Madhya Pradesh High Court
Jamuna Prasad & Ors. vs Shivnandan & Ors on 29 July, 2011
1 S.A No.469/1994
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SECOND APPEAL NO.469/1994
APPELLANTS : JAMUNA PRASAD
AND OTHERS.
Vs.
RESPONDENTS : SHIVNANDAN
AND OTHERS.
Present : Hon'ble Shri Justice R.S. Jha.
For the appellants : Shri K. N. Agrawal, Advocate.
For the respondents 1 & 2 : Shri P.S. Das with Ku. Sonal Das, Advocate.
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JUDGMENT
(29/07/2011) This second appeal has been filed by the appellants being aggrieved by the judgment and decree dated 17.8.1994 passed in Civil Appeal No.7A/91 by the First Additional District Judge, Satna affirming the judgment and decree dated 31.8.1984 passed in Civil Suit No.26A/1984 by the First Civil Judge Class-II, Satna decreeing the suit filed by the respondent nos.1 & 2 plaintiff.
2. The brief facts, leading to the filing of the present appeal, are that the deceased respondent no.3 (who is now represented by his legal representative) Gopal @ Ramgopal Ahir was the owner of the suit land bearing Khasra No.54 (New Khasra No.54/2) area 5 acres and Khasra No.55 area 0.80 acre of Village Kakraad, Choubeypur, Tehsil Raghurajnagar, District Satna. It was alleged in the plaint by the plaintiff/respondent nos.1 & 2 that the said land was sold by Gopal to them by a registered sale deed dated 2.8.1967 for a consideration of Rs.4,000/- and possession thereof was also handed 2 S.A No.469/1994 over to them. However, subsequently, the appellants who were defendant nos.2 & 3 in the suit took forcible possession of the land from the plaintiff/respondent nos.1 & 2 sometime in the year 1976. It was also stated that in the meanwhile there was some dispute regarding mutation of the land which was also agitated and pursued before the revenue authorities by the appellant no.4 defendant and Gopal as the appellant no.4 Jamunia claimed half share of the property. It was alleged that as forcible possession of the land was taken over by appellant no.1, therefore, a suit for declaration of title, possession, permanent injunction and mesne profit was filed by the plaintiff/respondent nos.1 & 2 before the trial court.
3. The defendant no.1 vendor, Gopal did not file a written statement inspite of service and was, therefore, proceeded exparte while the defendant nos.3, 4 & 5 filed a written statement and opposed the claim of the respondent nos.1 & 2 plaintiff and it was stated that the possession of the property in question had always been with the defendants but was wrongly recorded in the name of the plaintiff/respondent nos.1 & 2 in the year 1967-68 in respect of which the matter was taken up before the revenue authorities who decided the same against the respondent no.1 plaintiff. It was also contended that the defendants had in fact purchased part of the property from Jamunia, sister of defendant no.1 on 18.7.1972, who was the joint owner of the property and thereafter obtained possession of the property. It was also contended that the alleged sale deed in favour of plaintiff/respondent nos.1 & 2 dated 2.8.1967 was also void as the defendant no.1 Gopal had no right or title to sell the same.
3 S.A No.469/1994
4. It is pertinent to note the fact that though the defendant no.1 Gopal did not file a written statement and was proceeded exparte, he was produced as a witness by the defendant and has been examined as D.W-4 and in his statement he has denied the execution of the sale deed or the fact that he had ever sold the disputed property to respondent nos.1 & 2/plaintiffs and has also stated that he has no knowledge about the sale deed.
5. The trial court, on analysis of the evidence and the documents on record, decreed the suit filed by respondent nos.1 & 2 plaintiffs holding that they had acquired title over the land on the basis of the sale deed dated 2.8.1967. The appeal, filed by the appellants, also suffered dismissal as the first appellate court affirmed the findings recorded by the trial court and confirmed the judgment and decree, being aggrieved by which, the appellants have filed the present appeal.
6. It is contended by the learned counsel for the appellants that the respondent nos.1 & 2 plaintiffs did not produce the original sale deed but have filed a certified copy of the same which has been taken on record by the trial court on the ground that it is a public document inspite of an objection by them. It is further urged that in the absence of laying any foundation for not producing the original sale deed, the certified copy could not have been taken on record nor could the suit be decreed by the courts below as the respondents failed to prove the sale deed. It is also contended that the suit was in fact barred by limitation which issue has also not been addressed rightly by the courts below.
4 S.A No.469/1994
7. The learned counsel for the respondent nos.1 & 2 per contra, submits that the documents produced by them, Exhibit P-12, is a certified copy and has, therefore, rightly been taken on record in view of the provisions of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act') and the Registration Act, 1908 (hereinafter referred to as 'the Registration Act'). It is also contended that as the document in question was a certified copy of the sale deed, therefore, it could have been taken on record without laying any foundation for the same or obtaining any permission to adduce secondary evidence in this regard. It is also contended that as the suit, filed by them, was basically for possession, the same was within time and the findings recorded by the trial court and the appellate court in this regard being in accordance with law, do not warrant any interference.
8. This second appeal, filed by the appellants, was admitted for hearing on the following substantial questions of law:-
"i) Whether the Court below erred in taking into consideration the sale deed on the ground that it was a public document though that sale deed was not filed and no permission to adduce secondary evidence in this regard sought ?
ii) Whether the suit filed by the respondent was within limitation ?"
9. In addition, with the consent of the learned counsel for the parties, the following additional substantial question of law is also framed by this Court in the present appeal:-
"iii) Whether in the absence of proof of execution of the sale deed the suit filed by the 5 S.A No.469/1994 respondent plaintiff could have been decreed by the courts below ?"
10. The learned counsel for the parties have argued extensively on the aforesaid substantial questions of law as well as on the additional question of law.
11. The question as to whether the certified copy of the sale deed, Exhibit P-12, could have been taken into consideration on the ground that it was a public document can be properly adjudged only on an analysis of the relevant statutory provisions namely Sections 64, 65, 74, 75, 76 and 79 of the Indian Evidence Act, 1872 and Sections 51 to 57 of the Registration Act, 1908.
12. Sections 64, 65, 74, 75, 76 and 79 of the Evidence Act, are in the following terms:-
64. Proof of documents by primary evidence -
Documents must be proved by primary evidence except in the cases hereinafter mentioned.
65. 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;
6 S.A No.469/1994
(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;
(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.
74. Public documents -The following documents are public documents:-
7 S.A No.469/1994
(1) Documents forming the acts, or records of the acts-
(i) of the sovereign authority,
(ii) of official bodies and the tribunals, and
(iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country;
(2). Public records kept [in any State] of private documents.
75. Private documents -All other documents are private.
76. Certified copies of Public Documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
79. Presumption as to genuineness of certified copies - The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer [of the Central Government or of a State Government, or by 8 S.A No.469/1994 any officer [in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government]:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed, the official character which he claims in such paper."
13. Sections 51, 52, 55 and 57 of the Registration Act, 1908 are in the following terms:-
51. Register-books to be kept in the several offices.-
(1) The following books shall be kept in the several offices hereinafter named, namely:-
A- In all registration offices-
Book 1, "Register of non-testamentary documents relating to immovable property". Book 2, "Record of reasons for refusal to register".
Book 3, "Register of wills and authorities to adopt", and Book 4, "Miscellaneous Register"
B- In the offices of Registrars-
Book 5, "Register of deposits of wills".
(2) In Book 1 shall be entered or filed all documents or memoranda registered under sections 17,18 and 89 which relate to immovable property, and are not wills. (3) In Book 4 shall be entered all documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property.
(4) Nothing in this section shall be deemed to require more than one set of books where the office of the 9 S.A No.469/1994 Registrar has been amalgamated with the office of a Sub-Registrar.
52. Duties of registering officers when document presented.-(1)(a) The day, hour and place of presentation, [the ;photographs and finger prints affixed under section 32A,] and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;
(b) a receipt for such document shall be given by the registering officer to the person presenting the same; and
(c) subject to the provisions contained in section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.
(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.
55. Indexes to be made by registering officers, and their contents.-(1) Four such indexes shall be made in all registration offices, and shall be named, respectively, Index No.I, Index No.II, Index No.III and Index No. IV.
(2) Index No.I shall contain the names and additions of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No.1.
(3) Index No. II shall contain such particulars mentioned in section 21 relating to every such 10 S.A No.469/1994 document and memorandum as the Inspector-General from time to time directs in that behalf.
(4) Index No. III shall contain the names and additions of all persons executing every will and authority entered in Book No. 3, and of the executors and persons respectively appointed thereunder, and after the death of the testator or the donor (but not before) the names and additions of all persons claiming under the same.
(5) Index No. IV shall contain the names and additions of all persons executing and of all persons claiming under every document entered in Book No. 4.
(6) Each Index shall contain such other particulars, and shall be prepared in such form, as the Inspector-General from time to time directs.
57. 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 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 11 S.A No.469/1994 under the documents to which such entries respectively refer, or to his agent or representative.
(4) The requisite search under the 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."
14. It needs no emphasis to state that transactions envisaging transfer of immoveable property of the value of more than Rs.100/- are required to be compulsorily registered in view of the provisions of Sections 2(6) and 17 of the Registration Act and in the absence of such a registration the documents cannot be received as evidence of any transaction effecting such property. The manner of registration of documents is clearly prescribed under sections 51 to 57 of the Registration Act, which have been reproduced above. A conjoint reading of the aforesaid provisions makes it clear that the Registering Officer shall, after registering documents, allow inspection of the books and indexes and give certified copies of entries made therein. Section 57(5) of the Registration Act lays down that all certified copies issued under the provisions of Section 57 shall be issued under the signature and seal of the Registering Officer and shall be admissible for the purpose of proving the contents of the original documents.
15. The provisions of section 64 of the Evidence Act are very clear and are to the effect that the documents must be proved by primary 12 S.A No.469/1994 evidence "except" in cases thereinafter mentioned ie. in Section 65 of the Evidence Act. Section 65 of the Evidence Act enumerates the exceptions to Section 64 of the Evidence Act in which secondary evidence may be given of the "existence", "condition" or "contents" of a document. Section 74 of the Evidence Act enumerates the documents which are public documents and while Sub Section (1) of Section 74 provides that all documents forming the acts, or records of the acts of the sovereign authority, of the official bodies and tribunals and of public officers, legislative, judicial and executive would be public documents, Section 74(2) of the Evidence Act, provides that all public records kept in any state of private documents would also be public documents. Section 76 of the Evidence Act makes provisions for issuance of certified copies of public documents and Section 77 lays down that such certified copies may be produced in proof of the contents of the public document or part of the public document which they purport to be copies. Section 79 of the Evidence Act provides that there shall be a presumption as to the genuineness of the certified copies which by law are declared to be admissible as evidence of any particular fact and which are duly certified by the officer concerned.
16. From a conjoint reading of the aforesaid provisions of law it is clear that while the general rule regarding proof of documents, based on the principle of best evidence, is that they must be proved by primary evidence, ie., by production of the original document itself, there are exceptions to this rule which are enumerated in Section 65 of the Evidence Act which permit giving of secondary evidence in respect of existence, condition or contents of the document in 13 S.A No.469/1994 various eventualities which are mentioned in Clauses (a) to (g) of that section.
17. A perusal of section 65 of the Evidence Act makes it further clear that each clause mentioned therein i.e. clauses (a) to (g), refers to a different situation and, barring certain cases, each clause is separate and exclusive in the sense that each clause enumerates a distinct type of case in which secondary evidence may be given.
18. Section 65(a) permits giving of secondary evidence instead of primary evidence of the content of the document in cases where the original is shown or appears to be in the possession or power of some other person who has not produced the same inspite of a notice under section 66 of the Evidence Act. The second exception incorporated in Section 65(b) of the Evidence Act permits giving of secondary evidence instead of primary evidence in the form of a written admission in cases where the existence, condition or content of the original document have been proved to be admitted in writing. Section 65(c) of the Evidence Act, permits adducing of secondary evidence instead of primary evidence of the content of the document in cases where the original has been destroyed, lost or cannot be produced in a reasonable time for some reason not arising from the default of the person offering it in evidence.
19. Section 65(d) of the Evidence Act enumerates the fourth exception to Section 64 of the Evidence Act and permits adducing of secondary evidence of the content of the document in cases where the original is of such a nature as not to be easily movable. Section 65(e) read with the third paragraph, permits giving of secondary 14 S.A No.469/1994 evidence only by way of a certified copy of a document in cases where the original is a public document within the meaning of section 74 of the Evidence Act, i.e. in cases where the original is forming the acts or records of the acts of the sovereign authority, of official bodies and tribunals and of public officers, legislative, judicial and executive or where it is a public record kept [in any State] of a private document. Section 65(f) read with the third paragraph of Section 65 of the Evidence Act, permits giving of secondary evidence only by way of a certified copy of a document in cases where 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. Section 65(g) of the Evidence Act, permits giving of secondary evidence in cases where the original consists of numerous accounts or other documents which cannot conveniently be examined in Court, and where the fact to be proved is the general result of the whole collection by any person who has examined them and who is skilled for the examination of such documents.
20. It is, therefore, clear that a person proposing to give secondary evidence by invoking clauses (a), (b) and (c) of Section 65 of the Evidence Act, has to first lay a foundation to the effect that the document is not in his possession and has not been produced inspite of a notice by the person who is in possession of the same; that the existence, condition or contents of the original have been proved to be admitted in writing or that the original has been destroyed, lost or cannot be produced, respectively. It is further clear from a perusal of Section 65(e) and (f) that the aforesaid requirement, which are prescribed in Section 65 (a), (b) and (c), are not required to be 15 S.A No.469/1994 established when the person seeks to give secondary evidence by producing a certified copy of a document alone and no other kind of secondary evidence of a document which is a public document within the meaning of Section 65(e) of the Evidence Act or by giving a certified copy of a document alone and no other kind of secondary evidence of a document which is a certified copy of an original permitted by the Evidence Act or by any other law to be given in evidence under Section 65(f) of the Evidence Act as the preconditions mentioned in Section 65(a), (b) and (c) of the Evidence Act cannot be read into Section 65(e) or (f) by any stretch of statutory interpretation.
21. What emerges from the aforesaid analysis of Section 65 of the Evidence Act is that secondary evidence in the form of a certified copy alone and no other kind of 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 ("clause (e) of Section 65") or when the original is a document of which a certified copy is permitted by any law to be given in evidence ("clause (f) of Section 65").
22. At this stage it would also be appropriate to address the issue regarding "Public Documents" and "certified copies". From a perusal of Section 74 (2) of the Evidence Act, it is clear that all public records kept in any state of private documents are public documents and that certified copies of such public documents can be obtained under section 76 of the Evidence Act, which can be produced in proof of the 16 S.A No.469/1994 contents of the public documents as provided under section 77 of the Evidence Act.
23. As sale deeds are required to be compulsorily registered under the provisions of the Registration Act and as records of these documents maintained thereunder are public records of private documents maintained by the registering officer and as certified copies thereof are admissible in evidence as to the content of the document as provided by Section 57 of the Registration Act, it is evident that the records maintained by the Registering Officer are public records of private documents and are, therefore, public documents as defined under section 74 of the Evidence Act.
24. In view of the aforesaid analysis I am of the considered opinion that while a sale deed perse is a private document but once it is registered and entered in Book-I by the Registering Officer under Section 51 of the Registration Act, the records thereof maintained by such Registering Officer is a public document as defined by Section 74 of the Evidence Act and, therefore, a certified copy of the same can be given as secondary evidence of the existence, condition or contents of the same.
25. Quite apart from the above, it is also clear from a perusal of the provisions of Section 57 of the Registration Act, that books and indexes maintained under the provisions of the Registration Act are open to inspection by any person at all times and copies of entries in such books and indexes shall be given to all persons applying for such copies with the sign and seal of the registering officer and that all such certified copies bearing the sign and seal of the registering 17 S.A No.469/1994 officer shall be admissible for the purpose of proving the contents of the original documents. On a conjoint reading of the provisions of Section 57(5) of the Registration Act alongwith the provisions of Sections 65(f) and 76 of the Evidence Act, it becomes clear that a certified copy of the sale deed which is compulsorily required to be registered and entered in the books and indexes maintained under the Registration Act, issued under the sign and seal of the registering officer, is permitted by the aforesaid section i.e. Section 57(5) of the Registration Act and Section 65(f) of the Evidence Act, to be given in evidence of the content of the document apart from and in addition to the fact that certified copies of public documents can also be given in evidence under Section 65(e) of the Evidence Act.
26. At this stage it would be appropriate to refer to certain decisions of this Court as well as of the Apex Court on this point. This Court in the case of Rekha and others vs. Smt. Ratnashree, 2006 (1) MPLJ 103, has held that a certified copy of a registered instrument which is secondary evidence of the entries in a public document, that is the entries in Book I in the Registration Office can be marked as secondary evidence without laying foundation for receiving the same though they would be admissible only for the purpose of proving the contents of the original document but will not be proof of execution of the original document in the following terms in paras 18.2 and 19(i):-
"18.2 If the person producing the certified copy of a registered instrument, without establishing the existence of any of the grounds under clause (a),
(b) or (c) of section 65, seeks to mark the certified copy, then it will not be secondary evidence of the 18 S.A No.469/1994 original sale-deed, but only be secondary evidence of the entries in a public document, that is the entries in Book I in the Registration Office which issued the certified copy. Such certified copy marked without laying foundation for receiving secondary evidence, though admissible for the purpose of proving the contents of the original document, will not be proof of execution of the original document.
18.3 xxx xxx xxx
19. We may summarize the position thus:
(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 relation to a private document copied therein."
27. The Supreme Court in the case of Land Acquisition Officer & Mandal Revenue Officer vs. V. Narasaiah, 2001 (3) SCC 530, while negativing the contention to the effect that certified copies of the sale deed could not have been taken into account for determining the sale price as shown therein, as the vendor and vendee were not examined and while analysing the provisions of Section 51-A of the Land Acquisition Act, 1894, has held that the preposition of law that certified copies issued under section 57(5) of the Registration Act could be taken on record as secondary evidence under section 65(f) of the Evidence Act existed even prior to the introduction of Section 19 S.A No.469/1994 51-A of the Land Acquisition Act, in the following terms in paras 11,12 & 13:-
"11. If the only purpose served by Section 51-A is to enable the Court to admit the copy of the document in evidence there was no need for a legislative exercise because even otherwise the certified copy of the document could have been admitted in evidence. Section 64 of the Evidence Act says that "documents must be proved by primary evidence except in the cases hereinafter mentioned." Section 65 mentions the cases in which secondary evidence can be given of the existence, condition or contents of a document. One of the cases included in the list is detailed in clause (f) of the section which reads thus:
"65.(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."
12. Section 57 of the Registration Act, 1908 enables anyone to apply for a copy of the entries in Book No.1 (the said Book is meant for keeping the register of the documents as well as non-testamentary documents relating to immovable property). When any person applies for a copy of it the same shall be given to him. Sub-section (5) of Section 57 of that Act says that:
"57.(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 document."
13. If the position regarding admissibility of the contents of a document which is a certified copy falling within the purview of section 57(5) of the Registration Act was as adumbrated above, even before the introduction of section 51-A in the L.A. Act, could there 20 S.A No.469/1994 be any legislative object in incorporating the said new provision through Act 68 of 1984? It must be remembered that the state has the burden to prove the market value of the lands acquired by it for which the State may have to depend upon the prices of lands similarly situated which were transacted or sold in the recent past, particularly those lands situated in the neighbouring areas. The practice had shown that for the State officials it was a burden to trace out the persons connected with such transactions mentioned in the sale-deeds and then to examine them in court for the purpose of proving such transactions. It was in the wake of the aforesaid practical difficulties that the new Section 51-A was introduced in the L.A. Act. When the Section says that certified copy of a registered document "may be accepted as evidence of the transaction recorded in such document" it enables the court to treat what is recorded in the document, in respect of the transactions referred to therein, as evidence."
28. The aforesaid view taken by the Supreme Court in the case of Narasaiah (supra) that giving a certified copy of a registered document in evidence is permissible in law in view of the provisions of Section 64 and 65(f) of the Evidence Act and Section 57(5) of the Registration Act, has been affirmed subsequently by a Constitutional Bench in the case of Cement Corporation of India Ltd. vs. Purya and others, (2004) 8 SCC 270, in the following terms in para-20:-
"20. The above view of the Court in Kurra Sambasiva Rao's case (1997) 6 SCC 41), in our opinion, is not the correct position in law. Even prior to the insertion of Section 51-A of the Act the provisions of the Evidence Act and the Registration Act did permit the production of a certified copy in evidence. This has been clearly 21 S.A No.469/1994 noticed in the judgment in Narsaiah's case wherein the Court relying on Sections 64 and 65(f) of the Evidence Act read with Section 57(5) of the Registration Act held that production of a certified copy of a registered sale document in evidence was permissible in law even prior to insertion of Section 51-A in the LA Act. We are in agreement with the said view expressed by this Court in Narasaiah's case.
29. Similarly, in the case of Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010 (4) SCC 329 it has again been held by the Supreme Court that Section 65 (e) of the Evidence Act carves out an exception to the rule that documents must be proved by primary evidence and permits production of secondary evidence even when the original document is still in existence and available in the following terms in para-18:-
"18. Chapter 5 of the Evidence Act deals with documentary evidence. Section 61 thereof lays down that:
"61. Proof of contents of documents.- The contents of documents may be proved either by primary or by secondary evidence."
As per Section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents 22 S.A No.469/1994 may be given, carves out an exception to the extent that when the original document is a "public document"
secondary evidence is admissible even though the original document is still in existence and available."
30. In view of the aforesaid decision of this Court and the decisions of the Supreme Court, the first substantial question of law framed by this Court is answered against the appellants and it is held that the certified copy of the sale deed which was produced by the respondent nos.1 & 2 plaintiffs has rightly been taken on record by the courts below even in the absence of laying any foundation in that respect or having obtained prior permission to adduce secondary evidence in this regard in view of the clear provisions of Section 57(5) of the Registration Act and Sections 64, and 65 (e) & (f) of the Evidence Act.
31. I next proceed to answer substantial question no.3 framed by this Court.
32. In view of the provisions of law quoted above, it is clear that while secondary evidence in the form of a certified copy of a public document or a certified copy as mentioned in Section 65(f) of the Evidence Act can be given for the purposes of the existence, condition or contents of the original document, however the mere production of the same would not by itself prove or establish that the document was executed by the person named therein unless and until proof of the same as required by Section 67 of the Evidence Act is produced as has been held by this Court in the case of Rekha (supra) in paras-15, 17, 18.1, 18.2 and 19(iii):- 23 S.A No.469/1994
"15. We have already held that a certified copy of a registered instrument/document issued by the Registering Officer, by copying from Book I, is a certified copy of a public document. It can therefore be produced in proof of the contents of the public document or part of public document of which it purports to be a copy. It can be produced as secondary evidence of the public document (entries in Book-I), under section 65(e) read with section 77 of the Act without anything more. No foundation need be laid for production of certified copy of secondary evidence under section 65(e) or (f). But then it will only prove the contents of the original document, and not be proof of execution of the original document. [vide section 57(5) of Registration Act read with section 77 of Evidence Act]. This is because registration of a document is proof that someone purporting to be 'X' the executant admitted execution, but is not proof that 'X' executed the document. We will elaborate on this aspect when dealing with Point No. (iv).
17. The position is therefore is that a certified copy of a sale-deed issued by the Registration Officer under the Registration Act can be produced and marked as secondary evidence of a public document (that is entries in Book I maintained under section 51 of the Registration Act containing the copy of the registered document). Such certified copy issued by the Registration Officer in view of the certificates copied therein and the certificate made while issuing the certified copy will prove (i) that the document has been presented before the Registration Officer for registration; (ii) that execution had been admitted by the person who claimed to be the executant of the document and (iii) that the document passed thereafter registered in the Registration Office and entered 24 S.A No.469/1994 (copied) in Book I. It is not however proof of the fact that original sale-deed was duly executed by the actual person described as executant. Production of a certified copy of a public document under section 65(e) or production of a certified copy under section 65(f) is completely different from production of a certified copy as secondary evidence of a private document (for e.g., a sale deed) under clauses (a), (b) and (c) of section
65. 18.1 The second step is to prove the execution of the deed (whether what is produced in the original of certified copy or other secondary evidence thereof given under clause (a), (b) or (c) of section 65) as required by section 67 of the Act, where the document is not one which is required by law to be attested or as required by section 68 of the Act where the document is one which by law is required to be attested. This is because registration is not proof of execution. A private document cannot be used in evidence unless its execution is admitted by the party against whom it is intended to be used, or it is established by proof that it is duly executed. Due execution is proved by establishing that the signature (or mark) in token of execution was affixed to the document by the person who is stated to have executed the document. This is normally done either (i) by examining the executant of the document; or (ii) by examining a person in whose presence the signature/mark was affixed to the document; or (iii) by referring the document to a handwriting expert and examining such expert; or (iv) by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or (v) by requesting the Court to compare the signature of the executant in the document with some admitted signature of the 25 S.A No.469/1994 person shown as executant; or (vi) by proving admission by the person who is said to have signed the document, that he signed it.
18.2. If the person producing the certified copy of a registered instrument, without establishing the existence of any of the grounds under clause (a), (b) or
(c) of section 65, seeks to mark the certified copy, then it will not be secondary evidence of the original sale-
deed, but only be secondary evidence of the entries in a public document, that is the entries in Book I in the Registration Office which issued the certified copy. Such certified copy marked without laying foundation for receiving secondary evidence, though admissible for the purpose of proving the contents of the original document, will not be proof of execution of the original document.
19. We may summarize the position thus:
(i) xxx xxx xxx
(ii) xxx xxx xxx
(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 (section 67 and 68 and ensuing sections in chapter V of Evidence Act)."
33. In the instant case, it is evident from the oral and documentary evidence on record that while the plaintiffs did produce the certified copy of the sale deed which was taken on record, he has not examined any person including the witnesses to the sale to prove the document. On the contrary, the vendor Gopal, who has been examined as D.W-4, has himself categorically denied the execution of the sale deed as well as his signatures thereon in his statement. It is also clear that the respondent nos.1 & 2 plaintiffs did not confront him 26 S.A No.469/1994 with the signature in the sale deed for the purposes of proving his signature in the sale deed or the execution thereof and none of the attesting witnesses were examined inspite of the fact that the plaintiff Kallu, P.W-3, in para-4 of his statement has categorically stated that one of the attesting witness Brijwasi has died while the other attesting witnesses Ramdayal was alive.
34. It is further apparent that the trial court as well as the first appellate court have decreed the suit filed by the respondent nos.1 & 2 plaintiffs only on the ground that Gopal D.W-1 did not file a written statement and was exparte but have totally ignored the fact that he did appear as a defence witness and has categorically denied the execution of the sale deed and that the respondent/plaintiffs failed to prove the execution of the documents in accordance with the provisions of Section 67 of the Evidence Act. It is, therefore, clear that the respondent nos.1 & 2 plaintiffs have failed to prove the document, i.e. proving the fact that it was executed, signed and executed by Gopal, the vendor, who was defendant no.1 in the suit and, therefore, while the courts below have not gone wrong in taking the certified copy of the sale deed on record as secondary evidence of the existence, condition or contents of the document, they have gone wrong in decreeing the suit filed by respondent nos.1 & 2 plaintiffs simply on that basis inspite of the fact that the respondent/plaintiffs have failed to prove the signature or execution of the document as required by Section 67 of the Evidence Act.
35. In view of the aforesaid, the third substantial question of law is answered in favour of the appellants and consequently, the judgment 27 S.A No.469/1994 and decree of the trial court as well as that of the first appellate court are hereby set aside on the ground that the respondent nos.1 & 2 plaintiffs have failed to prove the execution of the sale deed in their favour and in such circumstances a decree of declaration of title, possession, etc. could not be passed in their favour. In view of the aforesaid findings it is not necessary to record any finding in respect of the second substantial question of law as the appeal is being allowed on the other grounds.
36. In the light of the aforesaid discussion, the appeal filed by the appellants succeeds. The judgment and decree of the trial court dated 31.8.1984 passed in Civil Suit No.26A/1984 by the First Civil Judge Class-II, Satna and the judgment and decree dated 17.8.1994 passed in Civil Appeal No.7A/91 by the First Additional District Judge, Satna are hereby set aside.
37. The appeal is, accordingly, allowed. In the facts and circumstances of the case there shall be no order as to the costs.
Before I part with the case, I would be failing in my duty if I do not place on record and appreciatingly acknowledge the immense and immeasurable salutary assistance and contribution that has been given to this Court by Shri Ravish Agrawal, learned Senior Counsel who graciously accepted the request of this Court to assist this Court in deciding this appeal.
( R. S. JHA ) JUDGE 29/07/2011 mms/-