Chattisgarh High Court
Raheem Khan vs Bheekhu And Another on 28 August, 2024
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2024:CGHC:32665
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 264 of 2003
Judgment Reserved on 05.08.2024
Judgment Pronounced on 28.08.2024
Raheem Khan, S/o Jamheer Khan, aged about 36 years, Caste Muslim,
R/o Village Manpur, Police Station Shankargarh, Tahsil Kusmi, Distt.
Surguja (C.G.)
... Appellant/defendant
Versus
1. Bheekhu, S/o late Cheeru Khan, aged about 37 years, Caste Muslim,
R/o village Manpur, Police Station Shankargarh, Tahsil Kusmi, Distt.
Surguja (C.G.) [Respondent / Plaintiff]
2. State of Chhattisgarh through Collector, Surguja (C.G.) ... Respondents For Appellant : Mr. Ashok Kumar Shukla, Advocate.
For Respondent No.1 : Mr. Sushil Sahu, Advocate.
For Respondent No. 2 : Mr. R.C.S. Deo, Panel Lawyer.
Hon'ble Mr Justice Naresh Kumar Chandravanshi
C A V Judgment
1. This is defendant's Second Appeal filed under Section 100 of CPC against the judgment and decree dated 05.03.2003, passed by First Additional District Judge, Sarguja, Ambikapur (C.G.), in Civil Appeal No.71- A/2001 reversing the judgment and decree dated 17.04.2001 passed by Additional Judge to the Court of Civil Judge, Class-I, Ambikapur (C.G.), in Civil Suit No. 87-A/98, in which, civil suit was dismissed by the trial Court 2 / 13 but learned first appellate Court reversed the finding of trial Court and granted decree in favour of respondent No. 1/plaintiff.
[For the sake of convenience, the parties would be referred to hereinafter as per status shown in the plaint filed before the trial Court].
2. Fact of the case. in brief, are that the plaintiff instituted a suit for declaration of illegality and nullity of sale-deed, declaration of his title over the suit land bearing Khasra No. 543, area 0.437 hectare situated at Manpur, Tahsil Kusumi, District Sarguja (C.G.) and permanent injunction stating inter alia that he has not executed sale-deed in respect of suit land, but original defendant No. 2 has got registered sale-deed dated 03.06.1971 in respect of suit land in favour of his minor son i.e defendant No.1 fraudulently impersonating some other person as plaintiff, whereas on the date of execution of alleged sale deed dated 03.06.1971, the plaintiff was minor. It is further averred in the plaint that even after execution of alleged forged sale-deed, defendants kept it hide for about 26 years and in the year 1997, they got mutated suit land in the name of defendant No. 1, then only plaintiff came to know about execution of aforesaid forged & fabricated sale-deed, thereafter, plaintiff filed civil suit seeking relief, as has been stated above.
3. Defendant No. 1 - Rahim & defendant No. 2 - Jamheer Khan, who are son and father, respectively filed their joint written statement, in which, they have denied substantive allegations made in the plaint and pleaded that plaintiff had sold suit-land vide registered sale-deed dated 03.06.1971 (Certified copy Ex.P-1) in favour of defendant No. 1 and on the basis of that sale-deed, suit land has been mutated in his name by Nayab Tahsildar, Shankargarh vide order dated 31.01.1997. Appeal filed against that order has been dismissed by Sub Divisional Officer (Revenue), Ramanujganj vide 3 / 13 order dated 27.12.1997, therefore, suit is liable to be dismissed.
4. In order to decide the suit filed by the plaintiff claiming aforesaid reliefs, the trial Court framed as many as six issues and recorded evidence of both the parties. After considering oral & documentary evidence brought on record by parties, learned trial Court dismissed the suit vide judgment dated 17.04.2001. First appeal preferred by the plaintiff against the judgment passed by the trial Court was allowed by the First appellate Court and decreed the suit of the plaintiff by recording a finding that neither age of a vendor (plaintiff) has been mentioned in Sale deed (Ex.P-1), nor age of purchaser/defendant No. 1 has been mentioned in it. Vendor (plaintiff) got mutated the suit land in revenue records on the strength of aforesaid sale- deed after 26 years of its execution, therefore, sale deed is doubtful. Learned first appellate Court has also set aside the finding of trial Court that the suit is barred by limitation holding that plaintiff came to know about the said sale deed first time, in the year 1997 when dispute arose between them as mutation proceeding was initiated by defendant No. 1 before the Revenue Court, thereafter, the suit was filed in the year 1998. Thus, the civil suit, as framed & filed, is not barred by limitation.
5. Being aggrieved & dissatisfied with the finding recorded by the first appellate Court, the defendant No. 1 - Raheem Khan has filed instant Second appeal under Section 100 of the CPC.
6. This appeal has been admitted for hearing on the following substantial questions of law :-
"A. Whether the appellate Court, while reversing the finding of the trial Court, erred in holding that the registered sale deed dated 03.06.1971 marked as Ex.P-1 is a forged and a fake 4 / 13 document ?
B. Whether the suit as framed and instituted by questioning the validity of alleged registered deed of sale (Ex.P-1) was barred by time ?"
7. Learned counsel appearing for the appellant / defendant would submit that defendant No. 1 has purchased suit land vide registered sale- deed dated 03.06.1971 from plaintiff. Certified copy (Ex.P-1) of sale deed has been filed by the plaintiff himself. Original sale-deed has not been filed by defendant No. 1, as the same has been misplaced, but certified copy (Ex.P-1) is a public document, hence, it carries presumptive value in respect of its valid execution. If plaintiff says that it is a forged & fabricated, then onus of proof is upon him, but no evidence has been brought by him that it has been got executed by playing fraud. It is further submitted that as per claim of plaintiff, he was minor in the year 1971, when the sale deed was executed , but he has not filed / proved any document or other evidence to prove the fact that he was minor on the date of execution of registered sale deed i.e. on 03.06.1971. Learned First Appellate Court has held it doubtful only because mutation was got done after 26 years after execution of sale deed, but after execution of it in the year 1971, the plaintiff had handed over possession of the suit land to the defendant and, thereafter, defendant was in peaceful possession over the suit land and cultivating the same being villager, they were not very much aware about the necessity of mutation, as he was already in possession of the suit land, therefore, merely on the ground that mutation was got done after 26 years, validity of sale-deed (Ex.P-1) neither can be doubted nor its validity can be discarded. It is further submitted that the plaintiffs are in possession over 5 / 13 the suit land since 1971, this fact has not only been proved by defendant's witnesses, but plaintiff's witnesses have also conceded aforesaid facts. Even, plaintiff himself has admitted that while filing civil suit in the year 1998, he was not in possession over the suit land, despite that relief of possession has not been sought for by the plaintiff, therefore, in view of proviso to Section 34 of the Specific Relief Act, 1963, civil suit was not maintainable and liable to be dismissed and it is barred by limitation also, therefore, it is prayed that the second appeal may be allowed by setting aside the judgment & decree passed by the first Appellate Court and judgment & decree passed by the trial Court may be upheld.
8. Per contra, learned counsel appearing for respondent No. 1/plaintiff would submit that from the evidence adduced by the plaintiffs, it is proved that in the year 1971 when alleged sale deed was executed, the plaintiff was minor of the age of 13 year, which also get support from Voter list (Ex.P-9). Age of plaintiff has also not been shown in the sale-deed (Ex.P-1). Further, despite having alleged registered sale deed, not getting mutation by defendant No. 1 in early years, rather it was got mutated in the year 1997 proved the allegation of plaintiff that sale deed is forged and fabricated document. Thus, the finding recorded by first appellate Court is based on proper appreciation of evidence available on record, which does not call for any interference of this Court, hence, the second appeal filed by the defendant is liable to be dismissed.
9. I have heard learned counsel appearing for the parties and perused the record of trial Court as well as first appellate Court with utmost circumspection.
10. It is not in dispute that defendant No. 1 is having registered sale-deed dated 03.06.1971 (Ex.P-1) executed by plaintiff in his favour, which has 6 / 13 been got registered by defendant No.1 through his father - Jamheer Khan (original defendant No. 2), as defendant No. 1 was minor at that time. Original sale deed has not been filed by defendant No. 1 - Raheem Khan (DW-1), as he has stated that original sale-deed has been misplaced. Certified copy of sale deed has been filed by plaintiff himself and got it exhibited as Ex.P-1.
11. It is alleged by plaintiff that said sale-deed is forged & fabricated document, as on the date of its execution i.e. on 03.06.1971, he was minor of the age of 13 year. The plaintiff has examined three witnesses in support of his contention i.e. Luthur (PW-2), Silvester (PW-3) and Sahband (PW-4), but neither plaintiff nor his witnesses have stated about date of birth of plaintiff, rather they have stated age of plaintiff on the basis of their baseless assumption, as they have not brought any cogent fact for their assumption. On the one hand plaintiff - Bheekhu (PW-1) has stated that in the year 1971, his age was 13 years whereas as per Luthur (PW-2),it seems that in the year 1970, age of Luthur (PW-2) was 25-30 year, at that time, the plaintiff -Bheekhu born. Thus, as per deposition of this witness, the plaintiff born near about 1970. Whereas as per deposition of Sahbaan (PW-4), on the date of deposition of this witness i.e. on 9.4.2001, age of plaintiff was about 65 years, thus, in the year 1971, plaintiff was of the age of more than 30 years. In the voter list of 1998 (Ex.P-9), age of plaintiff - Bhhekhu has been mentioned as 40 years.
12. Thus, the evidence brought by the plaintiff in respect of his age, in the year 1971 when sale-deed was executed, is highly contradictory. As per deposition of plaintiff and his witnesses, plaintiff is performing duty of Patel since more than 20 years prior to 2001, although the plaintiff has stated in 7 / 13 his deposition that he has not studied in any School, but as per his statement, he knows little about reading and writing and can read and tell slowly, whereas record of first appellate Court shows that before it plaintiff had filed his mark-sheet of class 8th and transfer certificate issued by Tribal Welfare Middle School, Shankargarh, District Sarguja, but plaintiff has neither proved those documents or his other school record before trial Court nor have proved the same by filing application under Order 41, Rule 27 of the CPC for taking those documents on record. Rather making false statement that he has not studied in any school and concealing his date of birth, creates serious doubt on his deposition that in the year 1971, he was minor and his age was 13 year. If date of his birth mentioned in school record would have true, then definitely he has proved his school record/ mark-sheets, etc. . But not doing so by the plaintiff deeply hit truthfullness of his aforesaid statement. Therefore, in absence of any cogent evidence only on the strength of verbal evidence, that too, is found to be baseless and highly contradictory, it cannot be held proved that on the date of execution of sale-deed dated 03.06.1971, the plaintiff was minor.
13. Although, original sale-deed has not been filed by the defendant in the instant case, rather plaintiff himself has filed certified copy of the same, but he has not stated in his deposition that it does not contain his signature and he has also not tried to get verified signature, which is said to be of plaintiff present in the sale-deed by examining it from handwriting expert.
14. Original sale-deed has not been brought on record by defendants, as it has been misplaced, but certified copy (Ex.P-1) has been filed by the plaintiff himself.
15. Hon'ble Supreme Court in the matter of Appaiya Vs. Adimuthu @ 8 / 13 Thangapandi & others1 while considering the provisions contained Section 65, 74, 77 and Section 79 of the Indian Evidence Act, 1872 and Section 57 (5) of the Registration Act, 1908 has held certified copy of a original sale- deed is admissible in evidence. Relevant paragraph 29 of the judgment is reproduced below :-
"29. Having regard to all the aforesaid circumstances and in the light of the various provisions of the Evidence Act mentioned hereinbefore we will firstly consider the question whether the appellant/plaintiff had succeeded in proving the contents of Ext.A1. Going by Section 65(e) when the original of a document is a public document within the meaning of Section 74, secondary evidence relating its original viz., as to its existence, condition or contents may be given by producing its certified copy. Ext.A1, indisputably is the certified copy of sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti. In terms of Section 74(2) of the Evidence Act, its original falls within the definition of public document and there is no case that it is not certified in the manner provided under the Evidence Act. As noticed hereinbefore, the sole objection is that what was produced as Ext.A1 is only a certified copy of the sale deed and its original was not produced in evidence. The hollowness and unsustainability of the said objection would be revealed on application of the relevant provisions under the Evidence Act and the Registration Act, 1908. It is in this regard that Section 77 and 79 of the Evidence Act, as extracted earlier, assume relevance. Section 77 provides for the production of certified copy of a public document as secondary evidence in proof of contents of its original. Section 79 is the provision for presumption as to the genuineness of certified copies provided the existence of a law declaring certified copy of a document of such 1 (2023) Live Law (SC) 811 9 / 13 nature to be admissible as evidence. When that be the position under the aforesaid provisions, taking note of the fact that the document in question is a registered sale deed, falling within the definition of a public document, the question is whether there exists any law declaring such certified copy of a document as admissible in evidence for the purpose of proving the contents of its original document. Sub- section (5) of Section 57 of the Registration Act is the relevant provision that provides that certified copy given under Section 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document. In this context it is to be noted that certified copy issued thereunder is not a copy of the original document, but is a copy of the registration entry which is itself a copy of the original and is a public document under Section 74(2) of the Evidence Act and Sub- section (5) thereof, makes it admissible in evidence for proving the contents of its original. There is no case that foundation for letting in secondary evidence was not laid and as noted earlier, both the trial Court and the First Appellate Court found it admissible in evidence. Thus, the cumulative effect of the aforementioned sections of the Evidence Act and Section 57(5) of the Registration Act would make the certified copy of the sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti, produced as Ext.A1 admissible in evidence for the purpose of proving the contents of the said original document. When this be the position in the light of the specific provisions referred hereinbefore under the Evidence Act and the Registration Act, we have no hesitation to hold that the finding of the High Court that the certified copy of Ext.A1 owing to the failure in production of the original and proving through an independent witness is inadmissible in evidence, is legally unsustainable. In 10 / 13 the other words, the acceptance of the admissibility of Ext.A1 found in favour of the appellant/plaintiff by the trial Court and confirmed by the First Appellate Court was perfectly in tune with the provisions referred hereinbefore and the High Court had committed an error in reversing the finding regarding the admissibility of Ext. A1."
16. In instant case, since sale-deed (Ex.P-1) is certified copy of registration entry of sale deed maintained by Registrar Office, therefore, it is a copy of the original and is a public document under Section 74(2) of the Evidence Act, 1972 and Sub-section (5) of Section 57 of the Registration Act makes it admissible in evidence for proving the contents of its original. Certified copy of the sale deed has been filed by the plaintiff himself and the trial Court and the First Appellate Court found Ex.P-1 admissible in evidence. Therefore, in absence of original sale-deed, admissibility and reliability of certified copy of sale-deed (Ex.P-1) cannot be discarded.
17. Thus, allegation of plaintiff that sale-deed dated 03.06.1971 was not executed by him, rather it has been got executed fraudulently, by personating someone to be him and on that date he was minor, is not found proved. Although, mutation was got done after about 26 years of execution of registered sale deed, but only on this ground, illegality of sale-deed (Ex.P-1) cannot be thrown away. This fact also get support from the fact that not only as per deposition of defendant's witnesses, rather plaintiff's own witness namely Luthur (PW-2) has supported the fact that defendant and his family members are having possession over the suit-land since more than 20-25 years. This fact has also been supported by Sahban (PW-4), although he has not stated that since how many years, they are in possession. Thus, if plaintiff would not have sold the suit land, despite that defendant and his family members are in 11 / 13 possession since more than 20-25 years prior to year 2001, then question arise that why plaintiff did not take any action against them, therefore, on the basis of evidence available on record, preponderance of probabilities in respect of sale of suit land by plaintiff tilt in favour of defendant No. 1.
18. It is trite law that registered document is presumed to be validly executed and if any person challenges its validation, then onus of proof is upon him to prove his contention.
19. In the case of Prem Singh & others (supra), their Lordships of the Supreme Court has held in paragraph 27 as under :-
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. "
20. This view has further been reiterated in the case of Jameela Begum (D) Through Lrs. Vs Shami Mohd. reported in AIR 2019 SC 1972, wherein Hon'ble Supreme Court has observed as under :-
" 14......... A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law.
21. Similar view has further been held in case of Rattan Singh Vs. Nirmal Gill reported in AIR 2021 SC 899 and Manik Majumdar Vs. Dipak Kumar Saha (D) Thr. Lrs. reported in AIR 2023 SC 506.
22. Reverting to the facts of the instant case, as has been discussed in preceding paragraphs, it has been found on the basis of preponderance of probabilities that the plaintiff has sold the suit land in favour of defendant 12 / 13 No. 1 vide registered sale deed dated 03.06.1971 and certified copy of the same is Ex.P-1. The plaintiff has failed to prove by adducing any clinching evidence that on the date of execution of sale deed, he was minor, rather from the evidence available on record, it is found that defendant and his family members are in possession over the suit land since more than 20-25 years prior to 2001, as such, this Court is of the opinion that the first appellate Court has erred in reversing the finding of trial Court by holding that registered sale-deed marked as Ex.P-1 is a forged and fabricated document, this finding of first appellate Court is found to be perverse and illegal, hence, the same is liable to be and is hereby set aside.
23. Since, it is found that plaintiff had sold the suit land in favour of defendant No. 1 vide registered sale deed dated 03.06.1971 marked as Ex.P-1 and since then defendant and his family members are in possession over the same, therefore, plaintiff ought to have filed civil suit within three years from execution of registered sale deed (Ex.P-1), as provided in Article 59 of the Limitation Act, 1963, but he filed instant civil suit in the year 1998, thus, the suit itself is also barred by limitation.
24. Plaintiff filed instant civil suit on 22.01.1998, but it has been found proved that on that date, he was not in possession over the suit land. Even this fact has also been admitted by plaintiff - Bheekhu (PW-1) in paragraph 12 of his deposition, despite that relief of possession has not been sought by him. In absence of seeking possession of suit land, declaration simplicitor of status or right cannot be sought in view of proviso to Section 34 of the Specific Relief Act. Hence, on this count also, the suit filed by the plaintiff is not maintainable. Accordingly, both the substantial questions of law are answered in favour of defendants and against the plaintiff. 13 / 13
25. As a fallout and consequence of the aforesaid discussion, the impugned judgment and decree dated 05.03.2003 passed by the first appellate Court in Civil Appeal No. 71-A/2001 is set aside and the judgment and decree dated 17.04.2001 passed by the trial Court in Civil Suit No. 87- A/98 is restored. The second appeal is consequently allowed and the plaintiff's suit stands dismissed. No order as to cost(s).
26. A decree be drawn-up accordingly.
Sd/-
(Naresh Kumar Chandravanshi)
Amit/- Judge
Digitally
signed by
AMIT AMIT KUMAR
DUBEY
KUMAR Date:
DUBEY 2024.09.03
10:57:24
+0530