Oral Judgment:
1. Heard. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, the petition is heard for final disposal.
2. Subject-matter :-
Refusal of the Trial Court to mark Exhibit to vital documents in the Suit constrained the Petitioner to file present Writ Petition. Vide Order dated 05.04.2023 in Regular Civil Suit No. 41 of 2012, the learned Civil Judge (J.D.) Loha Dist. Nanded rejected the petitioner/plaintiff’s application that was filed requesting to mark identification number to two sale deeds which are crucial in the Suit.
3. Moot point: Facts of the case and the reasoning rendered by the Trial Court calls for adjudication on following points:-
(1) What if execution of a registered sale deed is admitted, but contents & object is denied;
(2) Evidentiary value of a document given identification number in a Suit; and
(3) The appropriate stage to give identification to a document in a Suit.
4. Facts in brief:
4.1 The petitioner filed Regular Civil Suit No.41 of 2012 against the respondents in the Court of learned Civil Judge, Junior Division, Loha, Dist. Nanded, seeking declaration as to his ownership of the suit properties.
A consequential relief of perpetual Injunction against the defendant restraining him from disturbing the peaceful possession of the petitioner over the suit property, is also prayed in the suit. Suit properties are two pieces of agricultural lands.
4.2 The petitioner’s case in brief is that the suit properties were originally owned by the respondent/defendant who sold those to one Khandu Undade by execution of two separate sale deeds registered in the office of the Sub-Registrar Class-II of the concerned region.
4.3 A piece of 40 R was sold by the defendant to Khandu Undade vide a sale deed dated 25.07.1997 registered on 25.07.1997 at Serial No.1680 of 1997. Another piece of 20 R was sold by the Defendant to Khandu Undade vide a sale deed dated 16.04.1998 registered in the office of the concerned Sub-Registrar, Class-II at Serial No. 843 of 1998.
4.4 The purchaser i.e. Khandu Undade later sold the said properties to other persons. The petitioner purchased those properties from the subsequent purchasers. The petitioner thus describes the flow of title in his name and seeks declaration of ownership to the said property. The relevant pleadings of the plaintiff could be read as under:-
4.5 As stated above, the respondent is the original owner. Controversy arose due to the quantum of balance area remained in his name in the revenue record.
4.6 The Respondent defended the suit by filing written statement. In the written statement at third sub-paragraph of main paragraph 13, the defendant agreed execution of those two sale deeds in favor of Khandu Undade. However the Defendant submitted that it was not a sale deed in fact. As per his case, he executed the sale deeds in favor of Khandu Undade against a loan borrowed from Khandu. That, upon repayment of the loan with interest, Khandu was to re-convey the properties under transaction to him. The relevant sub-paragraph is reproduced as follows:-
4.7 During the course of Trial, the petitioner filed an application under Section 65 of the Indian Evidence Act seeking leave to lead secondary evidence thereby producing certified copies of the aforesaid two sale deeds.
4.8 After hearing the parties, the application below Exh.85 came to be allowed vide order dated 22.03.2017 allowing the petitioner to lead secondary evidence to prove the contents of the sale deeds. The respondent never challenged the order dated 22.03.2017, and as such it is intact today.
4.9 Thereafter, the petitioner filed present application at Exh.113 thereby requesting to give identification number i.e. exhibit number to the certified copies of both the sale deeds in order to prove those documents and read in evidence.
4.10 The respondent opposed the application, on the ground that he never admitted the sale deeds and therefore, the Petitioner has to prove those as per the provisions of the Indian Evidence Act.
4.11 After hearing both sides, learned trial court observed thus:-
9. In the present case it is already discussed that said sale deeds shows that Khandu Yallappa Udande (PW-2) has not signed said sale deeds being party or being witness. The plaintiff has to prove it by examining the witness who signed it as party, witness or scribe or if they are not available the witness who knows the signatures of said party, witnesses or scribe. Mere on the ground that attestation is not required to the sale deed, it cannot be admitted directly in evidence. The plaintiff has to exercise such proper mode to prove it. Without exercising such proper mode sale deeds produced by the plaintiff cannot admitted in evidence directly. Plaintiff has not exercised such proper mode and Khandu Yallappa Udande (PW-2) has not signed said sale deeds being party or being witness. Therefore, this application having no merit and liable to be rejected……………..
As such, vide the order dated 05.04.2023, the application below Exh.113 came to be rejected by the Trial Court. As against that order, the petitioner is before this court.
5. Submissions:-
5.1 Mr. Sunil Kurundkar, learned counsel for the Petitioner would point out the pleadings of both the parties to the Suit. He would specifically point out the respondent’s pleading in the counter claim. He submits that once the Defendant has accepted execution of the documents, it was incumbent for the Trial Court to give identification number i.e. Exhibit to the documents.
5.2 It is further contended on behalf of the Petitioner that although the defendant/respondent has denied truthfulness of the contents in the sale deeds, those documents must be given exhibit numbers to be read in evidence. He submits that proving a document would be a subsequent event which would be subject to the quality of evidence that shall be tendered by the respective party. He submits that in view of these facts, the Trial Court ought to have allowed the application.
5.3 Mrs.Chincholkar, learned counsel for the Respondent would strenuously object the argument advanced by learned counsel for the petitioner. She would take me to the reply affidavit filed by the Respondent. She would submit that the Trial court rightly observed that the vendee in the instruments has even not put his signature on the instruments. It is submitted that if such is the case, then the Trial court is well justified in rejecting the said application. Learned counsel for the Respondent would give thrust on paragraph 4 of the reply affidavit which reads thus:-
4) The impugned judgment states that, Khandu Yellappa Undade intimated the court in writing that he lost said sale deed therefore he cannot produce the said sale deed in the court. The defendant raised objection to give exhibit to sale deed. Defendant has filed his say below exhibit-114 and strongly opposed this application. The copy of say of the defendant exhibit-114 is annexed Exhibit-R-3. The sole respondent refers to and relies upon Order 7 and Order 11 of the Civil Procedure Code.
The defendant i.e sole respondent has contended that plaintiff has not specifically mentioned in the plaint or in the evidence about actual custody or possession of this sale deeds. His witness Khandu Yellappa Undade has also not specifically mentioned it in his evidence. Lastly prayed for rejection of application.
5.4 Mrs. Chincholkar, learned counsel for the respondent, would further submit that said Khandu Undade intimated in the court that he has lost the sale deeds somewhere and hence, could not produce them in the court. She submits that the said documents though styled as sale deeds were conditional sale deeds.
5.5 Learned Counsel for the Respondent would further submit that it has been the foundation pleading of the Respondent/Defendant that the sale deed was not a sale deed in its spirit, rather it was a conditional sale deed. That the Trial Court has passed a reasoned order which may not be disturbed. She meticulously points out observations of the Trial Court that Khandu Undade has even not signed the documents, and hence it could not be given any exhibit number. She also submits that Khandu has candidly stated that he cannot produce the original copy of the sale deeds. With these submissions, Mrs.Chincholkar, learned Counsel for the respondent, advocates the impugned order passed by the Trial Court.
6. Discussion and consideration:-
6.1 Heard learned counsel for the parties at length. I have also gone through the pleadings of the parties in the Writ Petition including the reply filed by the respondent.
On the basis of the record placed before me and the arguments advanced by the respective parties, I record my findings as under.
6.2 The core issue is `marking identification to certain crucial documents in the Suit’. This marking/identification is commonly done titling a document as ‘Exhibit’. Usually the marking is by digits e.g. Exhibit-1, 2 etc.
6.3 The term ‘Exhibit’ is nowhere specified. However, the purpose of identification of document is sought to be made easier and more convenient by putting them such mark of identity.
6.4 Oder XIII of the Civil Procedure Code 1908 deals with production, Impounding and return of documents, while Rule 1 provides for the parties to produce the originals of the documents relied upon by them for consideration by the Court. Rule 3 and 4 of the Order XIII of the 1908 Code reads thus:-
ORDER XIII
1. Original documents to be produced at or before the settlement of issues.—
(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory.]
2. ………..
3. Rejection of irrelevant or inadmissible documents—The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.
4. Endorsements on documents admitted in evidence—(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:—
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted, and the endorsement shall be signed or initialed by the Judge.
6.5 Truthfulness of a document and/or contents therein is to be proved under the principles of the Indian Evidence Act. For taking up those documents in the Evidence process, admissibility of the documents is the entry-gate. Admissibility of a document as a part of evidence is governed by the Evidence Act. An admissible document would certainly contain Exhibit number, but mere exhibiting an inadmissible document does not ipso facto turn such document to be admissible.
6.6 What could be seen from the text of Order XIII of the 1908 Code, exhibiting a document merely means identification of a document for the purpose of subjecting it for evidence. Truthfulness of the contents in the documents is always subject to its proof and which is required to be proved by due process of law by the concerned party.
6.7 By and large, there are three occasions where a Court is to mark the Exhibit number on a document sought to be relied upon by party. Firstly - if a document is produced in its Original form; secondly- if a document is produced by Plaintiff and the Defendant agrees to its existence; and thirdly - during evidence if the document is held proved. It is expected that the Court should give exhibit number to the deserving document as early as possible. Law is developed even to the extent that the Court may give tentative identification number to a document recording objection of the other side, if any.
6.8 Admissibility of a document in evidence and holding it proved are altogether different things. Exhibiting a document in the Suit is merely for convenience purpose. Party relying upon the document has to prove the document on the tests laid down in the Evidence Act. A document, if numbered/exhibited, does not ipso facto stands as proved.
6.9 The documents in question in the case in hand are ‘Registered Sale Deeds’. It is trite law that a registered sale deed has strong presumptive value. The Hon’ble Supreme Court in the case of Premsing and others Vs. Birbal and others, reported in AIR 2006 SUPREME COURT 3608 has observed thus:-
“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 No.1 has not been able to rebut the said presumption.”
6.10 The respondent’s pleading show that the respondent/ defendant admitted that he executed the questioned two instruments in favor of Khandu Undade which are registered in the office of the concerned Sub-Registry. This is not only his admission in the written statement, but a positive statement in his Counter Claim. The specific defence of the Respondent is that although the instruments were styled as ‘Sale Deeds’, the true nature of transaction between himself and Khandu was a ‘loan transaction’. That, due to his failure to repay the loan amount with interest, Khandu got his name mutated in the revenue record and later sold the properties to the subsequent purchasers etc.
6.11 As regards the documents which require compulsory attestation, Section 70 of the Indian Evidence Act provides thus:
“70. Admission of execution by party to attested document.––The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.”
6.12 Sale deed does not fall in the category requiring compulsory attestation. However, In the case in hand, the Respondent/defendant unequivocally admits signing the sale deeds and registering those in the Sub-Registrar’s office in favor of Khandu Undade. Ordinarily this is called as ‘execution of document’. Defendant disputes the object and intention behind the document. Once there is admission of execution of document by the party to the attested document, there cannot be any hindrance in exhibiting such document. This shall have effect in the process of proving the said document. In such circumstances, the Trial Court, at the first instance, was bound to give identification number to such documents of which existence and execution is admitted by the Defendant.
6.13 I have cautiously gone through the contents of the application at Exh.113. In the application, although circumstances are referred for relieving the Plaintiff from the liability to examine the attesting witness, the prayer is restricted to extent of only exhibiting the documents.
6.14 So also, the gist of respondent’s objection is, as if this is an objection to the application seeking permission under Section 65 of the Evidence Act to produce Secondary Evidence. That stage is already over. This requires to bear in mind that, the crucial two sale deeds are permitted to be proved under Section 65 of the Indian Evidence Act vide secondary evidence. The Trial Court while allowing the Petitioner to prove the sale deeds on the basis of the Secondary Evidence, observed that the documents are in the form of certified copies and they are public documents.
6.15 The general rule for exhibiting a document which is an instrument conveying an immovable property, is that it be exhibited if it’s original/certified copy of an admissible document is produced. So also, if a conveyance transaction instrument of which the defendant admits existence/execution is produced besides objection to its contents, the Court has to give it an identification number i.e. exhibit number. The contents are to be proved by due process of law, by the party relying upon such document.
6.16 Pleadings of the Defendant are reproduced supra. It shows that the Defendant candidly admits existence and execution of the questioned documents. His objection is as regards to the nature of the transaction with the vendee i.e. Khandu Undade. The documents are in ‘existence’ at the behest of the defendant, because admittedly he has signed and registered those in favor of Khandu Undade. Under such circumstances, the rule of evidence is that, admitted fact need not be proved. Legality of an admitted document can be questioned on the ground of lack of compliance to the legal requirement, and secondly, as regards to its contents. For both purposes, the concerned party has to lead evidence to that effect.
6.17 I find that the observations recorded by the Trial Court at paragraph No.7 of the impugned order are perverse to the record. It is recorded that:-
“7. …………………… I have gone through the written statement of the Defendant. It appears from the said written statement that Defendant has not specifically admitted said sale deeds. On the contrary during the evidence of the Plaintiff Defendant has raised objection to exhibit it. If Defendant admitted said sale deed certainly it can be admitted in evidence. However, it reveals that Defendant has not specifically admitted said sale deeds.”
6.18 The Trial Court at paragraph no.8 of the impugned order has observed that Plaintiff is justified in invoking Section 68 of the Evidence Act. The Trial Court observed that the sale deed has to be proved through proper mode of evidence by the Plaintiff. Under these circumstances, while the Defendant himself is asserting existence of the questioned sale deed reserving objection to its object, the Trial Court ought to have given exhibit number to those documents at first instance. The Trial Court ought to have taken into consideration the pleadings of the defendant whereby he has admitted existence/execution of those two sale deeds; and strong presumptive value to the registered sale deed and the principles of Evidence Act on burden of proof.
7. In my considered view, the Trial court has not properly exercised its jurisdiction while deciding the application at Exh.113. The petitioner has made out a successful case for interference of this court under Article 227 of the Constitution of India.
8. Hence, I pass the following order:-
(i) The Writ Petition stands allowed.
(ii) The order dated 05.04.2023 passed by learned Jt. Civil Judge, Junior Division, Loha, Dist. Nanded, on application below Exh. 113 in R.C.S. No.41 of 2012 is quashed and set aside.
(iii) The application below Exh.113 filed by the petitioner stands allowed in terms of its prayer.
(iv) Rule is made absolute in above terms.
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