[Cites 15, Cited by 0]

Gauhati High Court

CRP(IO)/374/2024 on 6 January, 2026

GAHC010198972024




                                                          2026:GAU-AS:105


                    IN THE GAUHATI HIGH COURT
  HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

                        CRP(IO)/374/2024

                   1.   Rama Devi Himatsingka
                        Wife of late Santosh Kumar Himatsingka
                        Resident of Ramsai Hills, Kharguli,
                        P.S.- Latasil, Guwahati- 781004.
                        Represented       by      Shri    Kanishka
                        Himatsingka,
                        Son of Shri Rajesh Himatsingka
                        Resident of Ramsai Hills, Kharguli,
                        P.S. Latasil, Guwahati- 781004.
                   2.   Rajesh Himatsingka
                        Son of Late Santosh Kumar Himatsingka
                        Resident of Ramsai Hills, Kharguli,
                        P.S.- Latasil, Guwahati - 781004.
                        Represented by Shri Kanishka
                        Himatsingka
                        Son of Shri Rajesh Himatsingka,
                        Resident of Ramsai Hills Kharguli
                        P.S. Latasil Guwahati- 781004.

                                                                .....Petitioners
                                    -Versus-

                   1.   Pawan Kumar Himatsingka
                        Son of Late Gauri Shankar Himatsingka
                        Resident of A-95, Malviya Nagar,

CRP(IO)/374/2024                                                     Page 1
                         New Delhi- 110017.
                   2.   Kavita Himatsingka
                        Wife of Late Mukesh Himatsingka, who was the son of
                        Late Santosh Kumar Himatsingka Resident of 17 Dover
                        Road Dover Enclave Ballygunge
                        Kolkata- 700019.
                   3.   Nitin Himatsingka,
                        Son of late Mukesh Himatsingka who was the son of
                        Late Santosh Kumar Himatsingka
                        Resident of 17 Dover Road Dover Enclave
                        Ballygunge Kolkata- 700019.
                   4.   Rishab Himatsingka
                        Son of late Mukesh Himatsingka who was the son of
                        late Santosh Kumar Himatsingka
                        Resident of 17 Dover Road Dover Enclave
                        Ballygunge Kolkata- 700019.
                   5.   Sunita Agarwal wife of Narendra Kumar Agarwal,
                        Daughter of Late Santosh Kumar Himatsingka Resident
                        of Layak Bhawan Hill Cart Road,
                        Siliguri West Bengal.
                   6.   Harish Himatsingka
                        Son of Late Santosh Himatsingka
                        Resident of 2nd Floor 19b Mandevilla Garden
                        Kolkata- 700019.

                                                            ......Respondents

For Petitioners    :    Mr. G. N. Sahewalla, Sr. Advocate
                        Mr. H. K. Sarma, Advocate

For Respondents    :    Mr. S. K. Singh, Sr. Advocate
                        Mr. P. Sundi, Advocate

Date of Judgment   :    18.12.2025
Reserved
Date of Judgment   :    06.01.2026



CRP(IO)/374/2024                                                   Page 2
                                 BEFORE
               HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
                              JUDGMENT

1. Heard Mr. G. N. Sahewalla, the learned senior counsel assisted by Mr. H. K. Sarma, learned counsel for the petitioners. Also heard Mr. S. K. Singh, the learned senior counsel appearing through Video Conferencing assisted by Mr. P. Sundi, learned counsel for the respondent.

2. This application under Article 227 of the Constitution of India has been filed by the petitioners, namely, Rama Devi Himatsingka and Rajesh Himatsingka impugning the order dated 11.09.2024 passed in Title Suit No. 72/2014 by the Court of learned Civil Judge (Junior Division), No. 2, Sonitpur, Tezpur, whereby the application filed by the present petitioners under Section 63 of the Indian evi- dence Act, 1872 was rejected and the respondent was allowed to exhibit the sale deed No. 1173/1961 dated 28.08.1961 as Exhibit-2.

3. The facts relevant for consideration of the instant Civil Revision Petition, in brief, are that the present respondent No.1 as plaintiff had instituted a title suit being Title Suit No. 72/2014 for declaration of right, title and interest over the suit premises and also for relief that the mutation of defendant No. 2 and that of his father in re- spect of the suit property is illegal.

CRP(IO)/374/2024 Page 3

4. The learned senior counsel for the petitioners has submitted that in the aforesaid suit, the respondent exhibited a certified copy of the sale deed No. 1173/1961 dated 28.08.1961. The learned senior counsel for the petitioners submits that since the original sale deed was not produced by the respondent no. 1 before the Trial Court, hence, the present petitioners had filed an application under Section 63 of the Indian Evidence Act, 1872 objecting to the admissibility of the said sale deed without following the requirement as prescribed under Section 65 of the Indian Evidence Act, 1872.

5. The learned senior counsel for the petitioners has submitted that however, by the impugned order the Trial Court held the Exhibit No. 2 to be a public document and erroneously held that there is no re- quirement of fulfilling the norms laid down in Section 65 of the Indi- an Evidence Act, 1872 before admitting the said sale deed.

6. The learned senior counsel for the petitioners submits that the trial court had erred in holding that the sale deed which is exhibited as Exhibit No. 2 is a public document. He submits that the Apex Court in the case of "Deccan Paper Mills Co. Ltd. Versus Regency Mahavir Properties and Others", reported in (2021) 4 SCC 786 have very clearly held that a sale deed which is a deed of convey- ance is not a public document but a private document. He relies up- on the following observations made by the Apex Court in the afore- said case:

CRP(IO)/374/2024 Page 4 "22. Let us see whether Section 31(2) makes any difference to this position in law. Accord- ing to the judgment in Aliens Develop-

ers [Aliens Developers (P) Ltd. v. Janardhan Reddy, 2015 SCC OnLine Hyd 370 : (2016) 1 ALT 194 (DB)] , the moment a registered in-

strument is cancelled, the effect being to re- move it from a public register, the adjudicatory effect of the court would make it a judg-

ment in rem. Further, only a competent court is empowered to send the cancellation decree to the officer concerned, to effect such cancel- lation and "note on the copy of the instrument contained in his books the fact of its cancella- tion". Both reasons are incorrect. An action that is started under Section 31(1) cannot be said to be in personam when an unregistered instrument is cancelled and in rem when a reg- istered instrument is cancelled. The suit that is filed for cancellation cannot be in perso-

nam only for unregistered instruments by vir- tue of the fact that the decree for cancellation does not involve its being sent to the registra- tion office -- a ministerial action which is subsequent to the decree being passed. In fact, in Gopal Das v. Sri Thakurji [Gopal Das v. Sri Thakurji, 1943 SCC OnLine PC 2 :

AIR 1943 PC 83] , a certified copy of a regis- tered instrument, being a receipt dated 29-3- 1881 signed by the owner, was held not to be a public record of a private document under Section 74(2) of the Evidence Act, 1872 for the reason that the original has to be returned to the party under Section 61(2) of the Registra- tion Act, 1908 (see p. 87). This judgment has been followed in Rekha v. Ratnashree [Rekha v. Ratnashree, 2005 SCC OnLine MP 364 : (2006) 1 MP LJ

CRP(IO)/374/2024 Page 5 103] by a Division Bench of the Madhya Pra- desh High Court, in which it was held : (Rekha case [Rekha v. Ratnashree, 2005 SCC OnLine MP 364 : (2006) 1 MP LJ 103] , SCC OnLine MP paras 8 and 9) "8. A deed of sale is a conveyance. A deed of conveyance or other document ex-

ecuted by any person is not an act nor rec-

ord of an act of any sovereign authority or of any official body or tribunal, or of any public officer, legislative, judicial and execu- tive. Nor is it a public record kept in a State of any private documents. A sale deed (or any other deed of conveyance) when pre-

sented for registration under the Registra- tion Act, is not retained or kept in any pub-

lic office of a State after registration, but is returned to the person who presented such document for registration, on completion of the process of registration. An original reg- istered document is not therefore a public record kept by a State of a private docu-

ment. Consequently, a deed of sale or other registered document will not fall under ei-

ther of the two classes of documents de-

scribed in Section 74, as "public docu-

ments". Any document which is not a public document is a private document. We there-

fore have no hesitation in holding that a registered sale deed (or any other regis-

tered document) is not a public document but a private document.

9. This position is made abundantly clear in Gopal Das v. Sri Thakurji [Gopal Das v. Sri Thakurji, 1943 SCC OnLine PC 2 :

AIR 1943 PC 83] , wherein the Privy Council considering the question whether a regis-

CRP(IO)/374/2024 Page 6 tered receipt is a public document observed thus : (SCC OnLine PC) „... It was contended by Sir Thomas Strangman for the respondents that the receipt comes within para 2 of Section 74, Evidence Act, and was a "public doc- ument"; hence under Section 65(e) no such foundation is required as in cases coming within clauses (a), (b) and (c) of that section. Their Lordships cannot ac- cept this argument since the original re- ceipt of 1881 is not "a public record of a private document". The original has to be returned to the party.... A similar ar- gument would appear at one time to have had some acceptance in India but it involves a misconstruction of the Evi- dence Act and the Registration Act and later decisions have abandoned it.‟ We may also refer to the following pas- sage from Ratanlal's Law of Evi- dence (19th Edn., p. 237):

„Public document [Clause (e)] -- This clause is intended to protect the originals of public records from the danger to which they would be exposed by con- stant production in evidence. Secondary evidence is admissible in the case of public documents mentioned in Section

74. What Section 74 provides is that public records kept in any State of pri-

vate documents are public documents, but private documents of which public records are kept are not in themselves public documents. A registered docu-

ment, therefore, does not fall under ei-

ther clause (e) or (f) [of Section 65 of

CRP(IO)/374/2024 Page 7 the Evidence Act, 1872]. The entry in the register book is a public document, but the original is a private document.‟"

(emphasis in original) Thus, the factum of registration of what is otherwise a private document inter partes does not clothe the document with any higher legal status by virtue of its registration."

7. The learned senior counsel for the petitioners submits that in view of the aforesaid observations made by the Apex Court in the aforesaid case, there remains no doubt that the observations made by the Trial Court in the impugned order is contrary to settle proposition of law and, hence, he submits that the impugned order is liable to be set aside.

8. On the other hand, Mr. S. K. Singh, the learned senior counsel for the respondent has submitted that the sale deed, which was exhibit- ed by the present petitioners in the aforementioned title suit as Exhibit No.2 was executed by one Ajay Kumar Basu in favour of the father of the present respondent No. 1, namely, late Gauri Shankar Himatsingka and the aforesaid sale deed is in possession of the present petitioners as the land documents in respect of the sched- uled land was looked after by the predecessor in interest of the pre- sent petitioner, namely, late Santosh Kumar Himatsingka.

9. He further submits that the present petitioners have also admitted in their written statement filed before the Trial Court in the aforesaid suit regarding the fact that late Gauri Shankar Himatsingka pur-

CRP(IO)/374/2024 Page 8 chased the suit land in 1961 from the original purchaser, namely, Ajay Kumar Basu. He further submits that in view of the clear admis- sion of the existence of the sale deed which was exhibited as exhibit No. 2, the respondents‟ case is covered under Section 65 (b) of the Indian Evidence Act, 1872.

10. He further submits that in view of the clear admission of the execu-

tion of the sale deed in favour of the predecessor in interest of the present respondent No. 1, he is even not required to adduce any secondary evidence to that effect in view of clear admission to that effect in the written statement filed by the present petitioners. He also submits that the requirement of issuance of notice under Sec- tion 66 of the Indian Evidence Act, 1872 is also not there in view of the clear admission made by the petitioners in the written statement filed by them before the Trial Court.

11. The learned senior counsel for the respondent further submits that as regards whether the sale deed executed by private persons is a public document or not, the question is not yet settled and there are rulings of the Apex court to the contrary. He submits that it has been observed by the Apex Court in the case of "Appaiya Versus Andi- muthu@ Thangapandi and Others" reported in 2023 Supreme SC 974 that a private sale deed which is kept and maintained by the public authority is covered under Section 74 (2) of the Evidence Act, 1872.

CRP(IO)/374/2024 Page 9

12. He further submits that if any party to a suit has laid the foundation of leading secondary evidence either in plaint or in evidence as has been done by the respondents in this case, there is no requirement that an application under Section 65 of the Evidence Act, 1872 has to be filed separately by such a party. In support of his submission, he has also cited a ruling of the Apex Court in the case of "Dhanpat Versus Sheo Ram" through legal heirs reported in (2020) 16 SCC 209.

13. He submits that by pleading the existence of the sale deed which has been exhibited as Exhibit-2 in the plaint, the respondent No. 1 has laid the foundation for exhibiting the said sale deed as Exhibit-2, more so, when the said fact has not been controverted in the written statement filed by the present petitioners rather, they have admitted the execution of such a sale deed.

14. The learned senior counsel for the petitioner has further submitted that the impugned order has been passed by the Trial Court within the powers and jurisdiction exercised by the Trial Court after giving opportunity of being heard to the present petitioners, therefore, in the instant case, there is no dereliction of duty or flagrant violation of the fundamental principles of law by the Trial Court while passing the impugned order justifying the invoking of supervisory jurisdiction by this Court under Article 227 of the Constitution of India.

15. He submits that the even if it is assumed that the observation made by the Trial Court is erroneous, however, it cannot be regarded as CRP(IO)/374/2024 Page 10 perverse, therefore, he submits that the invoking of supervisory ju- risdiction by this court under Article 227 of the Constitution of India is not called for in this case. In support of his submission, the learned senior counsel for the respondent has cited a ruling of the Apex Court in the case of "M/S Estralla Rubber Versus Dass Es- tate (Private) Ltd." reported in (2001) 8 SCC 97.

16. He further submits that as the impugned order cannot be regarded as a completely perverse order, hence, the invoking of supervisory jurisdiction under Article 227 of the Constitution of India is not justi- fied in view of the observation made by the Apex Court in the case of "Serosoft Solutions Pvt. Ltd. Versus Dexter Capital Advi- sors Pvt. Ltd." reported in 2025 Supreme Online SC 2025.

17. In reply to the submissions made by the learned senior counsel for the respondents, the learned senior counsel for the petitioners sub- mits that the observations made by the Apex Court in the case of Appaiya Versus Andimuthu (Supra) appears to be contrary to the observations of the larger Bench of the Supreme Court made in the case of Deccan Paper Mills (Supra), therefore, same is not be binding on this Court.

18. I have considered the submissions made by learned senior counsel for both sides and have gone through the materials on record. I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions.

CRP(IO)/374/2024 Page 11

19. The grievance of the present petitioners, in this case, is mainly re- garding the admissibility of the certified copy of the Sale Deed No. 1173/1961 as Exhibit No. 2 on the ground that the Trial Court by re- jecting their application regarding admissibility of the said document have made an observation that said sale deed comes within the pur- view of definition of a public document under Section 74 of the Indi- an Evidence Act, 1872.

20. The question as to whether a sale deed, which is an instrument of conveyance may be regarded as a public document or not has been discussed by the Apex Court, in the rulings cited by the learned counsel for both sides, in different ways. However, this Court in ex- ercise of its supervisory jurisdiction, in the midst of a trial, is not in- clined to examine the matter as to whether the Trial Court was cor- rect in observing that sale deed is a public document under Section 74 of the Indian Evidence Act, 1872, or not. More so, because the same is not necessary to decide the real controversy involved at this stage i.e., whether the certified copy of the Sale Deed No. 1173/1961 as Exhibit No. 2 is admissible as evidence under the facts and circumstances of the case.

21. It appears that in the written statement filed before the Trial Court by the defendant Nos. 1 and 2 (present petitioners), they have cate- gorically stated in paragraph No. 1 of the said written statement that they admit to the fact that late Gauri Shankar Himatsingka pur- chased the suit land in 1961 from the original owner i.e., Ajay Kumar

CRP(IO)/374/2024 Page 12 Basu through a registered sale deed No. 1173/1961. The certified copy of the said sale deed has been exhibited by the present re- spondents as Exhibit-2.

22. In view of clear admission regarding existence of the aforesaid sale deed in their written statement by the petitioners, the secondary ev- idence of the said document is otherwise also admissible under Sec- tion 60 (b) of the Bharatiya Sakshya Adhiniyam (BSA) 2023, hence, the question as to whether the aforesaid document is a public doc- ument or not is not relevant to decide the question of admissibility of the said document in the aforesaid title suit.

23. The Apex Court has observed in many of its judgments [for example, in the case of "Shalini Shyam Shetty Versus Rajendra Shankar Patil" reported in (2010) 8 SCC 329] that the High Courts cannot on the drop of a hat, in exercise of its powers of superintendence under Article 227 of the Constitution of India, interfere with the or- ders of tribunal or courts inferior to it.

24. It is also well settled proposition that in exercise of its powers of su-

perintendence, a High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by tribunals or courts subordinate to it is a possible view. In other words, the jurisdiction under Article 227 of the Constitution of India has to be very sparingly exercised.

25. In the instant case, as in view of clear admission by the present peti-

tioners, in their written statement, regarding the existence of the said sale deed, certified copy of the same would have been other-

CRP(IO)/374/2024 Page 13 wise also admissible under Section 60 (b) of the Bharatiya Sakshya Adhiniyam (BSA) 2023, hence, this Court does not find it necessary to interfere with the impugned order whereby Trial Court had reject- ed the petition filed by the present petitioners under Section 63 of the Indian Evidence Act, 1872.

26. For the discussion made in the foregoing paragraphs and the rea-

sons stated hereinabove, this Civil Revision Petition (IO) is hereby dismissed with cost.

JUDGE

Comparing Assistant

Amita Digitally by Amita signed

Sharm Date: