Himachal Pradesh High Court
Sh. Madan Swaroop & Anr vs Sh. Nand Lal & Ors on 26 April, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 899 of 2012 Reserved on:10.04.2018 Decided on: 26.04.2018 Sh. Madan Swaroop & Anr. ...Appellants .
Versus
Sh. Nand Lal & Ors. ...Respondents
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?Yes.
For the appellants: Mr. G.C. Gupta, Sr. Advocate, with Ms. Meera Devi, Advocate.
For the respondents: Mr. Bimal Gupta, Sr. Advocate, with Mr.
r Vineet Vashisht, Advocate, for respondents
No. 1 to 6.
Mr. G.D. Verma, Sr. Advocate, with Mr. B.C.
Verma, Advocate, for respondents No. 7 and
8.
Justice Tarlok Singh Chauhan, Judge
Appellants are the defendants who aggrieved by the
judgment and decree passed by the learned District Judge, Sirmaur District at Nahan, whereby the suit of the plaintiffs/respondents No. 1 to 6 has been decreed, have filed the instant appeal under Section 96 of the Code of Civil Procedure read with Section 21 of the H.P. Courts Act, 1976.
2. Respondents No. 1 to 6 (plaintiffs) filed a suit for declaration, confirmation of possession and for permanent prohibitory injunction against the appellants and respondents No. 7 to 14 with respect to the property comprised in Khewat No. 4-min, Khatauni No. 10, Khasra Nos. 6 to 13 and plots 8, measuring 703.71 sq. mts., as per the Jamabandi for ::: Downloaded on - 26/04/2018 23:03:19 :::HCHP 2 the year 1997-1998, situated at Mauza Ranital, Pargana Pahar, District Sirmaur, H.P., on the allegations that the land was purchased by respondent No. 1 and predecessor-in-interest of respondents No. 2 to 6 .
vide registered sale deed dated 30.09.1961 from one Shri Prem Chand, who had purchased the same vide registered sale deed dated 09.01.1960 from one Col. Hira Singh, who had already purchased the same from Shri Niranjan vide sale deed dated 04.02.1952. Shri Niranjan was stated to have purchased the property as proprietor of M/s Himachal Rasayan Shala from predecessor-in-interest of the appellants and respondents No. 9 to 14 vide registered sale deed dated 28.05.1949. The plaintiffs as such, pleaded that after 30.09.1961, respondent No. 1 and predecessor-in-
interest of respondents No. 2 to 6, namely, Shri Rameshwar Dass became owners in possession of the suit property in equal shares and Shri Atma Ram and his heirs and successors have no right, title and interest in the property after it was sold to Shri Niranjan. It was further alleged by the plaintiffs that the appellants and respondents No. 1 to 9 and their predecessor-in-interest in connivance with the revenue authorities, got their names incorporated in the Jamabandi for the year 1997-98 and the predecessor-in-interest of respondents No. 1 to 6 were recorded only in possession of the land as they went out of Nahan. It has further been alleged by respondents No. 1 to 6 that after the purchase, they installed a factory over the suit property, however, the same could not be properly looked after and run into losses and, in fact, it was ultimately closed down and the property thereafter started deteriorating due to vagaries of weather and its built up structure started falling down.
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 33. That respondents No. 1 to 6 further alleged that the settlement in the town was carried on twice and in the settlement, they were wrongly and illegally entered as in possession of the property and .
the names of the appellant and Brij Bhushan were illegally entered in the revenue records as owners. No notice of the entries was given to them by the Settlement Department and the entries were made without any verification and, as such, they are not bound by the same. In addition to this, the respondents No. 1 to 6 have made other allegations in the plaint with a view to support their case.
4. That on the basis of the wrong revenue entries, the appellant No. 2, as General Power of Attorney holder of appellant No. 1 sold the property to respondents No. 7 and 8 vide two separate registered sale deeds for a total consideration of Rs.13.00 lacs duly registered before the Sub Registrar, Nahan on 19.11.2003 and on the basis of the said registered sale deeds, mutation Nos. 455 and 456 were wrongly and illegally allotted on 12.12.2003 on the basis of illegal sale deeds, respondents No. 7 and 8 illegally asserting their rights over the property and started threatening the plaintiffs to dispossess them from the suit property. The plaintiffs on these allegations filed a suit for declaration that they are owners in possession of the property and the sale deeds executed by the appellants are wrong, illegal and non-est and not binding upon them and have prayed for possession in case they were found to be out of possession of the suit property. The plaintiffs also prayed for permanent prohibitory injunction restraining the appellants and other respondents from interfering in their possession.
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 45. That the respondents No. 9 to 16 did not contested the suit and were proceeded against ex-parte. The appellants as well as respondents No. 7 and 8 filed separate written statements and contested .
the suit on the grounds that the land was never sold to anyone by late Shri Atma Ram and the execution of the sale deed to different persons were denied. The possession of the plaintiffs and establishment of factory over the suit property was also denied. The sale deeds executed by the appellants in favour of the respondents No. 7 and 8 were alleged to be legal and binding upon the plaintiffs. The allegations regarding connivance with the revenue staff and having recorded themselves as owners of the suit property were also denied by the appellants. The sale in favour of the respondents No. 7 and 8 was admitted by the appellants for the consideration mentioned therein. The respondents No. 7 and 8 also in their written statement denied the claim of the plaintiffs and further pleaded that they were bonafide purchaser.
6. On the pleadings of the parties, this Court where the suit was initially filed, framed the following issues on 11.08.2008:-
1. Whether the plaintiffs are entitled to a decree of declaration that they are owners in possession of land comprised in Khewat No. 4min, Khatauni No. 10, Khasra No. 6 to 13, Plots 8, measuring 703 sq. meters, situated in Mauja Ranital, Pargana Pahar, District Sirmaur, H.P.? OPP
2. Whether the plaintiffs are entitled to decree of possession of the suit land? OPP
3. Whether the plaintiffs are entitled to decree for permanent prohibitory injunction, as prayed for? OPP
4. Whether sale deeds No. 516, 517 dated 18.1.2003, registered before Sub Registrar, Nahan, are illegal, void and not binding on the plaintiffs, as alleged?OPP ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 5
5. Whether the suit is not maintainable in the present form and does not disclose any legally enforceable right or of cause of action against the defendants? OPD 1 to 4
6. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD 1 to 4 .
7. Whether suit is barred by limitation? OPD 1 to 4
8. Whether suit is bad for mis-joinder of parties? OPD 1 to 4
9. Whether the suit is not verified by a person authorised by law?
OPD 1 to 4
10. Whether defendants 3 and 4 are in possession of the suit land, as alleged? OPD 3 to 4
11. Whether defendants No. 3 and 4 are bonafide purchasers for consideration? OPD 3 to 4
12. Relief.
7. After recording the evidence and evaluating the same, the learned trial Court decided issue Nos. 1, 4, 10 and 11 in favour of the plaintiffs and other issues were decided against the appellants. On the basis of the findings on issues No. 1, 4, 10 and 11, the learned trial Court decreed the suit of the plaintiffs and also passed a decree for declaration, declaring the plaintiffs/respondents No. 1 to 6 as owners in possession of the land and that the sale deeds executed by the appellants in favour of the respondents No. 7 and 8 are wrong, illegal, and non-est and not binding on the plaintiffs. A decree for permanent prohibitory injunction was also granted in favour of the plaintiffs/respondents No. 1 to 6.
8. Aggrieved by the judgment and decree passed by the learned trial Court, the appellants/defendants have filed the instant appeal on the ground that the learned trial Court has erred in deciding issue Nos. 1, 4, 10 and 11 in favour of the plaintiffs. These issues were based entirely on documents, which the appellants have failed to prove in accordance with law.
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 69. The respondents have failed to lead evidence to establish that Shri Atma Ram had executed a sale deed in favour of Himachal Rasayan Shala and further there is no proof that Shri Atma Ram, in fact, was the .
absolute owner of the property. That apart, even the subsequent sale deed in favour of Shri Niranjan and finally in favour of Shri Nand Lal and Shri Rameshwar Dass has not been proved in accordance with law. The suit otherwise was barred by limitation. And lastly, in short it is contended that the findings recorded by learned Court are perverse and, therefore, the judgment and decree so passed in favour of the respondents deserves to be set aside. r I have heard learned counsel for the parties and have gone through the records of the case.
10. Admittedly, this is a first appeal and the jurisdiction of this Court while hearing the same is very wide like the learned trial Court and it is open to the defendants to attack all findings on fact and/or on law in the first appeal and would have to be decided on the basis of following exposition of law as propounded by the Hon'ble Supreme Court in Shasidhar and others versus Ashwini Uma Mathad and another, (2015) 11 SCC 269, wherein it was observed as under:-
"10. The powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
11. As far back in 1969, the learned Judge - V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 7 his distinctive style of writing and subtle power of expression, the learned judge held as under: (SCC OnLine Ker paras 1-3) "1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant .
disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court.
3.Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation." (Emphasis supplied)
12. This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate Court under Section 96 of the Code. We consider it apposite to refer to some of the decisions.
13. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs.
(2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15) "15..........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law.
The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court......while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
The above view has been followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 8 duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
14. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3) .
"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
15. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code this Court observed as follows: (SCC p.303, para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."
16. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:(SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 9 court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide .
Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p.
188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
17. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174. This Court has recently taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar, 2014(12) Scale 171."
11. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 10
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition .
PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 1110. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be .
relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
12. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 12
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is .
rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
13. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 13 "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of .
landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re- appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 14 surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 1514. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) .
"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity."
14. In order to judge whether the findings recorded by the learned trial Court are perverse, it would be first necessary to refer to the oral evidence and thereafter documentary evidence led by the parties.
15. PW1 Shri Narinder Kumar is Record Keeper of Judicial Record Room, Nahan, who produced the original record of Civil Suit No. 60/1 of 1994, titled as Madan Swaroop vs. Rameshwar Dass and others and proved on record copy of plaint Ext.PW1/A.
16. PW2 Shri Dharam Singh, Junior Assistant in the office of Sub Registrar, Nahan, produced the records of the sale deeds that were registered in the office of Sub registrar and not the original record of the registration as mentioned by the learned trial Court. (Yet, it needs to be noticed that no objection has been taken by the defendants to the production of the sale deeds and rather a positive suggestion has been ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 16 given to this witness by defendants No. 1 and 2 to the effect that Ext.PW2/A as transcribed in Bahi No. 1 that the land has been sold by Shri Atma Ram to Himachal Rasayan Shala through Shri Niranjan Dass.) He .
proved on record copy of sale deed executed by Shri Atma Ram in favour of Shri Niranjan Singh Ahluwalia Ext.PW2/A recorded in Bahi No. 1 at page
30. Copy of sale deed executed by Shri Niranjan Singh Ahluwalia in favour of Col. Hira Singh Baam Ext.PW2/B recorded in Bahi No. 1 at page 30/34 and copy of sale deed executed by Col. Hira Singh Baam in favour of Shri Prem Chand Ext.PW2/C and entered in Bahi No. 1 at page 28. Lastly, sale deed dated 30.09.1961 Ext.PW2/D was executed by Shri Prem Chand, son of Shri Sadhu Ram in favour of Shri Rameshwar Dass was entered at page 35 of Bahi No. 1.
17. PW4 Shri Phul Singh, Reader to Tehsildar, Nahan, produced the original record and proved the copy of letter dated 09.12.2003 Ext.PW4/A sent by Tehsildar, Nahan to Shri Prem Sagar, copy of letter dated 10.12.2003 Ext.PW4/B sent by Tehsildar, Nahan to Shri M. K. Jain, Advocate and copy of letter dated 27.11.2003 Ext.PW4/C from Prem Sagar to Tehsildar, Nahan.
18. PW5 Shri Ram Krishan Verma was posted as SDO, I & PH Department at Nahan and produced the record of water connection and stated that water connection was installed in the Shivalik Metal Industries on 11.04.1962 and the same was subsequently disconnected on 09.02.1976 on account of non-payment of water connection consumption charges. He also proved on record the extract of the water connection register Ext.PW4/A. ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 17
19. PW7 Shri Jai Pal, Stenographer to the Assistant Commissioner, Excise and Taxation, Nahan stated that M/s Shivalik Industries was registered in their department under the H.P. General Sales .
Tax Act, 1968 and further stated that the business of the factory was shifted to Paonta Sahib on 27.08.1969 and certificate to that effect was Ext. PW7/A.
20. PW8 Shri Prem Sagar is plaintiff No. 2, in his affidavit Ext.
PW8/A, affirmed on oath all material averments made in the plaint and asserted that the plaintiffs are owner in possession of the suit land. He also stated that he had sent an application Ext.PW8/A to the Tehsildar and letters Ext. PW8/B, Ext. PW8/D and Ext.PW8/E were signed by him whereas letter Ext. PW8/C was signed by his younger brother. In cross-
examination, this witness denied that Shri Atma Ram never sold this property to Shri Niranjan Singh nor this property was acquired by the plaintiffs through successive sales which have been relied upon by them.
21. PW9 Prem Chand, in his affidavit Ext.PW9/A has testified that he had purchased the suit property from Col. Hira Singh for a sale consideration of Rs. 5000/- vide sale deed dated 09.01.1960 and same remained in his possession till the time he sold it to S/Shri Rameshwar Dass and Nand Lal for a sum of Rs.9000/- vide sale deed dated 30.09.1961 and also delivered the possession thereof to the vendees. In cross-examination, he denied that Col. Hira Singh had no title to the suit land and as such he could not pass any title to his vendee.
22. PW10 Shri Satinder Thakur, Senior Assistant in the office of Tehsildar, Nahan, produced the original record of registration and stated that up to 30 to 40 years ago the registration Clerk prepared the copy of ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 18 the registered document by copying the same from the original document and thereafter he pasted the same in Bahi No. 1. He further stated that copies of sale deed No. 36, Ext.PW2/A, sale deed No. 15, Ext. PW2/B, sale .
deed No. 3 Ext. PW2/C and sale deed No. 61 Ext. PW2/D were true copies of the original and all of these copies had been issued from their office.
23. PW11 Shri Nand Lal is plaintiff No. 1, who appeared as witness in rebuttal evidence to prove the possession of the plaintiffs. He further stated that after purchasing the suit property he set-up Shivalik Metal Industries over the same in the year 1961. The inauguration of this factory was done by the then Lt. Governor of H.P. He further stated that in the beginning he personally looked after the factory and thereafter he employed his brother-in-law Shri Ramesh Chand to look after the same.
The factory remained on the suit property up to 1969 and was thereafter shifted to Paonta Sahib. He got the Shivalik Industries registered for the purpose of sales tax and also got electricity, water and telephone connections installed in this factory. He further stated that after shifting the factory from the suit property the same was being looked after by the aforesaid Ramesh Chand who had been running motor workshop on the said property. In cross-examination, he denied that he never remained in possession of the suit property nor installed any factory over the same.
24. PW12 Shri Ramesh Chand is brother-in-law of PW11 and stated that he was employed by the plaintiffs in Shivalik Industries from the year 1962 to 1968. He further stated that after the said industry was shifted by the plaintiffs from Nahan to Paonta Sahib in the year 1969, he ever since then had been looking after this property. According to him, he was using a portion of the suit property measuring 100 feet as his ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 19 residence and on another portion of this property he had been running a motor workshop. In cross-examination, he denied that he was never employed by the plaintiffs to look after the property nor the plaintiffs ever .
remained in possession of this property.
25. Adverting to the documentary evidence produced by the plaintiffs, Ext.PW1/A is copy of plaint of Civil Suit No. 60/1 of 1994 that was filed by defendant No. 1 against the plaintiff and Shri Rameshwar Dass predecessor-in-interest of plaintiffs Nos. 2 to 6, in which he had sought declaration to the effect that he was owner in possession of the suit property and other property and the revenue entries showing the plaintiffs in possession of the suit property were wrong, illegal, null and void.
26. Ext.PW1/B is copy of judgment dated 26.02.1998 in Civil Suit No. 61/1 of 1994, whereby the suit filed by defendant No. 1 was decreed against the plaintiffs ex-parte.
27. Ext.PW1/C is copy of application dated 26.02.1998 moved by plaintiff Nand Lal under Order 9 Rule 13 CPC for setting aside ex-parte decree.
28. Ext.PW1/D is the copy of application filed by the plaintiff for condonation of delay under Section 5 of the Limitation Act.
29. Ext.PW1/E is copy of reply filed by defendant No. 1 to the said application.
30. Ext.PW1/F is copy of order dated 09.12.1999 whereby application filed by the plaintiff under Order 9 Rule 13 CPC (Ext.PW1/C) was allowed and the ex-parte decree dated 26.02.1998 was set aside.
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 2031. Ext.PW1/G is copy of order dated 07.03.2000 whereby Civil Suit No. 60/1 of 1994 filed by defendant Shri Madan Swaroop was dismissed as withdrawn.
.
32. Ext.PW2/A is copy of sale deed No. 36 dated 28.05.1949 executed by Shri Atma Ram in favour of Shri Niranjan Singh whereby he sold land bearing Khasra No. 350/2, measuring 865 sq. Yards and 6 ½ Girah for sale consideration of Rs.2000/- and the possession thereof was also delivered to the vendee.
33. Ext.PW2/B is copy of sale deed No. 15 dated 04.05.1952 executed by Shri Niranjan Singh in favour of Shri r Hira Singh Baam whereby he sold the land purchased by him from Shri Atma Ram alongwith the flour mill installed by him over the land for consideration of Rs.12,000/- and delivered the possession of this property to the vendee.
34. Ext.PW2/C is copy of sale deed dated 09.01.1960 executed by Col. Hira Singh Baam in favour of Shri Prem Chand whereby he sold the property purchased by him from Shri Niranjan Singh after removing the flour mill for a sale consideration of Rs.5000/- and also delivered the possession of this property to the vendee.
35. Ext.PW2/D is copy of sale deed dated 30.09.1961 executed by Shri Prem Chand in favour of Shri Rameshwar Dass and Shri Nand Lal for consideration of Rs.9000/-.
36. Ext.PW4/A is copy of letter dated 9.12.2003 sent by Tehsildar, Nahan to plaintiff Prem Sagar wherein he informed him that entries in favour of defendant No. 1 were incorporated on the basis of decree of civil Court and he could pursue the remedy in the civil Court.
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 2137. Ext.PW4/C is copy of application dated 27.11.2003 moved by the plaintiff Shri Prem Sagar to Tehsildar, Nahan wherein he had informed that defendant No. 1 had wrongly and illegally transferred the suit .
property in favour of defendants No. 3 and 4 and requested him to mutate this property in favour of the plaintiffs.
38. Ext.PW5/A is copy of the extract of water connection Register which shows that water connection was installed in the Shivalik Industries on 11.04.1962 and was subsequently disconnected on 09.02.1976 on account of non payment of water connection consumption dues.
39. Ext.PW7/A is certificate issued by Assistant Excise and Taxation Commissioner, Nahan, District Sirmaur which shows that M/s Shivalik Industries, Ranital, Nahan was issued registration certificate under the Central Sales Tax Act, 1956, vide letter dated 13.12.1961 and the said industry was issued registration certificate under H.P. General Sales Tax, Act, 1968 vide letter dated 02.07.1969. The certificate further recites that the business of the aforesaid concern was shifted to Paonta Sahib on 27.08.1969.
40. Ext.PW8/B and Ext.PW8/C are copies of letters sent by the plaintiff No. 2 to Secretary, Municipal Council, Nahan, in response to some notices issued by the Municipal Council, Nahan to the plaintiffs.
41. Ext. PW8/D is copy of letter sent by plaintiff No. 2 to Secretary, Municipal Council, Nahan whereby he requested to transfer the ownership of 1/2 share of Shivalik Industries in favour of the LRs of deceased Shri Rameshwar Dass.
42. Ext.PW8/E is copy of complaint made by plaintiff No. 2 to the Secretary, Municipal Council, Nahan against unathorised 'chhajja' ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 22 constructed by the owner of the adjoining owner near the Shivalik Industries.
43. Ext.PX is a copy of Misal Hakiyat of the suit land for the year .
1973-74 in which the suit land has been recorded in the ownership of the defendants No. 1, 6 to 8 and Shri Brij Bhushan Lal and in possession of Shri Rameshwar Dass and Shri Nand Lal and it further shows that Khasra Nos. 1096 to 1104, measuring 691.89 sq. mts. were carved out of old Khasra No. 350.
44. Ext.PX/1 is copy of Missal Hakiyat Bandobast Jadid which shows the suit property to be recorded in ownership of defendants No. 1, 6 to 8 and Shri Brij Bhushan Lal and in the possession of Shri Rameshwar Dass and Shri Nand Lal and Khasra Nos. 6 to 13 measuring 703.71 and it further shows that Khasra Nos. 6 to 13 and measuring 703.71 sq. mts. to have been carved out of old Khasra No. 350.
45. Ext.PX/3 is copy of jamabandi for the year 1997-98 wherein the suit property has been recorded in ownership of defendant Nos. 1, 6 to 8 and Shri Brij Bhushan Lal and shown to be in possession of Shri Rameshwar Dass and Shri Nand Lal, whereas in column of remarks a note had been appended that vide mutation No. 273, dated 25.09.1998 the suit land has been recorded in the ownership and possession of defendant No. 1 Shri Madan Swaroop.
46. Ext.PX/5 is the copy of mutation No. 776, dated 10.07.1974, whereby the mutation of inheritance of Shri Atma Ram, who died on 01.05.1958 was attested in favour of defendant Nos. 1, 6 to 8 and Shri Brij Bhushan Lal.
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 2347. Ext.PX/6 is copy of mutation No. 683, dated 29.11.1973, whereby the mutation of inheritance of Smt. Har Devi, who died 80 years ago, was sanctioned in favour of Shri Atma Ram, grand father of .
defendant o. 1.
48. Ext.PX/7 is copy of mutation No. 685, dated 29.11.1973 whereby the property inherited by Shri Atma Ram from Smt. Har Devi was mutated in the names of Shri Brij Bhushan Lal on the basis of Will dated 28.04.1957.
49. Lastly, Ext.PWX/8 is copy of mutation dated 29.11.1973, whereby the estate of one Shri Bul Chand, who died 50 years back was sanctioned in the name of Shri Atma Ram.
50. Now, adverting to the evidence led by the defendants, It would be noticed that they examined two witnesses and in relation to relied upon certain documents.
51. DW1 Shri Punit Sharma is defendant No. 2, son and General Power of Attorney of defendant No. 1, in his affidavit Ex.DW1/A, has affirmed on oath all material averments made by defendants No. 1 and 2 in the written statement and denied that Shri Rameshwar Dass and Shri Nand Lal became owners in possession of the suit property in equal shares as alleged by the plaintiffs. He further stated that it was defendants Nos. 1 and 2 who are the title holder of the suit property and as such have every right to sell the same in favour of defendant Nos. 3 and 4 and, therefore, the sale deeds No. 516 and 517 were lawfully and had been rightly executed by defendant No. 1 in favour of defendants No. 3 and 4.
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 2452. In his cross-examination on behalf of defendants No. 3 and 4, he denied that the suit property had been sold to these defendants for a sum of Rs.30,75,000/- but stated that the same had, in fact, been sold for .
Rs.13,30,000/-. He admitted that the suit property was sold by them after holding that they were owner in possession of the same.
53. In cross-examination by the plaintiffs, he stated that his father was unable to move due to pain in his knees but added that he was mentally alert. He showed his inability to produce any mutation whereby any property was mutated prior to the year 1970. He also feigned ignorance about any ex-parte decree passed in favour of his father and the proceedings conducted in that suit. He denied that he sold the suit property to defendant Nos. 3 and 4 by keeping them in dark about the title of this property and two days after execution of the sale deeds when these defendants i.e. defendant Nos. 3 and 4 had come to know about this forgery they had approached them and upon this defendant Nos. 1 and 2 had issued them cheques for Rs.10,00,000/-, but stated that they had come to Solan to his father after 4-5 days and told him that the suit property was not required by them as such the sale deeds be cancelled.
He also denied that they told defendant Nos. 3 and 4 that they should pay Rs.10,00,000/- to Shri Nand Lal so that he may sell the suit property.
He feigned ignorance that the suit property was entered in the names of the plaintiffs in the records of the municipality. He denied that after sale of the suit property in the year 1949, the defendants and their successor never remained in possession of the suit property.
54. DW2 Shri Rajesh Bansal, defendant No. 3, who alleged to be subsequent purchaser, in his affidavit Ext.DW2/A, wherein he affirmed on ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 25 oath all the material averments made by defendant Nos. 3 and 4 in the written statement and stated that they had purchased the suit property from defendant Nos. 1 and 2 vide sale deeds Nos. 516 and 517, dated .
18.11.2003 and 19.11.2003 for a total consideration of Rs. 30,75,000. He further stated that he alongwith his brother were bonafide purchaser for consideration.
55. In his cross-examination on behalf of defendant Nos. 1 and 2, he admitted his signature on the sale deed Ext.DW1/A as vendee. He denied that sale deed Ext.DW1/A was executed for sale consideration of Rs.7,40,000/- and other sale deed Ext.DW1/B was executed for sale consideration of Rs.5,90,000/-, but stated that the sale consideration of both the sale deeds was Rs.30,75,000/-. He denied that they had approached defendants No. 1 and 2 and informed that the suit property was not required by them and as such the sale deeds be cancelled. He also denied that defendant Nos. 1 and 2 had paid Rs.10,00,000/- to them.
He further denied that before purchasing the suit property they made complete inquiry about the suit property.
56. In his cross-examination on behalf of the plaintiffs, he admitted that there were three old rooms in the suit property situated besides the road. He also admitted that on the next day of the execution of the sale deeds, they came to know that the suit property belonged to the plaintiffs, as such they visited defendant Nos. 1 and 2 at Solan. He denied that defendant No. 1 returned Rs.10,00,000/- to them by saying that they should pay this amount to plaintiff Shri Nand Lal. He feigned ignorance that the suit property was entered in the names of the plaintiffs ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 26 in the municipal record. He further admitted that these days the workshop of Shri Ramesh Chand is running in the suit property.
57. Now, coming to the documentary evidence produced by the .
defendants, it would be noticed that defendants have only produced on record sale deed Ext.DW1/A that was executed between defendant Nos. 1 and 2 in favour of defendants No. 3 and 4 for sale consideration of Rs.7,40,000/-.
58. Ex.DW1/B is the second sale deed executed by defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4 for the sale consideration of Rs.5,90,000/-.
59. This is the entire oral as well as documentary evidence led by the parties.
60. It is vehemently contended by the learned counsel for the appellants that the learned trial Court has completely ignored the provisions of the Evidence Act, more particularly, Sections 61 to 65 thereof, as it has exhibited the sale deed without the original having been produced on record. Once it is so, then there is virtually no proof on record which may even remotely indicate, much less, establish that the property once owned by Shri Atma Ram, who executed the sale deed in favour of M/s Himachal Rasayan Sahala and eventually the property had been sold and thereafter resold time and again and lastly sold to the defendants. He further contends that once he is able to establish on record that there was no valid sale deed executed by Shri Atma Ram, then, obviously the respondents can claim no title. There can be no dispute that, in case, Shri Atma Ram is not held to be the owner of the property or held to be not sold the property in favour of M/s Himachal ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 27 Rasayan Shala, then it would be difficult for the respondents, if not impossible, to establish the subsequent sale deed in their favour.
61. However, at this stage, one needs to advert to the pleadings .
of the parties.
62. The plaintiffs, in the suit filed by them, have set out in detail, as to how they have become the owners of the property as would be evident from paras 3 and 4 thereof, which reads thus:-
"3. That the suit property was earlier part of Khasra No. 350/2, measuring 865 sq. yards and 6 ½ ghiras and was owned by Atma Ram, predecessor-in-interest of defendants 1, 2 and 5 to 8. Atma Ram vide registered sale deed dated 28.05.1949 sold the suit property to Naranjan Singh, proprietor of Himachal Rasayan Shala. Naranjan Singh vide registered sale deed dated 04.02.1952 sold the suit property in favour of Col. Hira Singh Bam, who in turn vide registered sale deed dated 09.01.1960 sold the suit property to Prem Chand. Prem Chand vide registered sale deed dated 30.09.1961 sold the suit property to Rameshwar Dass and Nand Lal, both sons of Jhandu Lal and handed over its possession to Rameshwar Dass and Nand Lal. In this way, Rameshwar Dass and Nand Lal in equal shares became exclusive owner with possession of the suit property. The intimation of the purchase of the suit property by Rameshwar Dass and Nand Lal was given to revenue authorities, but it appears that no action was taken by them for mutating the property in favour of Rameshwar Dass and Nand Lal. Atma Ram and his heirs, successors had left no right, title and interest in the suit property when it was sold by Atma Ram to Naranjan Singh, as stated above.
4. That Rameshwar Dass and Nand Lal after purchasing the suit property had installed a factory at the site of the suit property. This factory was registered before various authorities and remained in production for some years. Rameshwar Dass and Nand Lal, owners of the factory had business at Jagadhari also. The factory situate at the site of the suit property could not be looked after properly and it started running into losses and ultimately it was closed. The suit property, however, since its purchase continuously remained in ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 28 exclusive ownership and possession of Rameshwar Dass and Nand Lal in equal shares."
63. In written statement filed on behalf of defendants No. 1 and 2 .
I.e. appellants herein, the only contention put-forth is that "it is specifically denied that Shri Atma Ram, Niranjan Singh, Col. Hira Singh and Shri Prem Chand were the predecessor-in-interest of the property in dispute but nowhere the defendants/appellants specifically denied that the sequence of events regarding execution of various sale deeds as mentioned herein as would be evident from paras 3 and 4 of the written statement, which reads thus:-
"3. Contents of Para-3 of the plaint are also specifically denied being wrong and incorrect. It is specifically denied that Atma Ram, Niranjan Singh, Col. Hira Singh and thereafter Prem Chand were predecessor-in- interest of the property in dispute. It is further specifically denied that Prem Chand sold the land in question in favour of plaintiff No. 1 and Sh. Rameshwar Dass. It may not be out of place to submit here that if plaintiff No. 1 and Shri Rameshwar Dass had purchased this property in the year 1961, mutation must have been effected in favour of plaintiff No. 1 and Shri Rameshwar Dass by the Revenue Authorities. However, plaintiff may be put to the strict proof of the averments made in this para.
4. Contents of Para-4 of the plaint are also specifically denied being wrong and incorrect. It is specifically denied that plaintiff No. 1 and Rameshwar Dass either purchased the property in question or after its purchase installed a factory on the property in question. Rest of the contents of this para are also specifically denied being wrong and incorrect."
64. It is more than settled that evasive or vague denial of facts in the written statement may in a given case be taken to be an admission of facts. Reference in this regard can conveniently be made to the judgment ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 29 of the Hon'ble Supreme Court in Badat and Co. Bombay vs. East India Trading Co. AIR 1964 SC 538, wherein it was observed as under:-
.
[11] Order VII of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing that the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. Order VIII provides for the filing of a written-statement, the particulars to be contained therein and the manner of doing so; Rules 3, 4 and 5 thereof are relevant to the present enquiry and they read :
Order VIII Rule 3. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
Rule IV. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
Rule V. Every allegation of fact in the plaint, if not denied specifically, or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written-statement must deal specifically with each allegation of fact in the plain and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 30 itself being proof, no other proof is necessary. The first paragraph of R. 5 is a re-production of O. XIX R. 13 of the English rules made under the Judicature Acts. But in mofussil Courts in India, where pleadings were not precisely drawn, it was found in practice that if they were strictly construed in terms of the said provisions, grave injustice would be done to .
parties with genuine claims. To do justice between those parties, for which Courts are intended, the rigor of R. 5 has been modified by the introduction of the proviso thereto. Under that proviso the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Courts, presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the Original Side of the Bombay High Court, we are told, the pleadings are drafted by trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to rely upon them for non-suiting the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality, and the traditions and conventions of a Court wherein such pleadings are filed. In this context the decision in Tildesley v. Harper, (1878) 7 Ch D 403 will be useful. There, in an action against a lessee to set aside the lease granted under a power, the statement of claim stated that the donee of the power had received from the lessee a certain sum as a bribe, and stated the circumstances; the statement of defence denied that that sum had been given, and denied each circumstance, but contained no general denial of a bribe having been given. The Court held, under rules corresponding to the aforesaid rules of the Code of Civil Procedure, that the giving of the bribe was not sufficiently denied and therefore it must be deemed to have been admitted. Fry, J. posed the question thus : What is the point of substance in the allegations in the statement of claim ? and answered it as follows :
"The point of substance is undoubtedly that a bribe was given by Anderson to Tildesley, and that point of substance is nowhere met....no fair and substantial answer is, in my opinion, given to the allegation of substance, namely, that there was a bribe. In my opinion it is of the highest importance that this rule of pleading should be adhered to strictly, and that the Court should require the Defendant, when putting in his statement of defence, and the Plaintiff, when ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 31 replying to the allegations of the Defendant, to state the point of substance, and not to give formal denials of the allegations contained in the previous pleadings without stating the circumstances. As far as I am concerned, I mean to give the fullest effect to that rule. I am convinced that it is one of the highest benefit to suitors in the Court".
.
It is true that in England the concerned rule is inflexible and that there is no proviso to it as is found in the Code of Civil Procedure. But there is no reason why in Bombay on the original side of the High Court the same precision in pleadings shall not be insisted upon except in exceptional circumstances. The Bombay High Court, in Laxminarayan v. Chimniram Girdhari Lal, ILR 41 Bom 89 at p. 93 : (AIR 1916 Bom 103 at p. 104) construed the said provisions and applied them to the pleadings in a suit filed in the Court of the Joint Subordinate Judge of Ahmednagar. There, the plaintiffs sued to recover a sum of money on an account stated. For the purpose of saving limitation they relied in their plaint upon a letter sent by the defendant firm. The defendants in their written statement stated that the plaintiff's suit was not in time and that "the suit is not saved by the letter put in from the bar of limitation". The question was raised whether in that state of pleadings, the letter could be taken as admitted between the parties and, therefore, unnecessary to be proved. Batchelor, Ag. C. J.
after noticing the said provisions, observed :
"It appears to us that on a fair reading of paragraph 6, its meaning is that though the letter put in by the plaintiffs is not denied; the defendants contend that for one reason or another its effect is not to save the suit from the bar of limitation. We think, therefore, that........the letter, Exhibit 33, must be accepted as admitted between the parties, and therefore, unnecessary to be proved."
The written statement before the High Court in that case was one filed in a court in the moffusil; yet, the Bombay High Court applied the rule and held that the letter need not be proved aliunde as it must be deemed to have been admitted in spite of the vague denial in the written statement. I, therefore, hold that the pleadings on the original side of the Bombay High Court should also be strictly construed, having regard to the provisions of Rule 3, 4 and 5 of Order VIII of the Code of Civil Procedure, unless there are circumstances wherein a Court thinks fit to exercise its discretion under the proviso to Rule 5 of Order VIII.
[13] The defendants, adverting to the said allegations dealt with them in paragraphs 7 and 8 of their written statement. The said paragraphs read.::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 32
"7. With reference to paragraph 2 of the plaint the defendants deny that they at any time entered into any contract with the plaintiffs as alleged in the said paragraph or otherwise. The defendants deny that they at any time signed or were bound to sign a standard form .
of contract issued by the American Spice Trade Association."
"8. With reference to paragraph 3 of the plaint, the defendants deny that they at any time agreed to do any business or enter into any contract with the plaintiffs as alleged therein or otherwise. The defendants say (sic deny) that they did at any time sign nor were they bound to sign the said American Spice Trade Association Contract and that they are not therefore bound by or concerned with the terms and/or conditions of the said contract. The defendants deny the rest of the statements contained in the said paragraph."
It will be seen from the said paragraphs that though the defendants denied that at any time they entered into a contract with the plaintiffs as alleged in the plain or otherwise, they have not denied that the letters particularized in the plaint passed between the parties. Learned Solicitor General relied upon the expression "as alleged" in paragraphs 7 and 8 of the written statement and contended that the said words implied necessarily that the defendants denied the passing of the correspondence. No such necessary implication can arise from the use of the said expression. That expression is consistent with the admission by the defendants of the passing of the letters mentioned in paragraphs 2 and 3 of the plaint, coupled with a denial that such correspondence does not constitute a binding contract between them. Indeed, Rr. 3 and 4 of O. VIII are aimed at such general allegations in written statements. Rule 3 demands that each allegation of fact made in the plaint must specifically be denied and R. 4 emphasizes that such a denial shall be of the point of substance and shall not be vague. Here, in the plaint the contents of the letters dated September 7, 1948, September 13, 1948, March 8, 1949 and March 9, 1949 are given and it is specifically stated that they passed between the parties. Nowhere in the written statement there is a denial as regards the passing of the letters or the contents of those letters. The general and vague allegations in the written statement cannot possibly be construed, expressly or by necessary implication, as a denial of the specific allegations in the plaint in regard to the said correspondence. On this aspect of the case, to some extent, there is unanimity between Mody J. and the learned Judges of the Division Bench of the Bombay High Court. Adverting to para. 7 of the written statement, Mody J. Says :
::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 33"In my opinion, paragraph 7 of the written statement does not at all, directly or indirectly, specifically or by implication, deal with any of the said three statements of facts. A denial of a contract is not a denial of the receipt or of the contents of the said letter dated 7th .
September 1948 or the writing of the letter dated 13th September 1948. The defendants can conceivably admit the said three statements of fact but still deny that any contract resulted thereby. Therefore the said three statements of facts must be deemed to have been admitted."
Dealing with para 8 of the written statement, the learned Judge says that these two statements of facts have not been pleaded to in the written statement and must, therefore, be deemed to have been admitted. But having gone so far, the learned Judge rules against their admissibility on the ground that there are no allegations that the defendants wrote the letters attributed to them and that there is no description of the contents of the letters. This, if I may say so, is rather hypercritical. The allegations in para 2 of the plaint in express terms say that the letters emanated from the defendants and also give their gist. The Division Bench of the High Court in the context of the said denials said :
"Therefore, there is no denial of this correspondence. Indeed there could not be, because before the Written Statement was filed inspection was given by the plaintiffs of this correspondence and against the conscientious draftman of the written statement could not possibly have controverted (sic) the statement that these letters passed between the parties. Therefore, in our opinion, these two letters of the 7th September 1948 and 13th September 1948 are admissible in evidence, and we will formally admit them in evidence."
Then they proceeded to state :
"Now, we read this denial to mean not a denial of the exchange of letters and telegrams, not a denial of the correctness of the copies of the documents of which the Defendants have taken inspection, but a submission in law that no contract emerges from the exchange of these letters and telegrams."
65. Likewise, it is equally settled proposition that the averments made in the plaint, if not denied in the written statement would be ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 34 deemed to be admitted as held by Hon'ble Supreme Court in M. Venkatramana Hebbar (Dead) by LRs. vs. M. Rajagopal Hebbar and others (2007) 6 SCC 401, which reads thus:-
.
12. The contract between the parties, moreover was a contingent contract. It was to have its effect only on payment of the said sum of Rs.
15,000.00 by the plaintiff and other respondents by the defendant Nos. 1 to 3. It has been noticed hereinbefore by us that as of fact, it was found that no such payment had been made. Even there had been no denial of the assertions made by the appellant in their written statement in that behalf. The said averments would, therefore, be deemed to be admitted. Or. 8 R. 3 and Or. 8 R. 5 of the Civil Procedure Code read thus:-
"3. Denial to be specific.-It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
5. Specific denial.- [(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]"::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 35
13. Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Sec. 58 of the Evidence Act need not be proved."
66. A denial of fact in the written statement has to be specific and .
what would be the effect of such fact not being denied was specifically dealt with by the Hon'ble Supreme Court in Muddasani Venkata Narsaiah (dead) through LRs. vs. Muddasani Sarojana (2016) 12 SCC 288, wherein it was observed as under:-
"13. Coming to the question whether execution of sale deed in favour of plaintiff has been proved, the High Court has held that the sale deed has not been proved for want of examination of Buchamma. The High Court has ignored the pleadings of the parties and the evidence on the question of execution of sale deed which establishes that sale deed had been executed by Buchamma in favour of the plaintiff. In the written statement filed on behalf of the defendants, the sale deed was denied for want of knowledge. A perusal of same indicates that the authority of Buchamma to execute the sale deed in favour of the plaintiff was put into question.
Defendant no. 3 Sarojana in her deposition in court did not deny the fact that sale deed was executed by Buchamma in favour of the plaintiff. She has stated that she was not aware whether Buchamma has executed any sale deed in favour of the plaintiff. She only asserted that she was the adopted daughter of Yashoda.
14. It is settled law that denial for want of knowledge is no denial at all. The execution of the sale deed was not specifically denied in the written statement. Once the execution of the sale deed was not disputed it was not necessary to examine Buchamma to prove it. The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement. This Court in Jahuri Sah & Ors. v. Dwarika Prasad Jhunjhunwala, 1967 AIR(SC) 109 has laid down that if a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of existence of fact, not even an implied denial. Same decision has been followed by Madhya Pradesh High Court in Dhanbai D/o Late Shri Cowash v. State of M.P. & Ors, 1978 MPLJ 717. The High Court of Madhya Pradesh in Samrathmal & Anr. v. Union of India, Ministry of Railway & Ors, 1959 AIR(MP) 305 relying on P.L.N.K.L. Chettyar Firm v. Ko Lu Doke, 1934 AIR(Rang) 278 and Lakhmi Chand v. Ram Lal, 1931 AIR(All) 423, had also ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 36 opined that if the defendant did not know of a fact, denial of the knowledge of a particular fact is not a denial of the fact and has not even the effect of putting the fact in issue."
67. Evasive denial in a given case may amounts to admission of .
the allegations made in the plaint as held by Hon'ble Supreme Court in Jaspal Kaur Cheema and another vs. Industrial Trade Links and others (2017) 8 SCC 592, which reads thus:-
10. Section 116 deals with estoppel of a tenant founded upon contract between the tenant and his landlord. It enumerates the principle of estoppel which is merely an extension of principle that no person is allowed to approbate and reprobate at the same time. The tenant who has been let into possession cannot deny his landlord's title. In Mt. Bilas Kunwar v. Desraj Ranjit Singh & Ors., 1915 AIR(PC) 96, it was held that a tenant who has been let into possession cannot deny his landlord's title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord.
11. The principle of estoppel arising from contract of tenancy is based upon the principle of law and justice that a tenant who could not have got possession but for a contract of tenancy admitting the right of the landlord, should not be allowed to put his landlord in some inequitable situation taking undue advantage of the position that he got and any probable defect in the title of his landlord. This Court in Bansraj Laltaprasad Mishra v. Stanley Parker Jones, 2006 3 SCC 91 has enumerated the policy underlying Section 116 as follows:
"13. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
14. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 37 landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the .
landlord's title that the principle of estoppel is attracted.
15. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time."
68. Now adverting to the evidence, it would be noticed that the plaintiffs had examined PW 2- Shri Dharam Singh, Junior Assistant, Office of Sub Registrar, Nahan, and since his statement is most material to the case, the same is reproduced below in its entirety alongwith cross examination:-
" I am working as Junior Assistant in the office of Sub Registrar, Nahan since March, 2006. I brought the summoned record. Ext. PW2/A sale deed executed by Atma Ram in favour of Niranjan Singh Ahluwalia is recorded in Bahi No. 1 at page 30 of the register maintained by the Registrar Office. (Original seen and returned.) Ext.PW2/B sale deed executed by Niranjan Singh Ahluwalia in favour of Col. Hira Singh Baam is recorded in Bahi No. 1 at page 30/34. (original seen and returned.) Ext. PW2/C sale deed dated 09.01.1960 executed by Col. Hira Singh Baam in favour of Prem Chand is recorded in Bahi No. 1 at page 28 (Original seen and returned). Ext.PW2/D sale deed dated 30.9.1961 is recorded at page 35 of Bhai No. 1 executed by Prem Chand son of Shri Sandhu Ram in favour of Rameshwar dass. (Original seen and returned.) xxxxx By Shri Bhupinder Gupta, Sr. Advocate, with Shri Suneet Goel, Advocate, for defendants No. 1 and 2. I cannot say who has transcribed the sale deeds Ext.PW2/A. Ext.PW2/B, Ext.PW2/C and Ext.PW2/D in the registers/Bahi No. 1 brought by me in the Court today. It is correct that Ext.PW2/A as transcribed in Bahi No. 1 shows that land has been sold by Atma Ram to Himachal Rasayan Shala through Niranjan Dass.::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 38
xxxx By Shri G.D. Verma, Sr. Advocate, with Mr. B.C. Verma, Advocate for defendant No. 3.
It is correct that whenever a sale deed is registered with the office of Sub Registrar then registration of memorandum is sent to the concerned Assistant Collector IInd Grade so that entries are .
incorporated in the revenue record. It is correct that registration of memorandum(s) for sale deeds Ext.PW2/A, Ext.PW2/B and Ext.PW2/C and Ext. PW2/D has not been sent to the concerned revenue authority(ies)."
69. It would be evidently clear from the aforesaid statement that the appellants/defendants did not even raise a little finger when the sale deed Ext. PW2/A, Ext. PW2/B, Ext.PW2/C and Ext.PW2/D were being exhibited. Not only this, it was the defendants No. 1 and 2 who through their counsel have themselves suggested very positively that Ext.PW2/A as transcribed in Bahi No. 1 shows that the land had been sold by Shri Atma Ram to M/s Himachal Rasayan Shala through Shri Niranjan Dass.
70. Once this is the position, obviously then the appellants cannot claim and are rather estopped from assailing the sale deed or questioning the sale deeds Ext. PW2/A to Ext.PW2/D, or its mode and method of proof.
71. No doubt, that the plaintiffs in order to improve its case have sought to put certain questions to PW10 Satender Thakur, Senior Assistant of the Office of Tehsildar, Nahan qua the sale deeds but then this is too late in the day, as such objections were required to be taken at the earliest given opportunities.
72. Order XIII Rule 4 of the Code of Civil Procedure provides that every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialled by the judge amounts to admission of the document in evidence. An objection to the ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 39 admissibility of the document has to be raised before such endorsement is made and the Court is obliged to form an opinion on the question of admissibility and express the same on which opinion would depend the .
document being endorsed as admitted or not admitted in the evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced.
73. The appellants having failed to question the admissibility of the document at the time when the same was produced by PW2 are precluded from doing so.
74. Somewhat similar issue came up before the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another (2003) 8 SCC 752, wherein it was observed as under:-
16. One document A30 is the photocopy of a certified copy of the decision given by Charity Commissioner. This document was tendered in evidence and marked as an exhibit without any objection by the defendants when this was done. The plaintiff has in his statement deposed and made it clear that the certified copy, though available, was placed on the record of another legal proceedings and, therefore, in the present proceedings he was tendering the photocopy. There is no challenge to this part of the statement of the plaintiff. If only the tendering of the photocopy would have been objected to by the defendant, the plaintiff would have been and there sought for the leave of the Court either for tendering in evidence a certified copy freshly obtained or else would have summoned the record of the other legal proceedings with the certified copy available on record for the perusal of the Court. It is not disputed that the order of Charity Commissioner is a public document admissible in evidence without formal proof and certified copy of the document is admissible in evidence for the purpose of proving the existence and contents of the original. An order of Charity Commissioner is not per se the evidence of title inasmuch as the Charity Commissioner is not under the law competent to adjudicate upon questions of title relating to immovable property which determination lies within the domain of a Civil Court. However, still the ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 40 order has relevance as evidence to show that the property forming subject-matter of the order of the Charity Commissioner was claimed by the temple to be its property but the temple failed in proving its claim. If only the claimant temple would have succeeded, the item of the property would have been directed by the Charity Commissioner to be entered into .
records as property of the charity, i.e. the temple, which finding and the entry so made, unless dislodged, would have achieved a finality. On the contrary, the appellant herein, who claimed the property to be his and not belonging to the charity, succeeded in the claim asserted by him.
17. The other document is the rent note executed by defendant No. 2 in favour of plaintiff. Here also photocopy of the rent note was produced. The defendant No. 2 when in witness-box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signature on the document. It is nobody' case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff.
18. The abovesaid facts have been stated by us in somewhat such details as would have been otherwise unnecessary, only for the purpose of demonstrating that the objection raised by the defendant-appellant before the High Court related not to the admissibility of the documentary evidence but to the mode and method of proof thereof.
19. Order 13, R. 4 of the C.P.C. provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initiated by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced.
20. The learned counsel for the defendant-respondent has relied on the Roman Catholic Mission v. State of Madras and another, AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 41 abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes :- (i) an objection that the document .
which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit,' an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons : firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.
23. Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 42 inadmissible being photo copies, the originals of which were not produced.
24. So is the observation of the High Court that the photocopy of the rent note was not readable. The photocopy was admitted in evidence, as .
already stated. It was read by the trial Court as also by the first appellate Court. None of the said two Courts appear to have felt any difficulty in reading the document and understanding and appreciating its contents. May be, that the copy had fainted by the time the matter came up for hearing before the High Court. The High Court if it felt any difficulty in comfortable reading of the document then should have said so at the time of hearing and afforded the parties an opportunity of either producing the original or a readable copy of the document. Nothing such was done. The High Court has not even doubted the factum of the contents of the document having been read by the two Courts below, drawn deductions therefrom and based their finding of fact on this document as well. All that the High Court has said is that the document was inadmissible in evidence being a photocopy and with that view we have already expressed our disagreement. Nothing, therefore, turns on the observation of the High Court that the document was not readable when the matter came up for hearing before it.
75. At this stage, Shri G.C. Gupta, learned Senior Counsel for the appellants would vehemently argue that the certified copies of the documents at best are secondary evidence and without proving the circumstances entitling the respondents to give secondary evidence, the same were not admissible in evidence. Even this contention of the appellants is without merit.
76. As noticed above, no objection was raised by the appellants while the certified copies were being produced in evidence by PW2, rather the suggestion given by their counsel in the cross-examination fully fortifies and supports the case of the respondents qua the execution of the sale deed Ext.PW2/A to Ext. PW2/D. ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 43
77. That apart, it is more than settled that the objection as to mode of proof falls within the procedural law and such objection, if not raised, would be deemed to be waived, as was observed by the Hon'ble .
Supreme Court in Dayamathi Bai (Smt.) vs K.M. Shaffi (2004) 7 SCC 107, which reads thus:-
13. We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ex. P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See Order XIII, R. 3 of Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkata-chala Gounder v. Arulmigu Viswesaraswami and V. P. Temple and another, reported in ((2003) 8 SCC
752) to which one of us, Bhan, J., was a party vide para 20:
"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras (AIR 1966 SC 1457) in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes
(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit," an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 44 marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of .
fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons : firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior Court."
14. To the same effect is the judgment of the Privy Council in the case of Gopal Das and another v. Sri Thakurji and others, reported in (AIR 1943 PC
83), in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 45 documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the Court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a .
later stage.
15. In the present case, when the plaintiff submitted a certified copy of the sale deed (Ex. P1) in evidence and when the sale deed was taken on record and marked as an exhibit, the appellant did not raise any objection. Even execution of Ex. P2 was not challenged. In the circumstances, it was not open to the appellant to object to the mode of proof before the lower appellate Court. If the objection had been taken at the trial stage, the plaintiff could have met it by calling for the original sale deed which was on record in collateral proceedings. But as there was no objection from the appellant, the sale deed dated 14-11-1944 was marked as Ex. P1 and it was admitted to the record without objection.
78. This question otherwise is not open to challenge for the appellants in view of the decision rendered by this Court in CMPMO No. 136 of 2010, titled as Madan Swaroop & another vs. Nand Lal and others, decided on 13.03.2012, wherein appellants therein had assailed the order passed by the learned trial Court allowing the application of the respondents for leading secondary evidence under Section 65 of the Evidence Act and this Court observed as under:-
"2. It is undisputed before me that the suit, out of which the present proceedings have arisen, was originally instituted in this Court and on increase of the pecuniary jurisdiction of this Court, the case was sent for trial before the learned District Judge, Sirmour. The bone of contention between the parties is that an application has been moved under Section 65 of the Indian Evidence Act seeking permission for leading secondary evidence with respect to the two sale deeds Ext.PW2/A and Ext.PW2/B, which are certified copies of the sale deeds executed by Atma Ram in favour of Shri Naranjan Singh, and second by Naranjan Singh in favour of Col. Hira Singh Balm which form the basis/foundation of the case of the parties before the learned trial Court.::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 46
3. It is also undisputed before me that these sale deeds are from the official records of Sub Registrar duly maintained in his office. It is not disputed that Dharam Singh was summoned as PW2 by the Court on 23.1.2008 and these two sale deeds were exhibited and proved .
without their being any objection. If that be so, there was no necessity for moving the application under Section 65 of the Evidence Act for the reason that the petitioner herein had not objected to the mode of proof in the manner by placing them on the record as exhibits and not insisting on the original. I do not wish to add anything more. The application has been filed by the plaintiffs by way of abundant caution, which prayer has been allowed. The objection taken by the defendant is that the pleadings in the application itself are bereft of the foundation on facts which is required to invoke the jurisdiction of the Court." r
79. It is vehemently contended by learned Senior Counsel for the appellants that no jamabandi or revenue record is accompanying the sale deeds, therefore, these cannot be looked into. It is also contended that respondents have not even bothered to place on record any revenue record prior to the year 1974, especially when their own case is that it was Shri Atma Ram, who was the owner of the property and had sold the same to the Himachal Rasayan Shala vide registered sale deed dated 28.05.1949. Undoubtedly, the plaintiffs have to stand on their own legs and cannot take advantage of the weakness of the defendants but the said principle is not applicable to the facts of the present case.
80. As regards the revenue records, it is more than settled that an entry therein does not confer title on a person whose name appears in the record of right. Equally settled is the proposition that the entry in the revenue record or jamabandi has only fiscal purpose i.e. payment of land revenue and no ownership is conferred on the basis of such entry so far as the title to the property is concerned and it can only be decided by the ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP 47 competent Civil Court (Ref.: Jattu Ram vs. Hakam Singh and other AIR 1994 SCC 1653 and in Suraj Bhan and other vs. Financial Commissioner and other (2007) 6 SCC 186).
.
81. As a last ditch effort, the learned counsel for the appellants would argue that the learned trial Court could not have taken into consideration the testimonies of PW 11 and PW 12, who had been examined in rebuttal and had failed to depose in affirmative, more particularly, when there was no issue in rebuttal. Even this contention of the appellants is equally without any merit because admittedly Issue No. 10 as framed requires rebuttal and noticeably statements of PW11 and PW12 are only confined to rebuttal evidence i.e. with regard to possession.
82. In view of aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan), Judge April 26, 2018 sanjeev ::: Downloaded on - 26/04/2018 23:03:20 :::HCHP