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2023 Supreme(Online)(TRI) 814
HIGH COURT OF TRIPURA AGARTALA RSA No.52 of 2022
1. Smti. Rubia Bibi (46)
W/o Alfat Ali, 2. Smti. Rukiya Bibi (32)
D/o Alfat Ali, 3. Smti. Rasia Bibi (33)
D/o Alfat Ali, 4. Md. Kamal Hossen (35)
S/o Alfat Ali
5. Md. Mohammad Hossen (30)
S/o Alfat Ali, All of Village Hadra, P.S. Kakraban, Udaipur, Gomati Tripura ---- Plaintiff Appellants.
Versus
1. Md. Mati Miah S/o Late Ali Ashrab, of Village- Hadra, P.S. Kakraban, Udaipur, Gomati.
2. Md. Ajid @ Aziz Miah, S/o Lt. Ali Ashrab, of Village- Hadra, P.S. Kakraban, Udaipur, Gomati.
3. (a). Mist. Maleka Bibi, W/o Late Akkas Mia, of Village- Hadra, P.S. Kakaraban, Udaipur, Gomati.
(b). Md. Tabir Rahaman, S/o Late Akkas Mia, of Village- Hadra, P.S. Kakaraban, Udaipur, Gomati.
(c). Md. Billal Miah S/o Late Akkas Mia, of Village-Hadra, P.S. Kakaraban, Udaipur, Gomati.
(d). Mist Sofiya Bibi W/o Md. Abu Taher and D/o Late Akkas Mia, of Village- Hadra, P.S. Kakaraban, Udaipur, Gomati.
(e) Mist. Sakina Khatun, W/o Md. Hasem Miah and D/o Late Akkas Mia, of Village- Hadra, P.S.
Kakaraban, Udaipur, Gomati.
(f) Mist. Fatema Bibi Minor and represented by 3(a).
D/o Late Akkas Mia, of Village- Hadra, P.S. Kakaraban, Udaipur, Gomati.
(g). Mist. Achia Bibi D/o Late Akkas Mia, of Village- Karaiyamura, P.S. Kakaraban, Udaipur, Gomati.
4. Md. Salim Miah S/o Late Kadir Miah of Hadra, P.S. Kakraban, Udaipur, Gomati, 5. Mist. Abidi Bibi, W/o Md. Alak Miah and D/o Ali Asrab, of Village- Nidaya, P.S. Jatrapur, Sonamura, Sepahijala. 6. Mist. Ramuja Bibi W/o Md. Jamal Hossen and D/o Ali Asrab, of Village- Nidaya, P.S. Jatrapur, Sonamura, Sepahijala.
7. Mist. Jarina Bibi W/o Md. Manu Miah and D/o Ali Asrab, of Village-Hadra, P.S. Kakraban, Udaipur, Gomati.
8. Mist. Rafia Bibi, W/o Md. Ajjan Khan and D/o Ali Asrab, of Village- Hadra, P.S. Kakraban, Udaipur, Gomati.
9. Mist. Charu Bibi, W/o Md. Abdul Sattar and D/o Ali Asrab, of Village- Hadra, P.S. Kakraban, Udaipur, Gomati.
10. Mist. Jahera Khatun, W/o Md. Abdul Mazid and D/o Ali Asrab, of Village-Hadra, P.S. Kakraban, Udaipur, Gomati.
11. Mist. Anu Bibi, W/o Md. Latif Miah and D/o Ali Asrab, of Village-Hadra, P.S. Kakraban, Udaipur, Gomati.
---Defendants Respondents.
For the Appellant(s) : Mr. B. Banerjee, Advocate Ms. R. Majumder, Advocate For Respondent(s) : Mr. G.S. Bhattacharjee, Advocate Date of hearing and delivery of judgment & order : 08.02.2023 Whether fit for reporting : Yes HON’BLE MR. JUSTICE ARINDAM LODH Judgment & Order (Oral)
Heard Mr. B. Banerjee, learned counsel appearing for the appellants. Also heard Mr. G.S. Bhattacharjee, learned counsel appearing for the respondents.
2. This second appeal has been filed by the appellants against the judgment and order dated 20.09.2022 passed by the learned District Judge, Gomati Judicial District in Title Appeal No. 09 of 2016 arising out of judgment dated 31.03.2016 and decree dated 05.04.2016 passed by the learned Civil Judge (Jr. Div.), Gomati, Tripura in TS No.12 of 2012.
3. The plaintiffs filed the suit for declaration of right, title, interest and confirmation of possession. In support of their plea of title, the plaintiffs have produced certified copy of the registered sale deed under which they purchased the suit land.
4. Issues were framed after perusal of the pleadings exchanged between the plaintiffs and the defendants. Both the parties adduced evidence.
5. Having heard the arguments of the counsel appearing on behalf of the parties, the learned trial Judge dismissed the suit of the plaintiffs with the following findings:
“ISSUE NO.II: According to the plaintiffs, they, being the legal heirs of Alfat Ali, became the owner-in-possession of the suit lands described in Schedule A(i) and Schedule A(ii) of the plaint. Originally, Alfat Ali jointly owned with Ali Ashrab 0.49 acres of land described in Schedule A(i) and he purchased the portion of land owned by Ali Ashrab from him and also purchased land described in Schedule A(ii) from Ali Ashrab by a common registered deed of sale and got delivery of possession. In support of their claim, plaintiffs adduced in evidence death certificate of Alfat Ali (Ext.1), survival certificate of Alfat Ali (Ext.2), certified copy of registered sale deed vide no. 1-1934 between Alfat Ali and Ali Ashrab (Ext.3 series), certified copy of khatian no.130 and 116 of Mouja Amtali (Ext.4 & 5 respectively), and certified copy of Map of Mouja Amtali (Ext.6). From Ext.2 it is made clear that the plaintiffs are the legal heir of Alfat Ali. But Ext.3 is the certified copy of sale deed. Plaintiffs have not adduced in evidence the original deed of sale and there is no explanation as to why the original sale deed is not produced. It is settled law of evidence as provided in section 64 of the Evidence Act that document must be proved by primary evidence except in cases mentioned in the said Act. As per section 67 of the Evidence Act: the signature and handwriting must be proved when a document is produced. Plaintiffs examined the Moharar of Sub-Registrar Khokan Debnath as PW.3 who during his cross-examination admitted that he did not know Asrab Ali or his hand writing or signature and he also could not say whether original Asrab Ali executed the sale deed before the Sub-Registrar. The exception as indicated in section 64 is well found in section 77 of the Evidence Act which provides that certified copies may be produced in proof of the contents of public documents. But a deed of sale is not a public document. Therefore, the document i.e., the deed of sale is not proved in view of the Evidence Act. Thus, it is also not proved that Alfat Ali purchased the land described in Schedule A(i) and Schedule A(ii) of the plaint from Ali Ashrab. Moreover, from the plaint it is apparent that land in Schedule A(i) is recorded in Khatian no. 130 (Ext.4) and land in Schedule A(ii) is recorded in Khatian no. 116 (Ext.5). Ext.4 shows that both the Alfat Ali and Ali Ashrab are the owners and possessors of 0.49 acres of land situated in Mouja Amtali and Ext.5 shows that Ali Ashrab is the owner and possessor of 0.38 acres of land under Mouja Amtali. Thus, Ext.4 and Ext.5 do not support the plaintiffs‟ claim that Alfat Ali had become the owner-in-possession of the entire lands mentioned in Schedule A(i) and Schedule A(ii) of the plaint.
From the foregoing discussion, it is found that purchase of portion of land of Schedule A(i) and entire land of Schedule A(ii) by Alfat Ali from Ali Ashrab is not proved and therefore, right, title and interest of plaintiffs over the suit lands are not proved. Hence, the issue has been answered in negative and decided against the plaintiffs and in favour of the defendants.
ISSUE NO. III: In view of my findings arrived at the Issue No.II, I find and hold that the plaintiff is not entitle to recover the vacant possession over the A(iii) schedule land from the defendants. Therefore, the issue is answered in negative and decided against the plaintiffs and in favour of the defendants.
ISSUE NO. IV: In view of my findings arrived at the foregoing issues, the plaintiff is not entitled to get any other relief or reliefs.
ORDER
7. On the basis of the decisions on various issues, it is found that plaintiffs failed to prove their right, title and interest over the entire A(i), A(ii) and A(iii) schedule land and therefore, they are not entitled to recover the vacant possession over the A(iii) schedule land from the defendants. Thus, the suit of the plaintiff fails and is hereby dismissed on contest.”
6. Being aggrieved by and dissatisfied with the said judgment and decree, the plaintiffs, appellants herein preferred first appeal before the Court of learned District Judge, Udaipur, Gomati District. On hearing the appeal the learned District Judge had affirmed the judgment and decree passed by the learned trial Judge.
Hence, the second appeal before this Court.
7. Mr. Banerjee, learned counsel appearing for the appellants has urged this Court to formulate substantial question of law on the ground that the findings of the Court’s below as regards the admissibility of the certified copy of the sale deed (Ext.3 series) are perverse and bad in law. Mr. Banerjee, learned counsel has strenuously tried to persuade this Court that even a certified copy, if exhibited without any objection by the opposite party, then, such certified copy is deemed to have been proved. No other ground is pressed. Mr. Banerjee, learned counsel has relied upon a judgment of the Hon’ble Supreme Court passed in the case of Dayamathi Bai (Smt) vs. K.M. Shaffi, (2004) 7 SCC 107.
8. I have perused the findings of both the learned Courts below. I have also taken into consideration the judgment relied upon by the learned counsel for the appellants.
9. Certified copy of any document is treated as secondary evidence as contemplated under Section 63 of the Evidence Act. Admitted fact is that the plaintiffs/appellants have produced certified copy of the sale deed and not the original copy of the sale deed.
Section 63 of Evidence Act reads as under:
“63.Secondary evidence.–Secondary evidence means and includes–
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.”
Section 65 of the Evidence Act deals with the cases in which secondary evidence relating to documents may be given.
Section 65 reads as under:
“65.Cases in which secondary evidence relating to documents may be given.–Secondary evidence may be given of the existence, condition or contents of a document in the following cases–
(a) when the original is shown or appears to be in the possession or power–
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it.
And when, after the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of Section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondar
