Andhra HC (Pre-Telangana)
The Land Acquisition Officer, ... vs Nutalapati Venkata Rao on 5 September, 1990
Equivalent citations: AIR1991AP31, AIR 1991 ANDHRA PRADESH 31, (1991) 2 CIVLJ 11, (1991) 1 APLJ 99, (1991) 1 LJR 353, (1992) 7 LACC 298, (1990) 3 ANDH LT 305, (1990) 2 ANDHWR 411
Bench: Chief Justice, M. Jagannadha Rao
JUDGMENT
1. This reference to the Full Bench has been made for a decision on the following question:
"Whether the trial Court, on a reference under S, 18 of the Land Acquisition Act, 1894 after rejecting the evidence tendered by the claimants, is precluded from computing compensation in respect of the acquired land on the basis of the sale-transactions considered and rejected by the Land Acquisition Officer, but not filed into Court and marked as exhibits and admitted into evidence."
The referring order says that a Division Bench of this Court in Spt. Deputy Collector v. P. Narsinga Rao, (1985) 2 Andh LT 492, held, following the Supreme Court decision in Collector, Raigarliv. Harisingh Thakur, , that unless the documents pertaining to the sale transactions are admitted in evidence, and the vendor or vendee is examined, the same cannot be relied upon. The learned single Judge was of the view that the Supreme Court did not say anything of that nature and that if among the sale transactions considered by the Land Acquisition Officer (hereinafter called the A.L.O.) the one showing the highest value could not constitute evidence for computing the compensation because the document was not marked as an exhibit for proof of its contents, by the same parity of reasoning, the sale transactions relied upon by the L.A.O. and disclosing a lower value but not brought on record as part of the evidence should not also be the basis for fixing the compensation.
2. On the facts of the case, the position is that the L.A.O. awarded Rs.27,500/-per acre as against the claim of Rs. 75.000/- per acre made by the claimant. The extent acquired was ac. 1-64 cents in R.S. No. 546/14, Gol-lapudi village, Vijayawada Taluk. The claimant marked two sale deeds Exs. A-1, A-2 dated 23-5-1979 and 14-5-1979 respectively. The Referring Officer marked Ex. B-1 sketch, Ex.B-2 reference order of the Special Tahsil-dar (L.A.O.) and Ex.B-3 dated 9-10-1980, being the claimant's application to the L.A.O. The learned Subordinate Judge, Vijayawada, in his judgment dated 1-2-1982, which is now appealed against in this appeal, thought that Exs. A-1 and A-2 could not be relied upon for the claimant, even though the rate there was Rs. 1.50 lakhs and Rs. I lakh per acre, inasmuch as those lands were abutting the main highway between Hyderabad and Vijayawada while the acquired land was not so situated. Further, the lands covered by Exs.. A-1, A-2 were four furlongs and two and a half furlongs from the acquired land. The learned Subordinate Judge then relied upon the sales at Serial Nos. 3 and 4 referred to in the Award and noticed that the former relates to sale of ac. 0.07 cents in R. S. No. 546/2-B at the rate of Rs. 60,000/- per acre and is also at a distance of 20 yards from the acquired land, and these sales were effected on 2-4-1978. The S.4(1) notification here is dated 21-6-1978 and possession was taken on 1-10-1977. The learned Subordinate Judge therefore fixed compensation at Rs. 60,000/- per acre on the basis of the two sale transactions relied upon in the Award, even though the corresponding sale deeds were not marked as exhibits in the Court and no other witnesses were examined in regard to these sale-transactions. The learned single Judge thought that the learned Subordinate Judge could rely upon the said transactions and that the Division Bench case in Spl. Deputy Collector v. P: Narsinga Rao, (1985 (2) Andh LT 492) required re-consideration inasmuch as in the opinion of the learned Judge, the Division Bench did not properly appreciate the ratio of the judgment of the Supreme Court in Collector, Raigarh v. Harisingh Thakur, .
3. At the outset, we wish to point out that generally, there are two types of cases in which such questions arise. The first type is the one where no comparable sale-deed is produced or marked in the Civil Court after the reference under S. 18 of the Land Acquisition Act and the Court relies upon the reference to such sale-transaction as made in the Award passed by the L. A.O. The second type is the one where comparable sale deeds are produced and marked in the Court, without objection, at the instance of the claimant but where neither the vendor nor the vendee nor the attestor or scribe connected with such sale-deed is examined. The present case before us belongs to the first category while the Division Bench case in Spl. Deputy Collector v. P. Narsinga Rao, (1985 (2) Andh LT 492) belongs to the latter category. The Supreme Court judgment in Collector, Raigarh v. Harisingh Thakur, belongs again to the first category. We shall deal with these cases in detail.
4. The Land Acquisition Act, 1894 provides for inquiry into the market value in two stages. The inquiry is conducted by the Land Acquisition Officer (Collector) under S. 11 of the Act and an award is passed. The award of the L.A.O. (Collector) being essentially in the nature of an offer, he can adopt such reasonable procedure as he may deem fit for making the offer.
5. After the matter goes to the Court on reference under S. 18, the L.A.O. (Collector) files a statement to the Court under S. 19, the Court issues notice under S. 20 to the applicant who has applied for reference and to all interested persons. S. 22 provides that every such proceeding shall take place in open Court and all persons entitled to practice in any Civil Court shall be entitled to appear, plead and act in such proceedings. The Court is to take into consideration, while determining the amount of compensation, the various factors mentioned in S. 23 and is further precluded from taking into account, the factors mentioned in S. 24. The award by the Court is to be in the form mentioned in S. 26. The Court, therefore, being a Civil Court, has naturally to conduct its proceedings by allowing evidence admissible in law and by not accepting evidence which, in law, is inadmissible. The Court determines the market value and other amounts actually payable to the claimant and such an adjudication is totally different from the offer made by the L.A.O. (Collector). Section 53 of the Land Acquisition Act further provides that save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, shall apply to all proceedings before the Court under the Land Acquisition Act, 1894.
6. Thus the Court hearing the reference is a Civil Court and the provisions of the Code of Civil Procedure, 1908 are applicable to the proceedings in the Court as provided in S. 53 of the Land Acquisition Act, 1894. Likewise, the provisions of the Indian Evidence Act, 1872 are applicable as the proceedings are before a Civil Court.
7. The question arising out of the reference can be split up into three points :
(1) Whether once a sale deed or certified copy of sale deed or other document is marked as an exhibit in a case under O. 13, R. 4, C.P.C. any objection as to mode of proof can be raised subsequently, on the ground that nobody connected with the deed has been examined ?
(2) Whether the 'contents' of such certified copy can be treated as evidence even though nobody connected with the deed has been examined, in the context of Ss.60, 61, 63, 65 of the Evidence Act and S. 57(5) of the Registration Act?
(3) Whether, after a reference under S. 18 of the Land Acquisition Act, 1894 to the Civil Court, the parties can rely upon any sale transactions merely referred to in the Award passed under S. 11 of that Act?
8. Point No. 1:-- we shall first refer to certain procedural provisions of the C.P.C. Order 13, R. 1, C.P.C. permits production of documentary evidence and the Court is enjoined to receive all the documents. O.13, R. 3 states that the Court 'may, at any stage of the suit, reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. Under 0. 13, R. 4, C.P.C. the Court is to endorse on every document which has been 'admitted' in evidence, the following particulars, namely (a) the number and title of the case, (b) the name of the person producing the document, (c) the date of production and (d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge.
9. Thus, there are two stages relating to documents filed in Court - one is the stage when all the documents are filed by the parties in the Court and the next stage where the documents are formally proved and tendered in evidence. It is at the latter stage that the Court has to decide whether the documents so tendered are to be admitted or rejected. The words 'admitted in evidence' mean the making of the document part of the judicial record of the case. The endorsement by the Court as provided in O. 13, R. 4, C.P.C. is intended to be a record of the fact that the document 'has been admitted' in evidence after the necessary legal formalities have been complied with. Under 0. 13, R. 6, C.P.C. where a document relied on as evidence by either party is consi-v dered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in Clauses (a), (b) and (c) of Rule 4, sub-rule (1), together with a statement of its having been rejected, and the endorsement shall be signed or initialled by the Judge. Finally, 0. 13, R. 7, C.P.C. provides that every document which has been admitted in evidence (or a copy thereof where a copy has been substituted for the original under Rule 5), shall form part of the record of the case and documents not admitted shall not form part of the record and shall be returned to the person producing the same.
10. It is now well settled, by a long series of decision of all Courts, to which it is unnecessary to refer, that there is a basic difference between the mode of proof of a document and its admissibility. The mode of ' proof of a document is a matter of procedure while its admissibility is a matter of substantive law, such as the Registration Act or the Stamp Act or other specific provision. If the objection is as to the admissibility of the document, then the mere making of the document as an exhibit, does not preclude any objection being raised later as to its admissibility. But so far as the mode of proof is concerned, it is well-settled that, if an objection as to the mode is not raised at the stage when the document is marked as evidence in the case under 0. 13, R. 4, C.P.C such an objection cannot be raised at any subsequent stage.
11. As regards objections to the mode of proof, the matter is covered by decisions of the highest Courts. In Gopal Das v. Sri Thakurji, AIR 1943 PC 83, referring to 0. 13, R. 4, C.P.C. specifically, Sir George Rankin, laid down in clear terms :
"The endorsement 'admitted against the plaintiffs'is in the form generally employed in O.13, R. 4, for documents tendered by the defendants just as the plaintiffs' documents are marked 'admitted against the defendant'. The endorsement means that the document is admitted in evidence as proved."
It was further observed :
"Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial. In the present instance, it does not appear that the objection was taken at the proper time or that it would have been of any avail had it been taken."
It was pointed out by the Privy Council that the Sub-Registrar's endorsement under sub-sec. (2) of S. 60 of the Registration Act, 1877, showed that once it was shown that a person claiming to be Parshotham Das and to have been the' son of one Harish Chandra had presented the receipt Ex. KK for registration and that person admitted execution, and was identified by two persons mentioned in the endorsement and the scribe, what all remained was to show that the person admitting execution before the Registrar was this Parshotham Das and no 'imposter'. There is, their Lordships pointed out, "a presumption that the registration proceedings were regular and honestly carried out". Gangamoyi Debi v. Troiluckhya Nath, (1906) ILR 33 Cal 537 : 33 Ind App 60; M. J. Htisham Ali v. Jamna Prasad, AIR 1922 PC 56. Due registration was itself 'some evidence' of execution against the plaintiffs. Wills and documents which are required by law to be registered might raise other questions but the receipt in the case, did not belong to that class. An alternative contention was raised before the Privy Council that a registered document is a 'public document' within S. 74(2) of the Evidence Act and that, on that basis it was not necessary to comply with the conditions for adducing secondary evidence under S. 65, even if it could be said that there was no waiver of the mode of proof. It was held that the registered document could not be treated as a 'public document' because after its registration, it was not retained by the Sub-Registrar but had to be returned to the party under S. 61(2) of the Registration Act, 1908. The Privy Council, as already stated above, upheld the first contention that if a document is admitted under O. 13, R. 4, C.P.C. no objection as to mode of proof could be raised at any stage later.
12. In two later decisions, the Supreme Court has clearly accepted the position that so far as the mode of proof of a document is concerned, if no objection is raised before its being marked, no objection can be raised at any stage later In Haji Mohd. v. State of West Bengal, , the Supreme Court was dealing with a case of requisition of a house and compensation to be paid therefor.
Their Lordships observed that an "award" in respect of another building could be relied upon by the Government for the purposes of the case before them and that that award could not be said to be 'inadmissible' in evidence. This was because no objection was taken to its admissibilhy either before the arbitrator or before the High Court. Again, in P. C. Purushothama Reddiar v. S. Perumal, , it was held that once a document was marked as an exhibit, no objection could be taken to its 'admissibility' later. In this case, the Court held that certain 'police reports' marked in the case without objection were admissible in evidence even though the concerned Head-constables were not examined as witnesses. The Supreme Court referred in that connection to Bhagat Ram v. Khetu Ram, AIR 1929 PC 110. It must, however, be noted that the word 'admissibility' is used in the above two cases in a general sense and not in the sense of 'admissibility' in the context of any special law like the Registration Act, Stamp Act etc.
13. We shall now examine the Division Bench case in Spl. Deputy Collector v. P. Narsinga Rao, (1985 (2) Andh LT 592) in the light of the above decisions. In that case, five sale deeds marked as Exs. A-1 to A-4 and A-6 were not permitted by the Division Bench to be relied upon for the claimants (respondents) in the appeal even though no objection was raised for the government in the trial Court regarding their admission as evidence, before they were marked. It will be noticed that the learned Judges did not refer to the provisions of O. 13, R. 4, C.P.C. which are specifically referred to by the Privy Council nor to the decision of, the Privy Council. The decision of the Supreme Court in Haji Mohd. v. State of West Bengal, was sought to be distinguished as a case where the objection as to mode of proof was raised not in the High Court but in the Supreme Court. In our view, the said point of distinction is not correct in view of the general principles of law referred to earlier. So far as the second decision of the Supreme Court in P. C. Purushotham Reddiar v. S. Perumal, is concerned, the same was not brought to the notice of the learned Judges.
Therefore, we are of the opinion that the view taken by the learned Judges that the sale deeds Exs. A-1 to A-4 and A-6 in that case were not admissible in evidence because none connected with the deeds was examined, is not correct.
14. Summarising the position, we hold that any objection as to the mode of proof of a document has to be taken at the stage of marking of a document at the trial under O. 13, R. 4, C.P.C. If no objection is raised at that stage, it cannot be permitted to be raised at any stage subsequently in the same Court or in the Court of appeal. If, for example, the original sale deed or a certified copy thereof is marked as an exhibit without objection, it cannot be contended later that it cannot be looked into as none connected with it has been called as a witness. Point No. 1 is held accordingly.
15. Point No. 2 :-- The point is with reference to the admissibility of certified copies granted by a Sub-Registrar and marked by the Court without objection.
16. We shall first deal with the question as to the admissibility of 'secondary evidence' which has been allowed to be marked without objection and without proving the conditions for adducing such secondary evidence. We shall thereafter discuss the question whether a certified copy granted by a Sub-Registrar can at all be treated as 'secondary evidence' even though it is only a copy of a copy.
17. We shall deal with the first aspect initially. In the Evidence Act, 1877, Part II deal with 'proof. We are concerned with Chapter IV (Ss. 61 to 90) dealing with 'documentary evidence'. Section 61 states :
"S.61 : The contents of documents may be proved either by primary evidence or by secondary evidence."
'Primary evidence' of documents is defined in S. 62 as 'the document itself produced for inspection of the Court; 'Secondary evidence' of documents is defined in S. 63 as : (1) certified copies under the provisions 'hereinafter' contained, (2) copies made from the original by mechanical process, (3) copies made from or compared with original, (4) counter parts and (5) oral accounts of the contents of a document given by some person who has himself seen it. Illustration (c) to S. 63 states that 'a copy of a copy' is not secondary evidence unless it has been compared with the original. Sec. 64 enjoins that a document must be 'proved' by primary 'evidence except in cases 'hereinafter' mentioned and S. 65 refers to the conditions to be satisfied before secondary evidence relating to document can be given.
18. Now, it cannot be disputed that a certified copy granted by the Sub-Registrar is a copy of a copy. Therefore, it becomes necessary to decide incidentally whether such a copy given by a public authority in respect of acopy entered in his records, can be treated as 'secondary evidence'. As will be presently* noted, the Privy Council and the Supreme Court have treated certified copies so granted as 'secondary evidence'. We shall now refer to these aspects. First, we shall deal with the question of the effect of not raising objection to the adduction of secondary evidence.
19. The concepts of primary evidence and secondary evidence are fundamental to the consideration of the above question. As in the case of marking of documents under O. 13, R. 4, C.P.C. the principle of waiver has been applied whenever secondary evidence is adduced without objection. If no objection is raised at the stage when secondary evidence is adduced, no objection can be permitted at any later stage as held in Williams v. Wilcox, (1838) 8 Ad & El. 314 : 112 ER 857. There a copy which was secondary evidence was filed as evidence and as no objection was raised, Lord Denman held that no objection can be raised later. Objections as to sufficiency of search cannol be permitted later. See Hals-bury's Laws of England (4th Ed. Vol. 17, para 140). The position in Canada is the same as stated in Guerin v. Fox,(1898) QB 15 SC 199 : 22 Emp Dig p. 211 fn. k. It was there held that the "rule of law, that the evidence offered must be the best evidence and that secondary evidence can be received only when the impossibility of producing the best has been established, is enacted in the interests of the parties and is not founded upon considera-
tions of public policy, and that the objection to such evidence may be considered to be waived by the party interested in opposing it when it is not made at the time the evidence is offered". Likewise, in Canadian Bank of Commerce v. Bellamy, (1915) 33 WLR 8 : 9 WWR 587 : 25 DLR 133 (Sask), the Canadian Court has held that when secondary evidence is admitted without objection, it may be acted upon.
20. "The rule", says Sarkar on Evidence (13th Ed. p. 646) (S. 65), "excluding secondary evidence, when that which is primary is attainable, is not so rigid as to be enforced if no objection is made by the party against whom the inferior evidence is offered. It frequently happens that secondary evidence is admitted, and thus becomes primary, when it might have been excluded if proper objection had been taken (Greenleaf S. 88; Jones S. 20). If secondary evidence is sought to be put in instead of the original, the objection must be taken at the earliest point of time and not at the time of argument or at the appellate stage. Dolgobind v. Maqbul, AIR 1936 Cal 164; Rama Ch. v. Ranganayaki, AIR 1941 Madras 612; Bacharabhai v. Mohanlal, AIR 1956 Bom 196; Subbarao v. Venkata Rama Rao, . In P. C. Purusho-tham Reddiar v. S. Perumal, , already referred to under Point No, 1, it is further laid down by the Supreme Court in regard to proof of 'contents' of a document, as follows :
"It was next urged that even if the reports in question are admissible, we cannot look into the contents of the document. 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."
21. Therefore, the marking of secondary evidence, if not objected to at the trial cannot be objected to later, and the 'contents' can also be looked into.
22. We shall next consider the second aspect whether a certified copy granted by a Sub-Registrar, can be 'secondary evidence', even though it is copy of a copy as stated in illustration (c) to S. 63.
23. In this context reference has to be made to S. 57(3) of the Registration Act, 1908, It clearly states that 'All copies given under this section shall be signed and sealed by the registering officers and "shall be admissible for the purpose of proving the contents of the original document".
Obviously, this provision takes certified copies out of the purview of illustration (c) to S. 63, and therefore certified copies can be treated as secondary evidence provided conditions in S. 65 are satisfied for adducing secondary evidence. Karuppana Gounder v. Kolandaswami, .
24. We have also noticed that certified copies of registered documents marked without objection at the trial have been accepted by the Privy Council in Gopal Das v. Sri Thakurji, AIR 1943 PC 83 as 'some evidence' of execution of such a document. Our Supreme Court has held in Nani Bai v. Gita Bai, , that in the absence of a registered sale deed 'for any reason', its certified coy may be adduced as 'secondary evidence'. In another case in Bhinka v. Charan, the Supreme Court again held that a rebuttable presumption of genuineness of a certified copy arises under S. 79 of the Evidence Act provided that, (as stated in the proviso thereto), the document was executed substantially in the form and manner provided by law. Again in Kalyan Singh v. Chhoti, , the Supreme Court has recently held, while dealing with 'secondary evidence' under S. 63 of the Evidence Act, that in view of S. 63(1) read with S. 79 of the Evidence Act, 'a certified copy of a registered sale deed' may be produced as 'secondary evidence' in the absence of the original.
25. Further, under S. 60(2) of the Registration Act, 1908 a certificate of registration shall be some evidence of the document having been duly registered. In fact, the Privy Council has held in Gangamoyi Debi v. Trailukhya Nath, (1906) ILR 33 Cal 537 :
33 Ind App 60 (PC), that evidence of due registration is itself some evidence of execution against the person by whom the deed purports to be executed. Sir Ford North observed therein :
"The registration is a solemn act to be performed in the absence of a competent official appointed to act as Registrar whose duty it is to attend to parties during the registration and see that proper persons present are competent to act, and are identified to his satisfaction, and all things done before his signature will be presumed to be done duly and in order. Of course, it may be stated that deliberate fraud upon him has been successfully committed, but this can only be by very much stronger evidence than is forthcoming".
The above observations are obviously referable to illustration (e) in S. 114 of the Evidence Act, 1877 dealing with the presumption of regularity of official act.
26. There is also a close parallel between the above legal position obtaining in India and the corresponding position under the English law.
27. Halsbury's laws of England (4th Ed. Vol. 17) states that secondary evidence of public documents or entries from public registers, is admissible (paras 145, 150, 168, 169, 176), Para 168 states that entries in registers of births, marriages or deaths, certified copies of those entries or registers are prima facie evidence though not conclusive evidence. Para 169 says entries in other public registers are evidence of facts recorded provided the registers are required by law to be kept for public reference and the entries are made promptly and by the proper officer. Para 176 states that other registers including the land Registration Registers fall in this category. (See also Phipson on Evidence, 13th Ed. 1982, Para 36.11 and Cross on Evidence, 6th Ed. 1985, p. 604).
28. The above aspects of law were not placed before the Division Bench in Spl. Deputy Collector v. P. Narsinga Rao, (1985 (2) Andh LT 492). Nor did the Bench note the Privy Council and.Supreme Court decisions referred to above. We are therefore unable to accept their view that contents of certified copies of registered documents cannot be looked even though the documents are marked without objection at the trial. The Division Bench referred to the decision of the Kerala High Court in State v. Mariamma, , of the Gujarat High Court in M. S. Madan Singhjiv. State, , and two decisions of the Madhya Pradesh High Court in P. R. Modi v. Collector, and Collector, Raigarh v. Chathurbhuj, . There are no doubt certain observations in the judgments which take the same view as the Division Bench has taken in Spl. Deputy Collector v. P. Narsinga Rao, (1985 (2) Andh LT 492). For the reasons already given, we cannot accept the said views. Further, we find that certain passages in the said judgments accept the admissibility of the certified copies and say that unless there is corroborative oral evidence regarding the price mentioned in the deeds, the recitals by themselves cannot be relied upon. That is a matter dealing with sufficiency of evidence rather than admissibility. We accordingly overrule Spl. Deputy Collector v. P. Narsinga Rao, on this point.
29. Before parting with Point No. 2, we have to refer to S. 51-A of the Land Acquisition Act, 1894 (as amended by Act 68/1984) which now permits certified copies to be straight away marked as evidence.
30. Summarising the position, we hold firstly that if 'secondary evidence' is allowed to be marked for one party without objection at the trial, no objection can be permitted to be raised by the opposite party at any later stage in the same Court or in appeal that conditions for adducing secondary evidence have not been made out initially. Secondly, we hold that though ordinarily copies of copies are not to be treated as 'secondary evidence' unless such copies are again compared with the original, thesaid principle does not apply to certified copies granted by the Sub-Registrar under the Registration Act. These certified copies are, under law, to be treated as secondary evidence and once they have acquired such a status, the marking of such documents at the trial without objection result in such documents and their contents being evidence in the case. No objection can be raised in the same suit or proceeding or in appeal later by the opposite party that before marking the certificate copies, the necessary conditions for adducing secondary evidence have not initially been established. We hold accordingly on point No. 2.
31. Point No. 3 :-- So far as transactions of sale referred to in the Award are concerned, it is well settled now that any such list filed on the Court cannot be relied upon as evidence of the sale deeds. Such a principle is clearly laid down by the Supreme Court in Collector, Raigarh v. Harisingh Thakur, . In that case the Supreme Court observed, referring to a 'sale-statement' as follows :
"Moreover, the sale-statement by itself without examining either the vendor or the vendee or the persons attesting the sale-deeds, is not admissible in evidence and cannot be relied upon."
In fact, it is the above passage that the Division Bench in Spl. Deputy Collector v. P. Narsinga Rao, (1985 (2) Andh LT 492), relied upon for holding that certified copies of sale deeds, even if marked in the Court without objection, are not admissible without calling the vendor or the vendee to give evidence. In our view, the above said decision of the Supreme Court did not deal with the point decided by the Division Bench. The Supreme Court merely dealt with the sale list or statement which was marked in the Court without production of the certified copies. The marking of sale list is not the same thing as the marking of the certified copies of the sale-deeds.
32. The Division Bench accepted that the sale-statistics relied upon in the Award are not evidence in the Court unless the sale deeds are marked. To this extent we agree with the Division Bench. But they further observed that the sale deeds (or certified copies) are not evidence unless the vendor or vendee is examined even where no objection is raised and it is here that we disagree with the Division Bench.
33. We, therefore, hold that the list of sale, transactions mentioned in the Award by the L.A.O. cannot be treated as evidence before the Court. We do not agree with the view of the learned single Judge in the referring ordej; that such a list referred to in the Award can be relied upon by the Court, so far as sates favourable to the land-owner whose land is acquired. The view of the learned Judge that just as transactions in the sale-list favourable to the government are relied upon by the L. A.O., the owner can also rely on other sales in that list favourable to him, is not, in our opinion, correct. So far as the L.A.O. is concerned, the award passed by him is an offer and that is the minimum compensation that is payable in view of S. 25 of the Land Acquisition Act. If the owner of the land wants higher compensation, he should adduce adequate evidence in the Court and at that stage the L. A.O. cannot lead evidence for paying anything less than the award. We, therefore, hold that the sale list or transactions relied upon in the Award cannot be treated as evidence in the Civil Court. Learned counsel for the respondent-claimant relied upon Arunachala Aiyar v. Collector of Tan-jore, (AIR 1926 Madras 926). There the Madras High Court held that the Award of the L.A.O. is evidence in the proceedings before the Court and that statements in the award, such as statements as to contents of certain documents examined by the L.A.O. are evidence and need not be proved by the production of the documents themselves. We are unable to accept the said statement of law as correct in view of the contrary view expressed by the Supreme Court in Collector, Raigarh v. Harisingh Thakur, . We accordingly overrule the said decision.
34. Coming to the facts of the case before us, the position is as follows: In this case possession of the land was taken over on MO-1977 by the government and the notification under S. 4(1) was issued much later on 21-6-1978. The award was passed on 21-11-1980 and the claimants applied to the L.A.O. on 9-12-1980 for reference. The learned Subordinate Judge placed reliance on the sales at serial numbers 3 and 4 referred to in the award. For the reasons given above the said sale transactions referred to in the award cannot be relied upon by the claimant in proceedings before the Court without marking the said sale transactions in the Court. In view of the above position, the learned counsel for the claimant relied upon the sales Exs. A-1 and A-2 dated 23-5-1979 and 14-5-1979 respectively where the rate per sq. yard is far higher. We agree with the learned Subordinate Judge that these are not comparable sales and they are located on the side of the main highway. Even otherwise, these are for small extents and are of less evidentiary value, being subsequent to the date of taking of possession and of the notification under S. 4(1). The claimants have fifed C.M.P.No. 10774 of 1990 for marking the certified copy of the registered sale deed dated 27-3-1978 as additional evidence. The claimant has not satisfied the conditions in O. 41, R. 27, C.P.C that notwithstanding due diligence, he could not file this document in the lower Court. No valid reasons are given for not filing the document in the lower Court. All that is stated in the affidavit filed in C.M.P. No. 10774/90 is that the petitioner could not secure the registered sale deed of items 3 and 4 of 1978 marked in the sale-statistics and which were relied upon by the L.A.O. It is merely stated that because of petitioners' bona fide belief that the "sale statistics were gathered by the L.A.O. himself and because this sale was not discarded on the ground of its doubtfulness of its genuine nature", the petitioner did not file its certified copy in the Court. The petitioner then relied upon S. 51-A of the Land Acquisition Act. It is stated further that no oral evidence is necessary.
35. In our view, the above reasons are not sufficient to show that notwithstanding due diligence the petitioner was not able to secure the certified copy of the sale-deed. The petitioner cannot, in our opinion, be said to have acted bona fide in not filing the document earlier. We cannot therefore accept the reasons given in the affidavit. We, therefore, reject this application. We are unable to apply S. 51-A, even assuming that it can be applied, inasmuch as no grounds have been made out to bring it as additional evidence in this appeal under 0.41, R. 27, C.P.C. We, therefore/dismiss the C.M.P. No. 10774/1990.
36. For all the aforesaid reasons, the appeal is allowed and the enhancement made by the learned Subodinate Judge is set aside, the reference is rejected and the award of the L.A.O. is restored. There shall, however, be no order as to costs.
37. Appeal allowed.