Rama Chandra Majhi Vs. Hambai Majhi - Court Judgment

S.C. Mohapatra, J.

1. Defendant is the appellant against a reversing document (judgment?).

2. Suit is for declaration of Title and delivery of possession of 3 mans 23 gunths 15 biswas 8 gandas of land in Plot Nos. 117, 118, 123, 128 and 129 in Khata No. 82/1 in Mouza Jodapokhari of Rairangpur Subdivision which is in Mayurbhanj district.

3. Case of the plaintiff is that suit land belonged to his father. It was in his possession till his death in or about the year 1950. Plaintiff as the only son inherited the same and continued to be in possession. In 1970 plaintiff filed mutation case No. 2236 of 1970 before the Tahasildar, Rairangpur to get all lands of his father including the suit lands mutated in his name. Defendant objected to the mutation of the suit lands on the ground that in the year 1927 father of the plaintiff sold the same to father of the defendant. Defendant also applied for mutation in his name in respect of the suit land. Tahasildar rejected the prayer of the plaintiff for mutation of the suit landsin his name by order dated 14-8-1971 and mutated the same in name of the defendant by order dated 4-2-1972. During pendency of the mutation proceedings defendant sporadically disturbed in the possession of the plaintiff in respect of some of the disputed land. After the mutation in his favour defendant dispossessed the plaintiff from the entire suit land on or about 28-5-1972. Plaintiff claimed that his father never sold the suit lands to the father of the defendant and the alleged sale deed was most probably created by forgery which was never acted upon by the plaintiffs father.

4. Defendant filed his written statement on 16-8-1976 and along with it filed the certified copy of the registered sale deed dated 26-9-1927 (Ext.D). His case is that after obtaining permission from the Sub-divisional Officer, Bamanghaty on 23-9-1927 as per the regulations of Mayurbhanj State, plaintiffs father sold the suit lands to defendant's father on 26-9-1927 by executing a sale deed which was registered that day and on the basis of such purchase defendant's father was in possession having title till his death and defendant is possessing the same by inheritance. As regards the original sale deed, he explained in the written statement that during the lifetime of his father, there was a theft in their house and valuables including the sale deed were lost to the family for which the certified copy has been filed.

5. On the finding that defendant had long possession on the basis of the sale deed in favour of his father, trial Court dismissed the suit. Plaintiff preferred first appeal. Before the appellate Court the judgment was assailed on the grounds i.e. (i) there is no foundation for leading secondary evidence in respect of the sale deed and (ii) even if the certified copy of the sale deed is admissible the contents thereof have not been proved. Appellate Court held that the suit land admittedly having belonged to father of the plaintiff, it shall be deemed that the title continues unless the defendant is able to prove acquisition of title by the alleged sale. Relying upon the decision reported in (1970) 36 Cut LT 1211, Paramananda Sahu v. Babu Sahu, appellate Court held that secondary evidence of the original sale deed is not admissible since foundation for leading secondary evidence has not been laid. Appellate Court held thatthe admission of the certified copy of the sale deed as secondary evidence would not be sufficient to prove the contents of the sale deed which are to be proved independently. AIR 1972 SC 608, P. C Purushothama Reddiar v. S. Perumal, was distinguished on the ground that it was in an election case and for the first time the admissibility of the document was challenged in appeal. In view of the decisions reported in (1966) 32 Cut LT 343, (Kamal Lochan Pujhari v. Mitrabhanu Biswal) and in (1970) 36 Cut LT 1211 (supra), the decision reported in AIR 1979 Gau 14 Md. Saimuddin v. Abejuddin was not accepted. Appellate Court came to the conclusion that no ground having been laid for leading secondary evidence, Ext. D though admissible being certified copy of a public document like register kept in the Sub-Registrar's Office, it cannot be relied upon for acquisition of title treating it as a certified copy of a sale deed. Appellate Court held that non-production of the original sale deed deprived the defendant to prove his case. In conclusion it was held that the defendant on whom the burden rests to prove acquisition of title has failed to prove the same and accordingly, the suit was decreed.

6. In this Second Appeal, the following amongst other grounds were taken to challenge the appellate judgment:

'4. For that even assuming that the defendant failed to prove due execution of the sale deed in favour of his father in the year 1927, in view of the consistent evidence that his father and after him, the defendant continued in peaceful possession of the disputed land, the lower appellate Court should have dismissed the suit and held that the defendant had acquired title by adverse possession.

5. For that in view of the settled position of law as laid down in (1966) 33 Cut LT 343, the lower appellate Court should have held that the certified copy of the registered sale deed and the entry relating to the same in the Register maintained in the office of the Sub-Registrar were admissible in evidence.

6. For that in view of the principles of law decided in AIR 1972 SC 608, it should have been held that the document which had been properly admitted by the trial Court was notavailable to be challenged in the appellate Court on the ground of its admissibility.'

Second Appeal was admitted certifying the aforesaid grounds to raise substantial questions of law for being dealt with in appeal on merits. Under Section 100, C.P.C. duty has been cast on this court to formulate the substantial questions of law. Therefore, the questions are required to be formulated. From the aforesaid grounds, the following substantial questions of law arise for consideration : --

'(a) Whether the certified copy of the sale deed dated 26-9-1927 was admissible in evidence;

(b) Whether after making of the document as Ext. D without objection, there is a scope in appeal to challenge the same;

(c) Whether the contents of Ext D can be utilised for proving the sale; and

(d) Whether in absence of the proof of sale long possession of the defendant would affect the title of the plaintiff to recover possession from the defendant ?'

7. Points (a) and (b) :-- Ext. is a certified copy of the entry in the Register maintained by the registering office of sale deeds. The original is not forthcoming. Original Register of the registration office at Rairangpur from which Ext. D was made was brought to Court by D.W. 6, the Clerk of that office. But the same has not been marked as exhibit. The certified copy has been marked as Ext. D without objection. In the aforesaid background, it is to be examined if certified copy of the sale deed was admissible in evidence.

8. Under Section 64 of the Evidence Act, 1872, documents are to be proved by primary evidence. Section 65, however, permits secondary evidence to be given of the existence, condition or ontents of a document under the circumstances mentioned. Under Section 65(o) secondary evidence of the contents of the documents is admissible where the original is lost. Under Section 65(f) secondary evidence is also admissible where the original of a public document within the meaning of Section 74 which provides amongst others that public records kept in any State of private documents are public documents. Section 52(1)(c) of the Registration Act, 1908requires every document admitted to Registration shall be copied in the book appropriated therefor. Section 51(2) thereof provides for sale deed to be entered in Book I. Thus, the Book in the registration office where copies of sale deeds admitted to registration are made is a public document. Under Section 57 of the said Act, authority is given to give certified copy of an entry in the register. When the original sale deed whose copy is maintained in the registration office is lost, secondary evidence can be given in respect of the contents thereof by proving the entry in the Register in the registration office. Instead of proving the entry in the register in original, certified copy of entry of the sale deed in such register can be proved. Therefore, no objection can be taken for admitting certified copy of entry in a Book maintained in the registration office as secondary evidence of the contents of a sale deed in case ground for admitting secondary evidence is made out.

9. A registered document is not a currency note that with loss of the same the right to property therein is lost. Object of Section 65 of the Evidence Act is to protect persons who in spite of best efforts are unable on account of circumstances beyond their control to place before the Court primary evidence as required under Section 64. Equally it is not intended to render assistance to persons to be benefited who deliberately or without any endeavour to get at the primary evidence or with sinister motives do not produce in Court a document which they could have produced if attempted. When such secondary evidence is admitted, the contents thereof are also proved. The mode of proof of secondary evidence of the contents of a sale deed is by making out the ground for the same by proving the circumstances. See (1959) 25 Cut LT 66 : (AIR 1959 Orissa 126), Brahmananda Panda v. Kanduri Charan Das, (1970) 36 Cut LT 1211, Paramananda Sahu v. Babu Sahu, whether ground has been made out is a matter of evidence. Where the party against whom the secondary evidence is sought to be admitted does not object to the admission of the secondary evidence which is a document and such document is marked exhibit without objection, it shall be deemed that he has waived the objection available to him thatgrounds for admission of the secondary evidence have not been made out.

10. One of the grounds for the appellate Court to find that Ext. D is not admissible in evidence as secondary evidence is that loss of the original sale deed has not been made out by the defendant. Normally, this is a question of fact and in Second Appeal I would have accepted the same. This, however, relates to admission of secondary evidence without objection and the appellate Court could not have entertained such objection. In the Division Bench decision reported in (1967) 33 Cut LT 710 : (AIR 1967 Orissa 129) Annapurna Sahuani v. Narendra Prasad Sahu, certified copy of a registered deed of adoption and gift was marked exhibit without objection. It was found that the secondary evidence could not have been entertained even by the trial Court as the exceptions provided in Section 65 were made out. However, Division Bench accepted the admissibility of the secondary evidence since the document was marked without objection. It was held :

'The objection relates only to the mode of proof. Law is well settled thatif theobjection is confined only to the mode of proof, it must be taken at the earliest point of time when the documents are tendered in evidence in the trial Court. The objection is not permissible to be raised at a subsequent stage or in appeal.'

In (1965) 31 Cut LT 889 : (AIR 1965 Orissa 113) Dula Dei v. Jadi Bewa certified copy of a sale deed was marked as exhibit without objection. The same having been held by the 1 st appellate Court not to have been properly proved this Court in second appeal held :

'The learned lower appellate Court made an error of law in so discarding the document. It is settled law as decided by their Lordships of the Privy Council that 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. Thus, the proper time to object to the admissibility ofevidence is at the trial when the evidence is tendered and it is then that the Court should rule as to the admissibility of the evidence, hence where a document is once admitted in evidence without any objection by a party in the first Court, the party is precluded from objection to the admissibility of the document in appeal'

This decision has been followed in (1971) 37 Cut LT 848: (AIR 1972 Orissa200), Collector, Cuttack v. Rajib Bhol. The same view has also been expressed in (1976) 18 OJD 92, Dinabandhu v. Bajeni Bewa

11. When the trial Court has mentioned in the statutory pro forma list of exhibits that Ext. 8 was marked 'without objection' the wrong recording if any could have been challenged in that Court only even after the decision was rendered. See 1LR (1962) Cut 673,Rama Santra v. Rani Soudamini Manjari Devi and AIR 1982 SC 1249, State of Maharashtra v. Ramdas Shrinivas Nayak. In the trial Court the objection not having been taken and on the record available, the appellate Court not having found that the fact that Ext. D has been admitted without objection, is not correct, there was no scope for considering the question whether the ground for admission of secondary evidence has been made out.

In view of the aforesaid discussion, it is to be held that certified copy of the registered sale deed dated 26-9-1927 was admissible in evidence and the admissibility of the document could not have been assailed in appeal.

12. Point (e): -- Once secondary evidence is given under Section 65(c) the contents of the document are also admissible. Relevant portion of Section 65 reads as follows : --

'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) & (b) xx xx xx xx

(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) to (g) xxx xxx xxx '

In cases (a), (c) and (d) any secondary evidence of the contents of the document is admissible. xxxx xxxx xxxx xxxx xxxx

In (1967) 33 Cut LT 710 : (AIR 1967 Orissa -129) (supra) after accepting the certified copy of the deed of adoption and gift as secondary evidence, the contents thereof were considered. In AIR 1972 SC 608 (supra) it was held that after admitting a document, the contents are also admissible. This has been followed by this Court in (1978) 46 Cut LT 287,Budhi Mahal v. Gangadhar Das and (1986) 62 Cut LT 298, Bhagyarathi Das v. Agadhu Charan Das.

13. Point (d) :-- In view of answer to points (a) to (c) in favour of the defendant-appellant, it can safely be held that on the basis of the sale deed dt. 26-9-1927 (Ext. D) father of the plaintiff lost the title in favour of father of defendant and the suit having been based on title, the question of possession becomes academic in this case. If the plaintiff would have framed his pleading basing on prior possession, the question would have been gone into by me.

14. In the result, the second appeal is allowed and the suit is dismissed with costs, throughout.