Evidence Act running from sections 79 to 90-A. As already seen the sections of the Evidence Act lay down different circumstances in which a presumption is to be raised. Whenever the law permits the raising of a presumption the Court can by reason of section 4 of the Evidence Act raise the presumption for purpose of proof of a fact. If the presumption is available in one section it can raise it under that section. If it is not available in one section and is available in another section, then the Court can raise presumption under that section. It all depends upon the circumstances available in the case as applicable to a particular document. Hence, even if the case falls u/s 90-A and Sub-section (2) thereof is applicable and no presumption can be drawn u/s 90-A(1) it will not exclude the Court from drawing the presumption, if the circumstances permit it to be drawn, under any other provision of the Evidence Act including section 90 of the Act. The presumption, if available u/s 90, can, therefore, be raised by the Court even after coming to the conclusion that a presumption u/s 90-A is not available.

The presumptions available under sections 90 and 90-A are also not similar. Section 90(2) permits the raising of the presumption in respect of the signature, handwriting, execution and attestation, while section a presumption only in respect of execution. Section 90 deals with documents which are more than 20 years old while section 90-A places no such restriction and includes also documents from judicial record. Neither of the two sections, therefore, can be said to be occupying a field which the other exclusively occupies. They deal with different fields and different circumstances and permit different types of presumptions to be raised.

As regard presumption, u/s 90 of the Evidence Act, it will be useful to reproduce para 9 of the Gokul's case, wherein it was observed as under:

It is not denied that the deed dated 7.7.1947 was more than 20 years old document at the time of filing of the suit. There is a presumption u/s 90 of the Evidence Act regarding execution of the document. The Full Bench decision of this Court in Ramjas and Ors. v. Surendra Nath and Anr., has held that Sub-section (2) of section 90-A of the Evidence Act does not override and nullify section 90 even if the document more than 20 years old is the basis of the suit or defence or is relied upon in the plaint or written statement. Section 90(2) permits the raising of the presumption in respect of the signature, hand writing, execution and attestation while section 90 permits the presumption only in respect of the execution. Section 90 deals with documents which are more than 20 years old while section 90-A places no such restriction and includes also the document from judicial record....

The aforesaid case is fully applicable in the instant case as a presumption can be drawn as the document is more than 20 years old. Further, the statements of Jayanti Prasad, Scriber of the document and Tej Singh, who has verified the signatures of his father recorded by the Courts below have proved the genuineness of the document. Thus, it may be noted that apart from the certified copies of the statements of dead witnesses and presumption attached to the document, the Petitioners also proved it by examination of one of them and Rajendra Singh, S/o Arjun Singh, the executant to prove his signatures. Therefore, it is not open to second Appellate Court in exercise of jurisdiction u/s 100 Code of CPC to set aside the findings of fact. My above view is fortified by the decision of the Apex Court in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, Relevant paragraphs 11 and 12 of the judgment are reproduced as under:

It is well known that as early as 1890, the Privy Council has occasion to consider this aspect of the matter in Mst. Durga Chowdhrain v. Jawahir Singh Chowdhri 17 Ind App 122 (PC). In that case, it was urged before the Privy Council, relying upon the decision of the Calcutta and Allahabad High Courts in Futtehma Begum v. Mohamed Ausur ILR 9 Cal 309, and Nivath Singh v. Bhikki Singh ILR 7 A11(FB) respectively, that the High Court would be within its jurisdiction in holding that where the Lower Appellate Court has clearly misapprehended what the evidence before it was, and has been led to discard or not give sufficient weight to other evidence to which it is not entitled, the High Court can interfere u/s 100. This contention was rejected by the Privy Council and it was observed that an erroneous finding of fact is a different thing from an error or defect in procedure, and that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. Their Lordships added that nothing can be clearer than the declaration in the Code of CPC that no second appeal will lie except on the grounds specified in section 584 (corresponding to section 100 of the present Code), and they uttered a word of warning that no Court in India or elsewhere has power to add to or enlarge those grounds since 1890. This decision has been treated as a leading decision on the question about the jurisdiction of the High Court in dealing with questions of facts in second appeals.

It is necessary to remember that section 100(1)(c) refers to a substantial error or defect in the procedure. The defect or error must be substantial--that is one fact to remember; and the substantial error or defect should be such as may possibly have produced error or defect in the decision of the case upon the merits -- that is another fact to be borne in mind. The error or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to, the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the Lower Appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure; if in dealing with questions of fact, the Lower Appellate Court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure, if the Lower Appellate Court fails to consider an issue which had been tried and found upon by the Trial Court and proceeds to reverse the Trial Court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure if the Lower Appellate Court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may in some cases, be said to amount to a defect or error in procedure. But the High Court cannot interfere with the conclusions of fact recorded by the Lower Appellate Court, however erroneous the said conclusions may appear to be to the High Court, because, as the Privy Council has observed, however, gross or inexcusable the error may seem to be, there is jurisdiction u/s 100 to correct that error.

From the above discussions, it is imminently clear that the Second Appellate Authority committed material irregularities in upsetting the finding of facts, which were recorded on the basis of statements recorded by the Trial Court. The finding of the Second Appellate Court in discarding the statements of Jayanti Prasad and Tej Singh while upsetting the finding of fact is wholly per verse and unwarranted. It may be added that even if the appreciation of evidence made by the Lower Court was patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure and there is no justification to entertain a second appeal on the ground of an erroneous finding of fact.

The writ petition is allowed and the order passed by the Board of Revenue dated 27.6.1984 in Second Appeal No. 73 (z) of 1982-83/Mainpuri, Ramchandra v. Surendra Singh and Ors. contained in Annexure No. 3, is hereby quashed and the order of first appellate authority, i.e. Additional Commissioner is affirmed.