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Govind Ram Vs. Abdul Wahab - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 254 of 1959
Judge
Reported inAIR1963Raj234
ActsEvidence Act, 1872 - Sections 3, 67 and 79; Registration Act, 1908 - Sections 60(2); Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1)
AppellantGovind Ram
RespondentAbdul Wahab
Appellant Advocate B.K. Mohani, Adv.
Respondent Advocate B.S. Sharma, Adv.
DispositionAppeal allowed
Cases Referred and Karali Prosad v. E. I. Rly. Co.
Excerpt:
.....into a serious error of law in holding that the plaintiff had failed to prove execution of the sale deed of the house in question by mst. consequently, the learned judge came to the conclusion that the plaintiff had failed to establish that there was any valid sale of the suit house by mst. govindi bai and there is therefore no escape from the conclusion that the present suit must fail. govindi bai had no authority in law to make the sale of the suit house and, therefore, the plaintiff acquired no right to it, which, it must be clearly noted, is quite adifferent plea from saying that mst. even if this is not accepted by itself as sufficient, i think, there is a good deal of circumstantial evidence in this case on which reliance can be placed by reading section 67 with section 3 of..........circumstances presently to be mentioned.2. the plaintiff's case was that he had purchased the suit house from mst. govindi bai widow of one laxmansingh by a registered sale deed (ex. 1) dated the 30th july, 1956, and that the defendant was continuing as a tenant therein from before paying a rent of rs. 3/- per mensem. the plaintiff's case further was that soon after the sale, mst. govindi bai gave a notice to the defendant that she had sold the house to the plaintiff and the defendant should thenceforward pay the rent to the plaintiff, which fact is accepted by the defendant himself. according to the plaintiff, a sum of rs. 9/- was due from the defendant as rent upto the 31st october, 1956. on the 5th october, 1956, the plaintiff gave a notice to the defendant to quit the suit house.....
Judgment:

I.N. Modi, J.

1. This is a plaintiff's second appeal in a suit for rent and ejectment and arises under circumstances presently to be mentioned.

2. The plaintiff's case was that he had purchased the suit house from Mst. Govindi Bai widow of one Laxmansingh by a registered sale deed (Ex. 1) dated the 30th July, 1956, and that the defendant was continuing as a tenant therein from before paying a rent of Rs. 3/- per mensem. The plaintiff's case further was that soon after the sale, Mst. Govindi Bai gave a notice to the defendant that she had sold the house to the plaintiff and the defendant should thenceforward pay the rent to the plaintiff, which fact is accepted by the defendant himself. According to the plaintiff, a sum of Rs. 9/- was due from the defendant as rent upto the 31st October, 1956. On the 5th October, 1956, the plaintiff gave a notice to the defendant to quit the suit house and pay the arrears of rent due from him, and there is no dispute about this notice. The plaintiff's case then was that he was living in a rented house and therefore he had a bona fide and reasonable necessity to occupy the suit house and consequently he brought the suit, out of which this appeal arises for the recovery of the arrears of rent amounting to Rs. 9/- and for ejectment on the 8th November, 1956.

3. The defendant resisted the suit. His case, insofar as it is material for the purposes of the present appeal, was that he was a tenant of Mst. Govindi Bai's husband Laxmansingh at the rate of Rs. 2/8/- per mensem only but he did not accept the fact that on Laxmansingh's death his widow Mst. Govindi Bai had sold the suit house to the plaintiff and consequently he contended that the latter had no right to bring the suit. The defendant also denied that the plaintiff had any bona fide and reasonable necessity to occupy the house in suit.

4. The trial Court found that the plaintiff had purchased the suit house from Mst. Govindi Bai by a sale-deed dated the 30th July, 1956, Ex. 1, and therefore, he was the owner of the house. That Court, however, held against the plaintiff on the question of his bona fide and reasonable personal necessity for the occupation of the suit house. It also found that the agreed rent between the parties was Rs. 2/8/- per mensem and consequently decreed the plaintiff's suit for a sum of Rs. 7/8/- as arrears of rent, but dismissed it so far as ejectment was concerned. Both parties were dissatisfied with this judgment. The plaintiff filed an appeal against it in which he prayed that ejectment should also have been ordered in his favour. The defendant filed a cross-objection praying for the entire dismissal of the suit. The learned Civil Judge, allowed the cross-objection and dismissed the plaintiff's suit with costs throughout, and, in that viewof the matter, the plaintiff's appeal stood automatically dismissed. Aggrieved by this decision, theplaintiff has now come up in second appeal to this Court.

5. The following principal questions have been raised before me in this appeal. The first is that the learned Civil Judge had fallen into a serious error of law in holding that the plaintiff had failed to prove execution of the sale deed of the house in question by Mst. Govindi Bai in favour of the plaintiff and, on that score, dismissing his entire suit. The second is that the Courts below have misdirected themselves in law in deciding the question of bond fide personal necessity in the manner they did. In this connection, it has been strongly argued that the Civil Judge was entirely wrong when he held that before the plaintiff could succeed in his suit for eviction on this ground, it was necessary for him to establish his 'dire necessity' for it. I how proceed to dispose of both these questions in the order in which I have set them out above.

6. As to the question of the proof of the alleged sale-deed Ex. 1 by Mst. Govindi Bai in favour of the plaintiff, the finding of the learned Judge of the appellate Court below was that the execution of the sale-deed had not been proved by the plaintiff. In coming to this conclusion, the learned Judge was fully aware of the admission made by Mst. Govindi Bai in her statement at the trial that she had sold the suit house to the plaintiff. The learned Judge was equally aware of the statement of the plaintiff that he had purchased the same from Mst. Govindi Bai. The learned Judge was also not unaware of the fact that, after having sold the suit house to the plaintiff, she had informed the defendant about it, and we have it from the defendant that he did not question the sale at that time. According to the learned Judge, however, these facts were not enough to prove that a sale-deed of the suit house had been executed by the vendor in favour of the plaintiff and therefore the plaintiff had no locus standi to bring this suit because of the following reasons :

(1) Mst. Govindi Bai did not say that the sale-deed Ex. 1 had been thumb-marked by her.

(2) Govindram plaintiff-vendee had deposed at the trial that Govindi Bai the vendor had signed the sale-deed in his presence and that he had also signed the same but these were wrong statements of fact

(3) The sale-deed was a registered document and there was a presumption of due execution as to such a document; but this was of no avail to the plaintiff as the endorsement of registration thereon had not been proved. It seems that the learned Judge was of the opinion that the Sub-Registrar should have been produced in evidence to prove his endorsement. Consequently, the learned Judge came to the conclusion that the plaintiff had failed to establish that there was any valid sale of the suit house by Mst. Govindi Bai in his favour.

7. In support of the conclusion arrived at by the learned Judge below, it has been strenuously argued before me by learned counsel for the defendant respondent that the sale-deed must have been proved in accordance with the requirements of Section 67 of the Evidence Act. In other words, it must have been proved that the document of sale was thumb-marked by Mst. Govindi Bai as its executant before it could be held to be proved to have been executed by her. My attention hasbeen d'rawn in support of this view to a number of cases; but I consider it sufficient to refer to a Bench decision of our own Court, namely Inder Nath Modi v. Nand Ram, ILR (1955) 5 Raj 955 : (AIR 1957 Raj 231). It is contended that the sale-deed has somehow not been proved by the plaintiff to have been executed in his favour by Mst. Govindi Bai and there is therefore no escape from the conclusion that the present suit must fail.

8. I have carefully examined the reasoning set out above and having regard to all the circumstances of the case, I have not felt impressed by it.

9. Taking up the question of the requirement of Section 67 of the Evidence Act, the case on which learned counsel for the defendant relies and which is a case of our own Court, ILR (1955) 5 Raj 955 : (AIR 1957 Raj 231) seems to me to be a clear authority for holding that where a document has been registered, the certificate of registration which includes the signatures and admission, of the person admitting the execution of the document under Sections 58 and 59 of the Registration Act 'is some proof of its execution.' In coming to this conclusion, the learned Judges who decided that case were fully aware of the decisions of their Lordships of the Privy Council in Gangamoyi Devi v. Troiluckhya Nath, ILR 33 Cal 537 (PC) and Gopal Das v. Sri Thakurji, AIR 1943 PC 83. It is, however, strongly urged on behalf of the defendant that the learned Judges has further made it clear that this mode of proof could not take the place of proof as provided by Section 67 of the Evidence Act which lays down that:

'If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document, as is alleged to be in that person's handwriting must be proved to be in his handwriting'

and, therefore, it is only where it is not possible to have recourse to the method provided by Section 67 because the executant and/or the marginal witnesses, are either dead or cannot be found that the Courts have resorted to the presumption under Section 60(2) of the Registration Act. It is, therefore, contended that in the case of a sale-deed which was executed as late as the 30th July, 1956, and where it was nobody's case that the marginal witnesses were dead, and, so far as the executant is concerned she had herself appeared at the trial advantage could not be taken of the certificate of registration under Section 60(2) to prove execution.

10. The argument is not without some force; but it seems to me to be rather difficult to accept, with utmost respect to the learned Judges, that they were laying down the law exhaustively on the subject or intended to do so, The present, in my opinion, is a rather peculiar case, where the executant, although alive, is a blind person having lost both her eyes some years before the present suit was brought or the sale-deed was executed. Therefore, when she came into the witness-box she stated that she had sold the suit house to the plaintiff and that she had registered the sale-deed and she further stated that the defendant was living as a tenant in the house which had belonged to her husband during his life-time. It is remarkable that not a single question was put to her in her cross-examination challenging the story of the sale.

11. Before proceeding further, it may also be pertinent to mention at this place that the defendant did not choose specifically to question the factum of sale in his written statement. The precise plea on this aspect of the case which he had taken and which was not allowed to be tried and in my opinion rightly) was that Mst. Govindi Bai had no authority in law to make the sale of the suit house and, therefore, the plaintiff acquired no right to it, which, it must be clearly noted, is quite adifferent plea from saying that Mst. Govindi Bai had not made any sale whatever of the suit house in the plaintiff's favour. Be that as it may, and issue does appear to have been raised at the trial on this aspect of the case, and that is how the whole controversy has assumed the acute form which it has.

12. The next witness on the subject is the vendee Govindram. He has also deposed that he had purchased the suit house from Laxmansingh's widow Mst. Govindi Bai and that Ex. 1 was the sale-deed for it. This witness further stated that Govindi Bai had put her signature on the sale-deed in his presence and that he had also done likewise. The learned Civil Judge has remarked in his judgment that both the statements made by Govindram are incorrect, inasmuch as Govindi Bai was an illiterate person and did not and could not put her signature on the sale-deed but had only thumb-marked it. And as for Govindram himself putting his signature thereon, the learned Judge thought that there was no occasion for him to have signed the deed as he was merely a vendee. It is true thatGovindi Bai being illiterate could have only put her thumb-mark on the sale-deed, and to this extent the statement made by Govindram is not quite accurate.

But accepting all that it seems to me to be going too far to hold that he was indulging in adeliberate falsehood when he said so. What, on the other hand, appears to me to have been more probable was that this was an 'inadvertent error' on his part or rather a loose way of putting thingswithout making any distinction between a signature and a thumb-mark. It must be borne in mind, however, that no cross-examination was directed against the plaintiff on this point and this is not without significance. As for Govindram's ownsignatures on the sale-deed, this matter also doesnot seem to have been made the subject-matter of any cross-examination on the part of the defendant. A persual of this document however shows thatGovindram did put his signature on it, though that was at a later stage, and he had done so below the endorsement of registration made on it by the Sub-Registrar. So even here, it would be going too far to hold that the plaintiff was necessarily indulging in a falsehood when he said that he had also put his signature on the document.

13. It has been argued, however, that even it the statement of Govindram is read in the manner I have pointed out above, he has not definitely identified the thumb-mark of Mst. Govindi Baiwhich he should have done. That is undoubtedly so; but that only displays the degree of vigilance with which cases are sometime conducted in ourCourts.

14. This is all the oral evidence on the side of the plaintiff. When the defendant came into the witness-box, it is surprising that he had nothing to say whatever about the execution of the sale-deed by Mst. Govindi Bai.

15. Another point on which the learned Civil Judge seems to me to have completely gone wrong is when he thought that the endorsement of registration could not be taken into consideration as any proof of execution, as the same had not been proved by any direct evidence of the officer who had made it. So far as that view is concerned, I think it is opposed to the clear provisions contained in Section 79 of the Evidence Act read with Section 60 of the Registration Act. Section 60(2) of the Registration Act provides that a certificate of registration shall be signed, sealed and dated by the registering officer and shall then be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in the endorsement referred to in Section 59 have occurred as therein mentioned. Section 79 of the Evidence Act then provides that every such certificate which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by a competent officer shall be presumed to be genuine provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. There is a further presumption that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.

16. In view of these provisions, the genuineness of the certificate of registration must be presumed under Section 79 of the Evidence Act and the evidence of the Registrar is not necessary to prove it. It seems to me that if the learned Civil Judge had not laboured under this wrong impression, he would have in all probability held that the sale-deed was proved in this case and would not have on that score thrown out the plaintiff's suit as he did. Even on the authority of ILR (1955) 5 Raj 955 : (AIR 1957 Raj 231) (supra) a certificate of registration is some evidence of execution of the document to which it relates.

17. Then there is the direct evidence of the vendeee to prove the sale-deed. Even if this is not accepted by itself as sufficient, I think, there is a good deal of circumstantial evidence in this case on which reliance can be placed by reading Section 67 with Section 3 of the Evidence Act. There is authority for holding that the execution or authorship of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence, although it must be further premised that the circumstantial evidence must be of sufficient strength to carry conviction. It has been further laid down that Section 67 does not lay down any specific mode of proof, and therefore, circumstantial evidence as a mode of proof of authorship or execution of documents is not excluded as a legitimate method of proving a document and such evidence may consist of the internal evidence contained in the document itself about the execution of which there is a dispute and the oral evidence of the witnesses to prove other surrounding circumstances. See Krishnabiharilal v. State, (AIR 1956 Madh Bh. 86) and Karali Prosad v. E. I. Rly. Co., (AIR 1928 Cal 498).

18. The question, therefore, is whether there is sufficient circumstantial evidence to hold in the present case that the sale-deed is proved satisfactorily. In this connection reference may be made to the internal evidence available from the sale-deed itself. It clearly mentions that Mst. Govindi Bai is the widow of Laxman Singh and that the suit househad originally belonged to him and that after his death it devolved on his widow as his sole heir. It further mentions that the sale had been made in favour of the present plaintiff for a sum of Rs. 1000/-, and there is direct reference to the defendant inasmuch as it is said that this was the very house in which the latter had been living as a tenant from the time of her husband. I have also referred to the fact that as soon as this house had been sold by Mst. Govindi Bai to the plaintiff, she had given a notice to the defendant and the defendant himself accepts to have received that notice and made no demur whatsoever. Another important piece of circumstantial evidence is provided by the statement made by Mst. Govindi Bai herself when she came into the witness box and said that she had sold the suit house to the plaintiff and had registered a sale-deed in that connection.

19. I have already referred in detail to the fact that the sale-deed was in fact registered and that the certificate of registration contains an admission by Mst. Govindi Bai that she had made a sale of the suit house in favour of the plaintiff and that the sale consideration therefor had been paid by the vendee to the vendor in the presence of the Sub-Registrar. This certificate, as already discussed, requires no further proof and its genuineness must be presumed under Section 79 of the Evidence Act.

20. As against all this, there is no direct or circumstantial evidence on the side of the defendant that the sale in question had not taken place or that it was a sham transaction, nor was any cross-examination directed against the vendor and the vendee when they came into the witness-box on this aspect of the case.

21. In view of all these circumstances, I am on the whole strongly disposed to come to the conclusion that both on the direct and/or circumstantial evidence produced on the record, the plaintiff has succeeded in proving the sale of the suit house in his favour by Mst. Govindi Bai by the sale-deed Ex. 1 and that the finding of the learned Civil Judge to the contrary cannot be sustained. It must follow, therefore, that the plaintiff had a right to bring this suit.

22. The only other question then is whether the plaintiff has succeeded in establishing bona fide and reasonable personal necessity for the occupation of the suit house by himself and the other members of his family. It may be stated at the very outset that the finding of both Courts below is against the plaintiff on this point. This is ordinarily a finding of fact and would not call for any reconsideration at this stage, it being binding on me sitting as a Court of second appeal. But it has been strenuously argued before me that the approach of the learned Civil Judge to this question is wholly wrong and illegal inasmuch as he thought that before the plaintiff could succeed in his claim for eviction on this ground, it was for him to have proved his 'dire necessity' for the occupation of the house.

23. There is force in this submission, and, therefore, I am constrained to hold that the finding of the learned Civil Judge cannot be accepted as binding on this Court. For, while on the one hand, the requirement of 'reasonable and bona fide personal necessity' does not merely mean a mere wish or desire on the part of the landlord to go into occupation of his own property whenever it suits his sweet will or pleasure to do so, on the other hand, it does not also mean that the plaintiff mustestablish absolute or 'dire' necessity, as the learned Judge below puts it, for the occupation of the property in dispute for his own or his family purposes. What he has to prove is that he has a present reasonable need for occupying the property in connection with which the suit has been brought and that his need is not motivated by any extraneous considerations of greed or any other similar factor.

24. Consequently, it is the duty of the Court to see that the premises are required both reasonably and bona fide. I should further like to point out in this connection that if it was a matter of mere requirement of the landlord, then perhaps it would be a subjective-matter altogether. But the requirement has to be reasonable, and this introduces the objective element into the decision of the question, and it is here that the Court plays the chief role, and this is how the law strikes a balance between the arbitrary and unbridled desire of an individual and the need of the community at large.

25. Now let us look at the broad facts of the case in the light of the principles I have enunciated, above. It cannot be disputed for a moment that the plaintiff had purchased the suit house. Not can it be disputed that he has been living in rented premises so far. There has been some controversy in the Courts below as to whether he was living in the same house or not throughout this litigation. But that, in my opinion, is immaterial for the purposes of deciding the present question, because whether it was the one house or the other, the plaintiff was not living in it except on payment of rent. The defendant contended at one stage that the plaintiff had some other houses as well which were vacant and in which he could live. But that contention is baseless and there is no proof whatsoever on the record that he has any other house which he could occupy. There is also evidence on the record that there are seven members in the plaintiff's family consisting of himself, his wife, his mother and two sons and two daughters. In these circumstances, I see no valid reason to hold that when the plaintiff wants to go into occupation of a house which has been purchased by him, his requirement is by any means unreasonable.

26. The only other question on this aspect of the case is whether the plaintiff's requirement to occupy the suit house is bona fide. There is nothing on the record to show that it is anything but that. For, there is hardly any evidence brought on the record on the side of the defendant to allege much less to prove, that the plaintiff has filed the present suit merely to bring pressure on the defendant to agree to an increase in the rent for the house in dispute. No other similar factor has been proved to lead one to doubt the bona fides of the plaintiff in this connection. In these circumstances, I think that the correct conclusion to come to is that the plaintiff has succeeded in proving that he is under a reasonable and bona fide necessity to occupy the suit house.

27. For the reasons mentioned above, I allow this appeal, set aside the judgment and decree of the Civil Judge and hereby pass a decree in favour of the plaintiff that he will be entitled to recover a sum of Rs. 7/8/- as arrears of rent from the 1st August, 1956, to the 31st October, 1956, at the rate of Rs. 2/8/- per mensem and further that the plaintiff shall also be entitled to possession. As regards costs, as a good deal of trouble has arisen in this case because the case was not conducted with that degree of care on the side of the plaintiff with which it should have been, I would allow him half the costs in all the Courts.

28. Learned counsel for the defendant prays that some time be allowed to his client to vacate the suit premises. I allow him three month's time from today to vacate the same.


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