Jharkhand High Court
Junul Surin @ Junul Munda And Anr. vs Silas Munda And Ors. on 30 April, 2008
Equivalent citations: AIR 2008 JHARKHAND 82, 2008 (2) AIR JHAR R 814, 2009 A I H C 375
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. An interesting question which falls for consideration in the instant case is as to whether report of delivery of possession (Daklialdahani) by the Circle Inspector of executive Court is a public document.
2. The facts of the case lie in a narrow compass:
In the year 1990, father of the present respondents, filed Title Suit No. 1 of 1990 in the Court of Sub Judge, Simdega against father of the petitioners, namely Masih Das Munda. Petitioners' father contested the suit by filing written statement stating inter alia that in 1977-78, petitioners' father filed restoration case under Section 71-A of the Chhotanagpur Tenancy Act being S.A.R. Case No. 47 of 1977-78 for restoration of land. The said restoration case was decided in favour of the petitioners' father by order dated 3.3.1978 by the Special Officer, Scheduled Area Regulation. Respondents did not prefer any appeal or revision against the said order which attained its finality. Subsequent thereto, the order was passed by the Special Officer for delivery of possession of the land to the petitioners. Pursuant to that order, delivery of possession of the suit land was delivered to the petitioners' father and a report of delivery of possession was submitted in the said restoration case on 19.12.1982. Petitioners filed certified copy of said Dakhaldahani report in the aforementioned Title Suit No. 1 of 1990 and the same was marked exhibit. Since no objection was raised by the plaintiffs-respondents with regard to the admissibility of the document, the aforementioned suit filed by the plaintiffs-respondents was eventually dismissed vide judgment dated 26.8.1998 by the Sub Judge-I, Simdega. Aggrieved by the said judgment and decree, the plaintiffs-respondents herein filed Title Appeal No. 2 of 1999. In the said appeal at the argument stage the plaintiffs-appellants, who are respondents herein, filed an application under Order XIII, Rule 4 read with Section 151 of the Code of Civil Procedure stating inter alia that certified copy of the report of delivery of possession by the executive Court which was exhibited from the side of the defendants-petitioners, is not a public document and cannot be admitted into evidence. It was further contended that the said document has been wrongly marked as exhibit. The said application was opposed by the petitioners stating inter alia that the said document is a public document and it was marked exhibit without objection. The Court of Appeal below, after hearing the parties, passed the impugned order and held that the said document (Ext. C) has already come on record and the judgment is based on the same when the said document could not have been marked exhibit.
3. Accordingly, the petitioner-respondents were given opportunity to adduce evidence for the purpose of proving the said Dakhaldahani report. The operative portion of the order-reads as under:
From perusal of the order dated 20.7.1998 when the delivery of possession was marked Ext. C it transpires that the Court had observed that the learned Counsel for the plaintiffs submitted that if the same is a public document it can be marked exhibit. And accordingly it was marked Ext. C. Thus it is clear that the appellants, advocate at the time did not apply his mind and did not submit before the Court as at present he had been submitting that it is not a public document.
I find that the Ext. C has already come on the record and the judgment is based on the same and when the said document could not have been marked Ext. C and the plaintiffs' Advocate did not dispute the matter seriously and he took it lightly and the document was marked Ext. C. It is ordered as follows:
Under the circumstances I think it fit for the ends of justice to give opportunity to the respondents to get it proved. Accordingly if the respondents think it fit he may adduce evidence to get delivery of possession proved by adducing evidence. Put up on 7.8.2006 for additional evidence from the said of respondents?
4. I have heard the learned Counsels appearing for the parties.
5. As stated above, the question needs consideration by this Court is as to whether report effecting delivery of possession by the executive Court is a public document. Learned counsel appearing for the petitioners relied upon two decisions of the Allahabad High Court in the case of Satyanarain Dube v. Narain Bargah and Ors. AIR 1915 Allahabad 341 and in the case of Sita Ram and Ors. v. King Emperor , in support of his contention that report of delivery of possession is a public document.
6. Section 74 of the Evidence Act defines the public document which reads as under:
74. Public documents--The following documents are public documents.
(1) Documents forming the acts, or records of the acts,--
(i) of the sovereign authority
(ii) of official bodies and 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.
7. According to this section, only those documents mentioned in the said section are public documents and rest are private documents. From reading of the aforesaid provisions, it is manifestly clear that a public document is one made by the public officer for the purpose of public making use of it and being able to refer to it.
8. In Halsbury's Laws of England, 4th Ed., Vol. 17, it is observed that : 'To render such a document admissible there must have been a judicial or quasi-udicial duty to inquire, undertaken by a public officer, the matter must have been required to be ascertained for a public purpose, and the document must have been made for the purpose of the public making use of it and being able to refer to it."
9. In the case of "Mercer v. Denne (1905) 2 Ch 538, Farwell, J., observed : The test of publicity as put by Lord Blackburn, is that the public are interested in it and entitled to see it, so that if there is anything wrong in it they would be entitled to protest. In that sense, it becomes a statement that would be open to the public to challenge or dispute, and therefore it has a certain amount of authority. The whole gist of the rule as to public documents is that the publicity must be contemporaneous, and publicity means such publicity as would afford the opportunity of correcting anything that is wrong."
10. There is distinction between the record of the Court and the record of the act of the Court. It is only record of act of the Court which is a public document. A report even if prepared in discharging official duty with regard to possession cannot be a public document so as to report of possession is taken as conclusive. The report in relation to possession cannot be taken as statutory report. What is stated in the report however has to be proved if the same is not accepted by other side. For example if a summon for settlement of issue or disposal of suits is issued under the seal of the Court directing the defendants to appear on a particular date this part of the summon, no doubt is a public document but the report of the process server with regard to service of summon made on the back of the report or on a separate sheet cannot take place of a public document. If the party disputes the report and the service of summons then the report has to be proved. Similarly, if a writ of attachment or writ for affecting delivery of possession is issued by the judicial or quasi-judicial authority directing the officer or bailiff to effect delivery of possession then the report of the officer or bailiff certifying the execution of writ for delivery of possession cannot be taken as a public document and therefore, report of the officer effecting delivery of possession has to be proved.
11. So far instant case is concerned, the admitted facts are that the report of delivery of possession effected by the Circle Inspector in a land restoration proceeding was filed by the defendants/respondents in the trial Court and was tendered in evidence. The said document was marked Exhibit 'C on admission without any objection from the side of the plaintiff/respondents. The Court of Appeal below has recorded a finding that Ext. 'C was considered by the trial Court and the judgment is passed on the said document as the plaintiff did not disputed the document seriously and the document was marked Ext. 'C. In such circumstances, the Court of Appeal below ought not to have directed the defendants/respondents to adduce evidence afresh for proving the documents Ext. 'C It is well settled that when documents are marked Exhibit without any objection, the admissibility of the documents cannot be challenged at a subsequent stage. There is no distinction between the private and public documents which is marked as exhibit without objection from the other side. In the case of P.C. Purusho-thama Reddiar v. S. Perumal. , the three Judges Bench of the Supreme Court observed:
18. Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the Police reports referred to earlier are inadmissible in evidence as the Head constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence, it is not open to the respondent now to object to their admissibility - see Bhagat Ram v. Khetu Ram.
19. It was next urged that even if the reports in question are admissible we cannot look into the contents of those documents. This contention is again unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.
12. As noticed above, Ext. 'C is a report of delivery of possession of the land in question in execution of order passed by the authority under the restoration case. Pursuant to order passed in the restoration case, delivery of possession was affected by the Circle Inspector and a report was submitted. The genuineness of the said document was not disputed by plaintiff and it was marked exhibit without objection. Even at the time when the argument was advanced and the judgment was delivered by the trial Court, such objection was not raised by the plaintiff/petitioners, it was only at the appellate stage, admissibility of the documents have been raised on the ground that lawyer in the trial Court did not apply his mind before the document was exhibited without objection. Such objection cannot be entertained at the appellate stage. The Court of Appeal below, therefore committed error of law in passing the impugned order.
13. For the aforesaid reasons, this writ application is allowed and the impugned order is set aside. The Court below is directed to hear the appeal and dispose of the same expeditiously.