order to render public document as admissible under
Section 35 of the Indian Evidence Act 1872 three conditions
should be satisfied.(1) Entry relied on must be recorded in
official record, in official book or official register. (2) It must
be an entry stating a fact in issue or relevant fact. (3) It
must be made by public servant in discharge of his official
duty or in performance of a duty specially enjoined by law.
Entry in record of right is admissible in evidence under
Section 35 of the Indian Evidence Act 1872 on the principle
that law reposes confidence in public official entrusted with
public duty and it is presumed that public officials will
discharge their duties with accuracy and fidelity unless
contrary is proved. Section 35 of Indian Evidence Act 1872
is quoted in toto:
“Relevancy of entry in public [record or an
electronic record] made in performance of
duty—An entry in any public or other official
book, register or (record or an electronic
record), stating a fact in issue or relevant fact,
and made by a public servant in the discharge
of his official duty, or by any other person in
performance of a duty specially enjoined by the
law of the country in which such book, register,
or (record or an electronic record) is kept is
itself a relevant fact.”
13. It was held in case reported in AIR 2011 SC
1691 titled Murugam Vs. State of Tamil Nadu that public
document can be safely relied when public documents are
admissible under Section 35 of Indian Evidence Act 1872.
SHIMLA
RSA No.156 of 2003.
Date of judgment: October 1,2015.
Smt. Urmila Devi Vs Baldev Raj S/o Dhani Ram
Coram:
Hon’ble Mr. Justice P.S.Rana, Judge.
2. Smt. Urmila Devi plaintiff filed civil suit for
possession of shop situated in khata No. 249 khatauni
No.590 khasra No. 126 measuring 0-00-32 hectares mohal
and mauza Baijnath District Kangra HP vide jamabandi for
the year 1992-93. Plaintiff also sought additional relief for
recovery of Rs.8100/- (Eight thousand one hundred) on
account of arrears of rent for three years w.e.f. December
1995 to November 1998 @ Rs.225/- per month. It is
pleaded that plaintiff is owner of shop situated in suit land.
It is pleaded that defendant is tenant. It is pleaded that
defendant did not pay rent. It is pleaded that shop is in
dilapidated condition and it requires major repairs. It is
pleaded that shop would collapse at any time. It is pleaded
that plaintiff also required the shop for her personal use
and occupation. It is pleaded that plaintiff wants to reconstruct
shop. It is pleaded that plaintiff requested
defendant to pay rent and to vacate the shop but defendant
did not accept the request of the plaintiff. It is pleaded that
tenancy of the shop is on monthly basis. It is pleaded that
plaintiff served notice under Section 106 of Transfer of
Property Act 1882 upon defendant terminating the tenancy
of defendant. It is pleaded that despite notice defendant did
not vacate the shop. Prayer for decree of suit as mentioned
in relief clause of plaint sought.
3. Per contra written statement filed on behalf of
defendant pleaded therein that suit in the present form is
not maintainable and plaintiff is estopped by her act and
conduct to file present suit. It is pleaded that plaintiff has
no locus standi to file present suit. It is pleaded that Urmila
Devi did not appoint Sh Milap Chand as her attorney. It is
pleaded that suit is bad for non-joinder of necessary
parties. It is pleaded that no valid and proper notice is given
to the defendant as per Section 106 of Transfer of Property
Act 1882. It is pleaded that civil Court has no jurisdiction to
try the suit. It is pleaded that suit has not been properly
valued for the purpose of court fee and jurisdiction. It is
denied that plaintiff is owner of the shop. It is pleaded that
shop was rented out to defendant by Sh. Saran Dass about
33 years back. It is pleaded that tenancy in favour of
defendant is perpetual tenancy. It is pleaded that defendant
is regularly paying rent to Saran Dass. It is denied that
shop is in dilapidated condition. It is denied that shop
would collapse at any time. It is pleaded that successor-ininterest
of late Sh Saran Dass and plaintiff during
pendency of suit have damaged the northern wall of the
shop with mischievous and malafide intention. It is pleaded
that Urmila Devi is not owner of the premises. It is pleaded
that plaintiff has no locus standi to claim the rent and also
to seek eviction of the shop. It is pleaded that no cause of
action is created in favour of plaintiff. Prayer for dismissal
of suit sought.
4. Plaintiff also filed replication and re-asserted
the allegations mentioned in the plaint. As per pleadings of
parties following issues were framed by learned trial Court
on dated 9.5.2000.
1. Whether plaintiff is entitled to get possession
of the shop in question as alleged?
…OPP.
2. Whether plaintiff is entitled to recover the
amount of Rs.8100/- from defendant as
alleged? …OPP.
3.Whether suit in the present form is not
maintainable as alleged? …OPD
4.Whether plaintiff is estopped from filling
present suit as alleged? …OPD
5.Whether plaintiff has no locus standi to file
present suit as alleged? …OPD
6.Whether suit is bad for non-joinder of
necessary parties as alleged? …OPD
7. Whether proper notice has been issued to
defendant under Section 106 of Transfer of
Property Act as alleged? ….OPP.
8. Whether this Court has no jurisdiction to try
suit as alleged?. …OPD
9. Whether suit is not properly valued for the
purposes of court fee and jurisdiction as
alleged? …OPD.
10 Whether plaintiff is owner/landlady of suit
land as alleged? …OPP
11. Relief.
5. Learned trial Court decided issues No. 1,2,7
and 10 in affirmative and learned trial Court decided issues
No.3,4,5,6,8 and 9 in negative. Learned trial Court decreed
the suit filed by plaintiff for possession of the premises in
question with costs. Learned trial Court further directed
defendant to pay arrears of rent amounting to Rs.7200/-
(Seven thousand two hundred). Learned trial Court further
directed that map Ext PW1/E would form part of the
decree.
6. Feeling aggrieved against the judgment and
decree passed by learned trial Court Baldev Raj filed appeal
before learned first appellate Court which was decided on
9th January 2003. Learned first appellate Court allowed the
appeal and set aside the impugned judgment and decree
passed by learned trial Court dated 30th March 2001.
Learned first appellate Court dismissed the suit of the
plaintiff.
7. Feeling aggrieved against the judgment and
decree passed by learned first appellate Court Smt. Urmila
Devi appellant filed present RSA. RSA was admitted on the
following substantial questions of law on dated 9.9.2003.
1. Whether first appellate Court erred in
permitting the defendant-respondent to
challenge the title of plaintiff-appellant in suit
property?.
(2) Whether plaintiff could have been nonsuited
on the ground that the appellant-plaintiff
did not appear as her own witness?.
8. Court heard learned Advocate appearing on
behalf of appellant. Respondent did not appear despite
service.
9. Findings upon point No.1 of substantial question of
law with reasons.
9.1 PW1. Milap Chand has stated that he is general
attorney of Urmila Devi. He has stated Urmila is his wife.
He has stated that copy of general attorney is Ext PW1/A.
He has stated disputed shop is situated in Baijnath market.
He has stated that shop is upon tenancy. He has stated
that condition of shop is not proper. He has stated that wall
of the shop had demolished. He has stated that upper roof
of the shop has also uprooted. He has stated that wooden of
the shop has also rotten. He has stated that he requested
defendant to vacate the shop but defendant did not vacate
the shop. He has stated that notice Ext PW1/B was given
to defendant. He has stated that postal receipt is Ext
PW1/C and acknowledgment is Ext PW1/D. He has stated
that defendant has not paid rent to plaintiff. He has stated
that site plan is Ext PW1/E. He has stated that copy of
jamabandi is Ext PW1/F. He has stated that rent deed was
written in the year 1996. He has stated the rent deed is
mark ‘A’. He has stated that tenancy was not perpetual
tenancy. He has stated that shop was constructed 100
years ago. He has denied suggestion that Baldev Raj did not
execute any tenancy deed. He has denied suggestion that
plaintiff forcibly want to evict the defendant from shop. He
has denied suggestion that civil suit is filed just to harass
the defendant.
9.2 PW2 Nanak Chand has stated that both parties
are known to him and he has seen disputed shop. He has
stated that he has signed document Ext PW2/A as marginal
witness. He has stated that defendant has also signed
document Ext PW2/A. He has stated that rent of the shop
was Rs.225/- per month. He has stated that defendant had
signed tenancy deed after reading the contents of tenancy
deed. He has stated that he is familiar with Urmila Devi
since 20 to 25 years. He has stated that Saran Dass had
died. He has denied suggestion that forged tenancy deed
was prepared. He has denied suggestion that he deposed in
collusion with husband of plaintiff.
9.3 PW3 Mohan has stated that parties are known
to him and he has seen disputed shop. He has stated that
he signed tenancy deed Ext PW2/A as marginal witness. He
has stated that rent of the shop was Rs.225/ per month. He
has stated that earlier owner of shop was Saran Dass. He
has stated that Saran Dass had died. He has stated that
property of Saran Dass was devolved upon his legal heirs.
He has denied suggestion that forged tenancy deed Ext
PW2/A was prepared. He has denied suggestion that
defendant did not sign tenancy deed in his presence.
9.4 DW1 Baldev Raj has stated that he took shop
upon tenancy in the year 1967 from Saran Dass. He has
stated that tenancy was perpetual in nature. He has stated
that Saran Dass had died living behind one son and three
daughters as his legal heirs. He has stated that after the
death of Saran Dass his widow Brahami Devi used to take
rent from him. He has stated that shop in dispute is in
proper condition. He has stated that during the pendency of
civil suit Milap Chand has created hole in the back wall of
the shop. He has stated that upper portion of the shop was
also uprooted. He has stated that he is running business of
stationary and news paper in the shop. He has stated that
he is also holder of L.I.C. agency. He has stated that he did
not execute any tenancy deed in the presence of Mohan Lal
and Nanak Chand. He has stated that he has no other
source of income except shop in dispute. He has stated that
he does not know that after the death of Saran Dass the
property was devolved upon Brahami Devi. He has stated
that he does not know that Brahami Devi executed Will in
favour of Urmila Devi plaintiff. He has admitted that Milap
Chand is the husband of Urmila Devi. He has stated that he
does not know that Urmila had given power of attorney to
Milap Chand. He has stated that he does not know that rent
of the shop is Rs. 225/- per month. He has denied
suggestion that shop is in very bad condition. He has
admitted his signature in document Ext PW2/A.
9.5 DW2 Ram Parkash has stated that Saran Dass
was known to him. He has stated that Baldev is also known
to him. He has stated that Milap Chand is son of Saran
Dass. He has stated that Saran Dass has three daughters.
He has stated that he has seen disputed shop. He has
stated that shop was took on tenancy by defendant from
Saran Dass in the year 1967-68. He has stated that a hole
has been created in the back wall of shop. He has stated
that tins of roof of shop also uprooted. He has stated that
defendant is running a stationary work in the shop. He has
stated that there is stock of two/three lacs in the shop. He
has stated that he did not see who had created hole in the
shop. He has stated that his house is situated at a distance
of 2 Km. from shop. He has admitted that Saran Dass had
died and his property was devolved upon Brahami Devi. He
has stated that he does not know that Brahami Devi had
alienated her entire property in favour of Urmila Devi by
way of Will. He has denied suggestion that shop is in
dilapidated condition.
10. Following documents produced by the parties.
(1)Ext PW1/A photo copy of general power of attorney.(2)
Ext PW1/B copy of legal notice dated 11.11.1998 under
section 106 of Transfer of Property Act 1882. (3) Ext PW1/C
postal receipt. (4) Ext.PW1/D acknowledgment receipt. (5)
Ext.PW1/E site plan of shop in dispute. (6) Ext PW1/F copy
of jamabandi for the year 1992. (7) Ext PW2/A rent deed
dated 20.5.1996. (8) Ext PA copy of mutation of suit
property in favour of Urmila plaintiff on the basis of oral
Will. (9) Ext DA copy of missal haquiat settlement qua suit
property.
11. Submission of learned Advocate appearing on
behalf of appellant that learned first appellate Court
committed error in permitting defendant to challenge the
title of plaintiff in the suit property is accepted for the
reasons hereinafter mentioned. It is proved on record that
as per testimony of PW2 Nanak Chand and PW3 Mohan
that defendant had executed rent deed Ext PW2/A placed
on record on 20th May 1996. Rent deed Ext PW2/A placed
on record remained un-rebutted. Even defendant had
admitted his signature in rent deed Ext PW2/A placed on
record when he appeared in the witness box. There is no
reason to disbelieve the testimony of PW2 Nanak Chand
and PW3 Mohan. There is no evidence on record in order to
prove that PW2 Nanak Chand and PW3 Mohan have hostile
animus against defendant at any point of time. The fact of
execution of rent deed Ext PW2/A is proved on record as
per testimony of PW2 Nanak Chand PW3 Mohan. It is well
settled law that facts can be proved by way of oral or
documentary evidence. In the present case rent deed is
proved by way of document Ext PW2/A and by way of oral
testimony of marginal witnesses PW2 Nanak Chand and
PW3 Mohan.
12. Defendant has admitted that he took shop
upon tenancy from Saran Dass son of Daya Ram. It is
proved on record that Saran Dass died and thereafter suit
property was devolved upon Smt. Brahami Devi widow of
Saran Dass. Court has perused missal haquiat settlement
Ext DA placed on record. As per missal haquiat settlement
Ext DA placed on record Smt. Brahami Devi widow of Saran
Dass is recorded in the ownership column and Sh Baldev
defendant is recorded as tenant and rent is recorded as
Rs.420/- per annum. It is also proved on record as per
document Ext PA placed on record that Smt. Brahami Devi
died on 12.03.1991 and thereafter rapat No. 411 dated
6.5.1991 was recorded to the effect that Brahami had
executed oral Will in favour of Smt. Urmila plaintiff. It is
also proved on record that thereafter Assistant Collector
revenue officer while exercising powers under H.P. Land
Revenue Act 1954 had sanctioned mutation in favour of
Urmila qua the suit property on the basis of oral Will
executed by Brahami. It is also proved on record that
thereafter in jamabandi 1992-93 Ext PW1/F placed on
record in the ownership column name of Smt. Urmila Devi
wife of Milap Chand son of Saran Dass was recorded and in
the possession column name of defendant as tenant at the
rent of Rs.420/- (Four hundred twenty) per annum was also
recorded. Mutation Ext PA and jamabandi Ext PW1/F were
prepared by public servants in discharge of their official
duty under HP Land Revenue Act 1954. H.P Land Revenue
Act 1954 is a special Act. It is held that entries of mutation
and entries of jamabandi placed on record are relevant facts
under Section 35 of the Indian Evidence Act 1872.
Defendant did not examine any revenue officials who have
recorded entries in the mutation register and in jamabandi
in order to rebut entries of mutation and jamabandi. In
order to render public document as admissible under
Section 35 of the Indian Evidence Act 1872 three conditions
should be satisfied.(1) Entry relied on must be recorded in
official record, in official book or official register. (2) It must
be an entry stating a fact in issue or relevant fact. (3) It
must be made by public servant in discharge of his official
duty or in performance of a duty specially enjoined by law.
Entry in record of right is admissible in evidence under
Section 35 of the Indian Evidence Act 1872 on the principle
that law reposes confidence in public official entrusted with
public duty and it is presumed that public officials will
discharge their duties with accuracy and fidelity unless
contrary is proved. Section 35 of Indian Evidence Act 1872
is quoted in toto:
“Relevancy of entry in public [record or an
electronic record] made in performance of
duty—An entry in any public or other official
book, register or (record or an electronic
record), stating a fact in issue or relevant fact,
and made by a public servant in the discharge
of his official duty, or by any other person in
performance of a duty specially enjoined by the
law of the country in which such book, register,
or (record or an electronic record) is kept is
itself a relevant fact.”
13. It was held in case reported in AIR 2011 SC
1691 titled Murugam Vs. State of Tamil Nadu that public
document can be safely relied when public documents are
admissible under Section 35 of Indian Evidence Act 1872.
Entry in the mutation Ext PA and entry in jamabandi Ext
PW1/F are relating to entries stating fact in issue inter se
the parties. It is held that entry of mutation Ext PA and
entry of jamabandi Ext PW1/F are admissible under
Section 35 of Indian Evidence Act 1872 for deciding the fact
in issue inter se the parties. Ext PA mutation document and
Ext PW1/F jamabandi entries placed on record relating to
suit property are relevant fact under Section 35 of Indian
Evidence Act because above stated documents have been
prepared by public officials under special Act i.e. HP Land
Revenue Act 1954 in discharge of their official duty.
Defendant did not examine any revenue officials who have
prepared aforesaid documents in discharge of their public
official duties in order to rebut the revenue entries. Even as
per section 45 of H.P. Land Revenue Act 1954 which is
special Act presumption is in favour of entries in record of
rights and periodical records until contrary is proved. Point
No.1 of substantial question of law is decided in favour of
appellant.
Finding upon point No.2 of substantial question of law:
14. Submission of learned Advocate appearing on
behalf of appellant that appellant could not be non-suited
on the ground that appellant did not appear personally as
witness is also accepted for the reasons hereinafter
mentioned. Present civil suit is filed by Smt. Urmila Devi
through her husband namely Milap Chand who appeared in
the witness box. Smt. Urmila Devi is a lady and she has
given general power of attorney to her husband namely
Milap Chand. General power of attorney Ext PW1/A placed
on record remained un-rebutted. Defendant did not file any
application before learned trial Court for examination of
Urmila Devi in person. In view of the fact that defendant did
not file any application before learned trial Court for
examination of Urmila Devi in person court is of the opinion
that it is not expedient in the ends of justice to draw
adverse inference against Urmila Devi for her personal non
appearance in Court. Hence point No.2 of substantial
question of law is decided accordingly.
15. In view of above stated facts RSA No. 156 of
2003 titled Smt. Urmila Devi Vs. Baldev Raj is allowed and
judgment and decree passed by learned Additional District
Judge Kangra at Dharamshala HP in civil appeal No. 61-
B/2001 dated 9.1.2003 titled Baldev Raj Vs. Smt. Urmila
Devi are set aside and judgment and decree passed by
learned trial Court in civil suit No.7 of 1999 decided on
30.3.2001 titled Smt. Urmila Devi Vs. Baldev Raj are
upheld. No order as to costs. Record of learned trial Court
and learned first appellate Court be sent back forthwith
along with certified copy of judgment and decree. Registrar
Judicial will prepare decree sheet in accordance with law.
RSA No. 156 of 2003 is disposed of. Pending application if
any also disposed of.
(P.S.Rana)
Judge.
October 1, 2015(R)
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