Gauhati High Court
Bidhan Paul vs Paresh Chandra Ghosh on 6 August, 2001
Equivalent citations: AIR2002GAU46, AIR 2002 GAUHATI 46, (2002) 2 CIVILCOURTC 233, (2002) 3 RECCIVR 115, (2001) 3 GAU LR 594
JUDGMENT
1. The second appeal arises out of an order of dismissal dated 7.3.1994 passed by the First Appellate Court (learned District Judge, West Tripura, Agartala) in Title Appeal No. 13 of 1993 by which decree of dismissal dated 21.12.1992 passed by the learned trail court (Assistant District Judge, West Tripura, Agartala. Court No. 1) in Title Suit No. 117 of 1990 was upheld and, as such, this second appeal is an appeal against the concurrent findings of the learned Courts below:
2. At the time of admission of this second appeal, the following substantial question has been formulated by this Court for decision:
"Whether the findings of the Courts below that a copy of the registered power of attorney is not a public document within the meaning of Section 74(1) of the Evidence Act are correct."
3. The facts of the case so far relevant to decide this second appeal could be summarised as below:
The plaintiff-appellant (hereinafter called the plaintiff) filed title suit seeking declaration of title, recovery of khash possession and mense profit contending, inter alia, that the plaintiff purchased the suit land from the legal heirs of the deceased Dhananjoy Paul in 1987 by separate two sale deeds. The sale deeds has been executed and registered by the appointed attorney of the vendors. Though plaintiff got possession but he failed to retain in the same as he was ousted by the defendant.
Defendant denied the plaintiffs title as well as possession, rather defendant averred that pursuant to an order of agreement for sale being entered with the legal heirs of Dhananjoy Paul, defendant had been possessing the suit land.
4. Both the Courts dismissed the plaintiffs suit holding that the plaintiff did not acquire title through the aforesaid sale deeds.
5. During the trial, the plaintiff put in evidence among other three documentary evidence, namely, certified copy of the power of attorney vide ext. 3 and the two original sale deeds Exts. 4 & 5.
6. The only question arises for decision in this appeal as to whether the certified copy of a deed of power attorney is admissible in evidence in the manner it was proved.
7. The learned counsel for the appellant Mr. D. Chakraborty, submits that a deed of registered power of attorney is a public document within the meaning of Section 74(2) of the Evidence Act, and as such, the certified copy of the said registered deed of power of attorney is admissible in evidence in view of Section 76 of the Indian Evidence act without any formal proof. He relied upon a decision rendered by our own High Court in Md. Saimuddin Sheikh, appellant v. Abejuddin Sheikh, respondent, reported in AIR 1979 Gauhati 14, and submits that the learned Courts below committed gross illegality in not admitting the certified copy of a registered power of attorney in evidence. For convenience sake, the relevant extract of Section 74(2) of the Evidence Act is quoted below:
"74. Public documents. - The following documents are public documents: -
(1)....
(2) Public records kept (in any State) of private documents."
8. Having referred to the aforesaid quoted Sub-section (2) of Section 74 of the Evidence Act, Mr. D Chakraborty, learned counsel for the appellant submits that after registration of any document including registered power of attorney, the Registering authority gets the copies of contents of said registered document entered in a book maintained in his office which is commonly called a "Volume Book" and, as such, the volume book is a public document within the meaning of Section 74(2) of the Evidence Act and, therefore, the certified copy of such document shall be presumed to be genuine copy of the original in view of Section 79 of the Evidence Act.
9. On the other hand, Mr. B. Das, learned senior counsel for the respondent submits that no such presumptive inference could be drawn as to the genuineness of such certified copies.
10. On careful perusal of Section 52(l)(c) of the Registration Act, 1908, it reveals that as soon as a document is admitted for registration, the contents of the documents are to be copies in a book maintained in the Sub Registry Office which is commonly called as "Volume Book" and, a s such, the volume book contains the copies of entries of a private documents and not the documents themselves.
11. The Registration Act never contemplates for keeping any sale deed, gift deed. Deed of power of attorney etc. (barring deposit of Will under Section 42 of the Registration Act) in its public record and, as such, the Volume books containing the copies of the entries of a private documents cannot be treated to be a "public document" within the meaning of Section 74(2) of the Indian Evidence Act. Only those public records which keep the private documents and not the copies of private documents are treated as "public document" within the meaning of Section 74(2) of the Indian Evidence act. In this respect, a profitable reference may be had to a decided case of our own High Court in Narattam Das v. Md. Masaddarali Barbhuiyan, report in (1991) 1 GLR 197. The Division Bench of our own High Court in the case of Narattam Das (supra) examined the related provision of Indian Registration Act and over-ruled the decision of Md. Saimmuddih (supra) and that was followed in a subsequent case in Manindra Kumar Dey v. Mahendra Sukla Baidya and Ors. reported in (1999) 2 GLR 219.
12. Having regard to the aforesaid legal position, it cannot be held that a certified copy of a registered deed of power of attorney is automatically admissible in evidence having its presumptive value within the meaning of Section 79 of the Evidence Act. Such type of certified copy of any such document can only be put in evidence being a secondary evidence only, if the pre condition(s) embodied under Section 65 of the Evidence Act is fulfilled and that is also by formal proof.
13. In the present case pre condition(s) embodied under Section 65 of the Evidence Act, has not been fulfilled nor the said Ext. 3 has been admitted in evidence having exhausted mode of formal proof and, as such, the said certified copy of the registered deed of power of attorney is not admissible nor carries any presumptive value and, accordingly, the substantial question of law so formulated is answered in the affirmative and against the appellant.
14. In the result, the appeal fails and, accordingly, dismissed with no order as to costs.