P L D 1952 Lahore 40 (PLP)

(c) Evidence Act (I of 1872)

S. 91‑Factum of agreement apart from its terms could be proved by oral evidence. Even if it could be held that the contents of the written agreement could not be proved, except by the production of the deed itself or secondary evidence where that was admissi ble, the factum or existence of the agreement could be proved apart from its terms. The fact of the existence of a particular relationship may be shown by parol evidence, though the terms which govern such relationship appear to be in writing. S. Mohsin Shah, for Appellants. Mahmud Ali, for Respondents. S. A. RAHMAN, J.‑The land involved in this regular second appeal was purchased at an auction held by the Pro vincial Government by Muhammad Khan, defendant 1, Ghulam Rasul and others, the plaintiffs' in the case, alleged that they and the second and third defendants had agreed with Muhammad Khan that the latter should bid on behalf of them all at the auction and they would share the land later in specified proportions. The parties, according to that agreement, contributed rate-ably towards the highest bid of Rs. 900 per acre given by Muhammad Khan on their behalf. Out of the auction price, a sum of Rs. 1,791 was deposited as an advance with Government and the balance of Rs. 7,164 was paid later. The parties, it was alleged further, had taken possession of their respective shares. Subsequently Government executed a formal sale‑deed in favour of Muhammad Khan, defendant 1, on the 3rd of January 1946, vide Exhibit D/1. This was fol lowed by a mutation on the 29th June 1947, and the entries therein made, recorded Muhammad Khan as the proprietor. The suit, out of which the present appeal has arisen, was brought by the plaintiffs for a declaration of their rights in the suit land and for an injunction restraining defendant 1 from interfering with their possession. The trial Court as well as the lower appellate Court found in favour of the plaintiffs, and the suit was decreed. Defendant 1 has come up in appeal to this Court. The first point urged on behalf of the appellant by Sayyed Mohsin Shah is that the Courts below acted erroneously in relying on oral evidence to prove the agreement set up by the plaintiffs as it had been incorporated in a written document later and section 91 of the Evidence Act barred the proof of any such agreement, except by the production of the document itself. That a document was executed by defendant 1 in favour of the alleged co‑sharers, was admitted by the plaintiffs and 'defendants 2 and 3, but they pleaded that the original document had been lost along with the receipts for payment of the rateable contribution made towards the price by these persons; executed by defendant 1. The loss of these docu ments was reported to the police, vide report recorded in the roznamcha of the police station, copy Exhibit P/5, dated the 27th November 1945. The oral agreement between the parties is said to have been arrived at on the 3rd April 1945 and the written‑deed executed on the 2nd August 1945. Sayyed Mohsin Shah contended that the loss of the original deed had not been satisfactorily established. There is, however, good evidence on the record in support of the concurrent finding of the Courts below to the effect that the original written agreement and the receipts had been lost from the possession of Khushi Muhammad plaintiff who made an immediate report at the police station about their loss. There seems to be a cleri cal mistake in the evidence of Head Constable Hashim Ali (P. W.1) who brought the original station house diary to prove the correctness of the copy P/5 inasmuch as he is recorded as saying that it was not in accordance with the original. The 'word " not " is obviously an error. Secondary evidence of the agreement, therefore, could have been adduced. Sayyed Mohsin Shah has drawn my attention to the provisions of section 63 of the Evidence Act which defines secondary evidence and has argued that the evidence led in this case on behalf of the respondents was not covered by that section, ire pointed out that Ch. Muhammad Afzal (P. W. 2), Rehmat Ali (P. W. 3), Muhammad Hayat (P. W. 4), Sardar Khan (P.W.5) and Muhammad Qasim (P.W.6) merely talked of the oral agreement between the parties before the auction and did not refer to any writing executed in their presence. Muhammad Sadiq (P. W. 10) is a witness to the execution of the receipt, for the consideration paid by the co‑sharers but no money was paid in his presence. It appears that this witness has mentioned two transactions but we are only concerned with one in this case, namely, that to which the copy of the receipt (Exhibit P/2) pertains. There was another attesting witness of the receipt, namely, Ghulam Rasul who 'is unfortu nately dead. This evidence was supplemented by the state ment of Ghulam Rasul plaintiff himself as P. W. 11 and of copies of entries made in the deed‑writer's register prepared by the deed‑writer himself and certified by him to be true copies, soon after the original deed of agreement and the receipts relating to the two transactions were lost. These copies are as marked Exhibit P/1 to Exhibit P/4 but we are really concerned with Exhibit P/1 and Exhibit P/2 in the present case. Sayyed Mohsin Shah contended that Exhibit P/1, which purported to be a copy of the deed‑writer's register relating to the written agreement, could not be accepted in evidence as it would be merely copy of a copy of the original document. He urged a similar objection against the admissi bility of Exhibit P/2 which purports to be a copy of the deed -writer's entry in his register concerning a receipt for the pay ment of Rs. 9,090‑12‑0 babat zar‑e‑neelam baqaya. The deed writer was one, Uttam Singh, who has become an evacuee. His present whereabouts, therefore, are not known and his original register is also not available. An attempt was made to find out if such a register had been deposited in the tehsil office. The evidence shows that no such register had been deposited in the relevant office. The position then is that the copies (Exhibit P/1 and Exhibit P/2) purport to have been true copies prepared by Uttam Singh, of entries in his deed writer's register. The question is whether they are admissible in evidence. In the first place, no objection appears to have been taken to the admissibility of these documents in the trial Court. That would not, however; conclude the matter as it is argued that at the most these copies would show that certain entries existed in a deed‑writer's register and would not, according to Sayyed Mohsin Shah, advance the case for the respondents materially. On behalf of the respondents, reliance is placed on section 32 (2) of the Evidence Act. This provision makes statements, written or verbal, of relevant facts made, inter alia by a person who cannot be found, or who has become incapable of giving evidence, or whose attend ance cannot be procured without an amount of delay or' expense which under the circumstances of the case appears to the' Court unreasonable, relevant when such statements are made by the person concerned in the ordinary course of business 'and in particular when they consist of entries or memoranda made by him in books kept in the ordinary course of business, or in the discharge of professional duty. According to Mahmud Ali, if we read this provision along with the provisions of section 63 of the Evidence Act, Exhibit P/1 should be regarded as admissible in evidence, as it must be regarded as a copy made from, or compared with, the original by Uttam Singh on the basis that the original register entries themselves constituted relevant evidence. Abdul Aziz (P. W. 8) and Wali Muhammad (P. W. 9), who were familiar with the handwriting of Uttam Singh, deposed that Exhibits P/1 and P/2 were wholly in the handwriting of the evacuee scribe. Their evidence was accepted by the Courts below and I see no reason to differ from their opinion in this respect. It must, therefore, be held that as Uttam Singh in his own hand certified on these copies (Exhibit P/1 and Exhibit P/2) that they were in accordance with the entries in his register, such entries did exist in that register. The objection that Exhibit P/1 and Exhibit P/2 were copies of copies is on the face of these documents, not sustain able. The heading of column No. 5 in these copies if "mukhtasir mazmoon dastawez" (brief summary of the document). This would indicate that the original document was not really copied out verbatim in the deed‑writer's register but only a summary of the contents was given. But it is obvious that section 63 of the Act would only be applicable to justify the admissibility of these copies if the original entries in the deed‑writer's register could be regarded as independent evidence of the factum of the agreement and not merely as providing secon dary evidence of the contents of the alleged agreement. I am disposed to agree with the lower appellate Court's observations that the entries in the deed‑writer's register would have been relevant under subsection (2) of section 32 of the Evidence Act as they would constitute statements made in writing by the deed‑writer in the ordinary course of his business, or in the discharge of his professional duty, and it is impossible to procure the attendance of Uttam Singh in Court without an amount of delay or expense which would be unreasonable in the circumstances of this case. If the original entries were thus provable as evidence under subsection (2) of section 32, copies of those original statements would also be admissible under subsection (3) of section 63 of the Evidence Act The endorsements on the copies (Exhibits P/1 and P/2) that they were in accordance with the original entries, have been proved to be in the handwriting of Uttam Singh, and they are sufficient to establish that Exhibit P/1 and Exhibit P/2 repre sent correct copies of the original entries. This secondary evidence, therefore, appears to have been correctly accepted by the Courts below as the original register is no longer available. The copy (Exhibit P/2) is, in any case, not within the mischief of section: 91 of the Evidence Act, which provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which such evidence is admissible. It is obvious that a receipt is not in terms covered, by this section and, con sequently, an argument raised on the basis of this section would be of no avail for precluding the respondents from relying on either parol evidence or secondary evidence of the contents of the receipt when the loss of the original has been proved. There is authority for the view that oral evidence of the payment of money, for which a receipt has been taken, is not inadmissible if the receipt is not produced. Reference in this connection may be made to Principles and Digest of the Law of Evidence (3rd Edition) by. Mr. Justice (as he then was) M, Monir at page 645, where the authorities are sum marized. Clearly, therefore, the oral evidence of the witnesses for the respondents was admissible to show that they had rateably contributed to the payments made on account of the auction price. Exhibit P/2, however, is also apparently admis sible to prove the original entry in the deed‑writer's register by virtue of the provisions of section 63 of the Evidence Act, as pointed out above. Moreover, as hinted above, even if it could be held that the content's of the written agreement could not be proved, except by the production of the deed itself or secondary evidence were that was admissible, the factum or existence of the agreement could not be proved apart from its terms. In this connection, reference is again invited to Monir on Evid ence at page 650, third edition. The fact of the existence of a particular partnership may be shown by parol evidence though the terms which govern such relationship appear to be in writing. On this view the oral evidence as well as the evidence regarding entries in deed‑writer's register was admis sible to prove the factum of the agreement between the parties to share the auctioned land, though evidence as regards the terms of the agreement including the shares to be allotted to the parties could not be thus proved. Moreover it seems to me that the deed was executed at a time when part of the oral agreement had already been acted upon as the bidding at the auction had already taken place and that part of the agreement which related to authorisation of defendant (1) to bid on behalf of all, could be proved by oral evidence. To that extent the deed recited only past history and not an executory provision and constituted only a memorandum of what had occurred. It was not denied on behalf of the appellant that the respondents were in possession of certain portions of the suit land in accordance with their allegations. The entries in the revenue records also bear this out. The result is that it must be held that the agreement to share was arrived at between the parties prior to the auction, that even if by some rule of law the terms of that agreement cannot be proved, the payment of the amounts alleged by the respondents is established by oral evidence as well as by the copy (Exhibit P/2) and that the respondents' possession has been established on the suit land ever since the agree ment. These allegations are all consistent with the posi tion 'adopted by the respondents and there is reason to think that the agreement in question ‑was tainted with fraud or any other kind of illegality. The suit was, therefore, rightly decided by the Courts below. The appeal fails and is hereby dismissed with costs. A.H. Appeal dismissed.