SEEMA AFZAL Vs. EKBAL KHAN

JUDGEMENT

(1.) The present petition is filed for setting aside the order dtd. 4/9/2019 passed by the learned Sub Judge-13, Motihari, East Champaran in Title Suit No. 524 of 2008, whereby and whereunder an application dtd. 24/4/2019 filed by the plaintiff has been allowed and certain documents have been marked as exhibits as public documents.

(2.) Briefly stated, the facts of the case are that the respondent is plaintiff before the learned trial court who has filed Title Suit No. 524 of 2008 for declaration of his title over the suit land and for confirmation of possession thereon as well as a declaration that registered deed of sale dtd. 21/8/2018 executed by Most. Rojidan in favour of Md. Hedyatullah Khan, original defendant no.1 (since dead), is void ab initio and not binding upon the plaintiff. The suit land is situated in Mauza Tarkalwa, P.S.- Motihari Town, District.- East Champaran having area of 1 bigha 16 katha 2 dhur. The plaintiff claims himself to be the karta and manager of his family whereas the original defendant was the karta and manage of his family. The suit land was khatiani land of Most. Rojidan who was the maternal grandmother of the father of the plaintiff. Most. Rojidan had only one daughter Kulsum Bandi who was married to Md. Taqui Khan, grandfather of the plaintiff. From their wedlock, father of the plaintiff was born. Most. Rojidan executed a registered deed of Waqf in respect of the suit land and other properties on 12/2/1916. The beneficiaries of the waqf were Kulsum Bandi and her descendants. After death of Kulsum Bandi, the grandfather of the plaintiff and the father of the plaintiff came in possession of the waqf properties and remained in its possession. Father of the plaintiff died in the year 1983 and the plaintiff came into possession of the waqf properties. The grandmother of the plaintiff executed registered deed dtd. 16/6/1972 in favour of her grandsons. The suit land was a ditch (Gaddha) and as it was not a productive land, no steps were taken for its mutation by the grandfather or the father of the plaintiff but they remained in its peaceful possession. On 15/12/2007, the plaintiff filed an application for mutation of his name in the Anchal Office and he came to know that jamabandi of the suit land has been running in the name of Md. Hedayatullah Khan. Since neither the father of the plaintiff nor the plaintiff had knowledge about the aforesaid fact, no claim on spot was made by anyone. In March, 2008, the plaintiff filed an application for cancellation of the jamabandi in the name of defendant no.1. Subsequently, on 6/5/2008, the plaintiff filed an appeal before the DCLR, Motihari. In this proceeding, the plaintiff came to know that a report has been submitted that Most. Rojidan had executed a sale deed dtd. 21/8/1948 in the name of defendant no.1. The plaintiff obtained certified copy of the sale deed on 19/10/2008 and told the defendant not to make any claim of right on the basis of the said sale deed as it was forged and fraudulent. But as the defendant did not pay any heed to the request of the plaintiff, the plaintiff was compelled to file Title Suit No. 524 of 2008. The defendant appeared and contested the suit by filing written statement submitting that deed of waqf dtd. 12/2/1916 executed by Most. Rojidan was not acted upon and she never treated the suit land as waqf land and on 21/8/1948 sold the suit land to Md. Hedayatullah Khan, original plaintiff no.1 who got his name mutated in revenue records and used to pay rent. The defendant further submitted that the deed of waqf dtd. 12/2/2016 does not relate to the suit land as Mauza was different. In the aforesaid proceeding on 24/4/2019, the plaintiff filed an application for taking into evidence the documents mentioned therein which includes certified copies of the deed of gift dtd. 20/2/1972, the waqfnama dtd. 12/2/2016 and the sale deed dtd. 21/8/1948 as public documents. On 4/9/2019, the defendants filed a rejoinder to the said application of the plaintiff objecting to the prayer of the plaintiff. However, vide impugned order dtd. 4/9/2019, learned Sub Judge allowed the application and marked the documents as exhibits considering the documents to be public documents.

(3.) Learned senior counsel appearing on behalf of defendant/petitioner submitted that the learned trial court erred in marking certified copies of deed of gift dtd. 20/2/1972, deed of waqf dtd. 12/2/2016 and the sale deed dtd. 21/8/1948 as exhibits treating the same as public documents. The impugned order is erroneous as without being satisfied about the non-availability of the original documents, the learned trial court marked the documents exhibit as public documents. Learned senior counsel further submitted that the impugned order is illegal and arbitrary. The documents marked exhibits are not public documents and the learned trial court fell into error. Under Sec. 65 of the Evidence Act, the aforesaid documents could not be taken into evidence as secondary evidence without satisfying the grounds mentioned therein but the learned trial court committed error of jurisdiction in allowing the application dtd. 24/4/2019. Learned senior counsel further submitted that the documents can be taken into secondary evidence when it can be shown that original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. Learned senior counsel further submitted that the original of the documents are not public documents within the meaning of Sec. 74 of the Evidence Act. Therefore, the learned trial court has passed the orders without having regard to the legal position and the impugned order is not sustainable.