1989SCMR1001 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑‑This appeal arises out of the judgment, of a learned Single Judge of the Lahore High Court, dated 16th October, 1977, whereby the second appeal filed by the respondent was accepted with the result that judgments and decrees of the Courts below were set aside and the suit filed by the appellant was dismissed.

2. The dispute in this case relates to an area of 1757 sq. ft. Out of a larger plot of land, comprising an area of 2,382 sq. ft. situate in Islampura, Bahawalpur In 1963 the appellant filed a suit against the respondent for possession on the basis of title. According to her case she had purchased the larger plot of land from one Seth Pairamal, Hindu owner by means of written and undersigned sale deed dated 27th June 1.939, for a consideration of Rs.93‑12‑

0. She alleged that she was in exclusive possession of the. land and at the instance of her husband in 1953, she gave possession of the disputed portion of the plot to the responded who is her husband's brother on rent for building a house. However, after regularly paying rent upto 1959, respondent stopped paying rent. Thereupon she filed an ejectment application against him before the Rent Controller. Bahawalpur. As the respondent denied the relationship of landlord and tenant between the parties in those proceedings, she withdrew the ejectment application with permission to file a regular suit for possession.

3. The respondent in contesting the suit denied the title of the appellant and claimed ownership of the property in himself pleading that he had purchased the disputed land from one Noor Muhammad son of Allah Bux. Besides he 'also raised legal pleas and also claimed title by prescription.

4. Several issues were framed by the trial Court on the pleadings of the parties and during the course of the evidence, the appellant produced evidence of the loss of the original title deed consisting of the instrument of sale dated 27th June 1931, oral evidence of purchase from the Hindu owner and also produced certified copy of the instrument as Ex.P/6 obtained from the Court of the Rent Controller, where the course of the ejectment proceedings the original document was produced.

5. The learned Civil Judge reached a finding against the respondent on all material issues of law and fact. He held that the appellant was in possession of the land before 1953 and as regards title he found in favour of the appellant rejecting the plea of the respondent that he had purchased the land or in the alternative had matured his title by adverse possession. The point which has assumed importance in the present appeal relates to the question whether the certified copy of the sale‑deed Ex.P.6 was admissible in evidence and whether the sale transaction in favour of the appellant was proved by sufficient and legal evidence. In this regard the learned Civil Judge referred to the evidence of loss the original instrument and held that the appellant was entitled to prove the document by secondary evidence, which consisted of the advertisement in newspaper about the loss of the original Ex.P/7 and Ex.P/8 as well as the oral evidence of Allah Bux, Sued Abdul Oadir and Syed Karam Shah who deposed that she had purchased the suit land from Pairamal Hindu and that they had seen the original sale deed. Additionally she examined Mr.Shafi Khan, Advocate who appeared as her counsel in the rent proceedings. According to him the original sale‑deed had been produced in those proceedings and EX.P/6 was testified to be copy of the list of documents filed in the said proceedings mentioning; the sale‑deed in question. This witness further deposed that the sale‑deed appeared to be genuine and was written on an old stamp paper. The certified copy of the sale deed contains the particulars of the sale transaction in favour of the appellant. II further shows that the scribe of the document was a Hindu and its attesting witnesses were also Hindus who according to the learned counsel for the appellant had migrated to India and were not available. Allah Dewaya who is the son of Noor Muhammad from whom the respondent claimed to have purchased the suit land supported the appellant and deposed that his father had never sold the suit land to the respondent. Out of the witnesses who furnished the oral evidence as mentioned above Syed Karam Shah is stated to be the brother of the respondent who also supported the case of the appellant that she was the owner of the land and had allowed the respondent in 1953 to occupy the plot for residential purpose. On this evidence and the findings reached b him the learned Civil Judge decreed the suit by his judgment dated 17th November, 1964. An appeal taken by the respondent before the District Judge, Bahawalpur, also failed and decree passed in favour of the appellant was affirmed vide judgment dated 27th January, 1968. Having failed before the two Courts below the respondent approached the Lahore High Court, in second appeal which was accepted as stated above by the impugned judgment. The learned Single Judge upset the judgments and decrees passed by the Courts below in favour of the appellant on the ground that Ex.PC/6 which was the certified copy of the original sale‑deed clearly revealed that the original had been written on a stamp paper of the value of Rs.1‑8‑0 and as the proper stamp for this documental was Rs.1‑14‑0 ,the document was insufficiently stamped and consequently was not admissible in evidence, as also "it was a copy of an insufficiently stamped document not proved to have been lost". Under section 65 of the Evidence Act, secondary evidence can he given of lost document but before such evidence, can be received it must be proved that the original had been lost and that the same would have been admissible if it was produced in evidence. In this view of the matter the learned Single Judge held that the Courts below had committed an illegality in relying on the document Ex.PC/6 and in acting upon oral evidence of its contents, accordingly the appeal was allowed and the suit of the appellant was dismissed.

6. Being aggrieved by the judgment of the learned Single Judge the appellant filed a petition for leave to appeal in this Court and leave was granted to consider the contentions, fristly, that the conclusion that Ex.PC/6 was insufficiently stamped is based on erroneous consideration, for the document was properly stamped in accordance with the Indian Stamp Act, 1899 which was in force in Bahawalpur State at the relevant time; and secondly that in any case once the document in question was accepted and admitted in evidence without objection by the other side, it could not be challenged later on for being insufficiently stamped for the collection of revenue is no concern of the party. Reliance was also placed on section 36 of the Stamp Act.

7. Learned counsel for appellant reiterated the arguments advanced on behalf of the appellant at the stage of grant of leave and supported the decree passed by the trial Court. He submitted that the view taken by the learned Single Judge to the effect that the sale‑deed was insufficiently stamped was misconceived as according to the law applicable and in force on the date of the sale‑deed, the instrument was chargeable with a stamp of the value of Real and therefore the document having been written and executed on a stamp paper of the value of Rs.1‑8‑0 was properly stamped. He submitted that Schedule I attached to the Stamp Act was subsequently amended on 19th May, 1949, when the stamp duty chargeable on such an instrument was enhanced to Rs.1‑14‑

0. It was further submitted by the learned counsel that even otherwise once the document is admitted in evidence without objection from the opposite side as is the case here, section 36 of the Stamp Act bars any objection subsequently on the ground that the instrument was not duly stamped. The view taken by the learned Single Judge that the loss of the document was not proved and that the document Ex.PC/6 otherwise does not support the case of the appellant as there was no evidence of execution of the sale‑deed by the Hindu vendor in accordance with section 67 of the Evidence Act, was also challenged by the learned counsel. On the other hand learned counsel appearing for the respondent supported the impugned judgment and contended that secondary evidence of the instrument of.. sale was not admissible as the appellant had failed to establish that the original was lost. He conceded that if the document was genuine it was duly stamped and did not press the question of its being insufficiently stamped. This being the admitted position the conclusions based on inadmissibility of document Ex.PC/6 by the learned Single Judge would be rendered untenable.

8. The only question that remains for determination is whether document Ex.PC/6 was sufficient to prove the sale of the disputed plot in favour of the appellant and whether secondary evidence was properly received and considered by the two Courts below. It would be convenient here to refer to the following extract from the impugned judgment in which these questions were dealt with by the learned Judge:‑ "During the time when most of the evidence of the plaintiff had been led, the respondent applied on 10th February, 1963 that she be permitted to lead secondary evidence to prove the sale‑deed which had been lost. The application succeeded on 14th May, 1.963. The plaintiff then examined Allah Diwaya son of Noor Muhammad as P.W.6 on 20th May, but he did not say a word about Ex.PC/6. Abdul Sattar P.W.7 also did the same P.W.8 Muhammad Shafi Khan, Advocate stated that he had applied to the Rent Controller for the return of the document which "probably" was a title deed. He also stated that document was not duly stamped Muhammad Bakhsh P.W.9 deposed that a sale‑deed about sale of land had been executed by Pera Ram as Attorney of Piraya Lai in favour of Mst.Taj Bibi. Taj Bibi in her statement said that PC/6 had been lost b5 her husband. The husband as P.W.5 said "it was lost from us". He did not explain how and when was it lost. The document Ex.PC/6 is shown to have been referred to on 19th May, 1964, when Taj Bibi was examined on commission but neither was it admitted into evidence nor its content proved. It was, therefore, only a presentation of the document without proof and without being admitted in evidence. It is to be noted that before admission of a document the Court must apply its mind that il should be admitted. Its execution is then to be proved in accordance with section 67 of the Evidence Act. A certified copy by itself is no proof of the execution of a document. It only proves the existence, condition anti contents of a document and not its execution. Therefore, a part producing secondary evidence of a document is not relieved of the duty of proving the execution of the original. Reference be made to Chuha Mal v. Rahim Bakhsh A I R 1924 Lah.

303. The original is stated to have been filed before the Rent Controller in ejectment proceedings. 1t was however, never exhibited or proved as is clear from Exh. PC/5. 1t seems to have been returned on 20th May, 1963. The certified copy Exh. PC/6 had also been delivered to the applicant on the same day. Exh. PC/8 and PC/9 which arc public notices issued in the newspapers, about loss of the sat deed, show that the document was lost on the way from the Record Room, on 20th May, 1963. It is, therefore, surprising that though both the documents were received the same day, the certified copy reached safely and only the original was lost. The Courts below have not considered this aspect of the case and 1 have no doubt in my mind that it is all a mere fabrication." So far as the propriety of the secondary evidence being given of the lost document, it may be pointed out that the application for leading secondary evidence was made by the appellant on 10th February, 1964, which was opposed by the respondent and after hearing the parties the trial Court granted the application by its order dated 14th May, 1964 on the payment of Rs.20 as costs. It is stated that the respondent had received the costs awarded by the Court. Further in its final judgment the trial Court has recorded its finding that the fact that the original was lost was sufficiently proved and; therefore, the appellant was entitled to adduce secondary evidence of the same in proof of the original. In this connection reference was also made to the certified copy Exh. PC/6 which was obtained from the Rent Controller and the original was said to have been lost, after an application for its return was made in the Court of the Rent Controller from where the original was received. In addition reference was made to the evidence of Muhammad Shat Khan, Advocate who appeared for the appellant in the previous rent proceedings to the effect that he had seen the sale‑decd and produced the same in the rent proceedings alongwith a copy of the list of documents. Two other important documents considered in this connection were public notices issued regarding the' toss. of the original sale‑deed in two newspapers, namely, "Parwaz" and "Aftab Mashriq" dated 21st May, 1963 and 24th May, 1963, respectively much before the institution of the suit. The question of loss of the original having been decided by the trial Court and secondary evidence having been permitted to be given, an established principle of law would be attracted, namely, that the question whether sufficient grounds have or have not been made out for the admission of secondary evidence is a question properly to be decided by the trial Court and is treated to be depending very much on its discretion. It has been held that the conclusion of the trial Court on this point should not be overruled by the Court of appeal, except in a clear case of miscarriage of justice. We are satisfied that the conclusion of the trial Court was based on sufficient and tenable grounds and it was not open to the High Court in second appeal to upset the same so as to exclude the secondary evidence received and acted upon by the trial Court. 1n the present case the secondary evidence consists of certified copy of the sale‑deed Exh. PC/6 and oral evidence furnished by the witnesses already mentioned.

9. So far as the document Exh. PC/6 is concerned another principle of law is attracted which lays down that if no objection is taken in the Court of first instance to the reception of the copy of document in evidence, it is not within the province of appellant Court to raise or recognize the objection in appeal. It was laid down by this Court in somewhat similar circumstances as in the present case, in Abdullah and others v. Abdul Karim and others P L D 1968 S C 140 where a document which was a letter written by the vendor relating to the sale of certain land was produced in evidence without any objection from the other side that a party cannot lie by until the case comes before the Court of appeal and then complain for the first time of the mode of proof. The dictum laid down by the Judicial Committee of the Privy Council in case of Gopal Das v. Shri Thakurji A I R 1943 P C 83 was followed which postulated as under:‑ "Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record." Reason for the rule is based on fairplay and waiver, because the mode of proof of document is a question of procedure and is capable of being waived, so that where the objection as to the manner of proof of a document is not taken at the time the document is sought to be proved in the Court of first instance, it cannot be raised in second appeal. Once such document is exhibited without objection it becomes admissible in evidence and can be taken into consideration. The Peshawar High Court in Muhammad Yousaf Khan Khattak v. S.M. Ayub and others P L D 1972 Pesh. 175, held that in such circumstances the document must be taken to have been proved including its execution. The learned Judge in the High Court has observed that this document was merely referred to by the appellant when she was examined on commission but it was not admitted into evidence. We find no support from the record for this conclusion. The appellant in her evidence has referred to the certified copy of the sale‑deed and exhibited it in her evidence as Exh. PC/6. The evidence of the appellant had been taken into consideration by all the Courts below and it cannot be said that it does not form part of the record. In the deposition there is nothing to show that any objection was taken on behalf of the respondent at the time the document was exhibited. The principle of law referred to above is, therefore, fully attracted in the facts of this case and we, therefore, `hold that the respondent is not entitled‑ to raise an objection at any subsequent stage as to the mode of proof of the document. The consideration for the sale being less than Re.100 the instrument was not compulsorily registrable and was,, therefore, quite in order as it was.

10. The. learned Judge has also held that it was necessary for the appellant to prove execution of the original document in accordance with section 67 of the Evidence Act. Apart from what has been stated in the foregoing paragraph that this objection is not entertain able after the document was exhibited without such objection being raised at the time, we may refer to the commentary of the Evidence Act on the aforesaid section by Momr which deals with the presumptive proof of the execution of a document as under:‑ "It will be noticed from what has been said above that proof of the execution of a document need not in all cases be direct, in the sense that somebody in whose presence the document was signed or written should depose that it was signed or written by a particular person in his presence, nor is it necessary that the writer himself should be examined, or the subscribing witnesses called, when the document is one that is not required by law to be attested. Thus, a rent receipt may be proved by the evidence of the tenant by whom the rent was paid, notwithstanding that the person whose signature it bears has not been examined. Presumptive or circumstantial evidence is good proof of the genuineness and execution of a document." In the present case we are of the opinion that sufficient evidence has been brought on the record by the appellant in proof of the genuineness and execution of the document from the circumstances disclosed in the oral evidence. We have already referred to three witnesses and it will be sufficient to refer to the evidence of Muhammad Bux and the appellant herself. The former has deposed that the disputed land was originally the property of Pairamal Hindu who had sold it through his attorney to the appellant. He has further stated that the land was sold for a consideration of little less than Rs.100 and at the time of the writing he was present although he did not sign it. According to him the marginal witnesses were Hindus and the document after its completion was handed over to Syed Karam Shah the husband of the appellant. The appellant in her evidence has also affirmed that she had purchased the land from Pairamal for a consideration Rs.95 and some annas which transaction was put into writing on a stamp paper of Rs.1‑8‑

0. The learned trial Judge in his judgment has referred to the evidence of Syed Allah Bux, Sycd Abdul Oadir and Syed Karam Shah who had deposed that the appellant had purchased the suit land from Pairamal Hindu and they had seen the sale‑deed. On the principle of preponderance of evidence which is the rule of decision in civil cases, it appears to us that the factum of purchase by means of written deed had been proved by this oral evidence.

11. The learned Judge in the High Court has also referred to section 91 of the Evidence Act and has observed that oral evidence of the contents of the sale- deed was inadmissible because under section 54 of the Transfer of Property Act the sale was required to be in writing. This proposition is not correct as the requirement of writing in regard to disposal of property is attracted in case the value of the property is Rs.100 or above but in this case it was less than Rs.100. Therefore, the transaction in question was not required to be reduced in writing. Nevertheless section 91 of the Evidence Act would be attracted because in fact the transaction was reduced to the form of a document. However, section 91 clearly makes secondary evidence of the contents of such document admissible. As discussed above secondary evidence was produced in this case which would also include oral evidence. The other proposition on which the learned Judge in the High Court relied was that a certified copy only proves the existence, condition and contents of the document and not its execution. The foregoing part of this judgment sufficiently deals with the question of proof of the document and its execution. We may further point out here that even if parole evidence as to the contents of the document is inadmissible but if it relates merely to the factum or existence of the transaction, such evidence will be properly receivable not being excluded by section 91 of the Evidence Act. The transaction of sale in that sense has been abundantly proved by the evidence discussed above which, as already observed, on the principle of preponderance of evidence is sufficient to discharge the onus of proof on the appellant.

12. For the foregoing reasons this appeal is allowed with costs and the judgment of High Court dated 16th October, 1977, is accordingly, set aside. AA./T‑36/S Appeal allowed.