JUDGMENT
M.M. Kumar, J.
1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that plaintiff-respondent No. 1 is entitled to possession of the suit land by way of specific performance of the agreement to sell dated 28.1.1990. Both the Courts below have concurrently found that despite the fact that original agreement to sell dated 28.1.1990 has not been produced but by way of secondary evidence (permitted vide order dated 28.3.1998) it has been proved. In support of the fact that agreement dated 28.1.1990 was executed the relevant entry in the register of the scribe was got proved by the plaintiff-respondent as Ex.PW2/A by producing Megh Raj Scribe/Draftsman PWZ. Megh Raj had slated that the suit land was agreed to be sold for a sum of Rs. 2,40,000/- and Rs. 2,00,000/- was paid by the plaintiff-respondents to the defendant-appellants was earnest money. He further deposed that defendant-appellants had appended their signatures on his register. A certified copy of the register has been produced on record as Ex.PW2/A. Vijay Singh, Patwari, PW3 has also testified about the execution of the agreement between the parties. The theory of fraud propounded by the defendant-appellants has been summarily rejected because no evidence has been produced to prove and substantiate the fraud. Reliance has also been placed on compromise Ex.D1 which is an admitted document between the parties as per the joint statement dated 3.8.1993. Compromise Ex.D1 shows that defendant-appellant Chandro has categorically admitted the execution of the agreement and receipt of a sum of Rs. 2,00,000/- as earnest money. She further staled that they were all ready to get the sale deed executed. The afore-mentioned statement tacitly proves the execution of the agreement to sell dated 28.1.1990.
2. It is further appropriate to mention that both the Courts below have found that the plaintiff-respondent has always been ready and willing to perform has part of the contract. On 27.2.1991 he was present in the office of the Sub-Registrar but defendant-appellant failed to turn up. The affidavit Ex.P14 was prepared and application Ex.P15 was submitted to the Sub Registrar. The afore mentioned documents have been duly proved by the plaintiff-respondent who appeared as PW1 and both the Courts below have held that those two documents show that for administrative exigency 27.2.1991 was not the day kept for registration of the transfer deeds by district revenue authorities. But the plaintiff-respondent had appeared and was carrying the balance sale consideration. On 28.2.1991 an application Ex.P16 was submitted to the Sub Registrar on which endorsement was made and the same was returned to the plaintiff-respondent.
3. Shri Narinder Hooda, learned counsel for the defendant-appellant has vehemently argued that certified copy Ex.PW2A from the Deed Writer’s register is not admissible in evidence as it cannot constitute secondary piece of evidence. According to the learned counsel, copy from the original alone could constitute secondary evidence. Learned counsel has referred to Section 63(3) of the Indian Evidence Act, 1882 (for brevity the 1872 Act) to argue that if such certified copies as Ex. PW2A are allowed to be treated as secondary evidence then the possibility of forged document passing of as genuine documents could not be ruled out. According to the learned counsel it cannot be accepted as secondary evidence of the original merely because an entry has been made in the register of the scribe with regard to the agreement to sell dated 28.1.1990. Learned counsel has further argued that it is unbelievable that a sum of Rs. 2,00,000/- would be paid as earnest money out of the total amount of Rs. 2,40,000/- and in fact it is a case of fraud and mis-representation practised on the defendant-appellant. Another contention raised by the learned counsel is that execution of the agreement or passing of consideration to the defendant-appellant has not been proved.
4. After hearing the learned counsel, I am of the considered view that the instant appeal is devoid of any merit and is thus liable to be dismissed. The theory of obtaining signatures fraudulently for the purposes of obtaining loan sanctioned from the Bank at the representation made by Vijay Singh Patwari PW3 in connivance with plaintiff-respondent PW1 has not been accepted by both the Courts below. There is a variation in the pica raised in the written statement and the evidence led on behalf of the defendant-appellant. The afore-mentioned plea was set up in the written statement by stating that signatures were obtained on some blank papers as well as on the register for getting the loan sanctioned. However, when the defendant-appellant Suit. Chandro appeared as DW1, Raj Bir-DW2, Balbir Singh-DW3 and Raj Kumar-DW5 all of them staled that .Raj Kumar son of Chandro had suffered an electric shock and at that time Vijay Singh, Patwari, PW3 had assured them that he would arrange some financial help from the Government. it was on account of the afore-mentioned assurance that blank papers were got signed and thumb marked at 4-5 places. The plea set up in the plaint and referred in the evidence is quite different. Similarly when Radhey Singh, plaintiff-respondent No. 1 appeared as PW1 and Vijay Singh, Patwari as PW3 they were not cross-examined on the changed version. No suggestion was put to the PWs. Therefore, an adverse inference was raised by the Courts below against the defendant-appellants. There is sufficient evidence on record to prove that defendant-appellants entered into an agreement lo sell the suit land on 28.1.1990 for a consideration of Rs. 2,40,000/-. Entry in the Deed Writer’s register Ex.PW2/A at S. No. 31 which embody the gist of the agreement and the details of the suit land forming part of the agreement has been duly proved which is thumb marked by the defendant-appellants Chandro and Balbir, It has also been signed by R.K. Singh in English, Rajbir in Hindu, thumb marked by Jangira and signed by plaintiff-respondent Radhey Sham in English. On the proof that original was in possession of the defendant-appellants, secondary evidence was allowed vide order dated 28.3.1998 and Ex.PW2/A was brought on record. Deed Writer DW2 Megh Raj brought his register of the year 1990 and showed to the Court entry at serial No. 31 dated 28.1.1990. Copy of Ex.PW2A is a copy of the gist of the agreement to sell as entered in the Deed Writer’s register. Ex.D1 is a copy of the compromise which also has been thumb marked by Chandro one of the defendant-appellant and signed by one Raj Bir Singh another defendant-appellant as well as by plaintiff-respondent Radhey Sham.
5. The argument of the learned counsel that execution of the agreement to sell has not been proved would not require any detailed consideration. It has been accepted that signatures were obtained by Vijay Singh, Patwari. In other words, the defendant-appellants have not denied their signatures either on the agreement to sell or on the register of the scribe copy of which has been produced on record as Ex.PW2/A. The other argument that Ex.PW2/A cannot be considered as a secondary evidence is also without any substance. Section 63 of the 1872 Act defines secondary evidence and the same is reproduced hereunder for facility of reference:
“63. Secondary evidence.- Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies:
(3) copies made from or coopered with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it. Illustrations
(a) to (b) xx xx xx
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.”
6. Section 65 of the 1872 Act gives the detail of the cases where the secondary evidence relating to the documents could be entertained.
7. 11 is beyond doubt-that vide order dated 28.3.1998 it was proved to the satisfaction of the Court that the original was in possession of the defendant-appellant and thereafter secondary evidence was allowed to be adduced. It is also beyond doubt that PW2 Megh Raj who is a scribe of the agreement to sell dated 28.1.1990 has in unmistakable terms stated that agreement to sell was executed by the defendant-appellants and a consideration of Rs. 2,00,000/- was also passed on to them. It is also patent that he himself scribed the agreement and have made entry in his register which was produced before the Court. A copy thereof Ex.PW2/A has been kept on Court record.
8. In view of the above facts the question which needs consideration is whether the statement made by Megh Raj, scribe alongwith the gist of Ex.PW2/A could be considered as secondary evidence. On account of two reasons, the answer to the question has to be in the affirmative. Firstly, under Section 63(5) and illustration (d) supra of the 1872 Act oral accounts of the contents of a document given by some person who has himself seen it has to be treated as a secondary evidence. It is true as is evident that oral account of the contents of a copy of the original as given in illustration (d) of Section 63 of the 1872 Act may not be secondary evidence. It is beyond doubt that the agreement lo sell dated 28.1.1990 was not only seen but was scribed by Megh Raj PW 2. He was fully competent to depose about the material particulars of the document. Infact he had deposed about the execution by proving signatures and passing of the consideration to the defendant-appellants. It is further clear that Ex.PW2/A which is an entry of the gist of the agreement to sell made at serial No. 31 would certainly be a copy transcribed from the original document especially when the author of the original as well as of the gist of the same person namely Megh Raj PW2. Such a piece of evidence is admissible in view of illustration (c) appended to Section 63 of the 1872 Act. There is nothing on the record to impeach the credit of PW2 nor any such cross-examination has been conducted on this witness.
9. The Judgment in the case of Harijiwan Sahu v. Jaiream Saint and Ors., A.I.R. 1989 Pat. 96 relied upon by the learned counsel does not advance the case of the defendant-appellants because in that case it has only been observed that secondary evidence within the meaning of Sub-section (3) of “Section 63 of the 1872 Act could be of the two documents namely a document that may be a copy made from the original or it must be a copy compared with the original; otherwise it may not pass on as secondary evidence. However, in the present case, the facts are entirely different and Sub-section (5) of Section 63 of the 1872 Act read with illustration (c) and (d) would clearly prove that the statement made by PW 2 alongwith PW2/A would be secondary evidence and there is no reason to set aside the findings recorded by the Courts below on that account.
10. I am of the considered view that no question of law much less a substantial question of law would arise for consideration of this court warranting admission of the appeal which is a condition precedent under Section 100 of the Code.
For the reasons recorded above, this petition fails and the same is dismissed.
Petition dismissed