JUDGMENT
G.R. Majithia, J.
1. The unsuccessful plaintiff has come up in second appeal against the judgment and decree of the first Appellate Court affirming on appeal those of the trial judge whereby his suit for mandatory injunction for restraining defendants No. 1 to 8 from interfering with his peaceful possession over the disputed property was dismissed.
2. The facts:-
The plaintiff sought a mandatory injunction against defendant/ respondents No. 1 to 8 restraining them from interfering with his peaca- ful possession over the site in dispute. He alleged that he was owner 10 possession of the site in dispute He wanted to raise construction thereon but was obstructed by the defendants and he was threatened to face dire consequences if he raised construction. Defendants No. 1 to 8 controverted the allegations and inter alia pleaded that they had purchased 1 kanal 8 marlas of land along with site in dispute from Sir Singh vide sate deed dated February 16, 1962 and were in possession since then.
3. From the pleadings of the parties, the following issues were framed :-
1. Whether the plaintiff is the owner of 3-1/4 Mls of the taut in dispnte ? OPP
2. Whether the plaintiff is in possession of the entire ‘taur’ in dispute? OPP
3. Whether the site ABFG as shown in the plan is a passage to the ‘taur’? OPP
4. Whether the suit is bad for non-joinder of necessary parties ? OPD
5. Whether the defendants No. 1 to 3 purchased the taur’ in dispute from Bir Singh on 16-2-62 ? If so, to what effect ? OPD
6. Whether the plaintiff is entitled to the injunction prayed for? OPP
7. Relief.
Issues No. 1 to 3, 5 and 6 were decided against the plaintiff and issue No. 4 was not pressed by the defendants. Resultantly, the suit was dismissed.
4. On appeal, the principal question which was pressed was whether the plaintiff was the owner of the property in dispute. The first Appellate Court negatived his claim on the ground that it was not established on record that Bir Singh gave the plot in exchange to Nirain Singh which he purported to have sold to the defendants since certified copy of the exchange deed Mark B was inadmissible and secondary evidence could only be led if the loss of the original is proved. The gift by Narain Singh in favour of Lekh Raj from whose successors-in-interest the plaintiff claims to have purchased the disputed site is invalid since his title over it is not proved.
5. The First Appellate Court ignored material evidence on record on the ground that it was inadmissible. A close scrutiny of the record reveals that the finding so recorded cannot be sustained. Vide Exchange Deed dated January 3, 1946, Sarv Shri Narain Singh and Bir Singh exchanged plots situate within the old Abadi of village Rurka Kalan. Narain Singh gave 5 Marlas plot situate in the old Abadi of village Rurka Kalan to Bit Singh and in lieu thereof got 6 Marias plot situate within the old Abadi of the village from Bir, Singh. The boundaries of the plot obtained in exchange by Narain Singh from Bir Singh are given in the exchange deed Mark B. On September 3, 1946, Narain Singh gifted the plot which he got in exchange from Bir Singh vide exchange deed dated January 3, 1946 to Lekh Raj, son of Karam Chand Brahmin, In the gift deed It was recited that the gift was made as Dharam arth (religions purposes). The gift deed was registered under the Registration Act by the Sub Registrar on December 21, 1946. The acceptance of the gift was acknowledged by the done before the Sub-Registrar. The gift deed was marked as ‘A’ Amrit Lal son of Lekh Raj along with his two minor brothers sold the plot in parts to the sons of Bir Singh by virtue of three sale deeds dated August 27, 1930 Ex, P-3, Ex P 4 and Ex. P 5 The boundaries of the plots sold vide Ex. P-3, Ex. P 4 and Ex. P-5 tally with the boundaries of the plot gifted to Lekh Raj by Naraia Singh vide gift deed dated September 3, 1946. In the sale deeds, it is recited that the consideration was paid by Bir Singh, Bir Singh sold 1 Kanal 8 marals of land comprised in Khara Nos. 377, 583 and a vacant plot approximately measuring 7 marlas, the boundaries of which were given in she sale deed, to Gujju, Malkiat Singh, Gurdial Singh, Sohan Singh sons of Hardit Singh vide Ex.D-1. The contesting defendants maintained that the site in dispute is apart of the vacant plot which was sold to them by Sir Singh under sale deed Ex. D-l.
6. The precise question which arfse is whether Bir Singh was the owner of the plot measuring approximately 7 marlas which he purported to have sold along with agricultural land measuring 1 kanal 8 marlas vide sale deed Ex D-l. The plot in dispute is the same which Bir Singh gave in exchange to Narain Singh under the exchange deed dated January 3, 1946 the mention of which is made in the gift deed dated September 3, 1946, Mark A.
7. Section 65 of the Indian Evidence Act, 1872 (for brevity the Act) relates to the cases in which secondary evidence relating to documents can be given and it reads thus ;-
“65 Cases in which secondary evidence relating to documents may be given-Secondary evidence may be given of existence, condition or contents of a document in the following cases :
(a) when the original is shown or appears to be in the possession or power -of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, of of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the 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;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of Section .74;
(f) when the original is a document of which a certified copy is premitted by this Act, or by any other law in force in (India), to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In case (a), (c) and (d) any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible
In case g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.”
The certified copy of the document falling in clauses (e) or (f) of Section 65 is admissible. The certified copy of the registered exchange deed dated January 3, 1946 was placed on record and it was marked as ‘B’ Secondary evidence may be given, if the original is a public document within the meaning of Section 74 of the Act. The definition of a public document under Section 74(2) takes in public records kept in any State of privats documents. The Registrar’s office certainly keeps a public record of the exchange deeds registered in that office. Section 76 of the Act enables an officer having the custody of a public document to give a certified copy. The certified copy of the exchange deed therefore is a secondary evidence of the public record kept in the Registrar’s Office It is, therefore, admissible in evidence both under Section 65 (e) or (f) of the Act. Again by invoking Section 57(5) of the Registration Act, the certified copy becomes admissible, for the purpose of proving the contents of the original document itself, reference can usefully be made to the following observations in Goduguneesi Padmariabhachidi v. Annamraju Sithapalthirao and Ors., 1954 II M. L. J. 75. (Andhra High Court) where it was held thus:-
“Secondary evidence may be given, if the original is a public document within the meaning of Section 74. The definition of a public document under Section 74 takes in public records kept in any State of private documents. The Registrar’s Office certainly keeps a public record of all sale deeds registered in that office. Section 76 enables an officer having the custody of a public document to give a certified copy. The certified copy is therefore admissible in evidence both under Section 65 (e) and (f) of the evidence Act. The certified copy therefore is secondary evidence of the public record of the mortgage deed kept in Registrar’s Office Again by invoking Section 57(5) (of the Registration Act) the said copy becomes admissible, for the purpose of proving the contents of the original, document itself.”
(underlined words supplled).
8. This will not dispense with the proof of the execution of the exchange deed. In the instant case, the parties to the exchange deed and its attesting witnesses have died Reference to this fact will be made a little later. The endorsement by the Sub Registrar indicates beyond reasonable doubt that the executants admitted the execution of the documents before it . The endorsement of the Sub Registrar will be a prima facie evidence that the executants admitted the execution before an independent officer. They were identified before the Sub Registrar by independent witnesses who were known to him and on their identification the document was registered. The registration of the document is a prima facie proof of its execution by the persons by whom it purports to be and a presumption is raised that proper person competent to act executed the document. Reliance can be usefully placed on a Division Bench decision reported as Piara v. Fattu, A. I. R. 1929 Lah. 711, wherein it was held :
“The registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend to the parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction and ail things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. Therefore, the certificate endorsed on the sale dated by the Registering officer under Section 60 is a relevant piece of evidence for proving its execution ”
9. The courts below were in errer in not admitting into evidence the exchange deed .dated January 3, 1946. The same is exhibited as Ex. RSA/1.
10 On September 3, 1946, Narain Singh gifted the plot which he got in exchange from Bit Singh under exchange deed Ex. RSA/1. In the gift deed itself, reference to the exchange deed is. made and it is recited therein that the donor is gifting away the property which he got in exchange from Bir Singh wader the exchange deed. The gift, deed is witnessed by Didar Singh and Naranjan Singh On October 23, 1973. an application was filed by the plaintiff for appointment of a Local Commissioner for examining Pt. Radha Kishan, scribe of the exchange deed dated January 3, 1946 and of the gift deed dated September 3, 1946. In the application, it was stated that the attesting witnesses of the exchange deed and its executants had died long time back and that the witnesses of the gift deed dated September 3, 1946 had also died and it was necessary to record on commission the statement of Pt Radha Kishan, Petition Writer, who was lying ill and was unable to attend the Court in person. The interrogatories were also filed alongwith the application. The notice of the application was given to the contesting defendants. The interim order passed by the court on October 23, 1973 reads thus :-
“The plaintiff has filed an application for recording of statement of Radha Kishan on commission as he is lying ill. Copy given. Reply be filed on 30-10-1973 ”
On 31-10 1973 the following order was passed :-
“Reply not filed. Heard. Shri Gursaran Singh Advocate is appointed as Local Commissioner to record the statement of Radha Kishan on commission. His fee is fixed as Rs. 30/- to be paid by plaintiff. Report be filed on 7-11-1973.”
11. These orders Indicate that the contesting deferdants have had an opportunity to rebut the allegations made in the application dated October 23, 1978 for appointment of a local commissioner to record the statement of Radha Kishan In the application, it was stated that the attesting witnesses of the gift deed and exchange deed were dead. They did not controvert the pleas made in the application. An inference is drawn that the allegations made in the application were correct and the executants of the exchange deed and of the gift deed and their attesting witnesses had died long time back The statement of the scribe was recorded on commission Pt. Radha Kishao, Petition Writer, stated on oath that the gift deed dated September 9, 1946 was scribed by him. It was read over to the donor who affixed his left hand thumb impression after admitting its contents to be correct. Marginal witnesses Didar Singh Lambardar and Naranjen Singh put their left hand thumb impressions in his presence. In the petitioner writer’s register entry regarding the gift deed was made at Sr. No. 671, dated September 3, 1946 The original gift deed was forthcoming from the successors-in-interest of the done No dispute was raised that the gift deed did not bear the thumb impression of the donor. The petition writer was categoric in his statement that the marginal witnesses of the gift deed had put their thumb impressions in his presence. In these circumstances, the courts below were in error in not admitting this document into evidence. The same is admitted into evidence and is exhibited as Ex. RSA/2. These two documents clearly establish that Bir Singh was not owner of the plot which he purported to have sold to the defendants vide sale deed Ex. D 1 He had no subsisting interest in the property/since he had given the same to Narain Singh under the exechange deed dated January 3, 1946. Narain Singh in turn bad gifted the same to Lekh Raj Brahmin by caste as Dharam arth (for religious purpose) The progeny of Lekh Raj sold the plot in dispute to the three sons of Bir Singh vide sale deeds Ex. P-3 to Ex. P-5. These vendees from the progeny of Lekh Raj sold the plot in dispute to the plaintiff vide sale deeds Ex. P-l and Ex. P-2, dated September 4, 1972 and September 13, 1972 respectively. Thus, it is abundantly proved on record that the plaintiff is owner of the site in dispute The defendants’ claim that they bad purchased the site in dispute along with other land cannot be sustained since on the date when Bir Singh sold the disputed plot to them, he had no subsisting interest in it. The finding to the contrary recorded by the courts below is reversed and it is held that the plaintiff is owner of the plot in dispute having validly purchased from his vendors who in turn had purchased the same from the previous owners vide sale deed dated August 27, 1980 Ex P-3, Ex. P-4 and Ex P 5. The plot being a vacant plot, will be deemed to be in possession of the true owner unless contrary is proved. Accordingly, it is held that the plaintiff is owner in possession of the plot in dispute.
12. For the foregoing reasons, the appeal is accepted, the judgment and decrees of the courts below are set aside and the suit of the plaintiff is decreed with costs throughout.