IN THE GAUHATI HIGH COURT ( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH ) RSA No. 58 of 2005 1) Smti Chandra Sakhi Singha, Wife of Sri Horendra Singha, Village & P.O.- Borjalenga, District: Cachar. 2) Sri Moniraj Singh, Son of Late Subal Singha, Village-Nimaichandpur Part II, P.O.-Rajeswarpur, P.S.- Lala, District Hailakandi... Appellants/ Plaintiffs -Versus- Sri Bidya Pati Singha (Sinha), Son of Late Subal Singh, Village: Nimaichandpur Part-II, P.S. Lala, Hailakandi. Defendant/ Respondent BEFORE HON BLE MR. JUSTICE N. CHAUDHURY For the Appellants For the Respondent : Mr. K.A. Mazumdar, Advocate. : Mr. B.Banerjee, Senior Advocate, Mr. J. Laskar, Advocate. Date of hearing : 11.09.2014 & 15.09.2014 Date of judgment : 15.09.2014 JUDGMENT AND ORDER (Oral) The plaintiffs are the appellants in this Second Appeal. The suit of the plaintiffs for declaration of right, title and interest and confirmation of RSA No.58 of 2005 Page 1 of 9
possession with a part of suit land and recovery of possession over the Schedule-3 land was dismissed by the learned trial court in Title Suit No. 88 of 1998. Title Appeal No. 29 of 2003 preferred in the Court of learned Civil Judge (Senior Division), Hailakandi, was dismissed against the concurrent findings of the learned Courts below, the plaintiffs have approached this Court. [2] The plaintiffs Chandra Sakhi Singha and her father Moniraj Singh instituted Title Suit No. 88 of 1998 in the Court of learned Junior Division No.1 at Hailakandi stating that Binodini Singha, the grandmother of the plaintiff No.1 being owner in possession of the suit land measuring 7 Bighas 18 Kathas 12 Chataks gifted the same to the plaintiff No.1 on 08.01.1983 by a gift deed which was registered on 10.01.1983 and handed over vacant possession. The plaintiff No.1 claimed to have accepted the deed and managed the same through her grandfather Subal Singha who is none other than the husband of the donor and when Subal Singha died in the year 1993. Plaintiff No.2 being father of the plaintiff No.1 was looking after the gifted property. Binodini Singha died in the year 1997 and thereafter, defendant No1 having entered into conspiracy with others sought to dispossess the plaintiffs from the Schedule 1 & 2 land. Being compelled, the plaintiffs, therefore, instituted the suit for declaration of their right, title and interest and possession thereof. It is stated that during pendency of the suit, the plaintiffs were dispossessed from Schedule 3 land on 05.01.1999 and so, by making amendment of the plaint, prayer for recovery of Khas possession from this land was also prayed. [3] The defendants No.1 & 2 contested the suit by filing a joint written statement and thereby, not only denied the claim made by the plaintiffs but also filed a counter claim stating that the original owner never executed any sale deed in favour of the plaintiff No.1 as claimed and that the property devolved equally on all the legal heirs of Binodini Singha. Even in her lifetime, the plaintiff No.2 raised claim of gift in favour of the plaintiff No.1, whereupon village Vichar was held, when Binodini herself denied of having made any gift and that she expressed her desire of distributing her property in favour of her legal heirs. However, in due honour to the intention of Binodini of distributing her land in favour of all her legal heirs, 2 Kedars of land was given to the plaintiff No.1 for her RSA No.58 of 2005 Page 2 of 9
future maintenance while all her daughters were also allotted equal amount of land for the purpose. The remaining land, however, was equally distributed between the defendants No.1 & 2 who are the two sons of Binodini. The whole property of Binodini, therefore, was mutually partitioned. By filing counter claim, the defendants made a prayer for declaring the gift deed as fraudulent and forged and prayed for dismissal of the suit. [4] Defendants No.3 to 6 filed separate written statement and supported the contesting defendants No.1. The defendant No.2 died during pendency of the suit and his name was strike off from the array of parties. Upon pleadings of the parties learned Court below framed as many as 7 issued as follows: 1) Is there any cause of action of the suit? 2) Is the suit bad for misjoinder and nonjoinder of parties? 3) Whether the plaintiffs have right, title and interest over the suit land? 4) Whether the plaintiffs are entitled to get khas possession of the suit land by evicting the defendants there from? 5) Whether the registered deed No.109 dated 10.1.1983 is forged document? 6) To what relief or reliefs the plaintiffs are entitled to get in the suit? 7) Whether the contesting defendants are entitled to get any relief in respect of their counter claim? [5] The plaintiffs examined 5 witnesses and exhibited certain documents. Defendants examined 8 witnesses and also exhibited documents in support of their case. Having considered the evidence available on record and after hearing the leaned counsel for the parties, the learned trial court by his judgment and decree dated 26.06.2003 dismissed the suit of the plaintiffs and decreed the counter claim of the defendants which means that the gift deed executed in favour of the plaintiff No.1 was adjudged to be forged as fraudulent. The plaintiffs No.1 & 2 preferred Title Appeal No. 29 of 2003 in the Court of learned Civil Judge (Senior Division) at Hailakandi who dismissed the appeal by RSA No.58 of 2005 Page 3 of 9
upholding the judgment and decree dated 26.06.2003 passed by the learned trial court. It is this judgment which has been brought under challenge in this present Second Appeal. [6] This Court while admitting the Second Appeal on 20.07.2005 framed following two substantial questions of law: 1) Whether Exhibit 5 did confer the right, title and interest on the plaintiff? 2) Whether Exhibit 5 has been proved as required under Section 65 of the Indian Evidence Act, 1872? [7] I have heard Mr. K.A. Mazumdar, learned counsel for the appellants as well as B. Banerjee, learned Senior Counsel assisted by Mr. J. Laskar learned counsel for the respondents. [8] It is the case of the plaintiffs that Binodini as donor executed Exhibit-5 gift deed in her favour and handed over possession thereof. This Exhibit-5 is a certified copy. The original was not produced or exhibited by the plaintiffs. The original of Exhibit 5 is a registered gift deed. While deciding points No.1, 2 & 3 framed by the learned First Appellate Court, the learned Court held that the gift deed being a registered deed it should be presumed to have been duly executed upon and so, onus was on defendants to disprove the fact of genuine execution of the gift deed. The learned First Appellate Court found that onus was also on the defendants to establish that the gift deed was never acted upon i.e. gift was neither accepted nor was it accompanied by handing over possession in favour of the plaintiff No.1. It is the case of the plaintiffs that the Subal Singh died at the time of trial of the suit and so other could not examine himself as witness but no explanation is forthcoming as to why the attesting witnesses of the deed were not executed. The gift deed is required to be attested by virtue of Section 123 of the Transfer of Property Act and so under Section 68 of the Evidence Act the party relying on the document is duty bound to examine lease deed of the attesting witness if they were alive at the time of adducing evidence. I do not find any explanation anywhere given by the plaintiffs to the effect that attesting witnesses were not surviving at the time the trial of the suit was going on. Be that as it may, the question may arise that in view of proviso of Section 68 unless RSA No.58 of 2005 Page 4 of 9
the executant denies execution, necessity for examining attesting witness may not arise. In this case, execution had been done when the validity of a registered gift deed has been called in question. The legal heirs of the donor of the gift deed includes the defendants No.1 as well and it is this defendant who has filed counter claim for adjudging the gift deed as illegal and fraudulent on the basis of the pleadings that Binodini never executed any gift deed as claimed. Under such circumstances, the plaintiffs are required to examine the attesting witnesses of the gift deed to prove its execution. Even if for the sake of argument, it is assumed for the time being that requirement of examining the attesting witness under Section 68 of the Evidence Act does not arise in the present case even then the plaintiffs cannot avoid the mandate of Section 67 of the Evidence Act. Section 67 relates to proof of documents. It requires that party relying on document is duty bound to prove that such a documents was ever written or signed. Here in this case, plaintiffs have not made any attempt to prove the documents. They have examined employee of the Sub-Registry to prove that certified copy was issued by the Sub-Registry from the original volume and that Exhibit-5 was the certified copy issued by the concerned Sub-Registry. This takes us to Section 65 of the Evidence Act in regard to proof of fact by adducing secondary evidence. Section 65 relates to cases where secondary evidence in regard to documents may be given. There are as many as seven exigencies mentioned in the said Section one after another showing the circumstances when a party may prove his case by relying on secondary evidence. Normal rule as prescribed under Section 64 of the Evidence Act, is that documents must be proved by primary evidence. Section 65 is an exception to Section 64. This means that although under normal circumstances document can be proved by primary evidence only in seven circumstances mentioned under Section 65 of the Evidence Act, a party may rely on secondary evidence as well to prove documents. These seven exigencies are enumerated under Clause (a) to (g) of the Section. Section 65 is quoted below: 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 :- RSA No.58 of 2005 Page 5 of 9
a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; 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) When the original is of such a nature as not to be easily movable; e) When the original is a public document within the meaning of Section 74; f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence; g) When the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be provide is the general result of the whole collection. In cases (a), (c) and (d) any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. RSA No.58 of 2005 Page 6 of 9
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. [9] It is the case of the plaintiffs here that the original certified copy was in the possession of the defendants or any other person against whom this suit has been instituted. So, question of issuing notice under Section 66 for production of this document could not have arisen in the facts of the present case and consequently Clause (a) of Section 65 does not apply to the present case. Similarly, because of the fact that very existence of the document itself has been denied by the defendant No.1 pleading in so many words that Binodini never executed any gift deed in favour of the plaintiff No.1 or for that in favour of anybody else, Clause (b) also would not arise because this clause would apply only when existence, condition or contents of the document is admitted by the contesting party. However, Clause (c) may be the only exigency to the case in hand. Clause (c) provides that when original document has been destroyed or lost or when the party offering evidence of its contents cannot form any reason not arising from his own default or neglect, produce it in reasonable time, he may prove the document by secondary evidence. In the case in hand, the case of the plaintiffs is that original gift deed was not withdrawn from the Sub-Registry as the registration receipt with respect to registration of the document was lying in the custody of the scribe who had written the document and since, he had died in the meantime the plaintiffs could not obtain the document from the Sub-Registry. The document purportedly was executed on 08.01.1993 and as per deposition of the plaintiffs, the scribe died in the year 1993. There is no explanation as to why plaintiffs could not collect the registration receipt from the scribe during this period of 10 years and so, on their own showing, plaintiffs cannot claim that the reason for not collecting the original gift deed from Sub-Registry does not arise from their own default or neglect. [10] Section 65(c) of the Evidence Act has several elements. The first condition is that the original must be destroyed or lost or that the parties seeking to produce it cannot do so for any other reason which does not arise from his own default or neglect. It is pertinent to note here that the other reason for which a primary document in existence cannot be RSA No.58 of 2005 Page 7 of 9
produced by a party must not arise from laches or negligence from the side of the party who would get benefit if the document is so produced. This is because if a clever party finds that once original document is produced before the Court then the contesting party would get the chance of cross-examining by pointing out its inherent deficiencies as to execution or otherwise. In such case, he may opt to hide his own document showing that it was lost or not received. Under such circumstances, he will derive the benefit for his own default which cannot be the purpose of law in adversarial form of litigation. This is why, legislature in its wisdom was cautious in coining the provision. Section 65 (c), therefore, deliberately mentioned of reasons not arising from default or neglect to produce the document in reasonable time. This is why to get the benefit of Section 65(c) of the Evidence Act, burden lies heavily on a party to show that the documents have been destroyed or lost or cannot be produced for some or other reason and that such reason does not arise from the default or neglect of the party concerned. Merely showing that documents has been lost or destroyed would not be sufficient for a party to get the benefit of Section 65(a) of the Evidence Act. He is also duty bound to show that non availability of document is not due to his default or neglect. [11] Coming to the facts of this case plaintiffs have failed to satisfy the second part of Section 65(e) that the reason for non availability of the original of Exhibit 5 cannot be said for reason not arising from their default or neglect. Besides, if plaintiffs could examine an employee of the concerned Sub-Registry to prove due issuance of certified copy (Exhibit 5), they could have very well call for the original as well through the Court to show that the original of Exhibit 5 was not withdrawn by them. Rather from examination of official witness, P.W.4 is indicative of the fact that original of Exhibit 5 was taken away by someone. This witness deposed in course of cross-examination that there is no mention in the Register to show as to who had taken away the original of the gift deed. The gift deed was executed in favour of the plaintiff No.1 & plaintiff No.2 being father of plaintiff No1 is described to have managed the property after death of Subol Singha. So, the plaintiffs being the beneficiaries of the gift deed, it is likely that either the plaintiffs or their engaged person (may be scribe as claimed by P.W.2) might have withdrawn original of the document from RSA No.58 of 2005 Page 8 of 9
the Sub-Registry. On the face of such statement given by P.W.4, probability as to incorrectness of the statement of the plaintiffs as to the reason for non production of the original is further intensified. Having so found, it is not possible to presume that reason for non-production of the original of Exhibit 5 does not arise from default or neglect of the plaintiffs. The plaintiffs, therefore, are not entitled to get the benefit of Section 65 (c) of the Evidence Act. The other exigencies, namely, Clause (d) to Clause (g) of Section 65 clearly do not apply to the facts of the present case. This means that none of 7 exigencies of Section 65 of the Evidence Act has been satisfied in the present case. The second substantial question of law is accordingly decided against the plaintiffs/ appellants. This takes us to the first substantial question of law as to acquisition of right, title and interest by the plaintiff No.1 in respect of the suit land on the basis of Exhibit-5. The First substantial question is incidental to the decision on the second substantial question of law. Once it is found that Exhibit-5 was duly proved as per provision of Section 65 of the Evidence Act, then only question of conveyance of title through Exhibit 5 would arise. In the preceding paragraphs proof of Exhibit 5 has been discussed and it has been found that Exhibit 5 was not proved in accordance with the provision of Section 65 of the Evidence Act. The first substantial question of law thus does not arise and so, it needs no adjudication. [12] Consequently the Second Appeal fails and it is, accordingly, dismissed. [13] No order as to cost. Draw up decree and sent down the records immediately. sumita JUDGE RSA No.58 of 2005 Page 9 of 9