IN THE HIGH COURT OF TRIPURA
A G A R T A L A
RSA No.05 of 2023
1. Sri Bikash Datta,
son of late Barindra Datta
2. Sri Bipul Datta
son of late Barindra Datta
Both are of village- Bhati Dudhpur, P.O. Dudhpur, P.S. & Sub-
Division- Kumarghat, District- Unakoti Tripura
Appellant(s)
………
V e r s u s
– –
1. Sri Bindulal Basak,
son of late Bidyasagar Basak
2. Sri Babulal Basak,
son of late Bidyasagar Basak
3. Smt. Hasripriya Basak,
daughter of late Bidyasagar Basak
All are of village & P.O. Kanchanbari, P.S. Fatikroy, Sub-Division-
Kumarghat, District- Unakoti Tripura
4. Smt. Dipali Basak,
wife of Sri Bhusan Basak, daughter of late Bidyasagar Basak of
Patharpani Road, P.O. & P.S. Lumding, District- Noagaon, Assam
5. Sri Swapan Basak,
son of late Bidyasagar Basak
6. Smt. Sefali Basak,
wife of Pradip Kumar Basak, daughter of late Bidyasagar Basak
Both are resident of Hriday Sarani, Sonai Road, P.O. & P.S. Silchar,
District-Cachar, Assam
(s)
…….. Respondent
For the Appellant(s) : Mr. H. Deb, Advocate.
For the Respondent(s) : Mr. T.D. Majumder, Senior Advocate.
Mr. D. Kalai, Advocate.
th
Date of hearing : 17 January, 2024.
th
Date of delivery of : 28 February, 2024.
Judgment & order
YES NO
Whether fit for reporting :
√
Page 2 of 27
S. DATTA PURKAYASTHA
HON’BLE MR. JUSTICE
JUDGMENT & ORDER
The judgment dated 20.01.2023 passed by the District
Judge, Unakoti, Kailashahar in Title Appeal No.42 of 2019 and
connected decree thereof are under challenge in this appeal.
[2] By the impugned judgment, the first appellate court
dismissed the appeal and affirmed the judgment dated 08.02.2019
passed by the Civil Judge (Sr. Division), Court No.2, Unakoti,
Kailashahar in TS No.19 of 2015 and consequent decree therof
whereby right, title and interest of the plaintiff-respondents in the
suit land was declared and decree of recovery of possession was
granted against the present appellants, their men and agent.
[3] The respondents filed the suit bearing TS No.19 of 2015
claiming that the suit land described in the first schedule of the
plaint as of their own, having inherited the same from their
predecessor, Late Bidyasagar Basak, who according to them, had
become the owner of the suit land by purchase through a
registered deed and Khatian was accordingly mutated in his name
vide MR Case No.147 of 1994. The allegations of the respondents
were that in the middle of May, 2013 they were dispossessed from
the suit land by the appellants who thereafter constructed huts
therein, as specifically descried in the second schedule of the plaint.
Incidentally, it was also alleged that the appellants-defendants
further attempted to dispossess another adjacent land owner
Page 3 of 27
namely, Santilal Basak on the western side, for which both present
respondent No.1 and said Santilal Basak jointly filed a complaint
under Section 145 of the Cr.P.C. against the appellants before the
Sub-Divisional Magistrate, Kumarghat. But as no effective result
thereof was noticed, the respondent No.1 sent one advocate notice,
on 25.03.2015, to the appellants to vacate the suit land which also
went futile. Then the suit was filed with the following reliefs:
[i] Granting declaration of the plaintiffs right, title &
interest over the suit land and directing that the
plaintiffs do recover possession thereof by removing all
obstructions, all the signs of possession of the
defendants and suit huts there from on defendants
costs and by evicting and driving out both the
defendants there from;
[ii] Granting compensation to the plaintiffs as mesne
profits, both of past and future in respect of the suit
land till to the recovery of possession of the suit land;
[iii] Granting all other reliefs deemed fit and proper
including the total costs of litigation.
[4] The defendants contested the suit with the plea that the
suit land was Government Khas land and that for last 40 years they
had been residing therein by constructing huts, to the knowledge of
the respondents and their predecessors. They also asserted that
the plaintiffs or their predecessor never had any sort of possession
on any occasion in the suit land. They denied the factum of
purchase of suit land by said Bidyasagar Basak and also questioned
the legality of preparation of Khatian in his name. They denied the
allegations of such dispossession of respondents by them and also
challenged the maintainability of the suit, stating that other family
Page 4 of 27
members of them who were also residing inside the suit land, were
not made parties.
[5] The suit land comprises of 8 (eight) Nos. of RS Plots
consisting of total area of 2.51 acres. Learned trial court decreed
the suit mainly with the observation that the evidences of the
appellants‟ witnesses about their possession over the suit land for
more than 40 years was not corroborated by any documentary
evidence, rather, the ownership of the predecessor of respondents
was established by a registered sale deed bearing No.1-4062 dated
10.07.1961 (Exbt.9) followed by mutation of the name of the
predecessor of respondents in the ROR.
[6] While affirming the said judgment and decree, the first
appellate court reflected in Para-8 of the judgment, the arguments
of the learned counsel of the present appellants and also of the
learned counsel of respondents, but surprisingly, such arguments
appear to be contrary to the case of their respective clients, which
normally would not happen. According to the first appellate court,
the learned counsel, despite filing the appeal, argued that the trial
court rightly decided the case in favour of the plaintiff-respondents,
and learned counsel of the plaintiff-respondents argued on different
odds of the judgment of the trial court to get it struck down. At first
blush, it appears to be a clear non-application of mind of the first
appellate court.
Page 5 of 27
[7] In such backdrop, in the second appeal, the following
substantial questions of law were formulated for decision:
(a) Whether in absence of any pleading, the certified
copy of a sale deed which is exhibited under subject to
objection, may go into evidence?
(b) Whether the certified copy of sale deed may be
exhibited as public document and will go into evidence
without complying the provision of Section 65 of
Evidence Act?
(c) Whether without production of primary evidence,
the title of property can be declared on the basis of
Secondary Evidence?
(d) Whether the record of right i.e. khatian is the proof
of title and on the basis of record of right i.e. Khatian,
the title of anybody over suit land may be declared?
(e) Whether the suit was instituted within the period of
limitation, in consideration of the pleading of both the
parties?
-Discussions and decisions-
[8] Points No.(a)- Whether in absence of any
pleading, the certified copy of a sale deed which is
exhibited under subject to objection, may go into
evidence?
In the plaint, the respondents simply mentioned that the
suit land was owned and possessed by their predecessor by
registered purchase but did not mention from whom it was
purchased and what were the registration number and date of
execution of said purchase deed.
[9] Mr. H. Deb, learned counsel appearing for the appellants
argued that in absence of mentioning of those facts in the pleading,
the respondents were debarred from taking the certified copy of
deed No.1-4062 dated 10.07.1961 (Exbt.9)[hereinafter referred as
] executed by one Sarada Ram Malakar in
‘the purchase deed’
favour of predecessor of appellants and their uncle, late Kamala
Page 6 of 27
Basak, into evidence on the ground that there were no mention of
such deed in the plaint, and if such sale deed is ignored, there is no
document of title of respondents available in the evidence for
granting decree of declaration of right, title and interest in their
favour in respect of the suit land. Mr. Deb, learned counsel tried to
buttress his submission relying on the following decisions:
i) Anathula Sudhakar vs. P. Buchi Reddy (Dead) by
L. Rs. & Ors., AIR 2008 SC 2033- In this case, at Para-23, the
Supreme Court observed in the given facts of that case
Hon‟ble
that to attract the benefit of Section 41 of the TP Act, the plaintiffs
had to specifically plead the averments necessary to make out a
case under Section 41 of the TP Act in their pleading.
ii) Food Corporation of India vs. The Assam State
Co-Operative Marketing & Consumers Federation Ltd. & Ors.
,1999(1) GLT 1- At Para-9 of this judgement, as referred by Mr.
Deb, learned counsel, there is mention of submission of one
learned counsel that plea of acknowledgement was not pleaded in
the plaint and, as such, there was no occasion to controvert it in
the written statement and therefore, even if the evidence was led
regarding acknowledgement, same cannot be considered. Said
learned counsel in that case also relied on one decision rendered in
Venkataramana Devaru vs. State of Mysore, [AIR 1958 SC 255].
Thereafter, Gauhati High Court also cited another decision of said
Court in Mrs. Tazabannisa & Ors. vs. Sadaruddin Ahmed & Ors.,
Page 7 of 27
(1989) 2 GLR 261 wherein it was observed that the object and
purpose of pleadings are to enable the adversary party to know the
case it has to meet in order to have a fair trial, and no party can go
beyond the pleadings and in absence of pleadings, evidence, if any,
produced by the parties, cannot be considered.
[10] In reply, Mr. T.D. Majumder, learned senior counsel for
the respondents contended that though there might not be
mentioning of details of that purchase deed in the plaint, but it was
mentioned that the predecessor of respondents had purchased the
suit land by a registered deed of purchase. So, it could not be
termed as a case of absence in the pleading.
[11] Now, the question to be decided herein is - whether the
non mentioning of the name of vendor, the deed number and the
date of execution of the purchase deed in the plaint can be treated
to be a case of
„absence of any pleading‟ or not.
[12] As already indicated above, the specific case of the
respondents was that they had derived the ownership of the suit
land through their predecessor who became owner thereof by
registered purchase. It is not a case that the respondents or their
predecessor claimed ownership of the suit land by any other source
than the registered purchase. Therefore, it cannot be said that in
the evidence they brought any new plea inconsistent with their
basic pleading that their predecessor had got the suit land by way
of registered purchase.
Page 8 of 27
[13] In Bhagwati Prasad vs. Chandramaul, AIR 1966 SC
735, held the
the Constitution Bench of Hon‟ble Supreme Court
followings:
“(9) There can be no doubt that if a party asks for a
relief on a clear and specific ground, and in the issues or
at the trial, no other ground is covered either directly or
by necessary implication, it would not be open to the
said party to attempt to sustain the same claim on a
ground which is entirely new. The same principle was
laid down by this Court in Sheodhari Rai v. Suraj Prasad
Singh, AIR 1954 SC 758. In that case, it was held that
where the defendant in his written statement sets up a
title to the disputed lands as the nearest reversioner,
the Court cannot, on his failure to prove the said case,
permit him to make out a new case which is not only
not made in the written statement, but which is wholly
inconsistent with the title set up by the defendant in the
written statement. The new plea on which the
defendant sought to rely in that case was that he was
holding the suit property under a shikmi settlement
from the nearest reversioner. It would be noticed that
this new plea was in fact not made in the written
statement, had not been included in any issue and,
therefore, no evidence was or could have been led
about it. In such a case clearly a party cannot be
permitted to justify its claim on a ground which is
entirely new and which is inconsistent with the ground
made by it in its pleadings.
(10) But in considering the application of this
doctrine to the facts of the present case, it is necessary
to bear in mind the other principle that considerations
of form cannot over-ride the legitimate considerations
of substance. If a plea is not specifically made and yet it
is covered by an issue by implication, and the parties
knew that the said plea was involved in the trial, then
the mere fact that the plea was not expressly taken in
the pleadings would not necessarily disentitle a party
from relying upon it if it is satisfactorily proved by
evidence. The general rule no doubt is that the relief
should be founded on pleadings made by the parties.
But where the substantial matters relating to the title of
both parties to the suit are touched, though indirectly or
even obscurely in the issues, and evidence has been led
about them, then the argument that a particular matter
was not expressly taken in the pleadings would be
purely formal and technical and cannot succeed in every
case. What the Court has to consider in dealing with
such an objection is: did the parties know that the
matter in question was involved in the trial, and did
they lead evidence about it? If it appears that the
parties did not know that the matter was in issue at the
Page 9 of 27
trial and one of them has had no opportunity to lead
evidence in respect of it, that undoubtedly would be a
different matter. To allow one party to rely upon a
matter in respect of which the other party did not lead
evidence and has had no opportunity to lead evidence,
would introduce considerations of prejudice, and in
doing justice to one party, the Court cannot do injustice
to another.”
[14] Thereafter, in Ram Sarup Gupta (Dead) by LRs vs.
Bishun Narain Inter College & Ors.,(1987) 2 SCC 555, in the
observed that in absence of
similar line Hon‟ble Supreme Court
pleadings, evidence if any, produced by the parties cannot be
considered. No party should be permitted to travel beyond its
pleading. The object and purpose of pleadings are to enable the
adversary party to know the case it has to meet. The pleadings,
however, should receive a liberal construction; no pedantic
approach should be adopted to defeat justice on hair-splitting
technicalities. Sometimes, pleadings are expressed in words which
may not expressly make out a case in accordance with strict
interpretation of law. In such a case, it is the duty of the Court to
ascertain the substance of the pleadings to determine the question
and it is not desirable to place undue emphasis on form, instead
the substance of the pleadings should be considered. Whenever the
question about lack of pleading is raised the enquiry should not be
so much about the form of the pleadings; instead the Court must
find out whether in substance the parties knew the case and the
issues upon which they went to trial. Once it is found that in spite
of deficiency in the pleadings, the parties knew the case and they
proceeded to trial on those issues by producing evidence, in that
Page 10 of 27
event it would not be open to a party to raise the question of
absence of pleadings in the appeal. Similar principle was also again
reiterated in Bachhaj Nahar vs. Nilima Mandal & Anr.,(2008)
17 SCC 491.
[15] Therefore, law has been consistent that in absence of
pleadings, evidence, if any produced by the parties cannot be
considered and no party should be permitted to travel beyond its
pleadings and that all necessary and material facts should be
pleaded by the party in support of the case setup by it. The basic
object of such principle is that the other party may not be taken
the case of a party in surprise. However, it is also a settled
principle that while considering a pleading, pedantic or hyper
technical approach should be avoided. The Court can, however,
consider such a case not specifically pleaded where the pleading in
substance, contains the necessary averments to make out a
particular case; the issues framed in the suit also generally cover
the question involved therein and the parties also proceed on the
basis that such a case was at issue and lead evidence.
[16] In the instant case in hand as already indicated above,
no evidence was led by the respondents in surprise going beyond
the plea raised in the plaint or by setting up a new plea. At best, it
can be said that the recitals as made in the plaint regarding the
claim of purchase of suit land by their predecessor was inadequate,
but on the other hand, it was also open to the appellants to put
Page 11 of 27
interrogatories to the respondents to collect the name of vendor
and registration number, date of execution etc. of said purchase
deed, if they were in need of the same. When no new or
inconsistent plea has been taken by the respondents to the utter
surprise of the appellants going beyond the arena of their pleading,
rejection of entire claim of the respondents based on such
inadequate or insufficient description in the plaint in the present
case, will lead to a very hyper technical approach to the principle.
Therefore, the argument as made by learned counsel of the
appellants in respect of absence of pleading is not accepted.
[17] Point Nos. (b) & (C)- (b) Whether the certified
copy of sale deed may be exhibited as public
document and will go into evidence without
complying the provision of Section 65 of Evidence
Act?
(c) Whether without production of primary
evidence, the title of property can be declared on
the basis of Secondary Evidence?
Mr. Deb, learned counsel for the appellants argued that
the certified copy of the sale deed was taken into evidence without
furnishing explanation in the plaint as to why original was not
produced. To gain support for his submission, Mr. Deb, learned
counsel also referred to a decision rendered in Rakesh Mohindra
vs. Anita Beri & Ors.,(2016) 16 SCC 483 and at Para-15, Apex
Court observed that the preconditions for leading secondary
evidence are that such documents could not be produced by the
party relying upon such documents in spite of their best efforts,
unable to produce the same which is beyond their control. The
Page 12 of 27
party sought to produce secondary evidence must establish for the
non-production of primary evidence. Unless, it is established that
the original document is lost or destroyed or is being deliberately
withheld by the party in respect of that document sought to be
used, secondary evidence in respect of that document cannot be
accepted.
[18] Mr. Deb, learned counsel also referred to another
decision as rendered by Gauhati High Court in Bidhan Paul vs.
Paresh Chandra Ghosh,(2001) 3 GLR 594, wherein it was
observed by learned Single Judge that the Registration Act never
contemplates for keeping any sale deed, gift deed, Deed of power
of attorney etc. in its public record and, as such, Volume book
containing the copies of entries of a private document cannot be
treated to be a “public document” within the meaning of Section
74(2) of the Indian Evidence Act. Only these public records which
keep the private documents and not the copies of private
documents are treated as “public document”. Keeping in view of
above said legal position it was further observed that a certified
copy of registered deed of power of attorney was not automatically
admissible in evidence having no presumptive value within the
meaning of Section 79 of the Evidence Act and such type of
certified copy of any such document can only be put in evidence
being a secondary evidence, if the pre-condition(s) embodied in
Section 65 of the Evidence Act is fulfilled.
Page 13 of 27
[19] While arguing further that the alleged certified copy of
said sale deed was not 30 years old though the original deed was
executed more than 30 years ago and therefore, the presumption
under Section 90 of the Evidence Act, 1872 was not available, Mr.
Deb, learned counsel referred another decision of Bombay High
Court returned in Shiolalsing Gannusing Rajput vs. Shankar
Motiram Nale, AIR 1984 Bombay 19, to the effect that
presumption in respect of thirty years old document under Section
90 of the Indian Evidence Act was available in case of certified copy
of any document only when the copy itself was more than thirty
years old.
[20] In Sri Lakhi Baruah & Ors. vs. Sri Padma Kanta
Kalita and Ors., AIR 1996 SC 1253, as further referred by Mr.
Deb, learned counsel, it was observed at
by Hon‟ble Supreme Court
Para-18 that it was the discretion of the Court to refuse to give
such presumption under Section 90 of the Evidence Act on certified
copy of the document in favour of any party, if otherwise there was
occasion to doubt due execution of the document in question. In
that case, it was the specific plea of the plaintiffs that the deed of
sale was a forged and fabricated document and therefore, it was
held that there was a requirement to produce the original copy so
that the question of due execution by plaintiff No.1 of that case
could have been contested by the parties.
Page 14 of 27
[21] According to Mr. Majumder, learned senior counsel, after
a thorough hearing of both the parties, said certified copy of the
sale deed (Exbt.9) was admitted in the evidence vide order dated
09.12.2016 and said order was not challenged by the appellants in
higher forum letting it to reach the finality, and therefore, the
appellants were debarred from raising such an issue in the second
appeal. Learned senior counsel also argued that it was not a case
that the original purchase deed was missing or destroyed, rather,
said original deed was also submitted in the trial court but as only
the last page of the same was missing, the certified copy thereof
was taken into evidence.
[22] The substantial question of law as framed against point
No.(b) are two-folds. The first point to be dealt with is, whether the
certified copy of the sale deed may be admitted in evidence as
public document and the second point is, whether such certified
copy of sale deed may be taken into evidence without complying
the provision of Section 65 of the Evidence Act.
[23] Section 74 of the Indian Evidence Act defines the public
document and as per sub-section (2) of Section 74, public records
kept in any State of private documents are treated to be public
documents. Section 76 of the Evidence Act prescribes the
procedure of furnishing true copy of such public document(s) and
Section 77 of the Act envisages that such certified copies may be
produced in proof of contents of the public documents or parts of
Page 15 of 27
public documents of which they purport to be copies. In case of a
sale deed registered under the Registration Act, 1908, the original
document is not kept as a public record of private document and it
is returned to the parties after registration. However, copy of the
same is kept in Book 1 as per Section 51 of the Registration Act. As
per definition as given in Section 74(2) of the Evidence Act, said
record of document kept in Book 1 is a public document. Section 77
of the Evidence Act allows a party to prove the certified copy of
such document into evidence.
[24] Section 79 of the Evidence Act attaches presumption of
genuineness of such certified copy on two conditions viz i) if the
same is declared by law to be admissible in evidence provided it
purports to be duly certified by any officer of the Central
Government or the State Government or by any officer in the State
of Jammu and Kashmir who is duly authorised thereto and ii) if
such document is substantially in form and purports to be executed
in a manner directed by law in that behalf. Said provision further
envisages that the Court shall also presume 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.
[25] Therefore, abovesaid provision empowers the Court to
raise such presumption in respect to the authority of the officer to
Page 16 of 27
certify the document in his official character, apart from drawing
presumption of genuineness of such certified copy.
[26] Regarding admissibility of such certified copy, Section
57(5) of the Registration Act, 1908 provides that all copies given
under said Section shall be signed and sealed by the registering
officer, and shall be admissible for the purpose of proving the
contents of the original documents. When a document is produced
before registering officer, as per Section 34(3) of the Act it is
incumbent upon the registering officer to- (a) enquire whether or not
such document was executed by the persons by whom it purports to
have been executed; (b) satisfy himself as to the identity of the
persons appearing before him and alleging that they have executed
the document; and (c) in the case of any person appearing as a
representative, assign or agent, satisfy himself of the right of such
person so to appear. As per Section 58 of the Act, when a document
is admitted to registration, other than a copy of a decree or order, or
a copy sent to a registering officer under Section 89, there shall be
endorsed from time to time the following particulars namely, (a) the
signature and addition of every person admitting the execution of the
document, and, if such execution has been admitted by the
representative, assign or agent of any person, the signature and
addition of such representative, assign or agent; (b) the signature
and addition of every person examined in reference to such document
under any of the provisions of the Act; and (c) any payment of money
or delivery of goods made in the presence of the registering officer in
Page 17 of 27
reference to the execution of the document, and any admission of
receipt of consideration, in whole or in part, made in his presence in
reference to such execution. As inquiry or verification is done by the
registering officer by following various provisions of the Registration
Act regarding execution of a document, finally a presumption is raised
in favour of valid execution of the same.
Hon‟ble Supreme Court in
Prem Singh v. Birbal, (2006) 5 SCC 353, held the followings:
“27. There is a presumption that a registered document
is validly executed. A registered document,
therefore, prima facie would be valid in law. The onus of
proof, thus, would be on a person who leads evidence to
rebut the presumption. In the instant case, Respondent
1 has not been able to rebut the said presumption.”
[27] Regarding adducing of secondary evidence, Section 65
of the Evidence Act primarily lays down certain pre-conditions
where secondary evidence relating to any document may be
proved. A certified copy of registered sale deed may be taken into
evidence if any of the condition as enumerated in Section 65 of the
Act is fulfilled or same is admissible as per any other provision(s) of
Law. in Appaiya vs. Andimuthu
Recently, Hon‟ble Supreme Court
alias Thangapandi and Ors., 2023 SCC OnLine SC 1183, also
observed the followings:
“30.…………………………………………….Ex.A.1, indisputably
is the certified copy of sale deed No.1209/1928 dated
27.08.1928 of SRO Andipatti. In terms of Section 74(2)
of the Evidence Act, its original falls within the
definition of public document and there is no case that it
is not certified in the manner provided under the
Evidence Act. As noticed hereinbefore, the sole
objection is that what was produced as Ext.A1 is only a
certified copy of the sale deed and its original was not
produced in evidence. The hollowness and
unsustainability of the said objection would be revealed
Page 18 of 27
on application of the relevant provisions under the
Evidence Act and the Registration Act, 1908. It is in this
regard that Section 77 and 79 of the Evidence Act, as
extracted earlier, assume relevance. Section 77
provides for the production of certified copy of a public
document as secondary evidence in proof of contents of
its original. Section 79 is the provision for presumption
as to the genuineness of certified copies provided the
existence of a law declaring certified copy of a
document of such nature to be admissible as evidence.
When that be the position under the aforesaid
provisions, taking note of the fact that the document in
question is a registered sale deed, falling within the
definition of a public document, the question is whether
there exists any law declaring such certified copy of a
document as admissible in evidence for the purpose of
proving the contents of its original document.
Subsection (5) of Section 57 of the Registration Act is
the relevant provision that provides that certified copy
given under Section 57 of the Registration Act shall be
admissible for the purpose of proving the contents of its
original document. In this context it is to be noted that
certified copy issued thereunder is not a copy of the
original document, but is a copy of the registration
entry which is itself a copy of the original and is a public
document under Section 74(2) of the Evidence Act and
Sub-section (5) thereof, makes it admissible in evidence
for proving the contents of its
original……………………………………………..”
In view of above, I most respectfully note my
disagreement with the ratio of Bidhan Paul (supra) as mentioned
above to the extent that the Volume books containing the copies of
the entries of private documents cannot be treated to be a public
document, and that only those public records which keep the
private documents and not the copies of private documents are
treated as public document within the meaning of Section 74(2) of
the Indian Evidence Act.
[28] From the record of trial court, more particularly from
orders dated 30.11.2016 and 09.12.2016, it appears that at the
time of submission of examination-in-chief on affidavit of the
Page 19 of 27
witnesses, plaintiff-respondents on 20.07.2016 submitted the
original purchase deed No.1-4062 dated 10.07.1961 but it was
found that last page of the original deed was missing and therefore
later, on 07.09.2016 they submitted certified copy of the said deed.
The defendant-appellant side, thereafter, put the challenge
regarding admissibility of said certified copy on the ground that
said certified copy ought to have been filed earlier with the leave of
the Court and they were to prove that the original document was
not in possession or power of them. The trial court, thereafter, vide
order dated 09.12.2016 turned down such challenges with the
observation that inclusion of said certified copy shall not cause any
prejudice to the defendant side, as the information of said
s‟
document was there with them from the date of filing of
examination-in-chief on affidavit of the plaintiff witnesses and they
had the scope to cross-examine the witness on that document and
therefore, leave under Order VII Rule 14 CPC was granted to the
plaintiff-respondents to admit said document and finally, vide order
dated 04.01.2017, said certified copy of sale deed was taken into
evidence and was marked as Exbt.9 subject to objection recorded
by the appellant side. Thus, it appears that the challenge of the
appellants regarding said document was basically in respect of
inadmissibility of the same for delayed submission of the same and
for not showing that the original thereof was not in possession of
the respondents. There was no challenge in respect of mode of
proving the same.
Page 20 of 27
[29] In R.V.E. Venkatachala Gounder vs. Arulmigu
Viswesaraswami & V.P. Temple & Anr.,(2003) 8 SCC 752,
Para-20 in
Hon‟ble Supreme Court discussed the position of law at
respect of challenges raised regarding admissibility of documents in
evidence and the relevant portion of Para No.20 is extracted thus:
“20..........................Ordinarily, an objection to the
admissibility of evidence should be taken when it is
tendered and not subsequently. The objections as to
admissibility of documents in evidence may be classified
into two classes: (i) an objection that the document
which is sought to be proved is itself inadmissible in
evidence; and (ii) where the objection does not dispute
the admissibility of the document in evidence but is
directed towards the mode of proof alleging the same to
be irregular or insufficient. In the first case, merely
because a document has been marked as “an exhibit”,
an objection as to its admissibility is not excluded and is
available to be raised even at a later stage or even in
appeal or revision. In the latter case, the objection
should be taken when the evidence is tendered and
once the document has been admitted in evidence and
marked as an exhibit, the objection that it should not
have been admitted in evidence or that the mode
adopted for proving the document is irregular cannot be
allowed to be raised at any stage subsequent to the
marking of the document as an exhibit. The latter
proposition is a rule of fair play...........................”
[30] In the case in hand, when there was no challenge
regarding the mode of proof of the said certified copy of purchase
deed in the trial court, now appellants cannot be permitted to raise
such question here. However, regarding admissibility of such a
document, the trial court decided the matter vide order dated
09.12.2016 which was not challenged further by any party. Apart
there from, in view of the position of law as discussed above, it is
held that such secondary evidence is/was permissible to be taken
into evidence. In fact the original sale deed was produced before
Page 21 of 27
the Court, but one page of the same was found lost or missing and
therefore, the respondents were entitled to lead secondary
evidence of said purchase deed. Moreso, as per Section 65(f) of the
Evidence Act, 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, secondary evidence thereof can be led.
Therefore, there is no bar in declaring title of the respondents in
the suit land based on such certified copy, if said relief is not barred
otherwise for any other reason. The point Nos. (b) and (c) are
answered accordingly.
[31] Point Nos.(d) and (e)- (d) Whether the record of
right i.e. khatian is the proof of title and on the
basis of record of right i.e. Khatian, the title of
anybody over suit land may be declared?
(e) Whether the suit was instituted within the
period of limitation, in consideration of the
pleading of both the parties?
Mr. H. Deb, learned counsel argued that the ROR was
not a basic document of title and therefore the Khatian standing in
the name of predecessor of plaintiff-respondents as was proved
under Exbt.1 could not be treated as basic document of title to pass
decree in favour of the plaintiff-respondents. Mr. Deb, learned
counsel on that point referred a decision o
f Hon‟ble Supreme Court
in Union of India & Ors. vs. Vasavi Co-op. Housing Society
Ltd. & Ors., AIR 2014 SC 937 wherein it was observed that the
revenue records are not document of title and the entries in the
revenue papers, by no stretch of imagination can form the basis for
Page 22 of 27
declaration of title in favour of plaintiffs. Mr. Deb, learned counsel
also referred to another decision of learned Single Judge of this
Court rendered in Sarda Bala Roy vs. Gouranga Chandra Roy,
(2019) 1 TLR 295, wherein also said l
aw as enunciated by Hon‟ble
Supreme Court in different decisions that Khatian or the mutation
in the khatian or the Khasra record does not create any title over
any property in favour of anyone, was reiterated.
[32] It is no longer res integra that record of right does not
create or extinguish title of any person over any land and,
therefore, it is not the proof of title of any person in respect of any
land. However, the TLR & LR Act, 1960 and rules made thereunder
were legislated with certain objectives. In one way, it abolished the
right of intermediaries in the land and also simultaneously a new
method of revenue survey and settlement operation was
introduced.
[33] While preparing khatian (ROR) under the Act of 1960,
procedures are prescribed for draft publication thereof,
consideration of any objection made thereunder and ultimately final
publication of the same under Section 42 and 43 of the Act. Section
44 of the Act bars the jurisdiction of the Civil Court from
entertaining any suit or application for the settlement or
determination of land revenue or the incidence of any tenancy to
which the record of right relates. Even after final publication of
record of rights, scope has been made there under section 45 of
Page 23 of 27
the Act for correction of such finally published khatian by any
revenue officer specially empowered in this regard by the State
Govt. within one year from such final publication. Chapter VIII of
the Act lays down the procedure for filing first appeal, second
appeal, review and revision in different revenue fora for correction
of such entry. Under section 81 of the Act, the revenue officer,
while exercising power under the Act or under any other law to
inquire into or to decide any question arising for determination
between the Government and any person or between parties in any
proceeding is treated to be a revenue court having power of
summoning witnesses, issuing of bailable warrants, recording of
evidence etc.
[34] As per Rule 56 of T.L.R. & L.R. Rules, 1961, revenue
survey is conducted and record of rights are prepared maintaining
the below noted stages-
i) demarcation of village boundaries;
ii) traverse survey;
iii) cadastral survey (or Kistwar);
iv) preliminary record writing ( or Khanapuri);
v) local explanation (or Bujharat);
vi) attestation including determination of rent or revenue of
tenancies and holdings (or Jamabandi);
vii) publication of the draft record of rights;
viii) disposal of objections under sub-section (1) of section 43;
and
ix) preparation and publication of the final record of rights
under sub-section (2) of section 43.
As per Rule 64, a notice atleast 30 days before the
abovesaid attestation begins, is required to be given to the riyats,
Page 24 of 27
under-riyats, occupants and other land holders calling upon them
to appear before the revenue officer, on the date fixed with
relevant documents in support of their right, title and possession
(emphasis laid) . Therefore, while preparing the khatian (ROR) an
inquiry by the revenue authority is done in a systematised manner
under the provision of the Act of 1960 and the Rules of 1961 made
thereunder and the document(s) relating to right, title and
possession of the parties are also examined by the revenue officials
at that time. Therefore, khatian prepared under the Act of 1960
carries a substantial evidentiary value though it is not the
document of title nor it confers any title upon anybody, but such
evidentiary value is always rebuttable. Section 99 of the Act
provides that the rights of a riyat in his land shall be permanent,
heritable and transferrable.
[35] Considering the relevant provisions of the said Act of
Sudhangshu Mohan Deb
1960, Hon‟ble Supreme Court in
(Dead) by LRS. Vs. Niroda Sundari Debidhup & Ors.,(2004) 4
SCC 389, observed as follows:
“6. From a perusal of the above provisions, it will be
seen that all estates in a notified area vest in the
Government free from all encumbrances. All right, title
and interest of every intermediary in the estates stands
extinguished. After the notified date, no one except the
State Government is left with any right, title or interest
in the subject lands. Once the lands vested in the State
Government, the State Government is free to deal with
the same in any manner it decides. This may include a
decision on the part of the State Government to grant
tenancy rights with respect to the lands or any portion
thereof in favour of any party on payment of land
revenue. It appears that in 1968 the appellant applied
for grant of right as a “raiyat” or as a non-agricultural
Page 25 of 27
tenant for the land in suit on payment of land revenue
under Section 136(2) of the Act. The State Government
granted the right as a “raiyat” in favour of the appellant
which was evidenced by a "khatiyan" (entry in the
revenue records showing tenancy) in the appellant’s
favour. The khatiyan was initially granted on a
provisional basis which was after contest finalised in
favour of the appellant in 1974. The revenue entry was
published in the revenue records which is evidenced by
the khatiyan. The effect of grant of khatiyan in favour of
the appellant is that his possession of the lands is under
the Government and is with the consent of the
Government and he is paying land revenue to the
Government for the same. In other words, the appellant
gets a fresh right to possession of the land as a tenant.
Section 43 of the Act conveys the consequence of
publication of khatiyan. The said section is reproduced
as under:
“43.(1) When a record-of-rights has been
prepared, the survey officer shall publish a draft of
the record in such manner and for such period as
may be prescribed and shall receive and consider
any objections which may be made during the
period of such publication, to any entry therein or to
any omission therefrom.
(2) When all objections have been considered
and disposed of in accordance with the rules made
in this behalf, the survey officer shall cause the
record to be finally published in the prescribed
manner.
(3) Every entry in the record-of-rights as
finally published shall, until the contrary is proved,
be presumed to be correct."
7. It will be seen from the above provision that once a
khatiyan is finalised and its publication takes place, it is
presumed to be correct until the contrary is proved. The
final khatiyan stands published in favour of the
appellant which gives the appellant right to remain in
possession of the suit land. This is a fresh right created
in favour of the appellant by the State Government in
whom the entire land had vested by virtue of Sections
134 and 135 of the Act.”
[36] Therefore, the record of right, i.e. the Khatian, is not the
proof of title. However, one can maintain his possession or may sue
for maintaining the same based on such Khatian, provided contrary
is not shown to revert the presumptive value of such Khatian as
envisaged under Section 43 of the TLR & LR Act, 1960.
Page 26 of 27
[37] In the instant case in hand, as already discussed above,
the plaintiff-respondents proved a certified copy of sale deed No.1-
4062 (Exbt.9) dated 09.07.1961 executed by one Sarada Ram
Malakar in favour of Bidyasagar Basak and his brother Kamala
Basak by transferring one drone one kani land from Plot Nos. 117
and 118/130 as per map of 1336 TE with certain specific
boundaries. Thereafter, in the year 1963, vide Khatian No.129
(Exbt.A), name of the said two purchaser brothers were reflected
against CS Plot Nos.1045 and 1044 for a total area of 5.18 acres.
From finally published Khatian dated 24.02.2014 bearing No.246
(Exbt.1) it appears that during revisional survey, the suit property
has been recorded in the name of father of plaintiff-respondents for
an area of 2.51 acre. The appellants in their written statement,
took the plea that the suit land was a khas land and they were in
possession of the same for about 40 years living therein with their
family members. But such plea could not be established by them
with any convincing evidence.
[38] Mr. Deb, learned counsel argued that as the appellants
were in possession of the suit land for more than 40 years,
therefore, the suit was time barred. However, such plea is not
tenable as there was no plea of adverse possession from the side of
the appellants in respect of the suit land.
Page 27 of 27
In view of the above, the appeal is found devoid of merit
and, accordingly, the same is dismissed with costs in favour of the
plaintiff-respondents.
Registry is to prepare decree accordingly and to re-
consign the LCRs with copy of the judgment and decree.
Pending application(s), if any, also stands disposed of.
JUDGE
Digitally signed by RUDRADEEP
Rudradeep
RUDRADEEP BANERJEE
BANERJEE
Date: 2024.02.29 16:16:14 +05'30'