Madhya Pradesh High Court
Paraschandra vs Rao Rajendrasingh on 28 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 7709 of 2023
PARASCHANDRA AND OTHERS
Versus
RAO RAJENDRASINGH AND OTHERS
Appearance:
Shri Pushpraj Singh Rathore - Advocate for the petitioners.
Shri Abhay Chand Jain - Advocate for the respondent No.1.
Reserved on : 08.01.2025
Pronounced on : 28.01.2025
________________________________________________________________
ORDER
This petition under Article 227 of the Constitution of India has been
preferred by defendants No.2 to 6 / petitioners being aggrieved by order dated
15.12.2023 passed by the trial Court whereby the objection preferred by them to
the admissibility of the document dated 02.08.1950 has been rejected and the said
document has been held to be admissible in evidence.
02. The plaintiffs / respondents No.1 to 7 have instituted an action before
the trial Court for declaration, possession and mense profits alleging that the
ancestral land belonging to them is situated in Village Tanodiya measuring 15
bigha 11 biswa. On 30.10.2017 the plaintiffs filed an application under Order 7
Rule 14 of the CPC for taking on record the sale deed dated 02.08.1950. By order
dated 31.08.2018, the said application was rejected by the trial Court and the sale
deed was refused to be taken on record. Thereafter, during cross-examination of
defendants' witness No.1, Ajeet Kumar jain, the said sale deed dated 02.08.1950
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was put to him for the purpose of refreshing his memory. Objection was raised by
defendants No.2 to 6 as regards admissibility of the sale deed submitting that the
same is not a public document. The said objection was rejected by the trial Court
vide order dated 14.11.2022 and the sale deed was permitted to be exhibited.
03. Being aggrieved by the order dated 14.11.2022, defendants No.2 to 6
preferred Miscellaneous Petition No.5655/2022 before this Court which was
disposed off by order dated 06.07.2023 with a direction to the trial Court to decide
the objection as raised by defendants No.2 to 6 in respect of exhibition of the
document. This Court specifically held in the order that a document which has not
been taken on record can be got exhibited to refresh the memory of the
witness. Direction was issued to the trial Court to first decide the objection,
whether the document could have been exhibited as per provisions of Order 7 Rule
14 of the CPC and whether the same comes within the purview of public document
or not. The order was affirmed by the Apex Court in SLP Civil No.42483-2023 by
order dated 20.11.2023.
04. Thereafter, by the impugned order dated 15.12.2023, the objection
raised by defendants No.2 to 6 has been rejected by the trial Court by observing
that the certified copy of the sale deed dated 02.08.1950 is a public document and
can be exhibited in terms of Order 7 Rule 14 of the CPC.
05. Learned counsel for both the parties have relied upon a decision of the
Division Bench of this Court in Rekha Vs. Smt. Ratanshri, 2006 (1) MPLJ
103. For ready reference, the relevant part of the aforesaid judgment necessary for
decision of this petition is reproduced below:
"8. A deed of sale is a conveyance. A deed of conveyance or other document
executed by any person is not an act nor record of an act of any sovereign authority or
of any official body or tribunal, or of any public officer, legislative, judicial and
executive. Nor is it a public record kept in a State of any private documents. A sale-
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deed (or any other deed of conveyance) when presented for registration under the
Registration Act, is not retained or kept in any public 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. A original registered
document is not therefore a public record kept by a State of a private document.
Consequently, a deed of sale or other registered document will not fall under either of
the two classes of documents described in section 74, as 'public documents'. Any
document which is not a public document is a private document. We therefore have no
hesitation in holding that a registered sale-deed (or any other registered document) is
not a public document but a private document.
********
11. It is clear from the above that Book 1 maintained in the Registration Offices (a
Register where all non-testamentary documents relating to immovable property are
copied, entered or filed) is a public record kept in a state of private documents and
therefore a public document. When any person applies for the certified copy of a
document registered in the office which is entered/filed in Book I, a certified copy of
the document as copies/filed in Book I is furnished to the applicant. Such certified
copy of any entries in that public record (Book I) is a certified copy of a public
document. But such certified copy of the registered document extracted from Book I
is not itself a public document. It is really a true copy of a copy (copy of original deed
entered in Book I).
12. We therefore answer points (i) and (ii) as follows:
(i) A Registered document (Deed of sale etc.) is not a public document. It is a
private document.
(ii) Book I kept in the Registration Offices under the Registration Act, where
the Registered documents, Private documents are copied, entered or filed,
is a public document.
(iii) A certified copy of a registered document, copies from Book I and issued
by the Registering Officer, is neither a public document, nor a certified
copy of a private document, but is a certified copy of a public document.
13. The next question is whether a certified copy of a public document, issued by a
registering officer, can be received in evidence without any further proof.
*********
15. We have already held that a certified copy of a registered instrument/document
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issued by the Registering Officer, by copying from Book I, is a certified copy of a
public document. It can therefore be produced in proof of the contents of the public
document or part of public document of which it purports to be a copy. It can be
produced as secondary evidence of the public document (entries in Book I), under
section 65(e) read with section 77 of the Act without anything more. No foundation
need be laid for production of certified copy of secondary evidence under section
65(e) or (f). But then it will only prove the contents of the original document, and not
be proof of execution of the original document. [Vide section 57(5) of Registration
Act read with section 77 of Evidence Act]. This is because registration of a document
is proof that someone purporting to be 'X' the executant admitted execution, but is not
proof that 'X' executed the document. We will elaborate on this aspect when dealing
with Point No. (iv).
16. The next question is whether producing and making of a certified copy of a
sale-deed, would amount to proving the sale-deed itself. If not, what is its effect.
*******
17. The position therefore is that a certified copy of a sale-deed issued by the
Registration Officer under the Registration Act can be produced and marked as
secondary evidence of a public document (that is Entries in Book 1 maintained under
section 51 of the Registration Act containing the copy of the registered document).
Such certified copy issued by the Registration Officer in view of the certificates
copied therein and the certificate made while issuing the certified copy will prove (i)
that a document has been presented before the Registration Officer for registration;
(ii) that execution had been admitted by the person who claimed to be the executant of
the document and (iii) that the document was thereafter registered in the Registration
Office and entered (copied) in Book 1. It is not however proof of the fact that original
sale-deed was duly executed by the actual person described as Executant. Production
of a certified copy of a public document under section 65(e) or production of a
certified copy under section 65(f) is completely different from production of a
certified copy as secondary evidence of a private document (for e.g., a sale deed)
under clauses (a), (b) and (c) of section 65.
18. Proving execution of a-registered sale-deed (or any other registered document
which is not required by law to be attested) has two steps. The first step is production
of the original sale-deed or lay the foundation for letting in secondary evidence of the
sale deed, by way of certified copy of the sale deed, by showing the existence of any
of the circumstances mentioned in Clauses (a), (b) and (c) of section 65. *******
18.1. The second step is to prove the execution of the deed (whether what is
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produced in the original of certified copy or other secondary evidence thereof given
under clause (a), (b) or (c) of section 65) as required by section 67 of the Act, where
the document is not one which is required by law to be attested or as required by
section 68 of the Act where the document is one which by law is required to be
attested. This is because registration is not proof of execution. **********
18.2. If the person producing the certified copy of a registered instrument, without
establishing the existence of any of the grounds under clause (a), (b) or (c) of section
65, seeks to mark the certified copy, then it will not be secondary evidence of the
original sale-deed, but only be secondary evidence of the entries in a public document,
that is the entries in Book I in the Registration Office which issued the certified copy.
Such certified copy marked without laying foundation for receiving secondary
evidence, though admissible for the purpose of proving the contents of the original
document, will not be proof of execution of the original document.
*********
19. We may summarize the position thus:
(i) Production and Marking of a certified copy as secondary evidence of a
public document under section 65(e) need not be preceded by laying of
any foundation for acceptance of secondary evidence. This is the position
even in regard to certified copies of entries in Book I under Registration
Act relation to a private document copied therein.
(ii) Production and marking of a certified copy as secondary evidence of a
private document (either a registered document like a sale deed or any
unregistered document) is permissible only after laying the foundation for
acceptance of secondary evidence under clause (a), (b) or (c) of section
(iii) Production and marking of an original or certified copy of a document
does not dispense with the need for proof of execution of the document.
Execution has to be proved in a manner known to law (section 67 and 68
and ensuing sections in chapter V of Evidence Act)."
06. In Jamuna Prasad and Others Vs. Shivnandan and Others, 2011 (4)
MPLJ 427 also it has been held by this Court that a sale deed is a private
document, but once it is registered, the record thereof maintained by the
Registering Officer is a public document and therefore a certified copy of the same
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can be given as secondary evidence of the existence, condition or contents of the
same. The same can be taken on record even in absence of laying any foundation
in that respect or having obtained prior permission to adduce secondary evidence
in that regard. However, mere production of the same would not by itself prove or
establish that the document was executed by the person named therein unless and
until proof of the same as required by Section 67 of the Evidence Act is produced.
It was held as under:
"23. As sale deeds are required to be compulsorily registered under the provisions
of the Registration Act and as records of these documents maintained thereunder are
public records of private documents maintained by the registering officer and as
certified copies thereof are admissible in evidence as to the content of the document as
provided by section 57 of the Registration Act, it is evident that the records
maintained by the Registering Officer are public records of private documents and
are, therefore, public documents as defined under section 74 of the Evidence Act.
24. In view of the aforesaid analysis I am of the considered opinion that while a
sale deed per se is a private document but once it is registered and entered in Book-I
by the Registering Officer under section 51 of the Registration Act, the records
thereof maintained by such Registering Officer is a public document as defined by
section 74 of the Evidence Act and, therefore, a certified copy of the same can be
given as secondary evidence of the existence, condition or contents of the same.
27. The Supreme Court in the case of Land Acquisition Officer and Mandal
Revenue Officer v. V. Narasaiah, (2001) 3 SCC 530, while negativing the contention
to the effect that certified copies of the sale deed could not have been taken into
account for determining the sale price as shown therein, as the vendor and vendee
were not examined and while analysing the provisions of section 51-A of the Land
Acquisition Act, 1894, has held that the preposition of law that-certified copies issued
under section 57(5) of the Registration Act could be taken on record as secondary
evidence under section 65(f) of the Evidence Act existed even prior to the introduction
of section 51-A of the Land Acquisition Act in the following terms in paras 11, 12 and
13:--
"11. If the only purpose served by section 51-A is to enable the Court to
admit the copy of the document in evidence there was no need for a legislative
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exercise because even otherwise the certified copy of the document could have
been admitted in evidence. Section 64 of the Evidence Act says that "documents
must be proved by primary evidence except in the cases hereinafter mentioned."
Section 65 mentions the cases in which secondary evidence can be given of the
existence, condition or contents of a document. One of the cases included in the
list is detailed in clause (f) of the section which reads thus:
"65(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."
*********
28. The aforesaid view taken by the Supreme Court in the case
of Narasaiah (supra) that giving a certified copy of a registered document in evidence
is permissible in law in view of the provisions of section 64 and 65(f) of the Evidence
Act and section 57(5) of the Registration Act, has been affirmed subsequently by a
Constitutional Bench in the case of Cement Corporation of India Ltd. v. Purya, (2004)
8 SCC 270. *******
29. Similarly, in the case of Tukaram S. Dighole v. Manikrao Shivaji Kokate,
(2010) 4 SCC 329 it has again been held by the Supreme Court that section 65(e) of
the Evidence Act carves out an exception to the rule that documents must be proved
by primary evidence and permits production of secondary evidence even when the
original document is still in existence and available.*******
30. In view of the aforesaid decision of this Court and the decisions of the
Supreme Court, the first substantial question of law framed by this Court is answered
against the appellants and it is held that the certified copy of the sale deed which was
produced by the respondent Nos. 1 and 2 plaintiffs has rightly been taken on record
by the Courts below even in the absence of laying any foundation in that respect or
having obtained prior permission to adduce secondary evidence in this regard in view
of the clear provisions of section 57(5) of the Registration Act and sections 64, and
65(e) and (f) of the Evidence Act."
07. In the present case, the certified copy of the registered sale deed which
was entered in Book I and was issued by the Registering officer has been
produced. It can certainly be taken on record by the Court even in absence of
laying any foundation in that respect or having obtained prior permission to
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adduce secondary evidence. It can certainly be given as secondary evidence of the
existence, condition or contents of the same. However, that by itself would not
prove or establish that the document was executed by the person named therein.
Though the sale deed was earlier refused to be taken on record by the trial Court
on an application under Order 7 Rule 14 of the CPC preferred by the plaintiff but
the same could have certainly been got exhibited to refresh the memory of
defendant No.1, Ajeet Kumar Jain. In permitting to do so, the trial Court has not
committed any error. To the extent as has been held by this Court in the judgments
referred to as aforesaid, the sale deed could have certainly been exhibited by the
trial Court as has rightly been done by it.
08. Thus, in view of the aforesaid discussion, I do not find any error having
been committed by the trial Court in passing the impugned order. The petition is
hence found to be devoid of any merits and is hereby dismissed.
(PRANAY VERMA)
JUDGE
Shilpa
