Subudhi Padhan v. Raghu Bhuvan .

1. This is an appeal by the sole plaintiff against the judgment of the learned Additional District Judge of Ganjam dismissing his suit. The facts giving rise to the present appeal are these: Plaintiff commenced an action for ejectment of the defendant from the disputed house situated at village Sandhamara. According to the plaintiff the suit-house constituted his ancestral property and that at a family partition in 1949, one third share therein was allotted to him, and the remaining two-thirds share was allotted to his two uncles. Arjun and Kandha. Plaintiff purchased the share of his two uncles on 19-12-1950 under two sale deeds Exts. 1 and 2. Thus, he became the sole owner of the entire property. The defendant who is the son-in-law of a sister of the plaintiff's uncle, Arjun Padhan is said to have occupied the back portion of the house in February 1947, with the permission of Arjun who was at the time manager of the plaintiffs family. After the acquisition of the right of the entire house, the plaintiff asked the defendant to vacate the portion occupied by him but the defendant instead of vacating the back portion which was in his occupation in December 1950, took forcible possession of the front portion and denied plaintiffs tide. Accordingly, the plaintiff was constrained to file the suit.

2. The defendant denied the plaint allegations and contended that it was he who had built the house in dispute about thirty years ago on the suit-site which was his ancestral property and he was throughout in possession thereof in his own right.

3. The learned Additional Subordinate Judge who heard the suit at the first instance came to the conclusion that the plaintiff had failed to prove the title of his ancestors and of himself. He further failed to prove possession within 12 years of the suit. He also failed to prove that the defendant's possession was a permissive one. Consequently, the Subordinate Judge dismissed the plaintiff's suit.

4. Plaintiff carried an appeal against this judgment. In the appeal, the main contention raised was that the learned Additional Subordinate Judge red in not accepting the evidence adduced by the plaintiff as reliable and in relying on certain documentary evidence adduced by the defendant which had not been duly proved. It was also contended that the absence of a title deed in the name of the plaintiff's ancestor, Madhu Padhan should not have held given any importance at all. The learned District Judge holding Ext-4 a copy of the registered deed of mortgage dated 28-3-1907 to be inadmissible in evidence and after taking into Consideration both the oral and documentary evidence came to the same conclusion as the trial Judge and held that the plaintiff had failed to prove his title and possession within 12 years of the suit. Thus, eventually he confirmed the judgment of the trial court and dismissed the plaintiffs suit. It is against this judgment that the present second appeal is directed.

5. Mr. Panda on behalf of the appellant did not challenge the findings of fact, but raised two contentions before this Court—(1) Ext. 4 is admissible; in other words the statements of the boundaries made therein are admissible under Section 32(3) of the Indian Evidence Act; and (2) The appellate Court having rejected all the documents filed by the defendant except Exts. D and D/l should not have found possession with the defendant.

6. With regard to the first contention, Mr. Panda argued that the eastern boundary in the copy of the registered deed of mortgage dated 28-3-1907 executed by one Ganga Bhuvan in favour of Udhab Bissoi the father of P.W I had been described as the land of Madhu Padhan who was admittedly the plaintiff's grand-father. It was argued that if this document is admissible in evidence, it would clearly go to prove the plaintiff's case, the eastern boundary being in possession of Madhu Padhan, the grand-father of the plaintiff. The opinion with regard to the admissibility of statement regarding boundaries in documents between third parties is not uniform. Calcutta and Patna High Courts holding against the admissibility and the Madras and Bombay High Courts holding in favour of admissibility. Mr. Panda in support of his argument sought to rely upon a decision of the Madras High Court reported in Rangayyan v. Innasimuthu Mudali, (1955) 2 Mad LJ 687 : (AIR 1956 Mad 226).

7. The Madras view, shortly stated, is that the recitals of boundaries in documents between complete strangers are not ordinarily admissible to prove possession or title as against a person who is not a party to the document except in cases falling under sections 11, 13, 32(3) or 157 of the Evidence Act. Thus, what was held in that case was that the recital of boundaries of a properly in a document inter partes is a joint statement made by the parties to the document and therefore relevant against all of them as an admission. When such recital is in a document between a party and a stranger it is relevant against the party as an admission but is not admissible in his favour. But where such recital is in a document between strangers, it is not primarily admissible to prove possession or title as against a person who is not a party to the document except in cases falling under sections 11, 13, 32(3) or 157 of the Evidence Act, the particular circumstances of the case determining the particular section applicable. The probative value to be attached will also equally depend upon the circumstances of each case and may vary from nothing to almost clinching evidence.

8. Admittedly in the present case, Ext. 4 is a document between complete strangers, who had nothing to do with the parties. According to the Madras view, the recitals therein are not ordinarily admissible unless it conforms to the provisions of one of the sections of the Evidence Act. In the present case we are concerned with Section 32(3) of the Evidence Act under which one of the tests is the statement is made against the pecuniary or proprietary interest of the person making it. In this case it cannot be said that the recital in Ext. 4 is-against the pecuniary pr proprietary interest of the plaintiff's grand-father. According to Sec. 32(3), the statement of a dead person is relevant when the statement is against the pecuniary or proprietary interest of the person making it, or when if title, it would expose him or would have exposed to a criminal prosecution or to a suit for damages. We are only concerned with the first part of sub-section (3).

9. Thus, even according to the principles as laid, down by Ramaswami, J. the recitals in Ext. 4 not being ordinarily admissible in evidence, do not conform to the test as laid down in section 32(3). Hence the above case can be of no avail to the appellant's contention. On the other hand, a Full Bench of the Patna High Court in the case of Soneylall Jha v. Darbdeo Narain Singh, AIR 1935 Pat 167 (FB) has taken the contrary view. In that case their Lordships of the Patna High Court reviewed all the previous decisions of the Calcutta, Bombay and Madras High Courts and came to the conclusion that the statements of boundaries made in documents of title between third parties are not at miscible in evidence under Section 32(3) of the Evidence Act. In that case, the defendant contended that if the timber had been cut, it was cut in the year 1916 that is about the year 1909 whereas the plaintiff's case was that it was cut in the year 1931 that is about the year 1924.

10. Both the courts below decided this issue as well as other issues in favour of the plaintiff. In coming to their decision, they not only placed reliance on the oral evidence in the case but also on certain documents amongst which was a sale-deed between persons who were not parties to the action relating to plot which was No. 159. In the sale deed there were as usual description of the boundaries and the eastern boundary was described as the orchard of Soneylal Jha who was a defendant in the action. The question that thus came up for decision was

“whether the statements of boundaries in documents between third parties are admissible under S. 32(3)”.

11. After reviewing all the decisions of the Calcutta, Madras and Bombay High. Courts, their Lordships answered the question in the negative and came to the conclusion that the statements of boundaries in documents of title between third parties were not admissible under S. 32(3) and such a statement cannot be said to be necessary and prima facie against the proprietary interest of the person making it. It could be admissible only if it is shown that; (1) at the time it was made, it was contrary to the interest of the maker, and (2) at the time it is sought to be used, it is a statement of relevant fact. This being the position in law Ext. 4 cannot be held to be admissible under Section 32(3) of the Evidence Act.

12. Mr. Panda then argued that even if in is not admissible under S. 32(3) it is otherwise admissible under S. 74(2), this being a private document kept in the public record by the State. For that purpose he sought to rely upon a decision of the Andhra Pradesh High Court in the case of Padmanbhachari v. Annamraju Sitapatliirao, (1954) 2 Mad LJ (Andhra) 75. The question for decision in that case arose in the following way: Where in a suit filed for redemption of a usufructuary mortgage bond, dated 18th November, 1876, on the question of admissibility of the certified copy of the suit mortgage bond in the Registrar's Office, the first defendant having admitted the genuineness of the certified copy of the existence, condition or contents of its original, that is, the copy of the mortgage document maintained in the Registrar's office whether admissible under S. 74(2) Subba Rao, C.J (as be then was) held that the result of a combined reading of the provisions of Section 65(b) of the Evidence Act and Section 57(5) of the Registration Act may be put thus.

13. By reason of the admission made by the first defendant of the genuineness of the certified copy within the meaning of Section 65(b) of the Evidence Act the certified copy became admissible in evidence under Section 65. By reason of Section 57(5) of the Registration Act, the said copy becomes admissible for the purpose of proving the contents of the original document itself. The certified copy is also admissible under Section 65(e) of the Evidence Act. Secondary evidence may be given if the Original is a public document within the meaning of S. 74. The definition of a public document under S. 74 takes in public records kept in any State of private documents. The Registrar's office certainly keeps a public record, of all sale-deeds registered in that office. Section 76 enables an officer having the custody of a public document to give a certified copy. The certified copy is therefore admissible under Section 65(e) and (t) of the Evidence Act. The certified copy is therefore secondary evidence of the public record of the mortgage deed kept in the Registrar's office.

14. Again by invoking section 57(5) the said copy becomes admissible for the purpose of proving the contents of the original document. The certified copy of the suit mortgage deed is admissible in evidence. But this will not dispense with the proof of the execution of the same. Assuming this decision to be correct, which I have no doubt that it is so, the certified copy of the mortgage-bond dated March 28, 1907 may be admissible in evidence as secondary evidence but that does not dispense with the proof of actual execution. There is no proof of actual execution of the mortgage-deed in this case. Hence the principles as laid down in (1954) 2 Mad LJ (Andhra) 75, do not help the contention of the appellant.

15. The document being more than thirty years old, leads us to a consideration of the further question of presumption under Section 90 of the Evidence Act. The law has been well laid down by the Privy Council in the case of Basant Singh v. Brijraj Saran Singh, reported in AIR 1935 PC 132. Their Lordships, in that case, held that S. 90 clearly requires the production of the particular document in regard to which the Court may make the statutory presumption and that if the document produced is a copy over thirty years old the signatures authenticating the copy may be presumed to be genuine and sufficient to justify the presumption of due execution, as was done in Seethayya v. Subramanya Somayajulu, 56 Ind App 146 : (AIR 1929 PC 115). In the case of Ramkrushna Mohapatra v. Gangadhar Mohapatra, AIR 1958 Orissa 26 a Division Bench of this Court laid down the scope of the principle underlying Section 90 of the Evidence Act.

16. What was held by me in that case was if a private document thirty years old or more is produced from proper custody and is on its face free from suspicion, the Court may presume that it has been signed or written by the person whose signature it bears or in whose handwriting it purports to be and that it has been fully attested and executed, if it purports so to be. In other words, documents thirty years old prove themselves. The age of a document, its unsuspicious character, the production from proper custody and other circumstances are the foundation for tile presumption as enunciated in the above section. This rule, it is now well settled, was founded on necessity and convenience. It is extremely difficult and sometimes impossible to prove the handwriting or signature or execution of ancient documents after the lapse of many years. It is therefore presumed that all persons acquainted with execution of documents, if any, are dead, and proof of those facts are dispensed with. Thus, the presumption relates to the execution of the documents, that is signature, attestation etc. in other words its genuineness, but not to the truth of its contents.

17. Hence, assuming the signature to be correct, still the due execution of the mortgage deed must be proved which the plaintiff had failed to prove.

18. There is yet another difficulty regarding the admissibility of Ext. 4. Admittedly Ext. 4 is a certified copy of the original mortgage-deed, purporting to have been executed in the 1907. The Supreme Court in the case of Harihar Prasad Singh v. Deonarain Prasad, reported in (S) AIR 1956 SC 805 held that the presumption enacted in S. 90 can be raised only with reference to the original) documents and not to copies thereof. Accordingly the presumption under S. 90 cannot be availed of in the present case. Ext. 4 being a certified copy.

19. Turning now to the second contention of Mr. Panda that the appellate Court having rejected all the documents filed on behalf of the defendant except Ext. D and D/1 should not have found possession with the defendant and negatived the possession of the plaintiff. He relied, for that purpose, on a decision of the Patna High Court Jaldhari Mahato v. Rajendra Singh, reported in AIR 1958 Pat 386. What was held in that case was that the presumption of possession arising from title is not available where the land is capable of actual possession by cultivation or otherwise, and there is no evidence of possession or the evidence adduced, is unworthy of credit. But this presumption is available in all cases (1) where the evidence is equally strong and apparently equally well balanced on both sides so that it is difficult to determine where the truth lies; (2) where the evidence on both sides is Weak or unsatisfactory, but not value-less or wholly incredible: (3) where the land is of such a peculiar nature that the evidence of actual user and enjoyment in the ordinary manner could hardly be, expected, e.g, the lands which are waste, jungle, partigora, submerged under water or any other land of land incapable of cultivation.

20. To this extent the general rule laid down by the Full Bench in the case of Shiva Prasad Singh v. Hira Singh, AIR 1921 Pat 237 (FB) must be deemed to be modified and in such cases the plaintiff can succeed on the strength of this title alone. This case seems to have no application at all to the present case, because the finding in this case is that the plaintiff had failed to prove his title and possession within 12 years of the suit which is binding on this court. Secondly the evidence of possession is in favour of the defendant, and thirdly this being a residential house it is capable of possession. Accordingly, there does not appear to be any force at all in the second contention as raised by Mr. Panda. Both the contentions having failed, the appeal is bound to be dismissed. Accordingly, I would dismiss this appeal. Each party to bear has own costs in this Court.

GE/LF.

21. Appeal dismissed.