1. This appeal under section 100 of the Code of Civil Procedure is filed by one of the Decree Holders – original plaintiff No.2 who along with one Shri Bijalbhai Devjibhai Prajapati filed Special Civil Suit No. 15 of 1982 for specific performance of contract against one Ravjibhai Mathurbhai Solanki (deceased) and Galuji Mathurbhai Solanki on the basis of agreement to sell dated 24th March, 1980 for the lands from Final Plot No. 432/2, 432/4 and 432. Total area of all the final plots came to 4873.78.12 square meters, out of which the original owners kept 708.17.60 square meters of land for themselves (505.84.05square meters from Final Plot No. 432/2, and 202.30.62 square meters from FP No. 432) and for remaining land ad-measuring 4135.60.45 square meters, agreement to sell was executed. The suit was originally filed against the above said two original land owners, who were defendant No.1 and 2 respectively, and four other defendants. However, pending the suit, since the plaintiffs came to know that the original owners had sold the suit lands to the other persons, they were joined in the suit as defendants No.7 to 19. Subsequently, defendants No.4 and 5 were deleted from the suit proceedings. Said suit was allowed by the Trial Court vide judgment and decree dated 27.3.1984 and the defendants were directed to execute sale deed in favour of the plaintiffs in respect of the suit lands. It was also provided in the judgment that if the defendants failed to execute the sale deed, the sale deed shall be executed in favour of the plaintiffs through Court Commissioner and the plaintiffs shall also be put into possession of the suit land by the Court Commissioner. Against the judgment and decree passed by the trial Court, defendant No.1 and 2 had filed First Appeal No. 889 of 1984 and other defendants had filed first appeal No. 1118 of 1984 before this Court.
2. It appears that pending the appeals, the plaintiffs filed Execution Petition No. 103 of 1988 (New Execution Petition No.19/89) on 12.8.88 against the defendants for execution of sale deeds in their favour and for possession of the suit lands. There is no dispute about fact that pending the first appeals before this court,defendant No.1 deceased Ravji M. Solanki filed affidavit dated 23.9.1991 in the First Appeal No. 889 of 1984 stating that since the stay was vacated in respect of Final Plot No. 432 and 432/2, he was willing to execute document of sale in respect of the said two plots as per the decree of the trial court. He stated that he did not intend to prosecute the appeal and desired to comply with the judgment and decree in respect of the said two plots. He also stated that he and defendant No.2 decided to complete the sale transaction in respect of the said two plots for which he was having possession. The sale deeds were then executed by the owners in favour of the appellant for different plots from the two final plots. Thereafter, in the above execution petition, the present appellant-original plaintiff No.2 filed one purshis dated 26.11.1991 stating that since the settlement between the parties had taken place,the execution petition was not to be prosecuted and was to be disposed of. The executing court, therefore passed following order on 26.11.1991;
“As the decree holder do not want to proceed with the matter, this execution is disposed of.”
3. It further appears that the plaintiff No.1 Bijal Devji Prajapati had also moved one Civil Application in the said First Appeal No. 889 of 1984 on 13.9.1993 for deletion of his name from the first appeal and for declaring that he has no more interest in the subject matter of the appeal as he has waived/released his claim over the suit land. In his application, he has stated that he had withdrawn his share from the said plots of land in view of the settlement arrived between him and appellant and he has no objection if the appellant dispose of the lands in dispute or obtain possession of the lands from the original vendors or other parties to the first appeals.
4. It further appears that pending the first appeals before this Court, the appellant had filed another execution proceedings,being Execution Petition No.28 of 2000, against all the defendants on 12.8.2000, praying that defendant Nos.3 and 6 to 19, be directed to confirm the sale deeds executed by defendant Nos.1 and 2 in favour of the appellant and be further directed to handover possession of the land held by them from the suit land to the appellant. It is also prayed that if the defendants fail to do as stated above, the Court may direct the Commissioner to get confirmation on the sale deeds by defendant Nos.3 and 6 to 19 and to handover the possession of the lands held by them to the appellant. It also appears that the said execution petition was rejected by the Executing Court, vide order dated 9.11.2000 on the ground that earlier execution petition was disposed of on the basis of the declaration of the appellant-plaintiff No.2 not to prosecute execution proceedings and therefore,the appellant had no right to initiate execution proceedings again for the same cause. Against this order of the learned Executing Court, the appellant had also filed Civil Revision Application No.1200 of 2000 before this Court.
5. The first appeals and the revision application were then heard and decided together by the Division Bench of this Court and by common judgment and decree dated 4.9.2003, those two appeals were dismissed and the civil revision application was allowed. Thus, Execution Petition No.28 of 2000 came to be restored to file. Judgment delivered in the first appeals with civil revision application in the case of Ravjibhai Mathurbhai Solanki (Decd.) through his heirs & LRs versus Bijalbhai Devjibhai Prajapati & Ors. has been reported in 2003(3) GLR at page No.2563. From the said decision, following observations from para 8 and
21.1 need to be reproduced and they are as under:-
“8. The Civil Revision Application is preferred by plaintiff no. 2 as already stated above. In the CRA he has prayed that the judgment and order dated 9th November, 2000 passed by the learned Jt. Civil Judge [S.D.] Anand below Exh. 1 in Execution Petition No. 28 of 2000 be quashed and set aside and to direct the respondents to execute the requisite sale-deeds in favour of the petitioner of the said CRA i.e. plaintiff no. 2. He has further prayed that in the event of said respondents failing to execute the sale-deeds, the Sale Commissioner be appointed to complete the said formality. It is to be mentioned here that both defendants i.e. defendants nos. 1 and 2 have expired during the pendency of the First Appeals. Defendant no. 1 - Ravjibhai Mathurbhai has expired on 20th October, 1998; whereas defendant no. 2 - Gagujibhai Mathurbhai has expired on 20th July, 1988. (As per the affidavits filed by his heirs, the date is 4th March, 1990). Their heirs and legal representatives have been duly brought on record of these appeals. It is also borne out from the record that in the year 1991 the heirs of defendant no. 2 and defendant no. 1 Ravjibhai himself have executed sale-deeds of most of the lands comprising the suit land. Mr. M.B. Gandhi, the learned advocate appearing for plaintiff no. 1 in the aforesaid Civil Revision Application has produced a compilation comprising copies of different documents including affidavits of Defendant no. 1 and heirs and legal representatives of defendant no. 2 and various sale-deeds which have been executed by them in favour of plaintiff no. 2, which have come into existence during pendency of the First Appeals and which now form part of the record.
From affidavit filed by Ravjibhai Mathurbhai Solanki in First Appeal No. 889 of 1984 in the month of September 1991, it appears that on Civil Application No. 2616 of 1984 filed by him and other appellants of that appeal, this Court had passed order staying the execution of specific performance of the contract. However, the same was vacated by this Court in view of Civil Application No. 877 of 1988 filed by respondents no. 1 and 2 of the appeal i.e. plaintiffs nos. 1 and 2. The orders referred to above were in respect of lands bearing final plot no. 432 and 432/2. In view of vacation of the stay order, Ravjibhai and plaintiffs decided to complete the transaction. Pursuant to said decision following transactions of sale were completed by the parties by executing sale-deeds in respect of F.P. No. 432 and 432/2. The details are :-
(1) T.P. Scheme No. 1, F.P. No. 432, Admeasuring 405.24.00 sq. mtrs., Amount Rs.40,000/= dtd. 1st October, 1991
(2) T.P. Scheme No. 1, F.P. No. 432, Admeasuring 405.14.50 sq. mtrs., Amount Rs.40,000/= dtd. 1st October, 1991
(3) T.P. Scheme No. 1, F.P. No. 432, Admeasuring 405.02.00 sq. mtrs., Amount Rs.40,000/= dtd. 5th October, 1991
(4) T.P. Scheme No. 1, F.P. No. 432/2, Admeasuring 668.43.32 sq. mtrs., Amount Rs.70,000/= dtd. 1st October, 1991
(5) T.P. Scheme No. 1, F.P. No. 432/2, Admeasuring 607.00.00 sq. mtrs., Amount Rs.60,000/= dtd. 1st October, 1991.
It may be noted here that appellant no. 10 of this appeal viz. Rameshbhai Ravjibhai Solanki is one of the attesting witnesses of these documents.
It may also be noted here that Ravjibhai had sold sub-plot no. 4 of F.P. No. 432 to defendant no. 3 Bhikhabhai Khetabhai Prajapati by sale-deed dated 15th January, 1982. Despite decree, defendant no. 3 did not execute the sale-deed in favour of plaintiffs. Hence, plaintiff no. 2 filed execution proceedings wherein permission to execute the decree was granted. Even thereafter defendant no. 3 did not comply with it. Hence, Court Commissioner executed sale-deed in favour of plaintiff no. 2 on 13th November, 1998. Its details are -
T.P. Scheme No. 1, F.P. No. 432, Admeasuring 404.93.87 sq. mtrs., Amount Rs.40,000/= dtd. 13th November, 1998.
Similarly heirs of deceased Gagujibhai Mathurbhai Solanki have also executed sale-deeds in favour of plaintiff no. 2 for various sub-plots of F.P. No. 432/4. The details as as under :-
(1) T.P. Scheme No. 1, F.P. No. 432-4 (Northern portion), Admeasuring 531.50 sq. mtrs., Amount Rs.50,000/= dtd. 14th October, 1991.
(2) T.P. Scheme No. 1, F.P. No. 432-4 ( Southern portion), Admeasuring 506.00 sq. mtrs., Amount Rs.50,000/= dtd. 1st November, 1991.
Thus, it can be seen that for major portion of the suit land, sale-deeds have been executed and plaintiff no. 2 has been put in possession of it. The land, which remains to be passed on to the plaintiffs by way of execution of the sale-deeds, is a small piece of land forming part of Final Plot No. 432/2 admeasuring 910 sq. mtrs., which is still in possession of defendants nos. 6 to 19. This shows that so far original defendants nos. 1 and 2 are concerned, they are now totally out of the picture as they have already executed the sale-deeds in respect of the land in their possession and they are no more in this world. In fact Defendant no. 1 Ravjibhai has declared in aforesaid affidavit that he did not intend to prosecute the First Appeal No. 889/1984.”
21.1. It is true that the earlier execution proceedings in respect of the decree in question were withdrawn by plaintiff no. 2. However, perusal of record shows that the said pursis intimating settlement between the parties to the Court was filed in view of the fact that original defendant no. 1 and the heirs of defendant no. 2 who were the owners of the suit land had already executed sale-deeds in favour of plaintiff no. 2, details whereof have been duly stated in para. 8 of this judgment. The said proceedings were filed against the original defendants nos. 1 and 2 only. Since they had executed the sale-deeds there was no point in pursuing the said execution proceedings any further. In the circumstances, plaintiff no. 2 was obliged to file the aforesaid pursis. However, it is very clear that present defendants were not party to the said proceedings nor does the record show that there was any adjustment or settlement between the parties and the same was duly certified by the Court as required under rule 2 and rule 2A of Order 21 of the Code of Civil Procedure. It is, therefore, obvious that so far the remaining portion of the land undelivered to plaintiff no. 2 is concerned and which is in possession of defendants nos. 6 to 19, plaintiff no. 2 was well within his rights to get sale-deeds executed by them in view of the decree passed by the trial Court, particularly when consideration for the undelivered land also has already been paid way back in the year 1991. Further provisions of Order 23 of the Code of Civil Procedure dealing with withdrawal and adjustment of suits are referred to, rule 4 of the said order lays down that provisions of Order 23 shall not apply to any proceedings in execution of a decree or order. Moreover, it can be said that there is no decision on merits of the Court in earlier proceedings and the proceedings were simply withdrawn in view of the pursis submitted by plaintiff no. 2. The plaintiff no.
2 is, therefore, entitled to file present execution petition and reap the fruits of decree which has been passed in his favour about 19 years back.”
6. It further appears that after the first appeals were disposed of in the month of September 2003 and after Special Execution Petition No.28 of 2000 was restored to file, the appellant- original plaintiff No.2 moved an application dated 26.9.2003 at Exh.36 for adding more prayers in the execution petition in respect of all three plots, including Plot No.432/2. The additional prayer made in respect of final Plot No.432/2 is to direct the heirs of defendant No.1 to execute sale deed in respect of the remaining land ad-measuring 910.50.43 Sq. Mtrs. and to direct the heirs of defendant No.10 with defendant Nos.11 and 12 to handover the possession of the remaining area of the plot and if they fail to do so, it may be ordered to be done by the Court Commissioner.
7. Below the said application Exh.36, the Executing Court passed ordered dated 20.10.2003, rejecting the request for granting time to other defendants and for appointing one Shri P.M. Joshi, advocate, as Court Commissioner, to take legal steps in respect of the prayer made in Exh.36 and to report to the Court. At this stage, the present respondent raised objection at Exh.103 in the above- said special execution petition on 20.11.2003, stating that he was owner and in possession of the land ad-measuring 607 Sq. Mtrs. of Final Plot No.432/2 under sale deed dated 16.10.1991. The said sale deed was executed by plaintiff No.1 Bijalbhai on 16.10.1991 in knowledge and with the consent of the appellant-plaintiff No.2-one of the decree holders. It is further stated that details about rights acquired under the said sale deed have been given in his pending suit being Special Civil Suit No.129 of 2003 filed against the appellant and the facts stated therein may be taken as part of his objection application. It is further stated that the prayer made by the appellant in his execution petition since covered the land purchased by him, his right will be seriously prejudiced. He thus prayed in his objection application to exclude his land ad-measuring 607 square meters from Plot No.432/2 from execution petition. The above-said application of the respondent-objector Exh.103 was opposed by the appellant by filing reply at Exh.107 stating that as per the judgment delivered by the Division Bench of this Court, sale deed in respect of the remaining land ad-measuring 910.50.43 Sq. Mtrs. of Final Plot No.432/2, for which he had paid Rs.90,000/- to the original owner, still remained to be executed and it was not believable that the respondent had become owner of the land ad-measuring 607 Sq. Mtrs. and therefore, his objection application be ordered to be rejected.
8. It appears that pending the objection application of the respondent, the appellant had moved one Misc. Civil Application No.92 of 2005 in disposed of First Appeal No.889 of 1994, with a prayer to direct the Court Commissioner to give possession without any encroachment on the land of Final Plot NO.432 ad-measuring 12 gunthas, i.e. 1215.40.50 Sq. Mtrs. and Final Plot No.432/2 ad- measuring 16 gunthas, i.e. 1578 Sq. Mtrs. and further direct the Court Commissioner to execute sale deed in favour of the appellant for three gunthas, i.e. 303.50.43 Sq. Mtrs.. In the body of this application, it is stated that as per the decree passed by the High Court, possession of the property of Final Plot no.432/2 of 16 gunthas, excluding 6 gunthas (out of 22 gunthas) ad-measuring 1578.93 Sq. Mtrs. and Final Plot No.432, i.e. 1215.40.50 Sq. Mtrs. and Final Plot no.432/2 ad-measuring 3 gunthas, i.e. 303.50.43 Sq. Mtrs. is to be given and document of sale is tobe executed by the Court Commissioner. On the above averments, the said prayer was made. The Division Bench however, observed that it had not granted any more land to the appellant than what had formed subject matter of the suit. The Court also took note of the fact that execution proceedings were still pending before the Trial Court. Thus, the Court did not think it fit to entertain the application and accordingly, the same was rejected.
9. After the above-said application was rejected by the Division Bench of this Court, objection of the respondent at Exh.103 came to be rejected by the executing court on the ground that the same was not tenable. However, said decision was reversed in the appeal filed by the respondent and the first appellate court remanded the matter to the executing court to hear and decide the application Exh. 103 after permitting the parties to adduce the evidence. The objection application Exh. 103 was then heard and decided by the executing court and the executing court came to the conclusion that the parties were not at liberty to enter into any sale deed pending the first appeal before the High Court and, therefore, the objector could not be considered to be bona fide purchaser. The executing Court further observed that except the document on Government record, no other documents were proved, therefore, objector could not be said to have proved his objection by cogent and reliable evidence. The executing court further came to the conclusion that simply because the documents presented by the objector were given exhibit number, the objector was not absolved from proving the contents of the documents and since the power of attorney holder is not entitled to give evidence the documents exhibited could not be said to have been proved. On such reasoning, the executing court ultimately rejected the objection application of the respondent by judgment and order dated 19.2.2011.
10. The respondent, therefore, preferred Civil Appeal No.24 of 2011 before the District Court challenging the judgment and order passed by the Executing Court. Learned Appellate Judge on appreciation of oral as also the documentary evidence available on record, came to the conclusion that the sale deed which was first executed in favour of Bijalbhai Devjibhai Prajapati- original plaintiff No.1 by defendant No.1 Ravjibhai for land ad- measuring 607 from Final Plot No.432/2 has been proved and that the disputed sale deed was very much in knowledge of the appellant from the date of its execution and he never disputed about such sale deed. Learned Appellate further came to the conclusion that evidence on record clearly established that the respondent has acquired ownership in the property in question by registered sale deed dated 16.10.1991 executed by Bijalbhai Devjibhai Prajapati, who was also a joint holder of the agreement to sell. The Appellate Court also considered the affidavit of said Bijalbhai Devjibhai Prajapati before the Division Bench of this Court, wherein it was stated that there was settlement between two plaintiffs and two vendors- defendant Nos.1 and 2 had already executed sale deed in respect of three plots of the land in favour of the appellant. Learned Appellate Judge further considered that the appellant had in his execution petition initially made prayer for confirmation of the sale deed by defendant Nos.6 to 19 and did not seek any relief against defendant Nos.1 and 2. Learned Appellate Judge further considered the observations made by the Division Bench of this Court in its judgment in para Nos.8,20 and 21 and found that the defendant Nos.1 and 2 were totally out of picture and it was for the original defendant Nos.3, 6 to 19 who were to execute sale deed in respect of the remaining land. Learned Appellate Judge also rejected the contention of the appellant that the appellant had paid consideration of Rs.90,000/- for the land in question by observing that the said consideration could not have been for the land in question as the plaintiff has failed to prove payment of such consideration for the land in question by not entering into the witness box. On the basis of such findings and conclusions reached by learned Appellate Judge, ultimately, learned Appellate Judge allowed the appeal by judgment and order dated 31.7.2012 and declared that execution shall be excluding the property of sub-plot No.2 and 3 ad-measuring 607 Sq. Mtrs. of Final Plot No.432/2 of Town Planning Scheme No.1 of Anand as comprised in the deed of sale of Bijalbhai Prajapati in favour of Kiritbhai Bhagwandas-respondent herein, vide registered sale deed No.3881 dated 16.10.1991 before the Sub-Registrar, Anand. Learned Appellate Judge further clarified that his order would operate against the appellant only and not against any right of any person and shall not be construed as granting execution for 3 gunthas of land from Final Plot No.432/2 in favour of the plaintiffs. It is this judgment and order which is under challenge before this Court in this appeal.
11. I have heard the learned advocates for the parties. Mr. Dhaval C. Dave, learned Senior Advocate with learned advocate Mr. Shivang Shukla for the appellant submitted that the executing court had rightly come to the conclusion that the respondent had failed to prove the contents of the documents produced on record to establish that he has become owner of the land in question. He submitted that neither the contents of the sale deed executed by Ravjibhai in favour of plaintiff No.1 Bijalbhai were proved nor the contents of the sale deed executed by Bijalbhai in favour of respondent were proved. He thus submitted that since the respondent has failed to legally prove both the documents, it could not be said that the respondent had become owner of the land in question. Mr. Dave submitted that even if the signature of the appellant was found on the sale deed, it could be at the most as attesting witness and as per the settled law, attesting witness is not supposed to know the contents of the document. He relied on [1] 1997 (2) GLH 506 in the case of John Mithalal Desai versus Dineshbhai K. Vora; [2] 1999(2) GLH 564 in the case of State of Gujarat versus Gaurang Mathurbhai Leuva; [3] AIR 1916 Privy Council 110 in the case of Banga Chandra Dhur Biswas and another versus Jagat Kishore Acharya Chowdhuri and others; [4] AIR 1922 Privy Council 20 in the case of Pandurang Krishnaji versus M. Tukaram and others, [5] 1980 (2) GLR 322 in the case of Rajgor Revashankar Kunverji versus Rajgor Jashubhai wd/o Rajgor Virji Bhavanji. Mr. Dave submitted that the executing court had rightly come to the conclusion that the deposition given by the power of attorney of respondent was not admissible in evidence and, therefore, document of sale could not be said to have been proved by the evidence of the power of attorney holder. In support of this contention, Mr. Dave has relied on 2005(2) SCC 217 in the case of Janki Vashdeo Bhojwani and another versus Indusind Bank Ltd. and others, and 2010 (10) SCC 512 in the case of Man Kaur (Dead) by LRs versus Hartar Singh Sangha. Learned Senior Advocate Mr. Dave further submitted that the Division Bench of this Court has clearly recorded that the appellant was still entitled to get the sale deed executed in his favour for remaining land of 910 square meters which includes the land in question. Therefore, the learned appellate Judge was not justified in coming to the conclusion that the respondent had successfully proved that he has become owner of the land ad- measuring 607 square meters from plot No.432/2. He submitted that when the decree was jointly in favour of both the plaintiffs, defendant No.1 had no right or authority to execute the sale deed for the land in question in favour of only one of the plaintiffs and since such sale deed was invalid in the eye of law, respondent could not have acquired any right or title in the land in question by virtue of sale deed alleged to have been executed by Bijalbhai D. Prajapati, one of the plaintiffs in his favour.
12. Mr. Dave submitted that in any case, the appellant being joint decree holder would be entitled to at least half of the land in question and, therefore, learned appellate Judge ought not to have allowed the objections raised by respondent in the execution petition filed by the appellant. He submitted that the sale deed in respect of the land in question to the extent of the share of the present appellant would stand invalid and the appellant would become entitled to get the sale deed executed with possession to the extent of 50% from the land in question. Mr. Dave submitted that there were collusive efforts made by decree debtor, plaintiff no.1 and respondent to deprive the appellant of his legitimate right under the decree to get the sale deed executed in respect of the land in question especially when the plaintiff no.1 had in unequivocal terms declared before the Division Bench of this Court that he had waived all his rights in all the lands covered under the agreement to sell. He pointed out that the sale deed, one by Ravjibhai in favour of Bijalbhai and second one by Bijalbhai in favour of respondent were executed on the same day i.e. on 16.10.91 and such an act on the part of defendant No.1, plaintiff No.1 and respondent was strong proof of their clever design to defeat rights of the appellant for the land in question. Mr. Dave submitted that the title to the land in question of plaintiff No.1 was not complete by virtue of the sale deed executed in his favour by defendant No.1 because under the decree, not only the defendant No.1 and 2 but other defendants who were third parties were also required to be join in the execution of the sale deed. Since defendant No.1 only executed the sale deed in favour of the plaintiff no.1, plaintiff no.1 did not derive any complete title in the land in question, therefore, respondent could not be said to have become the owner of the property in question on the basis of such defective title of plaintiff no.1. He relied on AIR 1954 SC 75 in the case of Durga Prasad and another v. Deep Chand and others . Mr. Dave submitted that once the Division Bench of this Court has held and observed that only two sale deeds for two plots out of final plot no.432/2 were executed in favour of the appellant and for the remaining land ad-measuring 910 square meters, sale deed still remained to be executed in favour of the appellant, it was not open for the learned First Appellate Judge to go against the finding and observations recorded by the Hon’ble Division Bench of this Court and to hold that by virtue of sale deed executed in favour of the respondent, the respondent had become owner of the land in question. He submitted that neither the respondent was entitled to put forth objection nor the learned appellate Judge was justified in considering the objections of the respondent and in holding that the respondent has become owner of the land in question without seeking clarification from the Hon’ble Division Bench of this Court. He submitted that to establish his title to the land in question, the respondent was required to produce the original sale deed and prove the contents thereof. However, he produced the photo copy by way of secondary evidence and even the contents of such photo copy as secondary evidence were not legally proved. The secondary evidence is not admissible in evidence unless strong reasons for such secondary evidence were made available to the court by a person claiming title under the secondary evidence. He, thus, submitted that the respondent has not proved the secondary evidence and, therefore, the learned appellate Judge has committed serious error in relying upon such secondary evidence to hold that the respondent has become owner of the land in question. He submitted that since the appeal raises debatable questions of law on the rights of the parties, this Court may entertain the appeal on the the substantial questions of law suggested in para no.1 of the memo of appeal. Mr. Dave has relied on (2006) 5 SCC 545.
13. As against the above arguments canvassed by the learned Senior Advocate Mr. Dave, learned Advocate Mrs. Ketty A. Mehta appearing for the respondent submitted that the respondent was not a stranger to the agreement to sell between the plaintiffs and defendant No.1 and 2. She submitted that this very respondent was a party to the agreement to sell but at the relevant time, since he was not in sound financial position, he got himself detached from the agreement. She submitted that this very appellant was a party to the subsequent document of Kabulatnama and also witnessed two sale deeds and has now come out with dishonest plea by taking undue advantage of absence of deceased defendant no.1 and deceased plaintiff no.1 and bed ridden respondent Kiritbhai who was not in a position to come to the court to give his evidence and who had to depute his son by way of power of attorney to give evidence before the Executing Court and to do all the other acts required to be done before the Court. She submitted that the plaintiff No.1 Bijalbhai was equally entitled to have the sale deed executed in his favour on the basis of the decree, filed application in the year 1993 stating that there was already settlement between the parties and two vendors had executed sale deed in favour of the appellant and he was having no objection the appellant taking possession of the land as per the decree. She submitted that the appellant has conveniently not disclosed the details about such settlement referred in the application of plaintiff no.1. She submitted that the appellant has also not entered the witness box so as to avoid his cross examination whereby he would have been compelled to speak about the settlement and all other true facts. She submitted that when the appellant had not come forward to give evidence especially for the settlement between the parties, execution of sale deed in favour of the plaintiff no.1 by defendant no.1 and subsequent sale deed in favour of respondent by plaintiff No.1 could be taken to have been executed pursuant to such settlement and in knowledge and with the consent of the appellant and it was not open to the appellant to challenge the legality and validity of the above said two sale deeds by putting forward the technical pleas as regards proof of the contents of the sale deeds, especially when this very appellant had withdrawn the first execution petition by filing purshis clearly stating therein that the said execution petition was not to be proceeded on account of private settlement between the parties. She submitted that in the first execution proceedings, the plaintiff No.1 was also one of the applicants and decree debtors were opponents no.1 and 2. Learned advocate Mrs. Mehta further submitted that the observations made by the Hon’ble Division Bench of this Court in para 8 and 21.1 are thus required to be read and understood in the context of the earlier events happened especially of the withdrawal of the first execution proceedings in the year 1991. She submitted that since the defendants no.1 and 2 had executed the sale deeds in favour of the appellant and plaintiff no.1 who was joint decree holder in the year 1991, decree against defendant no.1 and 2 was already satisfied and nothing further remained to be done by defendants No.1 and 2. Therefore, Division Bench has rightly observed that the defendants No.1 and 2 were out of picture for the purpose of execution of the decree and it was open to the appellant to execute decree only against defendants no.6 to 19 for the land remained with them. She submitted that the reference to the remaining land to the extent of 910 square meters in the judgment of the Division Bench of this court could not be construed so as to include the land in question held by the respondent under the valid sale deed. Such mention of 910 square meters made in the judgment of the Division Bench was because of the misrepresentation of the appellant and in absence of respondent. She submitted that it clearly appears that by getting the above said measurement recorded by the Division Bench of this Court in absence of the respondent, the appellant dishonestly intended to create clouds over the title of the respondent in respect of the land in question. She drew attention of this Court to the vital fact that before the decision was rendered by the Division Bench of this Court in the first appeal, the second execution petition was filed only with a prayer to get the confirmation from the defendants no.6 to 19 on the sale deeds executed by defendants no.1 and 2 and to seek possession through such confirmation only from defendants no.6 to 19. She submitted that the above sole prayer only against the defendants no.6 to 19 in the execution proceedings was strong proof about knowledge and consent of the appellant for execution of sale deed by defendant no.1 in favour of the plaintiff no.1 and by plaintiff no.1 in favour of the respondent in the year 1991. She submitted that since the appeals were still pending before this Court, clever advise made the appellant to misrepresent and to get recorded by the Division Bench only the facts concerning execution of the sale deeds in his favour and the facts of sale deed for the area of 910 square meters remained to be executed pursuant to the decree. She submitted that such recording of facts that the sale deed of 910 square meter still remained to be executed is not binding to the respondent as the respondent was not party in the first appeal and it is therefore always open to the executing court to decide right, titles and interest of the parties before it in the land in question on the basis of the available evidence. She submitted that the first appellate court has rightly decided such rights, title and interest of the parties on the basis of the evidence available and has, thus, committed no error in holding that the respondent has become owner of the land in question.
14. Mrs. Mehta further submitted that it is not open to the appellant to raise a contention that defendant no.1 was not entitled to execute sale deed in respect of the land in question only in favour of the plaintiff no.1 though there was joint decree. She submitted that the appellant is equally beneficiary of such kind of two sale deeds executed in his favour alone by defendant no.1 from this very final plot no.432/2. She submitted that though it was a joint decree, but since the appellant himself got two sale deeds executed in his favour and the fact that there was a reference to the settlement between the parties in the application made by the plaintiff no.1 in the first appeal are strong grounds to believe that the sale deeds executed in individual names of two plaintiffs by defendant no.1 were pursuant to the settlement between the parties and as per the volition and with consent of the parties and, therefore, not only there is no illegality in execution of such sale deed by defendant no.1 in faovur of the plaintiff no.1 but the appellant is estopped from raising such plea in the second appeal. Mrs. Mehta submitted that the learned appellate Judge has rightly come to the conclusion that the respondent has well proved that not only the appellant was aware about the execution of sale deed in the year 1991 but he was also consenting party to such sale deeds. This being the finding of fact, this Court may not interfere with such finding of fact while exercising the powers under section 100 of the Code of Civil Procedure. Mrs. Mehta further submitted that the learned appellate Judge has rightly come to the conclusion that the documents of sale deeds were duly proved. She submitted that it was the very appellant who called in question the entries made in favour of respondent on the basis of the sale deeds in his favour and such revenue proceedings were going on pending the first appeals and, therefore, it was for the appellant to seek declaration by filing separate suit for the purpose of holding the sale deeds invalid. She submitted that the contents of the sale deeds were duly proved not only as per the provisions of the Evidence Act but by oral evidence of the son of respondent who had in clear terms stated in his deposition that when the sale deed was executed, he was present with his father - respondent and sale deeds were signed in his presence and the appellant had also put his signature on the sale deed in favour of the respondent. He identified the signature of the persons including the plaintiffs who put their signatures on the sale deed. She submitted that the sale deed was registered and under the provisions of the Evidence Act, though the sale deed was a private document but being registered in the office of the Sub Registrar and under the custody of the Sub Registrar, such would be a public document and therefore secondary evidence of such public document was rightly held admissible in evidence and the contents thereof were well proved by the evidence of the son of the respondent. She submitted that there are documents exhibited on record from the office of the Sub Registrar who had informed respondent for the payment of deficit stamp duty and who had informed higher officer that two pages of sale deed were detached and certified copy was then prepared which clearly go to show that there was sale deed executed in favour of the respondent by plaintiff no.1 in respect of the land in question and no other proof was required to believe the execution and the contents of sale deeds in respect of the land in question. She submitted that the certified copy of the sale deed was permitted to be produced as secondary evidence by the Courts below and the same was after giving tentative exhibit read in evidence on the basis of the deposition of the son of the respondent. She has also drawn attention of the court to the certified index from the office of the Sub Registrar regarding execution of the sale deed in respect of the land in question between plaintiff No.1 and respondent and to the certificate issued by the Collector of Stamps as regards payment of deficit stamp duty of Rs.29428.00 paid by the respondent. Mrs. Mehta literally took the court through the
Registration Act and pointed out that the registered sale deed were public documents and since were coming from the custody of the public office, execution and the contents of such public document also stood proved. She submitted that since the son of the respondent was power of attorney holder and who was also present at the time of execution and registration of the sale deed with his father and who was posted with full knowledge by the respondent was fully entitled to prove the contents of the sale deed and by his evidence, sale deeds are duly proved. She therefore submitted that the learned appellate Judge has committed no error in holding that the respondent has become owner of the property and the appellant cannot prosecute the execution petition against the land in question. In support of her arguments, learned advocate Mrs. Mehta has relied on the following judgments:
[1] Jagdishchandra Chandulal Shah versus State of Gujarat and others, 1989 (1) GLH 82.
[2] Smt. Hans Raji v. Yosodanand, AIR 1996 SC 761.
[3] State of Jammu and Kashmir v. Ghulam Mohd. Dar and another, AIR 2004 SC 510.
[4] Annapurna Sahuani versus Prasad Sahu and others, AIR 1967 Orissa, 129.
15. Having heard the learned advocates for the parties and having perused the judgment and order passed by the courts below with the documents contained in the paper book supplied by learned advocate for the respondent which are on record of the case, it appears that there was an agreement to sell dated 24.3.80 executed by defendant No.1 deceased Ravjibhai Mathurbhai Solanki and Gaguji Mathurbhai Solanki in favour of plaintiff No.1 Bijalbhai Devjibhai Prajapati, the appellant and the respondent. It further appears from the copy of this agreement that the name of the respondent was subsequently deleted. Agreement was in respect of final plot No.432/2, final plot no.432 and final plot no.432/4, total measurement of all the final plots comes to 4843.78.12 square meters out of which agreement was for the land ad measuring 4135.60.45 square meters and as stated in the agreement, the land owners retained 505.84.05 square meters from final plot no.432/2 and 202.33.62 square meters from final plot no.432 and thus, the land owners retained total 708.17.67 square meters of land from the above said two plots of land.,Thus, so far as plot no.432/2 is concerned, the agreement to sell was for the land ad-measuring 1680.09.70 (2185.93.75 square meters minus 505.84.05 square meters).
16. It appears that there was a settlement between the parties and, therefore, defendant no.1 filed affidavit on 23.9.91 in first appeal filed by them stating therein that he and defendant No.2 would complete the transaction in respect of plot no.432 and 432/2 and pursuant to such settlement, the appellant submitted purshis in his first execution petition confirming such settlement in the purshis and withdrew the execution petition on 26.11.91. Before withdrawal of the execution proceedings, two important events took place. One is the execution of two sale deeds in favour of the appellant dated 1st October, 1991, one for land ad-measuring 668.43.32 square meters and another for the land ad-measuring 607 square meters from Final Plot No. 432/2 sale deeds for the lands of other final plots. The second one is the execution of sale deed by defendant no.1 in favour of the plaintiff no.1 and execution of sale deed by plaintiff no.1 in favour of the present respondent on 16.10.1991 in respect of the land in question disputed by the present appellant. From the above facts, it is not difficult to come to the conclusion that the settlement between the parties for which the appellant has not thought it fit to disclose anything was obviously for entire land in question of final plot no.432/2, otherwise, prudent man like the appellant who was under well advise would not have withdrawn the first execution petition. If, after execution of the two sale deeds in favour of the appellant for two different plots from final plot no.432/2, further sale deed for the land in question had remained to be executed, the appellant would have certainly continued with the first execution proceedings. But he took conscious decision of withdrawal of the first execution proceedings on the ground of settlement between the parties and never made any grievance till today about such withdrawal of the first execution petition.
17. In my view, the above facts are suggestive of strong proof that the appellant accepted execution of sale deed in favour of plaintiff no.1 by the defendant No.1 and further execution of sale deed by the plaintiff No.1 in favour of respondent as part of the settlement and, therefore, very wisely, he has not been speaking anything in respect of the settlement. By not entering into the witness box, he has kept himself away from being cross-examined by and on behalf of the respondent in the execution proceedings. Above said conduct on the part of the appellant itself is the strong proof of execution and contents of the sale deed in favour of the respondent. The appellant therefore cannot be permitted to challenge the validity of sale deed in favour of the respondent on the ground that the contents thereof have not been properly proved.
18. At this stage, some of the important documents including the sale deeds produced by the witness Kiritkumar B. Vyas, the son and power of attorney holder of respondent are required to be referred. These documents when produced by the said witness were initially given tentative exhibit numbers but these documents stood proved by the evidence of the said witness who has given full facts concerning execution of the documents and contents thereof. Tentative exhibit numbers were given to such documents from 406/1 to 406/17 from which, 406/2 is the copy of receipt for payment in the office of the Sub Registrar for registration of sale deed executed by defendant no.1 in favour of the plaintiff No.1 on 16.10.91 and 406/3 is the copy of the said registered sale deed. 406/4 is the copy of index of the registered sale deed from defendant No.1 to plaintiff No.1, from the office of the Sub Registrar. 406/5 is the receipt from the office of the Sub Registrar for registration of sale deed executed by plaintiff no.1 in favour of respondent and 406/6 is the copy of registered sale deed executed by plaintiff no.1 in favour of respondent. All the above documents were then given regular exhibit numbers from Exh.446 to 448 on the basis of the evidence of the son of respondent. Exh. 449 is the certified copy of index from the office of the Sub Registrar regarding registration of sale deed between the plaintiff and respondent.
19. The photo copy of registered sale deed between the plaintiff no.1 and respondent coming from the office of the Sub Registrar was allowed to be produced as secondary evidence. This photo copy was required to be sent by the office of the Sub Registrar to the respondent on his making payment of deficit stamp duty, the receipt of which is produced on record with the said photo copy because the original sale deed was not available with the office of the Sub Registrar. The fact about the non availability of the registered sale deed of the respondent got supported by the communication from the office of the Deputy Collector, Stamp Duty Valuation Department Anand and from the office of the Sub Registrar. The letter dated 8.8.2006 addressed by the Deputy Collector, Stamp Duty to the Sub Registrar, Anand recorded that the respondent has purchased the land in question in the year 1991 under sale deed registration No. 3881-91 and sale deed had gone to the office of the Deputy Collector, Stamp Duty under the provisions of section 32-A of the Stamp Duty Act. It is further recorded that original sale deed was not available in the record but recently on checking the record, the original sale deed could be traced out, but last two pages of the said sale deed were not found. It is further recorded that the party had paid deficit stamp duty but it was not possible to give incomplete sale deed to the party and, therefore, photo copy was sent so that the certified copy of such photo copy could be given to the party. This communication is produced in evidence at Exh. 415. Then comes the communication dated 18.8.2006 addressed by the Sub Registrar Anand to the Deputy Collector Stamp Duty stating that the photo copy of the sale deed was being sent as required by communication dated 8.8.2006. The Deputy Collector then wrote letter dated 9.5.2008 to the respondent stating that his original sale deed was lying for long time with his office for non payment of stamp duty. On payment of the deficit stamp duty under the amnesty scheme of 2006, original sale deed was required to be sent to him. However, since the original sale deed was not available, from the record, photo copy was sent duly certified by the office of the Sub Registrar. It is further stated that on finding out the original copy of the sale deed, the respondent could be informed and his original sale deed would be him. These all communications are on record of the case and they are from the public offices of the Sub Registrar and the Deputy Collector, Stamp Duty. At this stage, it is required to be noted that after the sale deed was executed in favour of the respondent, entry no. 46433 in the revenue record was mutated on 28.5.92 in the name of the respondent in respect of the land in question.
20. Now, if we peruse the deposition of the son of respondent, he has clearly stated that the sale deeds were executed in his presence and he was accompanying his father and communications from the office of the Sub Registrar and Deputy Collector were also received in his presence. He has given details in his deposition about the measurement of the land in question, four boundaries of the land in question in the sale deed, the execution of sale deed by plaintiff no.1 in favour of respondent in his presence. He has further stated that in his presence, the sale deed was signed by plaintiff no.1, the son of plaintiff no.1 namely Kanubhai and even by the appellant. He identified signatures of all three persons including the appellant and he has stated that the stamp paper for the sale deed was purchased by his father. His father had put his signature for purchasing the stamp paper. He also stated about the payment of consideration by his father. Learned appellate Judge has also recorded that the signature of appellant resembled with his signature as found on other documents. This witness has also stated that only 303.50.43 square meters remained with the defendant and the prayer made by the appellant for execution of sale deed through commissioner for the land ad-measuring 910.50.43 square meters out of total land under the agreement to sell could not be granted in favour of the appellant as the respondent has become the owner of the land ad-measuring 607 square meters of Final Plot No. 432/2.
21. At this stage, the provisions of section 63 to 65 and 74 of the Evidence Act as also the provisions of section 51, 52 and 57 of the Registration Act are required to be referred and they read as under:
“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 compared with 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.
64. Proof of documents by primary evidence. - Documents must be proved by primary evidence except in the cases herein after mentioned.
65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-
(a) When the original is shown or appears tobe in 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, or 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 permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consists 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.
74. Public documents.- The following documents are public documents.-
(1) Documents forming the acts, or records of the acts
(i) of the sovereign authority,
(ii) of the official bodies and tribunals, and
(iii) of public officers, judicial and executive,of any part of India or of the Commonwealth, or of a foreign country;
(2) Public records kept in any State of private documents.
Section 51, 52 and 57 of the Registration Act:
51. Register-books to be kept in the several offices.- (1) The following books shall be kept in the several offices herein after named, namely:-
A- In all registration offices-
Book 1, “Register of non testamentary documents relating to immovable property”
Book 2, “Record of reasons for refusal to register”
Book 3, “Register of wills and authorities to adopt” and Book 4, “Miscellaneous Register”
B- In the offices of Registrars-
Book 5, “Register of deposits of wills”
(2) In Book 1 shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89 which relate to immovable property, and are not wills.
(3) In book 4 shall be entered all documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property.
(4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a Sub Registrar.
52. Duties of registering officers when documents presented.- (1) (a) the day, hour and place of presentation, the photographs and finger prints affixed under section 32A, and the signature of every person presenting a document for registration shall be endorsed on every such document at the time of presenting it;
(b) a receipt for such document shall be given by the registering officer to the person presenting the same; and
(c) subject to the provisions contained in section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission (2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector General.
57. Registering officers to allow inspection of certain books and indexes and to give certified copies of entries. (1) Subject to the previous payment of the fees payable in that behalf, the Books Nos. 1 and2 and the Indexes relating to Book No.1 shall be at all time open to inspection by any person applying to inspect the same ; and subject to the provisions of section 62, copies of entries in such books shall be given to all persons applying for such copies.
(2) Subject to the same provisions, copies of entries in Book No.3 and in the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents and after the death of the executants (but not before) to any person applying for such copies.
(3) Subject to the same provisions, copies of entries in Book No.4 and in the Index relating thereto shall be given to any person executing or claiming under the documents to which such entries respectively refer, or to his agent or representative.
(4) The requisite search under this section for entries in Book Nos.3 and 4 shall be made only by the registering officer.
(5) All copies given under this section shall be signed and sealed by the registering officer and shall be admissible for the purpose of proving the contents of the original documents.”
22. In the case of Jagdishchandra Chandulal Shah (supra), learned Single Judge of this Court on considering the provisions of section 65 and 74 of the Indian Evidence Act as also section 57 of the Registration Act, has held and observed in paragraph 6, 7 and 11, as under:
“6. It may be stated that so far as the proving of the contents of the documents is concerned, it is provided in Chapter V of the Evidence Act, section 61 of the Evidence Act provides that contents of the documents may be proved either by primary or secondary evidence. Section 62 of the Evidence Act defines what is ‘primary evidence’. Primary Evidence means the document itself produced for the inspection of the court. The definition of ‘secondary evidence’ inter alia includes the certified copies given under the provisions contained in the said Act. Section 63 of the said Act also provides that secondary evidence may be given of the existing condition or contents of document in the cases enumerated therein inter alia when the original document is a public document within the meaning of section 74 of the said Act and when the original is a document of which a certified copy is permitted by this Act or by any other law in force in India to be given in evidence. So, secondary evidence in respect of a document can be given by certified copy of the document inter alia in cases enumerated in clause (e) and (f) of section 65 of the Act the certified copy of the document and no other kind of secondary evidence is permissible. Section 74 of the said Act specifies the documents which are ‘public documents’ and sub section (2) of section 74 provides that public records kept in the State of private documents are public documents. Private documents are defined as those documents which are not falling within the category of public documents. Section 77 of the said Act provides that such certified copies may be produced in proof of the contents of the public documents or parts of public documents or which they purport to be copies.
(7) From the above provisions of the Evidence Act, it is clear that there might be private documents but if public records thereof are kept in any State then such public records of the private documents would be public documents and, therefore, certified copies of such documents can also be produced in proof of the contents of the private documents of which public records are kept. Initially, such documents might be private documents and such private documents never change the character as private documents but if public records are kept then such public records of such private documents kept by the State would be public documents and therefore, though they might be copies of private documents, kept in the public record, they would be public documents and hence the contents thereof can be proved by producing certified copies thereof.
(11) Further, it may be mentioned that section 17 of the Registration Act inter alia provides that when there is any document of sale of immoveable property for the value of more than Rs.100.00 it requires compulsory registration. Section 51 of the Registration Act provides that the following shall be kept in the several offices:
A- In all registration offices-
Book 1, “Register of non testamentary documents relating to immovable property”
Book 2, “Record of reasons for refusal to register”
Book 3, “Register of wills and authorities to adopt” and Book 4, “Miscellaneous Register”
Section 52 of the Registration Act provides for duties of the registering officer when the document is presented for registration. Section 52 also inter alia provides that subject to the provisions of section 62 every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission. Section 57 of the Registration Act provides that the books no.1 and 2 and the index relating thereto relating to Book No.1 shall be not at all times open to inspection by any person applying to inspect the same and subject to provisions of section 62 copies of entries in such books shall be given to all persons applying for such copies. Sub section (5) of section 57 provides that all copies given under this section shall be signed and sealed by the registering officer and shall be admissible for the purpose of proving the contents of the original documents. When that is the legal position, the document at Sr. NO.6 which is the certified copy of the sale deed in respect of the disputed land would be a public document and therefore admissible for the purpose of proving the contents of the original document. However, it is clarified that whenever the question of execution of same arises it will be required to be proved according to law.”
23. Thus, in the present case, secondary evidence allowed to be given was of public document within the meaning of section 74 of the Evidence Act and all copies of sale deeds and indexes produced on record since signed and sealed by the Sub Registrar were admissible in evidence for the purpose of proving the contents of original documents as per the provisions of section 57 of the Registration Act.
deposition given by the son of respondent who had personal knowledge about the execution of two sale deeds and also about the communication from the office of the Sub Registrar and Deputy Collector, I am of the view that not only execution of two sale deeds was proved but the contents thereof also stood proved.
25. It is true that as per the principles laid down by the Privy Council in the case of Banga Chandra Dhur Biswas and another (supra) and in the case of Pandurang Krishnaji (supra), attesting witness of the document cannot be conferred with the knowledge of the contents of the documents. It is also true that as per the principles of law laid down by this Court in the case of John Mithalal Desai (supra), and Gaurant Mathurbhai Leuva (supra), contents of the documents are required to be proved and mere exhibit of document is no proof of contents of document. It is also true that as per the law laid down by Hon’ble the Supreme Court in the case of Durga Prasad and anotehr (supra), third party purchaser should join in execution of the document of sale. However, in the fact situation of the present case, all these judgments relied on by Mr. Dave would have no application. Present case is not the one where the appellant was claiming possession in the land in question and the respondent claiming to be the owner of such land in question. Present is a case where both the appellant and respondent are claiming title to the land in question on the basis of decree of specific performance of contract. Therefore, once the right which the appellant was claiming to the land in question was on the basis of decree of specific performance and once it is proved that the appellant had in a similar way got two sale deeds executed in his favour and such sale deeds executed in favour of the appellant and in favour of the respondent are held to be pursuant to the settlement and in satisfaction of the decree by defendant no.1 and 2, it was sufficient for respondent to prove execution of sale deed by plaintiff no.1 who got sale deed executed in his favour by defendant no.1 on the basis of decree for specific performance. Simply because the third party purchasers have not joined the execution of sale deed in favour of plaintiff no.1, that by itself would not be a ground to hold that the sale deeds executed in favour of plaintiff no. 1 and respondent are invalid sale deeds. In any case, such contention is not available to the appellant and the third party have never made grievance in respect of the execution of the sale deeds in question. Therefore, I do not find that the judgment relied by learned Senior Advocate Mr. Dave would be of any help to the case of the appellant.
26. Learned Senior Advocate Mr. Dave however argued that the sale deeds cannot be said to have been legally proved because the power of attorney holder is not entitled to give evidence as per the law settled by Hon’ble the Supreme Court of India. In the case of Janki Vashdev (supra), Hon’ble the Supreme Court has held that the power to depose in place of principal extends only to acts done by the power of attorney holder in exercise of power granted by the instrument. Term acts would not include deposing in place and instead of principal for the acts done by the principal. Similarly, power of attorney holder cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which principal is liable to be cross examined.
In the case of Mankaur (supra), Hon’ble the Supreme Court has summarized the position as to who could give evidence in regard to the matters involving personal knowledge. Similarly, what is restricted by Janki (supra)is as regards deposition in respect of the acts done by power of attorney holder in exercise of power granted by the instrument and such would not include deposition for the acts done by the principal and in respect of the matters which are in personal knowledge of only the principal. In the present case, as discussed above, the power of attorney holder happened to be the son of the ailing father-respondent and he deposed as regards his personal knowledge in respect of the execution and contents of the sale deed for the land in question. He has stated that he was posted with all facts concerning the disputed property by his father. He has deposed for the facts and events took place in his presence in connection with the execution of sale deed. Therefore, in my view, the above said two judgments cited by the learned Senior Advocate Mr. D.C.Dave cannot be of any help to the case of the appellant.
27. In the case of Smt. Hans Raji (supra) relied on by Mrs. Mehta, Hon’ble the Supreme Court has held and observed that when the Court below has, on appreciation of the evidence, recorded finding of fact on the basis of evidence available on record about the execution of sale deed, such finding of fact is not required to be interfered with. Other judgments relied on by learned Advocate Mrs. Mehta are having no application to the facts of the case.
28. The contention raised by Mr. Dave that the subsequent purchasers have not joined the defendant No.1 in execution of the sale deed and the defendant No.1 could not have executed sale deed in favour of plaintiff No.1 alone for the land in question as the decree was in favour of both the plaintiffs cannot be accepted because the appellant has already got two sale deeds executed in his favour from this very Final Plot No. 432/2 and if such sale deeds in favour of the appellant could be taken as part of the above referred settlement, it does not lie in the mouth of the appellant to contend that the execution of sale deed by defendant No.1 in favour of plaintiff No.1 was not valid. Similarly, the contention of Mr. Dave that the appellant would be in any case entitled to one half share in the land in question also cannot be accepted in view of the fact that the appellant has not come forward honestly to spell out the terms of settlement and on what basis he would be entitled to one half share in the land in question. If the appellant was entitled to one half share in the land in question, the appellant was required to claim such one half share by filing separate suit when he initiated proceedings before the revenue authorities in the year 1994 to establish that he was entitled to one half share in the land in question over and above the lands of two plots he got under two different sale deeds from the final plot no. 432/2.
29. As regards the contention raised by learned Senior Advocate Mr. Dave that Hon’ble the Division Bench having held and observed in the decision rendered in the first appeals filed by the defendants that the appellant will be still entitled to get the sale deed executed in his favour for 910 square meters of land, it is required to be noted that such observations were made not only in absence of the respondent but were clearly made by Hon’ble the Division Bench for the appellant to prosecute only against defendants No. 6 to 19. Division Bench has very clearly observed that defendants No.1 and 2 were out of picture for the purpose of satisfying the decree and executing sale deed in favour of the appellant.
22. As stated above, the appellant had withdrawn his first execution petition by stating in the purshis that there was already settlement between the parties. The withdrawal of the first execution petition was unconditional. Therefore, the decree against defendant No.1 and 2 was fully satisfied. Withdrawal of that execution petition had taken place after the defendants No.1 and 2 had executed sale deeds in favour of the appellant and respondent herein. The Division Bench of this Court has therefore permitted the appellant to prosecute execution proceedings against defendants No.6 to 19 who were stated to be in possession of the remaining land ad-measuring 910 square meters as represented by the appellant. At this stage, it is required to be noted that after the Division Bench dismissed the appeals, the appellant had moved the above referred Miscellaneous Civil Application which was rejected by the Division Bench observing that it had not granted any land more than the land under the decree and also took note of the fact that the execution proceedings were pending before the executing court. Therefore, cumulative effect of the observations of the Division Bench with the order passed in the Miscellaneous Civil Application would be that it was for the executing court to decide that for what remaining land the sale deeds were still to be executed under the decree. The observations made by the Division Bench that the sale deed for 910 square meters of land remained to be executed were only against defendants No.6 to 19 and such observations were not binding to the respondent as the respondent was not a party in the said proceedings and since the defendants No.1 and 2 were held to be out of picture for the purpose of execution of sale deeds on the basis of decree, the appellant cannot be permitted to take advantage of such observations of the Hon’ble Division Bench especially when it is proved that the respondent has become owner of the land in question. I am, therefore, of the view that the first appellate court has not committed any error in holding that the respondent has become owner of the land in question and that the appellant is not entitled to have sale deeds executed for the land in question on the basis of the observations made by the Division Bench of this Court.
23. For the reasons stated above, the appeal is required to be dismissed. Hence it is dismissed.
At this stage, learned Advocate Mr. Shukla for the appellant request to grant status quo for a period of four weeks. However, since no interim relief pending the appeal was granted, the request of Mr. Shukla cannot be accepted. Hence it is rejected.
(C.L.SONI, J.) anvyas