Kerala High Court
Upendra Rao S/O.Raya Shetty vs M.K.Ammini
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 30TH DAY OF NOVEMBER 2016/9TH AGRAHAYANA, 1938
RSA.No. 961 of 2005 (F)
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AGAINST THE JUDGMENT AND DECREE DATED 26.07.2005 IN AS NO. 182/2004 of V
ADDITIONAL DISTRICT COURT,ERNAKULAM.
AGAINST THE JUDGMENT AND DECREE DATED 25.03.2004 IN OS NO.1548/1996 of II
ADDITIONAL MUNSIFF'S COURT,ERNAKULAM
SECOND APPELLANT/RESPONDENT/DEFENDANT:
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UPENDRA RAO S/O.RAYA SHETTY,
POLICE STATION PARAMBU, KOLETHERI ROAD,
POONITHURA VILLAGE, COCHIN-17.
BYADVS.SRI.S.SREEKUMAR (SENIOR ADVOCATE)
SRI.P.JAYABAL MENON
RESPONDENT/APPELLANT/PLAINTIFF:
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M.K.AMMINI, W/O.SREEDHARAN, NIRMALA BHAVAN,
KOLETHERI ROAD, POONITHURA VILLAGE, COCHIN-17.
BYADV. SRI.C.K.PAVITHRAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2016, THE
COURT ON 30.11.2016 DELIVERED THE FOLLOWING:
C.R.
A.HARIPRASAD, J.
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R.S.A. No.961 of 2005
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Dated this the 30th day of November, 2016
JUDGMENT
Vexed legal question, having a serious impact on the property rights of persons, arising for resolution in this second appeal is as follows:
When there are discrepancies, in the description of property or recitals, between an assignment deed and a true copy of the same, filed at the time of presentation of the document for registration, which will have a precedence over the other?
2. Brief facts: Appellant is the defendant in a suit for prohibitory injunction filed by the respondent, for restraining the former from removing a fence on the eastern side of plaint A schedule pathway and for preventing him from trespassing into any portion of the property or reducing the width of plaint A schedule pathway.
3. An extent of 27.283 cents of land in survey No.1354/3 was purchased by the respondent/plaintiff as per Exts.A1 and A2 documents. Respondent sold 16.75 cents of land from out of the above mentioned extent. Thereafter, she is in possession of 10.533 cents, which includes RSA No.961/2005 2 the pathway admeasuring 2.45 cents. Respondent's residential building is situated in the rest of the area, which is described in the plaint B schedule. Appellant is residing on the eastern side of plaint A schedule pathway. There is a fence put up to demarcate the plaint A schedule pathway and the appellant's property. Appellant attempted to remove the fence in order to reduce the width of pathway. With these allegations the suit is filed.
4. Appellant filed a written statement contending that the respondent is not in possession of plaint A schedule property. Allegation that the appellant attempted to trespass is false. According to the appellant, there is no fence on the eastern side of the plaint A schedule property. He was a kudikidappukaran and he obtained purchase of 10 cents of land as per the provisions of the Kerala Land Reforms Act, 1973. Total extent of land in his possession is 11.739 cents. According to the appellant, the pathway leading to the respondent's property is having a width of 10 ft. only. Contentions in the plaint are untrue and therefore, he prayed for dismissal of the suit.
5. Learned trial Judge dismissed the suit on finding that the respondent/plaintiff did not approach the court with clean hands and therefore, she was not entitled to get an equitable relief of prohibitory injunction. The lower appellate court reversed the decree of trial court, finding that the incongruities noted between Ext.A1 and a copy of the RSA No.961/2005 3 document filed at the time of registration were not on account of the respondent's fault. It also found that a property with the description in the schedule to Ext.A1 could be unambiguously identified and erroneous representation of the same in the copy of the document, filed before the Sub Registrar, is of no significance. The lower appellate court further found that Ext.A1 original title deed should prevail over a copy of the same in case of any divergence. It is pertinent to note that Ext.X1 is a certified copy of the true copy of Ext.A1, filed before the Sub Registrar at the time of registration of Ext.A1. Ext.A1 was issued from the Sub Registrar's Office concerned. The dispute is with respect to item No.3 in both Exts.A1 and X1. On a close watch of the descriptions in Exts.A1 and X1, it can be seen that there are some material differences. Admittedly the piece of land included as item No.3 in both the said documents is in a triangular shape. The factual issues touching the dispute in the descriptions could be considered later. I shall initially deal with the legal aspects.
6. Heard Sri.Martin Jose P., learned counsel for the appellant and Sri.C.K.Pavithran, learned counsel for the respondent.
7. Learned counsel for the appellant contended that Ext.X1, being a certified copy of a public document, should have a march over Ext.A1, which is only a private document. This contention of the appellant may give rise to some ancillary legal questions. What is the nature of an RSA No.961/2005 4 original document? Is it a private document or a public document? Is a true copy of the document, filed at the time of presentation of the document for registration and kept in the register of the Registrar's office, could be said to be a public document? If the original of a registered document is only a private document, will a certified copy issued by the Registrar concerned have supremacy over the original document held by the parties? All these questions can be decided in the course of discussion.
8. I shall initially deal with the scheme of the Registration Act, 1908 (in short, "the Act"). Statement of objects and reasons dated 22.07.1908 would show that the provisions relating to registration of documents were scattered in several enactments and the Act was promulgated to consolidate the provisions. Part II of the Act deals with hierarchy of the registration establishment and their working. Part III of the Act deals with registerable documents. Section 17 of the Act is one of the important provisions dealing with documents of which registration is compulsory. Section 18 of the Act speaks about documents of which registration is optional. Section 19A of the Act is quoted below for clarity:
"Documents presented for registration to be accompanied by true copies thereof.-(1) No document shall be accepted for registration unless it is accompanied by a true copy thereof.
(2) The true copy referred to in sub- RSA No.961/2005 5
section (1) shall be neatly handwritten, printed, typewritten, lithographed or otherwise prepared in accordance with such rules as may be made in this behalf."
This provision was inserted by Act 7 of 1968 (Kerala). Section 21 of the Act says that no non-testamentary document relating to immovable property shall be accepted for registration, unless it contains description of such property sufficient to identify the same.
9. Part XI of the Act deals with the duties and powers of registering officers. For the purpose of this case, Section 52 of the Act is relevant. It mentions about the duties of registering officers when a document is presented for registration. Section 52(1)(c) of the Act says that subject to the provisions contained in Section 62, where a document is admitted to registration, a true copy thereof shall, without unnecessary delay, be filed in the appropriate book according to the order of its admission. This provision also came into the statute book by Act 7 of 1968 (Kerala)
10. Section 57 of the Act is important for the purpose of resolution of the dispute. It reads as follows:
"Registering Officers to allow inspection of certain books and indexes, and to give certified copies of entries.-(1) Subject to the previous payment of the fees payable in that behalf, the Book RSA No.961/2005 6 Nos.1 and 2 and the indexes relating to Book No.1 shall be at all times open to inspection by any person applying to inspect the same; and, subject to the provisions of Section 62, copies of entries in such books shall be given to all persons applying for such copies.
(2) Subject to the same provisions, copies of entries in Book No.3, and in the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies.
(3) Subject to the same provisions, copies of entries in Book No.4 and in the Index relating thereto shall be given to any person executing or claiming under the documents to which such entries respectively refer, or to his agent or representative.
(4) The requisite search under this section for entries in Book Nos.3 and 4 shall be made only by the registering officer.
(5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents."
11. In the latter part of Sub-section (1) of Section 57 of the Act, it is mentioned that subject to the provisions in Section 62, copies of the entries in book Nos.1 and 2 and the index relating to book No.1 shall be given to RSA No.961/2005 7 all persons applying for such copies.
12. Another part of the Section relevant for our purpose is Sub- section (5). It says that all copies given under Section 57 shall be signed and sealed by the registering officer and shall be admissible for the purpose of proving the contents of the original documents. It is clear from Sub-section (5) of Section 57 of the Act that this provision does not dispense with the proof of execution of a document.
13. Now, I shall turn to the stipulations in Indian Registration (Filing of True Copies) Rules, 1967 (in short, "the Rules"). This was enacted by drawing power from Section 89A of the Act. Before dealing with the relevant provisions in the Rules, I shall refer to Section 89A of the Act for better understanding. It reads as follows:
"Power to make rules for filing of true copies of documents.-(1) The State Government may make rules for all purposes connected with the filing of true copies of documents in the appropriate Books under this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the manner in which true copies of documents shall be prepared; and
(b) the manner of filing of such copies.
RSA No.961/2005 8
(3) All rules made under this section shall be published in the Official Gazette and, unless they are expressed to come into force on a particular day, shall come into force on the day on which they are so published.
(4) Every rule made under this section shall be laid, as soon as may be after it is made, before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule."
14. Now, coming to the Rules, Rule 4 says that every document, except as expressly provided in the Rules, presented for registration under the Act, shall be duly accompanied by a true copy of such document without which the document shall not be accepted for registration. It is conspicuous that none of the provisions in the Rules speaks as to who should prepare a true copy of the document. It is argued at Bar that the RSA No.961/2005 9 practice in vogue is that the parties themselves prepare the true copy to be filed and produce it along with the original document. As there is no provision of law compelling the officers to prepare a true copy of each document presented for registration and also considering the difficulties in the practicability of such a course, I am of the view that the present practice is concomitant with the legislative intent.
15. In Rule 5, it is mentioned that a true copy presented with the document shall be deemed to be a copy for the purpose of Clause (c) of Sub-section (1) of Section 52 of the Act. Rule 6 deals with the mode of preparing a copy. I shall deal only with the portions which are relevant for our purpose. Rule 6(i) mandates that a true copy under the Rules shall be prepared on paper supplied by the Government for the purpose, having the specifications therein. Rule 6(viii) insists that the copy shall be a true and exact re-production of the original document and as such, every matter from top to bottom of each page of the document shall be copied therein including the 'YADASTH' notes of corrections, except the signature of the parties to the document, which may be indicated as 'signed'. Sub-rule (xv) of Rule 6 says that the parties to the document need not affix their signature in the true copy at the portion corresponding to each page in the original document. Instead, the fact that they have signed the original document shall be indicated in the true copy by the word 'signed' after RSA No.961/2005 10 writing their names. On a close reading of Rule 6, it can be seen that each and every minute details, except as to who has to prepare a true copy, have been mentioned with sufficient clarity. As stated above, it is for the parties to the document to produce a true copy at the time of presentation of the document for registration.
16. Rule 7 says that as soon as a document is presented for registration, the registering officer shall scrutinise the original and the copy and if it is found prima facie to be a true copy satisfying all the conditions contained in the Rules, the document shall be accepted for registration as per the provisions under the Act. It further says that immediately after the registration procedures have been completed and the document admitted to registration, all the endorsements made on the document by the registering officer (including the stamp certificate, if any, added from the office) shall be duly transcribed in the copy by the office staff preceded by the heading 'copy of endorsements and certificates'. Copy of the document and the endorsements transcribed thereon shall then be got compared with the original document by the members of the staff. It is clear from this provision that there is a mandatory duty cast on the staff of the Registrar's office to verify the correctness of true copy and it should be compared with the original document to fulfill the statutory obligations.
17. Rule 12 says that during the time of comparison of the true RSA No.961/2005 11 copy, all the corrections (such as scorings, interlineations, etc.) in the original as well as in the copy shall be duly noted and letters or figures as the case may be, as provided in Rule 128 of the Kerala Registration Rules shall be duly assigned for the purpose of footnote to be added from the office.
18. Another important provision is Rule 15. It says that officers, who compare the true copy with the original document, shall write their names and affix their respective signatures in every page of a true copy (at the bottom) in token of their having done so. Rule 16 also deals with the certification by officers concerned that they have compared the true copy with the original document. Rule 18 is to the effect that immediately after completing all the procedures mentioned in the Rules, the true copy should be filed in file boards provided for the purpose and kept under the personal custody of the Registering Officer until it is bound as per the provisions in the Rules.
19. Coming back to Section 57 of the Act, the question of admissibility of a certified copy of a registered document had gained the attention of courts on earlier occasions too. In this context, some of the provisions in the Evidence Act, 1872 are also relevant. Section 61 of the Evidence Act states that the contents of documents may be proved either by primary or secondary evidence. Section 62 of the Evidence Act says RSA No.961/2005 12 that primary evidence means the document itself produced for inspection of the court. Explanation 1 to the Section deals with two contingencies, viz., where a document is executed in several parts and where a document is executed in counter part. In both these situations, each document has to be treated as primary evidence. Section 63 of the Evidence Act deals with secondary evidence. It reads as follows:
"Secondary evidence.-Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained;
(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) counterparts of documents as against
the parties who did not execute them;
(5) oral accounts of the contents of a
document given by some person who has himself
seen it."
20. Section 64 of the Evidence Act insists that documents must be proved by primary evidence, except in the cases mentioned in the Act.
Section 65 of the Evidence Act enumerates the situations under which secondary evidence relating to documents may be given. It is quoted RSA No.961/2005 13 hereunder for completion of the discussion:
"Cases in which secondary evidence relating to documents may be given.-Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(a) when the original is shown or appears to be in the possession or power-
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a
nature as not to be easily movable;
(e) when the original is a public
document within the meaning of section 74;
RSA No.961/2005 14
(f) when the original is a document
of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
21. Well settled is the proposition of law that a certified copy of a registered document is inadmissible under Section 65 of the Evidence Act to prove the contents of the original document, unless a case for reception of secondary evidence was made out. It is pertinent to remember that Section 57(5) of the Act only declares that the copies given under the RSA No.961/2005 15 Section shall be admissible for the purpose of proving the contents of the original document and it is indisputable that such copies are not intended to prove the execution of document. From Section 65 of the Evidence Act, it is clear that there are certain parameters to be established for adducing secondary evidence. In other words, secondary evidence could be adduced only on laying a foundation for doing so.
22. In the case of a registered document, the entry in the registration book is a 'public document', the term which has been defined in Section 74 of the Evidence Act. Going by Section 75 of the Evidence Act, all documents other than those mentioned in Section 74 are private documents. What is filed at the time of registration of a document is only a true copy of the document presented for registration. Ordinarily, a copy of a copy is inadmissible under Section 63 of the Evidence Act, unless it has been compared with the original or unless the copy with which it was compared was a copy made by some mechanical process, which in itself ensure the accuracy of such a copy. By the express provision in Section 57(5) of the Act, the certified copies of documents obtained from the Registrar's office are admissible, though they are secondary evidence. Section 57 of the Act only shows that when secondary evidence has in any way been introduced, say, as by adducing proof of loss of an original document, a copy certified by the Registrar shall be admissible for the RSA No.961/2005 16 purpose of proving the contents of original. A certified copy of what has been registered in the book of registration is also admissible to prove the contents of the original document, when the original is withheld by a party in whose possession it is or presumed to be.
23. Section 65(e) of the Evidence Act declares that secondary evidence may be given of the existence, condition or contents of a document when the original is a public document within the meaning of Section 74.
24. Section 65(f) of the Evidence Act also needs a specific mention. It says that when the original is a document of which a certified copy is permitted by the Evidence Act, or by any other law in force in India to be given in evidence, such a copy is also regarded as secondary evidence. As mentioned above, a copy issued from the Registrar's office can be used in the form of a secondary evidence.
25. On a conjoint reading of Section 57 of the Act and Sections 63, 65 and 74 of the Evidence Act, it can be seen that a registered document, properly executed by the parties, is not a public document. It is certainly a private document. No doubt, the parties are bound by the terms of it as it is a contract concluded between them. A true copy of a document presented for registration, which has been entered in the books of registration, kept as per law (as mandated by the Act and the Rules), is a public document, RSA No.961/2005 17 falling within Section 74 of the Evidence Act. If that be so, a certified copy of a registered document copied from the true copy kept in the Registrar's office and issued by the registering officer can neither be a public document nor be a certified copy of a private document. But as per the stipulations in the provisions mentioned above, it is a certified copy of a public document. So much so, it can be received as secondary evidence to prove the contents of the original document for the reasons above mentioned.
26. Learned counsel for the appellant vehementally argued on the basis of Roy & Bros. v. Ramanath Das (AIR 1945 Calcutta 37) that the purpose of Registration Act being to provide information to people who may deal with property as to the nature and extent of rights which persons may have affecting that property, a party shall not be permitted to claim primacy to a registered document than to a public document kept in the Registrar's office. Reliance is also placed by the counsel on Noble John v. State of Kerala (2010 (3) KLT 941), rendered by a learned Single Judge of this Court. The point canvassed reads as follows:
"The very object of the Registration Act, as I have already explained, is to establish a method whereby the title to a particular tract or parcel of land will always be ascertained by reference to the register maintained by the Sub Registrar's office, RSA No.961/2005 18 which should be of conclusive veracity. ..........."
According to the learned counsel, the laudable purpose sought to be achieved by the Registration Act would be frustrated, if the contention of the respondent is accepted. I find it very difficult to agree to this line of argument. It is true that the Registration Act is enacted for attaining certainty in the matter of rights of parties over immovable properties by regulating declaration, creation or extinguishment, etc. of rights. However, law does not permit to confer pre-eminence to a certified copy issued from the Registrar's office over an original document executed between parties for the reasons shown in the succeeding paragraphs.
27. Almost identical questions were raised in Smt.Rekha Rana and others v. Smt.Ratnashree Jai (AIR 2006 Madhya Pradesh 107). The pertinent questions raised for decision by a Division Bench are as follows:
"(i) Whether a sale deed (duly registered) is a public document?
(ii) Whether a certified copy of a sale-deed issued by the Registering Officer is a public document?
(iii) Whether a certified copy of a public document can be received in evidence without any further proof?
(iv) What is the effect and efficacy of producing and marking a certified copy of the sale deed?"
RSA No.961/2005 19
Of course, the question whether an original document will have primacy over a certified copy issued from the Registrar's office did not fall for decision in that case. The court, after discussing various legal provisions, held that a registered document is not a public document, but it is a private document. Book No.1 kept in the Registration offices under the Act, where the registered documents (private documents) are copied, entered or filed, is a public document. It further found that a certified copy of a registered document copied from Book No.1 and issued by the registering officer is neither a public document nor a certified copy of a private document, but it is a certified copy of a public document.
28. With regard to the production and marking of a certified copy of a registered document, the court held as follows:
"(i) Production and Marking of a certified copy as secondary evidence of a public document under Section 65(e) need not be preceded by laying of any foundation for acceptance of secondary evidence. This is the position even in regard to certified copies of entries in Book I under Registration Act in relation to a private document copied therein.
(ii) Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only RSA No.961/2005 20 after laying the foundation for acceptance of secondary evidence under clause (a), (b) or (c) of Section 65.
(iii) Production and marking of an original or certified copy of a document does not dispense with the need for proof of execution of the document. Execution has to be proved in a manner known to law (Sections 67 and 68 and ensuing sections in chapter V of Evidence Act)."
I am in respectful agreement with the views expressed in Smt.Rekha Rana's case.
29. In order to answer the specific question whether an original document will have primacy over a certified copy issued from the Registrar's office, the following aspects are relevant.
30. I have already held that a registered document executed by a party is not a public document and it is a private document. It is also held that a true copy of a document, which has been entered in the books of registration, as required by the Act and the Rules, is a public document. However, a certified copy of a registered document copied from the true copy kept in the Registrar's office and issued by the registering officer can never be a public document. And, of course, it is not a certified copy of a private document. It is a certified copy of a public document, receivable in evidence as a piece of secondary evidence permitted under Section 65 of RSA No.961/2005 21 the Evidence Act read with Section 57(5) of the Act.
31. In the light of the above principles, it can be seen that when there is a conflict between a registered document and a certified copy of the document issued by the registering authorities, certainly the original document should prevail, mainly because it is presumed that the parties have read and understood the contents of the original document and duly executed it and thereafter it underwent the process of registration. Insofar as the parties to the document are concerned, it is a concluded contract. As mentioned above, a true copy of the original document, filed at the time of presentation of the document for registration, going by the prevalent practice and also in consonance with the Rules, should have been filed by the party or parties to the document. Neither the provisions in the Act nor the Rules insist that the party or parties should sign the true copies filed at the time of registration. Normally, a party will not stand to benefit by the divergence between the original document and true copy filed. No man of ordinary prudence in the normal course of human conduct would file a divergent copy of the original document pretending that it is a true copy, because such a person could be conscious of the difficulties that may arise in future in case the original document happened to be lost or destroyed. True, in a rare case, an unscrupulous party could do so. But, that cannot be taken as a general rule applicable to all documents registered. It is for RSA No.961/2005 22 an aggrieved party, in an appropriate case, to plead and prove that the incongruity between the original document and the true copy filed at the time of registration was made by a party intentionally and with ulterior motives. In the absence of such a contention, it cannot be presumed that the parties to an original document falsely filed a copy at the time of registration with distortions or incorrect descriptions. I have already pointed out the provisions binding the officers concerned to compare and vouchsafe the correctness of the copy of a document filed at the time of registration. Even if in a given case, both the parties and the officers in the Registrar's office omit to note, either inadvertently or on account of dereliction of duty, the discrepancy or divergence between the original document and the true copy filed, it cannot be said that true copy of the document issued by the Sub Registrar will have a precedence over the original document.
32. If an original document happens to be lost or destroyed or made unreachable by the adversary, then the significance of a certified copy issued from the Registrar's office comes to fore. If a particular claim made by a party to a document, whose original document is lost, destroyed or made unreachable, does not derive support from the certified copy of the document on which he lays the claim, either on account of mis- description or erroneous description or other discrepancies, then the RSA No.961/2005 23 remedy of the person interested in seeking the claim is to go for a rectification of the document before staking the claim. In otherwords, if there is only secondary evidence of a transaction in the form of a certified copy of a document issued from the Registrar's office and the recitals in the document do not match with the contentions of the party to the document, his remedy is to seek rectification of the document before asserting any claim on the basis of that document. In an appropriate case, the parties to the document may jointly execute a rectification deed explaining the facts. If there is no cordiality existing between the parties, the remedy of the aggrieved party may be a suit for rectification of the true copy by invoking Section 26 of the Specific Relief Act, 1963 or in another case, it may be taking recourse to the constitutional remedies against the Registrar. It all depends on the facts and circumstances in each case. Such a course may not be necessary in a case where a party is in possession of the original document, describing the property correctly and when the mistake apparently is in the true copy filed and entered in the book of registration.
33. Having stated the legal principles as above, the question raised in this appeal could be easily resolved. The trial Judge dismissed the suit finding that the plaintiff did not seek equity with clean hands. He did not consider the irreconcilability between the original document, Ext.A1 RSA No.961/2005 24 and certified copy of the same marked as Ext.X1. Whereas, the lower appellate court considered in great detail the lie of the property as revealed from the said documents. It also made a reference to the commissioner's report and sketch. The lower appellate court has extracted the description of item No.3 in Ext.A1 and found that it lies in triangular shape on the north-western side of the appellant's property. It is the case of the respondent that this property was purchased for creating a bell mouth for easy entry of vehicles to the plaint property from a public road running in east-west direction through the northern side. The lower appellate court, on facts, found that the property described in the schedule to Ext.X1, if plotted, would be a triangle protruding into the public road. Nobody has a case that as per Ext.A1 or Ext.X1, as the case may be, the respondent/plaintiff purchased a portion of the road. No sensible person will purchase a property which forms part of a public road. The incongruity between Exts.A1 and X1 is in the description column pertaining to the direction. The lower appellate court, on facts, found that in Ext.A1, one side of the triangle having a measurement of 23 links is shown from north to south, whereas the same measurement in Ext.X1 is shown towards eastern direction. Even though much had been argued before the courts below that there were some fraudulent manipulations with respect to the descriptions in the schedule to Ext.A1, the lower appellate court, on facts, RSA No.961/2005 25 repelled those contentions. Not only that, the lower appellate court relied on oral evidence of the parties and also that of DW1, the Sub Registrar who was examined at the trial. The lower appellate court took note of the explanation by DW1 that the disputed description in Ext.A1 might have been corrected before registration of the document and a corresponding correction could not have been carried out in the true copy filed. Perhaps, it could have been an omission on the part of the officers. Therefore, I am of the view that the lower appellate court for valid reasons and based on evidence found that the trial court did not consider the relevant issues.
34. Even though the learned counsel for the appellant contended that the respondent intentionally avoided the witness box, I do not find that it would debilitate her case. The principle in Vidhyadhar v. Manikrao ((1993) 3 SCC 573), where a party to a suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct, cannot be applied to the facts of this case because there is not much scope for any oral evidence. Rectification of Ext.A1 document may not be easy as it was executed in the year 1973. The contention of the appellant that the descriptions in Ext.A1 must have been wrongly shown with a deceitful mind is a far fetched imagination because the suit was filed only in the year 1996 and the respondent would not have kept the document RSA No.961/2005 26 dormant for nearly 12 years. The lower appellate court on a proper appreciation of the evidence allowed the suit claim. I do not find any reason to interfere with the judgment and decree of the lower appellate court. The substantial question of law raised is decided against the appellant by finding that in this case Ext.A1, original document, will prevail over Ext.X1, a certified copy issued by the Sub Registrar.
With the above observations, the appeal is dismissed. Parties are directed to suffer their costs.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
cks