Punjab-Haryana High Court
Banarsi Dass vs Maman Chand on 14 August, 1991
Equivalent citations: AIR1992P&H145, (1992)101PLR54, AIR 1992 PUNJAB AND HARYANA 145, (1992) 1 PUN LR 54, (1992) 1 CURLJ(CCR) 234, (1992) 1 LANDLR 385, (1992) 1 RRR 442, (1992) 2 RENCR 215, (1991) 2 RENTLR 689, 1991 PUNJ LJ 785, 1992 PUNJ LJ 38, (1992) 2 RRR 96(1), (1992) 2 RRR 442
JUDGMENT
1. Suit for possession filed by Banarsi Dass was decreed by the trial Court. However, on appeal the decree was set aside. Hence Banarsi Dass is in second appeal. Banarsi Dass plaintiff claimed to be a tenant in the house in dispute for the last forty to forty-five years, since the time of his father. He was residing in Calcutta. However, his wife and children continued staying in the house at Bhiwani. Some time back he took his wife to Calcutta where she died. During his absence Maman Chand defendant forcibly and illegally took possession of the house about 15 days prior to the filing of the suit which was filed on February 18, 1982. Defendant Maman Chand contested the suit and admitted that the plaintiff was residing in Calcutta and doing business there. However, he was not residing in the house in dispute. He himself claimed to be a tenant of the house in dispute having taken on rent from its owner Smt. Gita Devi with effect from June 5, 1981 on a monthly rent of Rs. 15/-, As per his knowledge Har Saroop, brother of the plaintiff, was in possession of the house in dispute and had surrendered the same for a consideration of Rs. 15,000/-. On the pleadings of the parties the trial Court framed as many as 11 issues. On issues Nos. 1 to 3 it was held that the plaintiff was tenant of the house in dispute and he was illegally dispossessed by the defendant, who was thus in unauthorised occupation of the same. It is not necessary to mention to the findings on other issues as the same are not under challenge in this appeal.
The trial Court decreed the suit on May 20, 1985. The learned lower appellate Court reversed the judgment and decree of the trial Court and dismissed the suit on March 12, 1986.
2. Learned counsel for the appellant has argued that the lower appellate Court wrongly considered documents Exhibit D.2 to Exhibit D.4 as admissible in evidence. These documents are copies of the copies as is shown from the endorsement made thereon by the Notary. Since the defendant did not lead any evidence of existence of the original, the secondary evidence could not be led. After giving due consideration to the arguments aforesaid and considering the evidence produced, I find no merit in this contention. These three documents bear the endorsement of Notary as under:--
"Attested the true photo copy of the original documents."
Learned counsel for the appellant wanted the aforesaid endorsement to be read as:
"Attested the photo copy of the document" which is not correct. The judgment of this Court in Hira v. Smt. Gurbachan Kaur, (1988) 94 PLR 173, was pressed into service by counsel for the appellant in support of his contention that copy of the copy would be inadmissible in evidence, more so, when the person who had made the copy had not been produced. That was a case where plea of forgery was taken and original was not produced at the initial stage and subsequently secondary evidence was sought to be produced which was declined. The ratio of the decision aforesaid cannot be applied to the facts of the case in hand. The Notary has given the certificate of attestation on these three documents as reproduced above. He was competent to record such certificate as provided under S. 8 of the Notaries Public Act, extract of which is as under:--
"8. Function of notaries:-- (1)A notary may do all or any of the following acts by virtue of his office, namely:--
(a) Verify, authenticate, certify or attest the execution of any instrument;"
The words "verify", "authenticate", "certify" or "attest the execution" of any instrument are not synonymous words as provided under S. 8 referred to above. These are separate acts to be performed by the Notary in respect of instruments. Execution of instruments can be attested by the Notary. At the same time the Notary can also verify the instrument or show it to be authenticated or certify its correctness. What is done in the present case is that he had certified that the photocopy was true copy of the original. Thus, it was not necessary for the defendant to produce the Notary who had recorded certificate of attestation as witness in the case. His attestation as aforesaid has to be taken into consideration as conclusive evidence. Since the attestation showed that the document was true photo copy of the original document, it is taken that Notary had compared the photocopy produced, with the original document.
3. The question of proof of document is entirely different from its admissibility. Admittedly, original of all these three documents were not produced in this case. Photo copies with due attestation were produced as above. Section 63 (2) and (3) of the Evidence Act reads as under:--
"63. Secondary evidence:--
Secondary evidence means and includes:--
(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original;"
4. The case in hand would be covered by the aforesaid two clauses of S. 63. Maman Chand defendant appeared as DW 1. He is the attesting witness of these three documents Exhibits D.2, D.3 and D.4. He was thus competent to prove the documents. He has specifically mentioned in his statement that these documents were executed by the executants and he attested the same. DW3 Subhash Chand, Petition Writer, DW6 Rattan Lal and DW 7 Chander Sain have also proved rent-note Exhibit D.4. Thus these documents were correctly admitted into evidence in appeal though in the trial Court it was objected on behalf of the plaintiff. The very fact that the Notary had given the certificate that he had compared these copies from the original these photo-copies could be admitted into evidence. The execution of the document is duly proved by the statement of aforesaid witnesses. The ratio of the decision of this Court in Gurditta v. Balkar Singh, (1989) 95 PLR 418, that in the absence of existence of the original even photo-copies could not be taken into consideration, is not applicable to the case in hand. The contention of counsel for the appellant in this respect is, therefore, repelled.
5. Exhibit D.4 is the rent-note executed on July 30,1981 by Maman Chand defendant in favour of Sharda Devi. Before that Har Sarup brother of Banarsi Dass plaintiff on acceptance of Rs. 15,000/- had surrendered possession of the house in dispute. Exhibit D.2 dated May 30, 1981 is the surrender document (agreement) and Exhibit D.3 of the said date is the receipt for Rs. 15,000/-accepted by him from Gita Devi. Learned counsel for the appellant has argued that it has not been established as to who was Sharda Devi who let out the house to defendant Maman Chand and secondly Har Sarup had no right to surrender the tenancy rights. Due consideration had has been given to these arguments. Har Sarup, Sharda Devi and Gita Devi were neither impleaded as parties in the suit nor they were produced as witnesses by either of the parties. Obviously any observation made with respect to ownership of the house in dispute would not be binding on them. Still the question raised in this case is to be decided as to whether Sharda Devi was entitled to receive rent and if the answer is in the affirmative she could let out the house in dispute to Maman Chand defendant. Banarsi Dass appeared as PW 1 and deposed that Gilu Ram was the owner to whom rent was being paid. He admitted having filed a suit against Gilu Ram which was subsequently filed without any decision. The defendant has produced certified copies of the proceedings of that suit. Exhibit D.7 is the copy of the plaint of the suit filed on July 16, 1981 by Banarsi Dass against Gilu Ram. This was the suit for grant of injunction. Banarsi Dass claimed himself to be tenant under Gilu Ram. This suit was dismissed on November23, 1981. Copy of the order is Exhibit D.8. The suit was dismissed in default. Exhibit D.9 is copy of the statement of counsel for Banarsi Dass in the aforesaid suit asserting that defendant Gilu Ram was still alive and there was no need to file application for bringing on record his legal representatives. Thus Gilu Ram was again summoned on payment of process fee for November 23, 1987 on which date the suit was dismissed in default as stated above. The necessity for such a statement arose because report on the summons was that Gilu Ram had died. This was done just before filing of the present suit without impleading Gilu Ram or his legal representatives. Though from other evidence produced from the record which was discussed by the trial Court in detail and possession of Banarsi Dass of the house in dispute was proved as his sons were born in this house and they also got education while living in this house. Banarsi Dass PW did not clarify as to how mother of Sawar Mal was either connected with Gilu Ram or entitled to receive rent, though he stated having paid rent to her by money order. It was Maman Chand who appeared as DW 1 and clarified that Sharda Devi wife of Malli Ram was in fact mother of Sawar Mal and Malli Ram was recorded as owner in the property-tax register. On behalf of the defendant copies of the property-tax registers were produced. They also indicated Amin Chand (father of Banarsi Dass plaintiff) as tenant in the house in dispute. Since Sharda Devi is the same person to whom Banarsi Dass, as per his own admission, was making payment of the rent and she had further let out the house in dispute to Maman Chand defendant thus she had the power and authority to deal with the house in dispute.
6. The further question for consideration is as to whether Har Sarup could surrender the tenancy rights? As already stated above, Amin Chand was initially shown as tenant and after his death his son or sons who remained in occupation of the house in dispute inherited the tenancy rights. Banarsi Dass's statement clarifies that he himself had been residing throughout at Calcutta. However, his family members, wife and children, for a number of years, lived therein.
7. After the death of his wife at Calcutta the house remained in possession of Har Sarup his brother from 1978 to 1981. Since Har Sarup only remained in possession for a number of years from 1978 to 1981, obviously as tenant, he could surrender the tenancy rights and he rightly did so while executing documents Exhibits D.2 and D.3 referred to above. As already stated above, Maman Chand having taken the possession of the house in dispute under rent-note Exhibit D.4 from Sharda Devi, he is not in unauthorised occupation of the premises as alleged by the plaintiff or having taken possession forcibly.
8. For the reasons recorded above, finding no merit in this appeal the same is dismissed without any order as to costs.
9. Appeal dismissed.