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IN THE HIGH COURT OF GAUHATI
Mir Alfaz Ali, J.
Promoda Ingti Saikia And Others - Appellant
Vs.
Sanjib Kumar Deka And Another - Respondent
Regular Second Appeal No. 223 of 2010
Decided On : 22-08-2019
Evidence Act – Section 63 65 74 – Assam Land and Revenue Regulation – Section 40 41 – Registration Act – Secondary Evidence in Title Suit – This regular second appeal is directed against the judgment and decree passed in Title Appeal, whereby the learned Civil Judge No. 2, concurring with the finding of the learned Munsiff, dismissed the appeal and decreed the suit of the plaintiff – Aggrieved by the appellate decree, the defendant/appellant has preferred the instant regular second appeal, which was admitted to be heard on the following substantial questions of law. Whether the learned courts below erred in law in declaring title of the plaintiff over the suit land on the basis of Exhibits Nos. 2 and 3? – The contention raised by the learned counsel for the appellant is that when the original sale deed was not produced and execution of the deed was not proved, learned appellate court ought not to have relied upon the Ext. 1 being the certified copy of the sale deed – Once, the certified copy of the sale deed is rejected, no decree could be passed on the basis of Ext. 2, the mutation certificate, as the entry in the record of rights does not confer title – Both the trial as well as the first appellate court fell in error by decreeing the suit of the plaintiff in absence of proof of title – Held, Having gone through the evidence on record, Court find that the plaintiff has pleaded in the plaint and also deposed in court, that he purchased the suit land by registered Sale Deed and proved the certified copy of the sale deed (Ext.1) in addition to other documents i.e. Ext. 2 & 3 being mutation certificate and revenue paying receipt – Therefore, it cannot be said that the decree was passed solely on the basis of Exts. 2 & 3 – It is now settled position, that when a document as secondary evidence is tendered and admitted in evidence without any objection as to the mode of proof, such objection with regard to mode of proof cannot be raised subsequently, including in the second appeal – In the instant case, evidently, Ext.1 is a certified copy of the sale deed and there is no gainsaying that the certified copy of a sale deed is admissible as secondary evidence in view of sub-section (2) of Section 74 read with Section 63 (1) of Evidence Act – When the certified copy of the sale deed is otherwise admissible and no objection was raised at the initial stage for whatever reasons, such objection cannot be allowed to be raised at the second appellate stage – Apparently, there is no material on record to suggest that the presumption of correctness of the Ext.2 was rebutted – Therefore, the record of right prepared under the statutory provision cannot be brushed aside and it must be given due weightage – In view of the above evidence, when the learned court passed the decree declaring title of the plaintiff, it cannot be said that such decree was passed only on the basis of the Exts. 2 & 3 – The evidence and materials brought on record clearly shows that the plaintiff has been able to establish his title over the suit land by adducing both documentary and oral evidence and as such, the decree passed in favour of the plaintiff cannot be faulted – The substantial question raised herein is answered accordingly and decided against the appellant – In the teeth of the foregoing discussion and the decision with regard to the substantial question, this second appeal is held to be without merit and accordingly dismissed – Appeal Dismissed
JUDGMENT :
Mir Alfaz Ali, J.
Heard Ms. P. Bhattacharjee, learned counsel for the appellants and Mr. P. Roy, learned counsel for the respondents.
2. This regular second appeal is directed against the judgment and decree dated 06.03.2010 passed in Title Appeal No. 76/2008, whereby the learned Civil Judge No. 2, Kamrup, Guwahati, concurring with the finding of the learned Munsiff, dismissed the appeal and decreed the suit of the plaintiff.
3. The respondent herein as plaintiff filed the suit (T.S. No. 52/2005) against the present appellant as defendant praying for declaration of right, title, interest and recovery of possession. The case of the plaintiff was that the plaintiff purchased the suit land covered by K.P. Patta No. 98 and Dag No. 811 by registered sale deed No. 8265 dated 09.12.2002 and took over possession of the same and has been possessing the suit land by constructing residential house. Subsequently, the land was also mutated in the name of the plaintiff. The defendant trespassed into the suit land on 09.10.2003 demolishing the fencing constructed by the plaintiff. Hence the suit.
4. Initially, the suit proceeded ex-parte, as the defendant did not appear inspite of service of notice and eventually an ex-parte decree was passed. Later on, the petitioner filed an application for setting aside the ex-parte decree and the said ex-parte decree was set aside in Misc. (J) Case No. 162/2006. However, after setting aside the ex-parte decree, again the defendant defaulted and consequently the suit proceeded ex-parte and the learned Munsiff after hearing the plaintiff decreed the suit. The ex-parte decree so passed, was carried forward to appeal by the defendant/petitioner and the First Appellate Court also dismissed the appeal and upheld the judgment and decree passed by the learned Munsiff.
5. Aggrieved by the appellate decree, the defendant/appellant has preferred the instant regular second appeal, which was admitted to be heard on the following substantial questions of law.
6. Learned counsel Ms. P. Bhattacharjee, submits that the learned Trial Court did not accept the Ext. 1, certified copy of the sale deed, holding it to be inadmissible. However, passed the decree on the basis of the Ext. 2 & 3 being the mutation certificate and revenue paying receipt. The learned first appellate court held, that the certified copy of the sale deed proved as Ext. 1 was admissible and therefore having relied upon all the three exhibits being the certified copy of the sale deed in favour of the plaintiff, as well as Ext. 2 & 3, being the mutation certificate and rent paying receipt, upheld the decree passed by the learned Munsiff. The contention raised by the learned counsel for the appellant is that when the original sale deed was not produced and execution of the deed was not proved, learned appellate court ought not to have relied upon the Ext. 1 being the certified copy of the sale deed. Once, the certified copy of the sale deed is rejected, no decree could be passed on the basis of Ext. 2, the mutation certificate, as the entry in the record of rights does not confer title. Both the trial as well as the first appellate court fell in error by decreeing the suit of the plaintiff in absence of proof of title, submits Mrs. Bhattacharyya.
7. It is no doubt true, that in a suit for declaration of title and recovery of possession on the basis of title, it is incumbent upon the plaintiff to establish his title, irrespective of defence or defect in the case of the defendant, inasmuch as, the plaintiff has to stand on his own leg and cannot rely upon the weakness of the defendant s case. Having gone through the evidence on record, I find that the plaintiff has pleaded in the plaint and also deposed in court, that he purchased the suit land by registered Sale Deed No. 8265 dated 09.12.2012 and proved the certified c
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