Theresa vs Special Court under A.P. Land Grabbing Prohibition Act and Another

Y.V. Narayana, J.—This writ petition is filed for the issuance of a writ of Certiorari calling for the records relating to the order dated 3-10-1994 in LGC No.26 of 1994 on the file of the 1st Respondent and to quash the same.

The unsuccessful applicant before the Court below is the petitioner herein. It is the case of the petitioner that she purchased an extent of Ac.12.35 guntas of land in S.No.90 of Gundla Pochampalli village, Medchal Mandal, from one B. Prakash and B. Vedkumar, under a registered sale deed dated 17-3-1972. Subsequently, she sold an extent of Ac.9.35 guntas of land out of the total extent of Ac.12.35 guntas in favour of one C. Radha Krishna Raju and his two brothers under a registered sale deed dated 16-1-1979. The remaining extent of Ac.3.00 of land was in her possession and enjoyment. But, in the year 1987, after noticing that the 2nd respondent and his father were in illegal occupation of the land in question, she filed application under the provisions of A.P. Land Grabbing (Prohibition) Act, (for short, ''the Act'') seeking eviction of the respondent from the petition schedule land.

The 1 st respondent in the LGC who is the lather of the 2nd respondent, filed counter stating that he has nothing to do with the petition schedule land and that his son-2nd respondent is in possession of the said land in his own right.

The 2nd respondent filed counter stating that the petitioner in fact sold the land in question i.e., Ac 3.00 of land to one Smt.K. Bala Tripura Sundari and Namburi Venkata Subbamma under a registered sale deed dated 30-1-1979 and that those two ladies in turn sold the said land to him under a registered sale deed dated 21-5-1986. It is contended that ever since the purchase, the 2nd respondent has been in possession and enjoyment of the land as an absolute owner. It is, therefore, contended that he is not the land grabber.

On the basis of the above pleadings, evidence was let in. The husband of the petitioner, who is her GPA holder, examined himself as PW1 and Exs.Al to A14 were marked. On behalf of the respondents, the 2nd respondent was examined as RW 1 the 1st respondent as RW2, one of the two vendors of 2nd respondent Bala Tripura Sundari was examined as RW3. Her brother who is the attestor of Ex.B6 was examined as RW4 and the father of RWs.3 and 4 was examined as RW5. Exs.Bl to B6 (0) have been marked. Ex.Bl is the registration extract of the sale deed dated 21-5-1986 allegedly executed by Bala Tripura Sundari (RW3) in favour of the 2nd respondent (RW1) Ex.B2 is the registration extract of the sale deed dated 30-1-1979 allegedly executed by the applicant in favour of Bala Tripura Sundari while Ex.B6 is the duplicate copy of the original of Ex.B2. The original sale deed dated 30-1-1979 was not produced into Court. On a consideration of the evidence on record, the Court below held that the petitioner is not the owner of the petition schedule land as she sold "6way the said land to RW3 and her sister, who in turn sold it away to the 2nd respondent under Ex.Bl. It further held that as the 2nd respondent is in lawful possession of the petition schedule land in pursuance of Exs.Bl, B2 and B6, he cannot be declared as land grabber within the meaning of Section 2(d) and (e) of the Act. It accordingly dismissed the application. Hence, this writ petition.

It is mainly contended by the learned Counsel for the petitioner that the Court below erred in admitting Ex.B2 which is a certified copy and Ex.B6 which is a duplicate copy and that non-production of the original sale deed dated 30-1-1979 is fatal to the case of the respondents. It is further contended that in the absence of any explanation, as required u/s 65 of the Evidence Act, for non-production of the original sale deed, the Court below erred in admitting Exs.B2 and B6 into evidence.

On the other hand, it is contended by the learned Counsel for the 2nd respondent that Ex.B6 being a carbon copy of the original sale deed, taken under an uniform process of typing, is admissible in evidence as it is equivalent to the original sale deed. In support of his contention, reliance is placed upon the decisions Jayarama lyer v. S. Ramanatha, AIR 1976 Mad. 147; G. Sriramulu Naidu v. the State, 1962 (1) ALT 57 and Prithi Chand Vs. State of Himachal Pradesh, . It is stated in reply to the 2nd contention of the learned Counsel for the petitioner that since the original sale deed could not be traced Exs.B2 and B6 had to be filed into Court. It is, therefore, contended that the contention of the petitioner that there is no explanation for not filing the original, is ill founded.

The main objection of the petitioner is that the original sale deed dated 30-1-1979 was not produced and in the absence of proper explanation for not producing the original sale deed, Exs.B2 and B6 cannot be admitted into evidence. It is no doubt true that u/s 64 of the Evidence Act, documents must be proved by primary evidence only. However, Section 65 facilitates adducing of secondary evidence, provided the party who wants to rely upon such secondary evidence is able to prove that the original is either lost or destroyed or that the same is in possession of the opposite party etc. Here, in this case, the claim of the 2nd respondent is that suppressing the sale in favour of Bala Tripura Sundari under sale deed dated 30-1-1979, the petitioner filed the LGC against him. Thus, it is for the 2nd respondent to prove that the petitioner sold the land in the first instance to Bala Tripura Sundari who in turn sold it to him, by filing the necessary title deeds. The title deeds through which he traces his title are (1) sale deed dated 21-5-1986 and (2) sale deed dated 30-1-1979, which document is supposed to be in possession of the 2nd respondent. There is no problem with regard to the sale deed dated 21-5-1986, but the sale deed dated 30-1-1979 evidencing the earlier sale transaction between the vendor of 2nd respondent and the applicant, was not produced by the 2nd respondent into Court. The certified copy of the said document was marked as Ex.B2. u/s 65, Ex.B2 being a secondary evidence is inadmissible until the non-production of the original is first accounted for. There was, of course, explanation from the 2nd respondent that the original was not traceable. The 2nd respondent, however, sought to place reliance more upon Ex.B6 than Ex.B2. Therefore, there is not much argument before us with regard to the proof of otherwise of Ex.B2. When coming to Ex.B6 which is a carbon copy of the original of Ex.B2, it is the contention of the 2nd respondent that on the date of registration of the original sale deed, the parties to the said document have agreed to take a carbon copy while typing the original sale deed; that the executant while subscribing her signatures on original sale deed also signed on Ex B6; that the witnesses who attested the original also signed in Ex.B6; that the document was presented in Sub-Registrar''s office along with the original document and that an endorsement was also made by the Sub-Registrar that stamp duty was paid along with the original. He contends that the above events go to prove that Ex B6 has all the characteristics of the original sale deed and it is equivalent to the original document. It, therefore, falls within the purview of Explanation 2 to Section 62 of the Evidence Act.

u/s 62, primary evidence is defined. Primary evidence means, the document itself produced for the inspection of the Court. u/s 63, secondary evidence is defined. It means and includes -(1) certified copies given under the provisions of the Evidence Act; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it. When coming to question of proof, Section 64 mandates that documents must be proved by primary evidence. However, as already seen, Section 65 is an exception to the above rule. Section 65 facilitates filing of secondary evidence in cases where it is proved that the original document is in the possession of the person against whom the document is sought to be proved or that the original is out of the reach of the person who is legally bound to produce it or that when the original has been destroyed or lost and when the party offering evidence of its contents cannot produce it in reasonable time. Section 62 which deals with, primary evidence and which is relevant for the present purpose, runs as follows:

"62. Primary evidence :--Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1 :--Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2 :--Where a number of documents arc all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest, but where they are all copies of a common original they are not primary evidence of the contents of the original."

Explanation 2 is relevant for our present case. It says that where a number of documents arc made by one uniform process, each is primary evidence of the contents of the rest. But, it further says that, where such documents arc all copies of a original, they arc not primary evidence. Thus, a printed copy obtained from a original document is a secondary evidence. Under Explanation 2, all the documents must be taken at a time under one uniform process in which case, each of such document is a primary evidence of the contents of the rest. Printing, cyclostyle, lithography are some mechanisms which are recognised under law through which documents can be obtained under a uniform process. Thus, documents prepared under the uniform process of either printing or cyclostyle or lithography cannot be mere copies in strict legal sense of the term, in fact, they are all counterpart originals and each of such document is a primary evidence of the contents of the pest. But, on the contrary, the documents which may be prepared under the uniform process from a common original arc all secondary evidence, inasmuch as the documents are all copies of the common original and, therefore, none of them can be said to be the original. In this case, it is the case of the 2nd respondent that Ex.B6 carbon copy was obtained at the time of preparation of the original sale deed. To say in clear terms, Ex.B6 was produced when the original sale deed was being typed, a carbon copy was placed underneath the original sale deed documents and underneath the said carbon paper Ex.B6 documents were kept and that as a result, Ex.B6 contained the same matter which is available, on the original sale deed. The question, therefore, is whether such a carbon copy is admissible in evidence. It is well known fact that documents are prepared through different processes, the most recognised of all such processes being the process of typing. Required number of copies can be obtained by placing carbon papers underneath the first sheet, on which the parties general subscribe their signatures and upon which generally the parties base their claims/ titles etc. The first paper receives the direct impression of the ''type'' which when pressed falls on the ribbon with some force and the ultimate impression of the type which is pressed is visible on the surface of the paper, whereas the papers kept underneath the first paper receive carbon impression because of the carbon papers kept underneath the first paper. Therefore, whatever is typed is visible both on the first document as well as on the documents placed underneath the first document. Except the change in the colour of the print, there will not be any change in the matter typed in these two types of papers. To say in one word, a carbon copy produced by the process of typing contains the very same matter which the first document contains. It is needless to state that in typing also, all documents, i.e., the document which is being used as original and the documents which are produced by placing carbon papers, are obtained at one and the same stroke by one uniform process of pressing the type keys. Therefore, for all purposes, a carbon copy produced by the process of typing is equivalent to the original sheet and they are, therefore, called ''primary evidence'' within the meaning of Explanation 2 to Section 62. In fact, the law is well settled on the point. Let us now see whether Ex.B6 can be brought within the purview of Section 62 or not.

As already observed, Ex.B6 typewritten carbon copy was obtained by placing a carbon paper underneath the original sale deed. The first sheet of Ex.B6 is engrossed on a stamp paper worth Rs.5/-. The executant subscribed her signatures on all the pages. The case of the 2nd respondent is that PW1 and RW4 attested the original document. Ex.B6 also contained the signatures of those two persons as witnesses. There is a stamp of the Sub-Registrar''s office on the back side of the first sheet to the following effect:

"Presented in the Office of the Sub-Registrar of Medchal and fee of Rs.123.00 paid between the hours of 3 and 4.00 p.m. on the 30th June, 1979."

Underneath the said stamp, the executant put her signature and also left hand thumb impression below the signature. PW1 and RW4 also put their signatures below the signature of the applicant. On the top of the said page, there is a certificate given by the Sub-Registrar to the following effect:

"I hereby certify that on the production of the original instrument I have satisfied myself that the full stamp duty of Rs.1200/-has been paid therefor."

The signature of the Sub-Registrar is also found below the certificate. Stamp was affixed on the back of the 1st and 2nd sheets evidencing the entry of the sale deed in the Registers of the Sub-Registrar''s office. On the back of the 2nd sheet, the Sub-Registrar also endorsed payment of a sum of Rs.6,000/-by the vendee to the vendor in his presence. It reads thus:

"Rs.6,000/- (Rupees six thousand only) were paid in my presence by Sri Ch. Suryanarayana Raju on behalf of the claimant to the executant."

Underneath the endorsement, the paper i.e., vendee and the receiver i.e., the vendor (executant) put their signatures. The Sub-Registrar also put his signature there. There are as many as 15 signatures of the executant found in Ex.B6. The executant put her signatures even at places where there were orrections. The back side of the 3rd page also contains an endorsement that the document is duplicate. It runs thus:

"Duplicate. Difference between the original and the duplicate nil interpolations etc., in this nil.

Compared by:

Sd/- (Reader)

Sd/- (Examiner)

Dt.30th January, 1979 Sd/- 10th Magh 1900 SE (Sub-Registrar)

The 2nd respondent, so as to prove the contents of Ex.B6, examined himself as RW1; the vendee as RW3 and one of the attestors as RW4. Since the vendor and the other attestor of Ex.B6 are no other than the applicant and her husband (PW1) respectively, he could not examine them. RW3 deposed in her evidence that Ex.B6 is the duplicate sale deed given by the Sub-Registrar''s office, Medchal in which the signatures of the petitioner in this LGC are found as executant of that sale deed. She further deposed in her cross-examination that the signature of the applicant were taken in Ex.B6 duplicate sale deed on the date of registration of the sale deed itself in the Sub-Registrar''s office, Medchal, RW4 who is one of the attestors of Ex.B6, deposed that the applicant has signed in Ex.B6 and that her signatures are in Tamil. He further states that PW1 husband of the applicant also attested Ex.B6. RW5 the father of RW3, states that the applicant signed in Ex.B6 as executant in Tamil language. He further deposed that he signed in Ex.B6 in token of having paid the sale consideration to the applicant i.e., the vendor, and the applicant has also signed in token of having received the sale consideration and that the Sub-Registrar has also put his signature thereon. The evidence adduced in this regard remained unchallenged and unimpeached. While that being the evidence adduced with regard to the proof of Ex.B6, no attempt was made on behalf of the petitioner to deny the execution of the original sale deed or Ex.B6 document or at least to deny the signatures on Ex.B6 document, which, according to the 2nd respondent, were put by the applicant herself as the executant of the document. On the contrary, the husband of the applicant PW1 curiously admitted in his evidence that the signatures in Ex.B6 are that of his wife only. On an appreciation of the evidence adduced by both the parties, especially keeping in view the admissions made by the husband of the applicant, and having regard to the circumstances under which the document i.e., Ex.B6 was executed, naturally the Court below believed Ex.B6 as having been executed on the date when the original sale deed was executed and that it is, therefore, equivalent to the original. It must be remembered that Ex.B6 is not a mere carbon copy without any signatures of any body. It is the copy containing the signatures of the executant, vendee, attestors and the Sub-Registrar with all the necessary stamps and dates. Therefore, it cannot be said that Ex.B6 is a mere copy, but it is equivalent to the original document, the execution of which was duly proved by the 2nd respondent by examining the parties connected with it. Therefore, it squarely falls within the meaning of Explanation 2 to Section 62.

For the above reasons, the findings recorded by the lower Court in this regard requires no interference by this Court.

Learned Counsel for the petitioner took great exception to the task undertaken by the Court below in proceedings to compare the signatures available on Ex.B6 with the admitted signatures of the applicant available on the application. It is contended that such a comparison by Court leads to hazardous situations. He, therefore, tried to contend that the approach of the Court below is most unscientific. But, in our view, comparison of the signatures on Ex.B6 with the admitted signatures, by the Court is quite unnecessary exercise in this case in view of the clear admission of the PW1 that the disputed signatures in Ex.B6 are that of his wife only. Therefore, we do not find much force in this contention too. There are no merits in the writ petition.

The writ petition is accordingly dismissed. No costs.