Against the decree and judgment of the first appellate court (Sub Court, Nedumangad) in A.S.No.59 of 1998, dated 6.4.2001, reversing the judgment and decree in O.S.No.88 of 1996 of the Munsiff's Court, Nedumangad, dated 15.1.1998, the plaintiff came up with this appeal. The suit was for declaration of title of plaint 'A' schedule property, recovery of possession of 'B' schedule being part of 'A' schedule and for cancellation of Ext.A4 sale deed alleged to have been executed by defendant No.3 in favour of defendant No.1.

2. Both the parties are claiming their respective title under a parental document of partition, exhibited as A2, dated 13.7.1978, scheduled as 'E' and 'G' schedule in that document. The property allotted to the share of one Asok Kumar and Lalitha is having an extent of 6.5 cents ('G' schedule) and the property allotted to the share of defendant No.3 is having an extent of 6.5 cents ('E' schedule). On 19.12.1978, defendant No.3 sold her 6.5 cents of property to one Vanajakshi. Later on, it was purchased by the plaintiff along with the property allotted to the share of Asok Kumar and Lalitha ('G' schedule in Ext.A2 partition deed) and thereby obtained 13 cents. The cause of action for the suit has arisen when defendant No.3 executed another sale deed, exhibited as A4, on 24.1.1996 in favour of defendant No.1 with respect to the very same property. It is also alleged that subsequent to the execution of Ext.A4 sale deed the defendants trespassed into plaint 'B' schedule property and reduced the same into their possession. Hence the suit for declaration and recovery of possession of the trespassed area.

3. The trial court, after the issuance of a survey commission, decreed the suit. It was taken up in appeal by defendant No.3 and the first appellate court reversed the finding of the trial court and dismissed the suit holding that execution of Ext.A3 sale deed was disputed and denied by defendant No.3 and hence there is failure to prove due execution of the said document and transfer of title over the property. It was also found that defendant No.3 has subsequently transferred the property to defendant No.1 by executing Ext.A4 sale deed on 24.1.1996. Based on the said finding, the decree of the trial court was reversed and the suit was dismissed by the first appellate court. Aggrieved by the said reversal of the decree and judgment of the trial court by the first appellate court, the plaintiff came up with this second appeal.

4. The dispute is with respect to the execution of Ext.A3 registered sale deed dated 19.12.1978. Both parties are claiming their respective title over their respective properties based on Ext.A2 partition deed of the year 1978. It was submitted by the learned counsel for the respondents/defendants that since execution of Ext.A3 registered sale deed is in dispute it has to be proved in accordance with the mandate under Section 68 of the Evidence Act. It was further submitted that production of the original/certified copy of the sale deed would not itself amount to proof of execution of the said document and the person who is seeking benefit under the document should prove the same as mandated under Section 68 of the Evidence Act.

5. It was also submitted that when execution of the document was disputed by the person by whom it purports to have been executed, it has to be proved in accordance with the mandate under Section 68 of the Evidence Act by summoning at least one of the attesting witnesses or by complying with the requirement mandated thereunder.

6. Section 68 of the Evidence Act is extracted below for reference:

“68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shal