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Krishan Devi and anr. Vs. Gian Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1885 of 1980
Judge
Reported inAIR1981P& H224
ActsRegistration Act - Sections 52(1)
AppellantKrishan Devi and anr.
RespondentGian Kaur and ors.
Cases ReferredShri M. L. Sethi v. R. P. Kapur
Excerpt:
.....proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for..........anandpur sahib dated 9th may, 1980, dismissing their application to lead secondary evidence of the sale deed executed by telu alias chanan singh in favour of the plaintiffs.2. briefly, the case of the plaintiffs is that telu alias chanan singh executed a sale deed in respect of land measuring 34 kanals 9 marlas in favour of the plaintiffs for a consideration of rs. 14,000 on 21st december, 1971, and got the same registered on 27th december, 1971. telu alias chanan singh died in 1974. the plaintiffs after his death filed a suit for declaration that they were the owners and in possession of the suit property the suit was contested by the defendants. at the time of leading evidence the plaintiffs filed an application that the original sale deed had been lost and that they should be allowed.....
Judgment:
ORDER

1. This revision petition has been filed by the plaintiffs against the order of the Subordinate Judge 1st Class, Anandpur Sahib dated 9th May, 1980, dismissing their application to lead secondary evidence of the sale deed executed by Telu alias Chanan Singh in favour of the plaintiffs.

2. Briefly, the case of the plaintiffs is that Telu alias Chanan Singh executed a sale deed in respect of land measuring 34 Kanals 9 Marlas in favour of the plaintiffs for a consideration of Rs. 14,000 on 21st December, 1971, and got the same registered on 27th December, 1971. Telu alias Chanan Singh died in 1974. The plaintiffs after his death filed a suit for declaration that they were the owners and in possession of the suit property The suit was contested by the defendants. At the time of leading evidence the plaintiffs filed an application that the original sale deed had been lost and that they should be allowed to produce the secondary evidence. The application was disorder. They have come up in revision against the order to this court.

3. It is contended by the learned counsel for the petitioner that the sale deed was executed by Telu alias Chanan Singh in favour of the plaintiffs on 21st December 1971 and he got it registered before the sub-Registrar, Anandpur Sahib on 27th December, 1971. A copy of the original sale deed was given by the executor of the document which was pasted in the register of the sub-Registrar. He further argues that it is evident from the Statement of Kishori Lal husband of Krishna Devi plaintiff and general attorney of the plaintiffs, that the original sale deed had been lost. According to him in the aforesaid situation the plaintiff should not have been debarred from producing secondary evidence of the document.

4. On the other hand, the learned counsel for the respondent has vehemently argued that no such sale deed came into existence and the sale deed alleged to have been executed by Telu is a forged document. It was due to this reason that the original was not being produced by the plaintiffs. He has further argued that the loss of the document has not been proved by the petitioner. According to him the conclusion of the trial court that secondary evidence of the document in question cannot be led should not be interfered with in a revision petition. He places reliance on Bhag Masih v. Sardha Ram, 1969 Cur LJ 271(Punj).

5. I have heard the learned counsel for the parties at a considerable length and find force in the contention of the learned counsel for the petitioners. Kishori Lal P.W. 4 in his statement has said that the document was handed over to the patwari for attestation of mutation and the same was not returned to the plaintiff-petitioners. From the statement of the said witness the loss of the document is established. The learned counsel for the respondent has pointed out that a contradictory position has been taken by the said witness and that a different plea had been taken in the plaint. It is normally seen that after the passage of a long time one is left with faint recollections as to where the documents had been kept. Therefore, if there is some discrepancy in the pleadings and the statement of Kishori Lal regarding the loss of document much importance cannot be given to it. In my view his statement in this regard cannot be discarded. It is also evident from his statement that the sale deed was executed in favour of the plaintiff. It is a registered document and, therefore, it cannot be held that no such document came into existence.

6. The question as to whether the document is a forged one or not will be gone into by the Court while deciding the case on merits. It is relevant to point out that clause (c) of sub-section (1) of Section 52 of the Registration Act provided before the year 1961 that every document admitted to registration be copied in the book appropriated therefore according to the order of its admission Cl (c) has been substituted by the Punjab Act XIX of 1961 and now it has been provided that a copy of every document admitted to registration shall be pasted in the book appropriated therefore according to the order of admission of the document, From the aforesaid amendment it is evident that instead of copying a document in the book of the Registration Department now a copy of the document provided by the executant is pasted in the appropriate book. In the present case in view of the chance in law a copy of the sale deed was tendered to the sub-Registrar by Telu executant for being pasted in the appropriate book and it was pasted there. This fact is clear from the statements of Bhag Singh P.W. 1 clerk in the office of the sub-Registrar Brij Nath Scribe P.W. 2 and Harbans Lal Lambardar P. W 3 attesting witness of the document. It is not proper for me to comment on the statement of the said witnesses at this stage. It is for the trial Court to appraise their evidence while deciding about the genuineness of the document. It is for the trial Court to appraise their evidence while deciding about the genuineness of the document. It may be highlighted that copies of the document filed by the execution in the Registration Department bear the thumb impressions/signature of the expectants, attesting witnesses and scribe. Therefore, it is not difficult to find out as to whether the original documents were executed by the persons by whom these are purported to have been done, Prior to the amendment of clause (c) of sub-section (1) of Section 52 of the said Act, it might not have been possible to do so as no thumb impressions/signature of the executants attesting witnesses and scribe were obtained in the book. It is also relevant to point out that after the amendment, there is no reason for the purchasers to retain the original sale deed and request that they should be allowed to produce its copy. In the present case according to the respondent the main reasons for not producing the original document is that the document is a forged one while deciding about the loss of the documents the reasons ascribed by the other side for withholding it also gains some importance. As to whether the sale-deed is a forged one or not can be easily found out by the Court after amendment of clause (c) of sub-section (1) of Section 52 of the Registration Act.

7. After taking into consideration all the above circumstances, I am of the opinion that the learned trial court has acted with material irregularity and illegality in the exercise of its jurisdiction in not allowing the plaintiffs to produce secondary evidence of the sale deed. Therefore, this Court can interfere under Section 115 of the Code of Civil Procedure.

8. Bhag Masih's case (1969 Cur LJ 271)(Punj)(supra) on which reliance has been placed by the learned counsel for the respondents, is distinguishable. In that case, the document copy of which was sought to be produced was a mortgage-deed. A contention was raised on behalf of the other side that the original document had not been deliberately produced as its production would have shown the payment of the entire mortgage debt to the plaintiff. In the said situation the secondary evidence was not allowed to be produced.

9. Faced with that situation, the learned counsel for the respondents has argument that a revision petition against the impugned order is not maintainable. In support of his contention, he has made a reference to Shri M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379. I regret my inability to accept the submission of the learned counsel. The facts of the above said case are distinguishable and the learned counsel cannot derive any benefit from the observation made therein. I have already held above that the revision petition is maintainable in this case.

10. For the aforesaid reasons, I accept the revision petition and direct the trial Court to record secondary evidence of the sale-deed. No order as to costs. The parties are directed to appeal before the trial Court on 27th April, 1981.

Petition allowed.


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