G.M. Lodha, J.
1. This is a defendant's second appeal against the judgment of Civil judge, Merta, affirming the judgment of Munsif-Magistrate Merta in Civil suit No. 274 of 1966.
2. The plaintiffs (respondent) filed the above suit against the defendants (appellants for injunction and possession on or about 15-7-60 stating that he and his brother own a pitta shud plot of land in Merta Road and its measurements are from North to South 60' and from East to West 43'. He averred that its patta was issued by the former Jagirdar of Merta Road (Phalodi) on 5-4-43 in the name of his father Kishna and the ancestor Chhoga and that on 6-1-57 he was granted permission to construct by the Gram Panchayat Merta Road. It was stated that he constructed four rooms upto 43' after leaving some land in the north and the rest of the land was lying open and there were four stones on the corners. It was alleged that the defendants (appellants) encroached upon 10' to 12' land belonging to him (plaintiff) in the North East corner by digging foundations inspite of opposition. The plaintiff therefore filed the aforesaid suit for restraining the defendants appellants for making any construction on his aforesaid land and the delivery of possession of the encroached land. The plaintiff stated that the (defendants) appellants encroached on his land referred to above on 14-7-66 and that gave him the cause of action for filing the above suit.
3. The appellants contested the above suit by denying the allegations of the plaint. They urged that the land in question is of their ownership and the plaintiff had no right or possession over it. They averred that they had Patta for aforesaid land from the Gram Panchayat. It was stated that the plaintiff's land extended only upto 43' from North to South and 60' from East to West and it is for that reason that the plaintiff did not raise any construction in his alleged land in the northern side. They further urged that the alleged Patta of the plaintiff was not genuine and the plaintiff had no possession or a right over the land in dispute. It was also stated that the plaintiff had himself applied for the grant of Patta and obtained Patta from the Gram Panchayat on 1-12-60 which clearly showed that the plaintiffs' land only extended upto 43' in the north and not upto the railway boundary. The defendant also contended that even according to the measurements given in the body of the Patta alleged to have been issued by the Thakur of the Merta Road the land of the plaintiff did not extend beyond 43' in the North. It was urged that the Thakur had no authority to grant any Patta and the alleged Patta appeared to have been manipulated after the Presumption of his Jagir.
4. On the aforesaid pleadings, the Munsif-Magistrate, Merta, framed as any as 8 issues. After recording the evidence of the parties the Munsif-Magistrate, decreed the suit of the plaintiff with costs and directed that the defendant should return the land measuring 13' x 9' by removing his construction thereon to the plaintiff and the defendants were further restrained from raising any construction on the aforesaid land of the plaintiff. The aforesaid decree was passed on 23-12-69. Feeling dissatisfied with it, the appellants filed an appeal, which was heard by the Civil Judge, Merta. The Civil Judge, Merta by his judgment dated 12-12-72 dismissed the appeal of the defendants and affirmed the decree of the Munsif Magistrate with costs.
5. Mr. Mehta learned Counsel for the appellant has challenged the above findings and the decree of the first appellate court on the ground that the entire judgment is full of contradictions & fallacies and is based on illegal assumptions of law. Mr. Mehta pointed out that both the lower courts have proceeded on the assumption of law that once a document is exhibited it would be taken to have been proved. He pointed out that there is vital difference and distinction been admissibility of a document and proof of document, which has been conspicuously lost sight of by both the courts. Mr. Mehta further pointed out that judgment of this Court in Harlal v. Ghasi 1969 RLW 262 has been misunderstood and mis-interpreted by both the courts and if it is admitted that it obliterates the difference between admissibility and proof then this judgment is no longer a good law in view of the decision of the. Apex Court in Seth Taraji Khimchand v. Satyarn : AIR1971SC1865 .
6. Mr. Mehta also submitted that the dimensions given in Patta Ex. 1 have been wrongly construed by the first appellate court and that has resulted in failure of justice. The learned Counsel Mr. Bishnoi appearing for the respondents has contested the appeal. According to him the Patta Ex. 1 was duly proved and the first appellate court should have held it to be so. Mr. Bishoi submitted that the judgment of this Court in Harla's case (supra) clearly applies in the present case and there is no difference or distinction in the two.
7. I have given a thoughtful consideration to the rival contentions of the learned Counsel for the parties and also carefully perused the judgment of Harlal's case (supra) as well as the judgment of the Apex Court in Seth Taraji Khimchand's case (supra) referred to above.
8. It is elementary in the law of Evidence that the two connotations admissibility and proof carry distinctive meaning & they cannot be treated as anonymous or synonymous. To obliterate, the distinction between the two would be doing out rajious violence to the entire scheme of the Evidence Act which is a very well drafted piece of legislation.
9. It is in these circumstances that the Apex Court in Seth Taraji Khimchand's case (supra) pointed out in para 15 that mere making of an exhibit does not dispense with the proof of document. Para 15 reads as under:
The plaintiffs wanted to rely on Exhibits A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgment. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs.
10. In Harlal's case (supra) this Court was concerned with the production of a certified copy of a document for proving it. One was a copy of the plaint (copy of deed of exchange) which was marked Ex. 5 and the second one was summons which was marked Ex. 6. It was observed by this Court that no objection was raised when these documents were produced and marked exhibit by the statement of Ghasi.
11. The history of the case was that the deed was held to be genuine between Ghasi and Harlal in the earlier suit and after such a finding in the earlier suit a copy of that deed, the original of which was produced in the earlier suit was filed in the latter suit.
12. This Court held that since the certified copy was produced in the court without any objection about the proof of genuineness of the original signatures on the deed, it will be treated that it has been proved.
13. I must mention that the judgment so far as it goes to make the following observations:
But having failed to raise any objection at the time when the document was marked as Ex. 1, it was not open to the defendants to raise an objection subsequently when the document had not been duly proved.
Certainly, it is against the principles laid down subsequently by the Supreme Court in Seth Taraji Khimchand's case. With due respect to the Hon'ble Judge who decided Harlal's case, I cannot resist mentioning that the elementary principles of law of evidence mikes important distinction between a document proved and a document admissible in evidence and any confusion by taking a document proved, simply because it has been admitted in evidence is one which should be cleared at the earliest, otherwise it would be doing violence to the entire scheme of the evidence Act.
14. The matter would be different when secondary evidence is led and the question is whether a party should have been allowed to lead secondary evidence or not, to prove the genuineness of the original. As happened in Harlal's case (supra) it appears that the Hon'ble Judge deciding Harlal's case (supra) was first impressed by the fact that in the earlier litigation between the parties this document was produced in original and held to be genuine, the implication being that in the subsequent litigation the finding of genuineness is binding about the same document even though certified copy is produced. However, unfortunately while giving the reasons this important aspect was lost sight of and assumption was made that once a document is marked exhibit it will be deemed to be proved, an assumption which is not only foreign but contrary to the Indian Evidence Act.
15. It would be pertinent to notice that Section 67 of the Evidence Act provides that the document can be proved. Merely because a document is marked Exhibit no inference can be drawn that it has been proved unless signatures of the executant of that document are proved or the document is held to be proved on account of any of the presumptions of law, which are contained in other provisions of the Act, for example if a document is a public document or is a 30 years old document or is a certified copy of a public documents.
16. I am therefore convinced that Harlal's case is not an authority for holding that once document is exhibited it will be also deemed to be proved by mere marking it exhibit or holding it admissible. In any case it fails to lay down good law having any validity and relevance after decision of the Hon'ble Supreme Court in Seth Taraji Khimchand's case (supra) for holding that once a document is exhibited it will be deemed to be proved if it is exhibited without any objection. Exhibiting a document is not sufficient to hold it proved.
17. In view of the above, the judgments of both the courts based on Harlal's case (supra) cannot be held good.
18. I am however of the view that the interpretation put by Mr. Mehta that the dimensions of the Patta should be construed as per language mentioned in the earlier portion of it and not according to the site plan, a map contained on the Patta is untenable. If a Patta contains both the language of the measurements and then a map or a site plan, and the two can be reconciled by putting a particular construction then the court must adopt the construction of interpreting the document which can reconcile the both and this is what has been done precisely by the lower courts. In view of this I am not inclined to disturb the finding so far as construction or interpretation of the document is concerned and concur with the finding of the lower courts that the patta relates to this particular land but it would be effective only if genuineness of this document is proved.
19. The legal and logical result is that the judgments of both the courts cannot be upheld.
20. The question which now arises is whether I should reappreciate the entire evidence and decide it afresh. Normally this is not permissible but in exceptional cases this can be done in the interest of justice. However, Mr. Bishnoi at this stage pointed out that he moved an application in the trial court on 5-9-69 for recalling Mangalchand to prove signatures of Thakur Raghunathsingh and the scribe and further to permit the plaintiff to appear in evidence again to prove the Patta by proving signatures of Thakur Raghunath Singh or scribe, because these two persons Thakur Raghunathsingh and the scribe of the Patta were no longer alive and were dead.
21. Mr. Bishnoi, therefore, submits that instead of deciding the case afresh by appreciation of evidence here, it should be remanded to the trial court for permitting the parties to lead additional evidence or proving the Patta and similarly an opportunity to the defendants to disprove it. This request of Mr. Bishnoi being reasonable is not opposed by Mr. Mehta on merits.
22. I am, therefore, inclined the accept the request of Mr. Bishnoi and remand the case to be the trial court for permitting both the parties to lead evidence either by production of fresh witnesses or recalling of the witnesses already examined to prove or disprove the Patta Ex. 1, and then decide the case according to law.
23. The result is that this appeal is accepted, judgments of both the lower courts are set aside and the order of the trial court dated 8-9-1969 rejecting the application dated 5-9-1969 is also set aside. The application dated 5-9-1969 is accepted. The trial court would now record the evidence as indicated above and decide the case afresh according to law. The parties would bear their own costs throughout so far as the present innings are concerned.