1. This is a second appeal by the appellant-plaintiff aginst the concurrent decisions of both the Courts below dismissing his suit for possession of 33 gunthas area from out of filed Survey No. 59/1, area 3 acres 12
Against decision of D. D. Sutavani Dist. J., Buldana, d/- 16-4-1971.
IA/ JA / E 141 /83/ SNV
Gunthas, of village Nimbhari in Malkapur taluqa of Buldana district.
2. The appellant-plaintiff claimed to have purchased the suit land Survey No. 59/1 , Area 3 acres 12 gunthas, land revenue Rs. 8/- of village Nimbhari from Onkar sakharam Patil his brothers and certain other persons under a registered sale deed Ex. 33 dated 2-1-1961. It was the contention of the appellant-plaintiff that in the months of June 1963 and June 1964 , the respondent who was cultivating the adjoining pot-hissa Survey No. 59/1-A, 3 acres 8 gunthas area, encroached upon 33 gunthas land from the plaintiff's field Survey No. 59/1 The appellant -plaintiff got the land measured on 24-5-1965 claiming possession of the encroached land. These contentions were denied by the respondent, who alternatively contended that he had become owner of the suit land by adverse possession. The trial Court dismissed the plaintiff had failed to prove his title to the allegedly encroached suit land and this dismissal of the appellant's suit was confirmed by the lower appellate Court.
3. It would seem from the oral and documentary evidence on record that originally the whole field survey No. 59 had an area of 6 acres 20 gunthas and was owned by Onkar sakharam Patil, his brothers Trimbak Sakharam Patil, waman Sakharam Patil , Sadashio Sakharam patil, their father Sakharam Sitaram Patil and Bhagirathibai wife of Sakharam Patil. It would thus seem that the whole land Survey No. 59 was owned initially by the appellant's vendor. An attempt was made by the respondent ot prove that under a sale deed dated 23-4-1936 the original owners of the whole field Survey No. 59 had sold an area of 4 acres out of this field to Gulabsa Mohanasa, from whom that portion of the land appears to have been taken on lease by the respondent and subsequently on 1-4-1961 the respondent claims to have acquired rights of owner ship in that land under the provisions of the Bombay Tenancy and Agricultural Lands(Vidarbha Region) Act, 1958. The courts below, have accepted proof of this sale of 4 acres of land and have, therefore come to the conclusion that after the original owners of Survey No. 59 had sold 4acres of land from out of the total area of 6 acres of 2 acres 20 gunthas could be said to have remained with the original owners, which alone they could transfer to the appellant plaintiff under the sale deed Ext. 33 dt 2-1-1961. Therefore, the Courts below have come to the conclusion that the appellant-plaintiff had failed to prove his title to 3 acres 12 gunthas land of survey No. 59/1 He could get title to only 2 acres 20 gunthas land since 4 acres area from the whole field Survey No. 59 having a total area of 6 acres 20 gunthas, had already sold by the initial owners to gulabsa. That would be a very correct and sound line of reasoning ,provided the alleged sale of 4 acres land by the initial owners of the Patil's family in favour of Gulabsa could be said to have been established.
4. Now, the original sale deed dated 23-4-36 said to have been executed by the members of Patil family in favour of Gulabsa could not be produced on record and an attempt was made to establish that it was not traceable and therefore, it was tried to establish the fact of sale by proof by way of secondary evidence under S. 65 of the Evidence Act. That of Course could bbe permissible. Now a certified copy of the said sale deed dt . 23-4-1936 was placed on record at Exhibit 105 and it was attempted to be proved by examining on commission one of the attesting witnesses . to that sale deed, namely, Rajulal Exhibit 51. Now the evidence of Rajulal. However, is of a very dubious nature. In the examination - in -chief , he first stated that he did not remember to have attested the original document, the recitals of which were read over to him from its certified copy. Then a question was put to him, whether such a document was executed in favour of Gulabsa by the respective executants and in reply, Rajulal stated 'it may have been executed'. Then he stated further 'the contents of such document were read out to the executants and all executants. Signed this document in my presence.. My self and Bhikamchand attested the document in presence of the executants and the contents were admitted to be correct. The executants did not complain about the consideration in this document. Gulabsa is also now dead. I was knowing the executants at that time and even before that>' However, the witness stood exposed in his cross-examination. He could not remember ,most of the things about which he was questioned. He admitted, he could not remember about things or recitals about consideration which were read out to him five months earlier. He could not remember, what readopts each executant had with each other. He admitted that when the contents were read out to him. He did not remember to whom the contents of the document were read out. He could not remember , who signed first, second and last. He could not remember , as to who had asked him to sign such document . he stated that his name would not appear in the document unless he signed it. He could not remember, who attested such document first. He did not remember , as to who were the executants, who were present at the time when the document was executed. He did not remember, what portion of the field or Survey Number was sold, nor what was the area or areage sold. He did not remember, as to how many persons were of the name of Gulabsa were at Malkapur. He admitted. He did not know any of the executants whose names were read pout to him because they were not present in the court at the time of his evidence. He stated that the could tell this in his examination -in -chief . because the document was read over to him. It clearly show that the witness did not remember anything and could not positively depose about anything.
5. Both the Courts have realised the dubious nature of the evidence of this witness . Therefore, the trial court decided to observe that since the original document has been executed in 1936 and the evidence was recorded in the year 1967 , the original document was more than thirty years old and the presumption regarding old documents under section 90 of the Indian Evidence Act was available. Now this was clearly an erroneous assumption, because the presumption under section 90 of the Evidence Act, even were it to be applicable to certified copies, required the certified copy produced itself to be more than thirty years ago (See Basant singh v. Brij Raj Saran Singh ) and that was not he case in the present litigation because the certified copy of the original sale deed ext. 195 produced in the trial court had been obtained in the year 1965 and was not thirty years old. The supreme court has laid down that the presumption regarding old documents under Section 90 of the Evidence Act is not available, where a certified copy of an old document is produced (See sital Das v. Sant Ram, : AIR1954SC606 and Harihar Prasad singh v. Deonarain Prasad. AIR 1956 SC 305). Therefore, the trial court was clearly in error in extending the presumption regarding old documents over thirty years old under section 90 of the Evidence Act to the certified copy produced at Ext. 105 to prove the execution of the original sale deed dated 23-4-1936 in favour of Gulabsa.
6. The lower appellate Court has observed in para 7 of tis judgment;-
7. x x x x x x x x x x
The copy of the sale deed is dated 23rd April 1936, and it shows that the original sale deed was registered. Shri Damle says that there was no presumption about the correctness of the contents of the sale deed. This contention does not appear to be sound. It has been held in Pandappa Mahalingappa v. Shivalingappa Murteppa AIR 1946 Bom 193 that although it is true that certified copy is allowed to be produced under Section 65, no presumption can be drawn under section 90, as to the genuineness of execution of the original and the Court should not admit a document merely on the ground that it is a certified copy of a document , more than thirteen years old and should call for proof of the execution of the document. Their Lordships have further added that when the document is registered, such proof is to be found in the certified copy itself, and the deed being registered , the certified copy bears the necessary endorsements of the sub-registar, before whom. The executant acknowledged the execution and was duly identified. Sections 58, 59 and 60 of the Registration Act, provide that the facts mentioned in the endorsements may be proved, by those endorsements. Provided the provisions of section 60 have been complied with. It was in this ruling that where, a registered mortgage-deed more than thirty years old is lost. The certified copy produced under section 65 is admissible in evidence. This shows that the learned trial Judge was right in admitting the certified copy (Ex. 105)in evidence>'
This observation again would seem to be not well-founded. In Ramkrishan be not well-founded. In Ramkrishan Ganpat v. Mohammad Kasam, : AIR1973Bom242 , a Division Bench of this Court has observed in Para 10 of the reported judgment after considering several cases:-
'10 In our view a certificate of registration given under section 60 of the Registration Act is not sufficient to prove due execution of a document and when the execution of a document is denied proof as required by Section 67 of the Evidence Act must be furnished. In the absence of any other evidence on record adduced by the plaintiffs, it is clear that it is not possible to hold merely on the basis of the endorsement of the registering officer that the execution of the wakf deed by deceased Sheikh Mehatab has been proved as required by Section 67 of the Evidence Act.'
In view these observations, the view in pandappa Mahalingappa v. Shivalingappa Murteppa, (AIR 1946 Bom 193) which is a decision of a single Judge of this court must be treated as overruled.
7. The position then comes to this There is no satisfactory evidence to prove the execution of the original sale deed dated 23-4-1936 by Sakharam Patil and others in favour of Gulabsa even by way of secondary evidence under section 65 of the Evidence Act, because even granting that secondary evidence in that manner was permissible to be adduced even by way of secondary evidence in that manner was permissible to be adduced even by way of secondary evidence,the execution of the original document by the executants has not been properly established since the evidence of the only witness Rajulal examined in this respect is not accepted . Then there is nothing to show that in 1936. The original owners had sold 4 acres of land out of Survey No.50 total area 6 acres 29 gunthas to Gulabsa.
8. The appellant has properly established his purchase of 3 acres 12 gunthas land of Survey No. 59/1 under the sale deed Exhibit 33 dated 2-1-1961 in his favour. That at once established primafacie the title of the appellant-plaintiff to 3 acres 12 gunthas land out of Survey No.50 initially was 6 acres 20 gunthas, the only portion that could be left out and be in possession of the respondent -defendant could be the remaining 3 acres 8 gunthas area from this land. The crop statements of the land, which the respondent claims to have cultivated first on lease from Gulabsa . and others and later on as owner by reason of his acquisition of ownership rights therein after 1-4-1961, revealed the area in his possession as so cultivated as only 3 acres 8 gunthas. These are the Record of Rights at Exhibit 55 and the crop statement at Exhibit 58. It is true, the respondent defendant has produced certain receipts of lease amount paid by him to his lessor Gulabsa on 22-5-1957 and 7-3-1956. These are receipts Ext. 37 and Exhibit 38 . They mention that the field was Survey No.59/1 of Nimbhari area 4 acres. Now these receipts can neither prove that actually 4 acres area was leased out by Gulabsa to the respondent and was actually in possession of the respondent. As indicated earlier, the area in possession of the respondent . As indicated earlier , the area in possession of the respondent is shown by the crop statements and record of Rights as 3 acres gunthas and not 4 acres. A certified copy of the application made by the respondent to the Tahsildar, Malkapur on 26-2-1964 praying for conferral of ownership rights in respect of the land cultivated by him as a tenant from Survey No, 59/1 also mentions the area of the land as 3 acres 8 gunthas and not 4 acres. Therefore, it is reasonable to inter that an area of 2 acres 6 gunthas was initially leased out by Gulabsa to the respondent and that the respondent acquired ownership rights only to that much areas with effect from 1-4-1961. Necessarily, if the Patwari Ramachandra P. W. 1 measured the fields on 22-5-1955 for the appellant and found that there was an encroachment of 23 gunthas (actually it should be 32 gunthas as observed by the Courts below ) over the appellant -plaintiff's area from survey no. 59/1 since the only persons possessing land in the whole survey no58 are the appellant and the respondent, it must necessarily follow that the respondent had encroached up on the appellant's land to the extend of 32 gunthas. Over which 32 gunthas, the appellant has clearly proved his title viz the registered sale deed Exhibit 83 dated 2-1-1961. No question of adverse possession by the respondent could arise, because prior to 1-4-1961 the respondent was admittedly in possession as a tenant and could not prescribe a title to the land by adverse possession, which only his lessor could perhaps do, and even granting that the respondent became owner of his land under the provisions of Bombay Tenancy and Agricultural Lands (Vidarbha region) Act, 1958 on 1-4-1961, the suit was filed merely four years there after in 1955 and no question of acquisition of title by adverse possession by the respondent during those four years could arise.
9. In this view of the matter, it would seem clear to me that the appellant had clearly proved his title to the allegedly encroached 32 gunthas land as also the encroachment thereon by the respondent and was entitled to a decree for possession of the said area.
10. This second appeal will have, therefore to be allowed. The decrees of both the courts below dismissing the suit are hereby set aside and instead it is ordered that the plaintiff's suit for possession of 32 gunthas area, as shown in the copy of the map Ext.30 , from out of survey No. 59/1 area 3 acres 12 gunthas, shall stand decreed with costs throughout. The appellant-plaintiff is also entitled to an enquiry under the provisions of Order XX Rule 12(1) , Civil P.C. for mesne profits in respect of the suit land from the date of suit till date of actual delivery of possession.
11. Appeal allowed.