Joshephin Kachhap vs The Khunti Ursuline Society ...
2022 Latest Caselaw 4540 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     C. M. P. No. 258 of 2020
                           -----

Joshephin Kachhap                     ...       ....       Petitioner
                           Versus
The Khunti Ursuline Society Trustee   ...       ....       Opp. Party
                           -----
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
                           -----

For the Petitioner : M/s Rohit Roy & Vibhor Mayank, Advocates For the Opp. Party : Mr. Rahul Kumar Gupta, Advocate

-----

Oral Order 09 / Dated : 14.11.2022

1. The instant civil misc. petition has been filed under Article 227 of the Constitution of India for quashing the order dated 13.02.2020 passed by the District Judge-II, Khunti in Civil (Title) Appeal No. 81 of 2012 whereby and whereunder, the petition filed under Order XLI Rule 27 of C.P.C. to adduce the following documents into evidences has been rejected:

i. Certified copy of rectified gift deed dated 27.02.1988. ii. Hukumnama dated 24.08.1930 iii. Certified copy of Judgment of Title Suit No. 15 of 1997.

2. It is submitted by learned counsel for the petitioner that the petitioner is the defendant and the Hukumnama has been specifically admitted by the plaintiff in paragraph 7 of the plaint and it has also been referred in the written statement of the petitioner in paragraph 10. There is specific pleading about the gift deed in paragraph 13 and steps were taken to bring the documents into evidences before the Court below, which was rejected by the Trial court ,against which W.P.(C) No. 4687 of 2012 was preferred but during the pendency of the writ petition, the suit was disposed of. Therefore the case of the petitioner is covered by Order 41 R 27 (1)(a) of CPC.

3. The copy of the judgment in Title Suit No. 15 of 1997 is a public document which could not be adduced into evidence as the judgment has been delivered after filing of the present suit. The judgment delivered in Title Suit No. 15 of 1997 is relevant because, it was decided in favour of the predecessor- in-interest of the petitioner namely Magdali and Suleman against the present plaintiff opposite party. Even in the memo of appeal, specific ground has been taken to mark the documents into evidences in paragraph 7 of the Ground of Appeal.

4. It is submitted by learned counsel for the opposite party that as far as so-called Hukumnama and the gift deed is concerned, the order of rejection by the trial Court of these documents into evidence has not been filed to show the ground of rejection.

5. Secondly, very claim of title of Hukumnama lacks clarity in the pleading. It has been pleaded in paragraph 9 of the written statement that it was a sale deed dated 24.08.1930 whereas at other places it has been referred to as Hukumnama.

6. With regard to certified copy of the registered gift rectification deed, it is submitted that it is not a public document as claimed by the petitioner. Reliance in this regard has been placed on (2021) 4 SCC 786 wherein it has been held that the deed of conveyance and other documents is not an act or record of any act or sovereignty and, therefore, it is not a public document.

7. No serious objection has been raised to mark the certified copy of the Judgment in Title Suit No. 15 of 1997 into evidence, if the parties involved in both the cases were same.

8. The law on additional evidence at the appellate stage, has been succinctly laid down by Hon'ble the Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 "36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself."

7. Admissibility of a document, proof of a document and the effect of the documents proved, are three distinct matters, broadly governed by Part I (Ss1-

55), II (Ss56-100) and III of the Evidence Act respectively. Admissibility of a document depends on its relevancy and the documents needs to be proved as per the provisions of the Evidence Act. Once the document is proved only then its effect is to be considered. A proof of due execution of an instrument

of conveyance, will not perforce lead to an inference that in effect it has transferred the property. Different factors will have a bearing on the effect and validity of a proved document.

9. Here in the present case, the learned Court below has noted in the impugned order that certified copy of rectified gift deed dated 27.2.1988 and Hukumnama dated 24.8.1930 were filed before the trial court by the Appellant, but they were not admitted into evidence on the ground that certified copy of rectified gift deed was not a public document and the Hukumnama was not duly stamped. Further appellant/defendant had in written statement not mentioned about the Hukumnama.

10. The party in appeal is entitled to produce additional evidence whether oral or documentary in the following circumstances:

1. The Court from whom the appeal is preferred has improperly refused to admit evidence

2. The party seeking to adduce additional evidence establishes that notwithstanding anything the exercise of due diligence, the evidence was not within his knowledge or it could not be produced by him at the time when the decree appealed against was passed.

3. The appellate court requires any document to be produced or witness to be examined to enable it to pronounce Judgment, or for any other substantial cause

4. Wherever additional evidence is allowed the court shall record reason for its admission.

11. Here the petitioner has been successful to make out a case that he had been diligent and had applied before the learned Court below, to adduce into evidence the certified copy of rectification deed of the Gift and the Hukumnama, which was rejected by the learned Court below against which the Writ petition had been preferred before this Court. The Writ petition became infructuous, because the suit had been disposed of during the pendency of the writ petition.

12. There was specific averment in the pleadings with respect to both this documents and therefore the trial court was in clear error to have rejected the petition to adduce these documents into evidence on the ground of admissibility.

13. Under section 123 of The Transfer of Property Act, for the purpose of making a gift of immovable property, the transfer must be affected by a

registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. The proviso to Section 68 of the Evidence Act dispenses with the necessity of calling an attesting witness in proof of any document except a will, which has been registered in accordance with the provisions of the Registration Act, 1908, when there is no specific denial. It has been held in Brij Raj Singh Vs Sewak Ram (1999)4 SCC331 that a registered deed of gift can be received in evidence without examination of the attesting witness, if the person who executed the deed of gift has not specifically denied its execution. It has been held in 2010(4) JLJR 454 Santosh Kumar Vs Purnima Kumari by this Court that certified copy of sale deed is admissible in evidence and there was no need to prove the sale deed by examining the witnesses. The Court followed the earlier Judgment of this Court and also relied on the Judgment of the Supreme Court in State of Haryana vs. Ram Singh [2001 (2) jljr 527(SC)]. It has been held in Parmeshwar Rana VS Dwarika Rana :2011 3 JCR 11; 2011 0 Supreme (Jhr) 375 that even though there are objections by the other side, the document ought to have been given Exhibit number and those objections could have been considered by the trial Court in the final decision and the trial Court could have pointed out in the final decision that the so called gift deed presented by the Defendants has got no evidentiary value. Instead of adopting the aforesaid procedure, as stated by the Hon'ble Supreme Court, unnecessarily a lengthy order has been passed by the trial Court, which has given birth to the present petition.

14. The gift deed and the Hukumnama, both had been filed before the Court below and therefore the learned Trial Court was in error to have refused to permit the petitioner to adduce these documents into evidence. Without going into the effect and evidentiary value of the rectification of the Gift Deed, the certified copy of it, could have been marked as evidence as it was a relevant document and the petitioner had taken steps in the Trial Court to adduce it into evidence.

15. Despite the inconsistent pleadings on the nature of document dated 24.8.19 30, purported to be an unregistered sale or settlement deed, rejection of it and the threshold was an error on the part of the trial Court. There being specific pleading with respect to it, this document was relevant and admissible into evidence. It was for the defendant to prove this document as per the law of evidence. As stated above, mere proof does not clothe the document with genuineness and its veracity, and probative value is to be considered by the

learned court below has per the facts and circumstance of the case.

16. The certified copy of the judgment passed in Title Suit No. 15 of 1997, being a public document there is no impediment for it being marked into evidence, particularly when it is claimed to have been decided in favour of the predecessor-in-interest of the petitioner. It is clarified that judgment of title in a civil suit is a judgment in personam and not a judgment in rem.

Under the aforesaid facts and circumstance, the impugned order is set aside.

Learned Court below is directed to pass order afresh in the light of settled law on the point.

The civil miscellaneous petition is allowed.

(Gautam Kumar Choudhary, J.) AKT