1. Heard Sri Arun Kumar, for the petitioner and Sri R.C. Singh, along with Sri Ravindra Sharma, for the contesting respondents.
2. This petition has been filed against the order of Deputy Director of Consolidation, dated 01.07.2006 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act').
3. The dispute between the parties is in respect of basic consolidation year khata 98 of village Bagahi, Tappa Mail, pargana Salempur Majhauli, district Deoria, which was recorded in the names of Subhash and Suresh (respondents-2 and 3) (hereinafter referred to as the respondents). Harish Chand (the petitioner) filed an objection (registered as Case No. 343/2348) under Section 9-A of the Act, for recording his name over it and deleting the names of the respondents. He claimed that Sachchan was bhumidhar of the land in dispute. Sachchan died on 08.10.1967, leaving behind him the petitioner as his only son and heir of the land in dispute. Since then the petitioner was in possession of the land in dispute. The petitioner was minor at the time of death of Sachchan. Taking advantage of minority of the petitioner and illiteracy of his widow mother, the respondents got their names mutated over the land in dispute, on the basis of a fabricated sale deed dated 09.10.1967. The petitioner, through his guardian, filed a suit (registered as O.S. No. 452 of 1968) on 27.3.1968, for cancellation of the sale deed, before Civil Court, which was abated by order dated 07.05.1971, under Section 5 of the Act. The objection was contested by the respondents and they have stated that the sale deed of the land in dispute was executed by Sachchan on 09.10.1967 in their favour. One Brij Kishore Maurya, who is Panchayat Secretary of the village, got this objection filed through his sister-in-law Prem Sundari, impersonating herself as Smt. Gulaichi and her minor son Harish Chand. Although, Smt. Gulaichi was not wife of Sachchan, nor Harish Chand was son of Sachchan.
4. Consolidation Officer, after hearing the parties, by his order dated 27.11.1978 held that Sachchan died on 08.10.1967, and, sale deed dated 09.10.1967 is fabricated document. He further found that Smt. Gulaichi was not the widow of Sachchan, nor Harish Chand was the son of Sachchan. On these findings, he dismissed the objection of the petitioner, directed for deleting the names of the respondents and recording the land in dispute in the name of Gaon Sabha. Harish Chand filed an appeal (registered as Appeal No. 1/1/13) and the respondents filed another appeal (registered as Appeal No. 2/2/14) from the order of Consolidation Officer. Before Appellate Court, both the parties were allowed to lead their additional evidence. Assistant Settlement Officer Consolidation, after hearing the parties, by order dated 10.03.2005 affirmed the finding of Consolidation Officer that Sachchan died on 08.10.1967. He held that sale deed dated 09.10.1967 was executed by some imposter and not by Sachchan. He also relied upon statement and report of Sri M.M. Kakkar, Fingerprint & Hand Writing Expert and found that thumb impressions of Sachchan in the Register No. 8 of sale deed dated 09.10.1967 were not tallying with admitted thumb impressions of Sachchan on the sale deeds dated 31.03.1959 and 03.03.1964, previously executed by him. So far as Smt. Gulaichi, the mother of the petitioner is concerned, he relied upon Kutumb Register, Electoral Roll of the year 1968-1969 as well as oral evidence of the petitioner and found that Smt. Gulaichi was widow of Sachchan and Harish Chand was his son. On these findings, he allowed the appeal of the petitioner and dismissed the appeal of the respondents and directed for recording the name of the petitioner over land in dispute.
5. The respondents filed two separate revisions and Gaon Sabha filed one revision against the order of Assistant Settlement Officer Consolidation. All the three revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 01.07.2006 held that admitted thumb impressions of Sachchan on the sale deeds dated 31.03.1959 and 03.03.1964 were tallying with his thumb impression on Register No. 8 of the sale deed dated 09.10.1967. Loops of his thumb impressions on both the sale deeds had curved towards left and had fifteen ridges between delta and core. The other expert report are not clear on this point. As sale deed dated 09.10.1967 was executed by Sachchan as such his death on 08.10.1967 was not proved. The names of the respondents were mutated in revenue record on the basis of sale deed dated 09.10.1967. Consolidation Court has no jurisdiction to go into controversy that sale deed was in favour of minors as such it is void. On these findings, he allowed the revision of the respondents, dismissed the revision of Gaon Sabha and maintained the basic year entry. Hence, this petition has been filed.
6. The counsel for the petitioner submitted that Appellate Court framed two issues for determination, i.e. (i) whether sale deed dated 09.10.1967 was executed by Sachchan in favour of the respondents? and (ii) whether Smt. Gulaichi was the widow and Harish Chand was the son of Sachchan?. The petitioner in order to prove his case, has filed certified copies of Kutumb Register, Death Register, Voter List of 1968-69. In order to get thumb impressions of Sachchan on sale deed dated 09.10.1967, tallied from his admitted thumb impressions, the petitioner filed sale deeds dated 31.03.1959 and 03.03.1964, executed by Sachchan. As the respondents withheld the original sale deed dated 09.10.1967, the petitioner summoned Register No. 8 relating to sale deed dated 09.10.1967, from office of Sub-Registrar. He filed Expert Reports of Sri. M.M. Kakkar, a Fingerprint & Hand Writing Expert and Sri S.N. Mukherji a Government Fingerprint & Hand Writing Expert, who had examined thumb impression of Sachchan on the sale deed dated 09.10.1967, in connection with a criminal case, i.e. Crime No. 32/1968, which was later on investigated by C.B.C.I.D. who has submitted charge sheet against the respondents and the witnesses of the sale deed. They proved their reports. The petitioner also examined Brij Kishore Maurya, Panchayat Secretary (PW-1), Naga Chaudhary, Pradhan of the village (PW-2), to prove Extracts of Death Register, Kutumb Register and Electoral Roll. Smt. Gulaichi also entered into the witness box as PW-3 and stated that she was widow of Sachchan and the petitioner was the son of Sachchan. The statement of Smt. Gulaichi was relevant to prove the relationship by conduct under Section 50 of Evidence Act, 1872. From the evidence of the petitioner, it was fully proved that Sachchan died on 08.10.1967 and the petitioner was the son of Sachchan and after his death, he had inherited the property. As Sachchan had died on 08.10.1967, sale deed dated 09.10.1967 was executed by some imposter of Sachchan. Deputy Director of Consolidation relied upon the report of Sri R.R. Sahai, without even referring to the reports of Sri M.M. Kakkar and Sri S.N. Mukherji. Deputy Director of Consolidation ought to have tallied the report of expert from the disputed fingerprint and then would have recorded his own independent finding, about genuineness of the thumb impression of Sachchan on the sale deed dated 08.10.1967. He relied upon the report of Sri R.R. Sahai and without assigning any reason discarded reports of Sri M.M. Kakkar and Sri S.N. Mukherji. Sri R.R. Sahai, had no degree relating to examination of fingerprints, as admitted by him in his oral statement. His report cannot be termed as an expert report and is not admissible under Section 45 of Evidence Act, 1872. Judgment of Deputy Director of Consolidation is based upon inadmissible evidence, as well as ignoring the admissible evidence on record. He has illegally set aside findings of facts of appellate court without assigning any reason. His order is liable to be set aside.
7. I have considered the arguments of the counsel for the parties and examined the record. Consolidation Officer and Assistant Settlement Officer Consolidation, relying upon Death Register and Kutumb Register, which were proved by Brij Kishore Maurya, Panchayat Secretary (PW-1), Naga Chaudhary, Pradhan of the village (PW-2), held that Sachchan died on 08.10.1967. Deputy Director of Consolidation, without referring direct evidence relating date of death of Sachchan held that Sachchan was alive on 09.10.1967, as his thumb impression on Register No. 8 of the sale deed 09.10.1967 was tallying with his admitted thumb impression. Instead of dealing with direct evidence, he drew inference in respect of issue of death of Sachchan. Course adopted by Deputy Director of Consolidation in this respect is illegal. Findings of Consolidation Officer and Assistant Settlement Officer Consolidation in this respect do not suffer from any illegality. It has been illegally set aside on the basis of inference by respondent-1.
8. The respondents based their title on sale deed dated 09.10.1967, allegedly executed by Sachchan in their favour. The petitioner denied execution of sale deed by Sachchan and stated that after death of Sachchan sale deed was manufactured. Burden was upon the respondents to prove due execution of the sale deed. They did not file original sale deed. Akshaiber (DW-3), father of the respondents stated that the respondents, who were 12 years and 9 years old at the time of sale deed, himself negotiated and finalized deal for sale deed. At the time of sale deed, he did not went to the office of Sub-Registrar for execution/registration of sale deed. Original sale deed was lost, in the way of Salempur but no information relating to its missing was given to police. Sudeen (DW-1), marginal witness, in his statement recorded on 08.02.1977 has stated that sale deed was executed one year prior to his statement. Jeeut (DW-2), the other marginal witness was resident of about 4 k.m. away from village Bagahi and he was not knowing either to Sachchan or Suresh and Subhas, who were minors at that time. His being marginal witness is not a natural conduct. On the basis of these evidence, appellate court found that due execution of sale deed was not proved by the respondents. From aforesaid facts it is clear that the respondents have not produced best evidence in their possession as such adverse inference is liable to be drawn against them under Section 114 Illustration (g) of Evidence Act, 1872. Deal of sale deed was negotiated and finalized by minors of 12 and 9 years old, which is also not a natural conduct. Explanation as required under Section 65 (f) of Evidence Act, 1872, to adduce secondary evidence, was not given. Statement of marginal witnesses were not reliable to prove due execution of sale deed. Deputy Director of Consolidation illegally reversed the findings of appellate court without considering aforesaid circumstances in cursory manner, only relying upon exert evidence.
9. Supreme Court in Gurmukh Ram Madan (Dr) v. Bhagwan Das Madan, AIR 1998 SC 2776, held that a sale deed is not a public document and its secondary evidence could not have been let in evidence except after explanation as to the non-availability of the original in an appropriate manner. In J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730, held that secondary evidence, is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. In Tukaram S. Dighole v. Manikrao Shivaji Kokate, AIR 2010 SC 965, held that the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a "public document" secondary evidence is admissible even though the original document is still in existence and available. In H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492, held that the provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
10. Deputy Director of Consolidation based his findings only on expert evidence. So far as expert evidence relating to thumb impression of Sachchan on the disputed sale deed is concerned, expert evidence is admissible under Section 45 of Evidence Act, 1872, relevant part of which is quoted below:-
45. Opinions of experts.--When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.
Such persons are called experts.
Illustrations
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.
11. Sri R.R. Sahai, expert of the respondents, in his statement has admitted that he had not done any special course relating to examination of Handwriting and Finger Prints. His report cannot be treated as expert evidence within meaning of Section 45 of the Act. He further stated that photographs taken by him for the purposes of its enlargement, were blurred. If the photograph was blurred, then his report in respect of number of ridges in between delta and core, is not reliable. His report is not reliable also. In any case, the Court has to form his opinion in respect of genuineness of thumb impression, by examining original thumb impression with the help of expert report and not to take expert report as gospel truth as done in present case. Deputy Director of Consolidation has ignored reports and statements of Sri M.M. Kakkar and Sri S.N. Mukherji, evidence of the petitioner, on the ground that number of ridges in between delta and core in these reports are not tallying with the report of Sri R.R. Sahai. Supreme Court in State of Gujrat Vs. Vinaya Chandra Chhota Lal Pathi, AIR 1967 SC 778, held that sole evidence of a handwriting expert is not normally sufficient for recording a definite finding that the writing being of certain person or not. In Lalit Popli v. Canara Bank, (2003) 3 SCC 583, held that it is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. In Ajay Kumar Parmar v. State of Rajasthan, (2012) 12 SCC 406, held that where there is an opinion whether of an expert, or of any witness, the court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision.
12. The respondents failed to prove due execution of sale deed dated 09.10.1967 by Sachchan. Findings of Consolidation Officer and Assistant Settlement Officer Consolidation in respect respect has been illegally set aside by Deputy Director of Consolidation, relying upon inadmissible evidence and ignoring relevant evidence.
13. So far as Smt. Gulaichi, being widow and Harish Chandra being son of Sachchan is concerned, Smt. Gulaichi entered into witness box. Her name was recorded in Kutumb Register and Electoral Roll as wife of Sachchan, which were proved by Brij Kishore Maurya (PW-1) and Naga Chaudhary (PW-2). Sudeen (DW-1) admitted that Smt. Prem Sundari was widow of Sachchan. According to the respondents, Smt. Prem Sundari was impersonating herself as Smt. Gulaichi. Consolidation Officer ignored the statement of Smt. Gulaichi on the ground that she could not state the name of maternal uncle of Sachchan. Appellate court relied upon her statement and other evidence on record and held that Smt. Gulaichi was widow and Harish Chandra was son of Sachchan. For a rustic and illiterate lady, who had become widow within a short period , it is not possible to remember name of relations of her husband. Findings of appellate court in this respect, does not suffer from any illegality. Deputy Director of Consolidation has not decided this issue as he had found that sale deed dated 09.10.1967 was valid.
14. In view of aforesaid discussions, writ petition succeeds and is allowed. Order of Deputy Director of Consolidation dated 01.07.2006 is set aside. The order of Assistant Settlement Officer Consolidation dated 10.03.2005 is affirmed.
Order Date :- 11.8.2016 Jaideep/-