P L D 1961 (W (PLP)

MASUD AHMAD, J.--‑The appellant, Allah Ditta, brought a suit for possession of 36 kanals and 3 marlas of land against Sadar Din respondent, and the suit having been dismissed by the Senior Civil Judge, Sheikhupura, Allah Ditta has now come up to this Court, in appeal, and prays that the judgment and decree of the trial Court be set aside and the suit be decreed as prayed for.

2. The appellant's case teas that the land in dispute was mortgaged by one Nur Muhammad, in consideration of a sum of Rs. 1,200 in favour of Allah Ditta appellant and his brother, Nur Muhammad, and some other persons. The respondent, afterwards, acquired the mortgagee rights by purchase. Sub3e quently, Zahur Din, son of Nur Muhammad mortgaged this very land in favour of Rahmat Ali, son of Sadar Din respondent, in consideration of Rs. 2,000, by means of a registered mortgage deed, dated the 3rd of March 1949. Out of the sum of Rs. 2,000, a sum of Rs. 1,700, including the mortgage debt of Rs. 1,200, was kept with the second mortgagee, Rehmat Ali, for payment to his father, Sadar Din respondent. By means of a sale deed dated the 26th of May 1949, Zahur Din sold this land to Rehmat Ali, in consideration of a sum of Rs. 3,

500. The mortgage debt of Rs. 2,000, payable by Zahur Din, was adjusted towards payment of the sale‑price; the balance having been paid .in cash to him. One Wali Muhammad filed a suit against Rehmat Ali to pre‑empt the sale of land.. As Rehmat Ali was a minor, the suit was defended on his behalf by his guardian, Sadar Din respondent. This suit was decreed on the 31st of January 1951, on payment of the sale‑price, namely, Rs. 3,

500. This amount was deposited in the Court and was withdrawn by Sadar Din respondent, on behalf of his minor son, Rehmat Ali. Wali Muhammad mortgaged some 98 kanals of land, including the land which he had acquired by means of the pre‑emption decree, in favour of Allah Ditta appellant by means of a deed, dated the 27th of April 1951. As mutation of redemption of the mortgage in favour of Sadar Din respondent had not been sanctioned and Sadar Din continued to occupy the land in dispute, Allah Ditta filed a suit for grant of a declaration of his title as mortgagee. Subsequently, with permission of the Court, 'that suit was converted into a suit for possession.

3. In reply to the allegations made by the appellant in the amended plaint, Sadar Din respondent admitted that this land was under mortgage with him on behalf of Zahur Din. He also admitted that this land was, afterwards mortgaged in favour of his son, Rehmat Ali, and was ultimately sold to him, but denied that the mortgaged money due "to him was paid. Lastly, he admitted that Wali Muhammad had filed a suit to pre‑empt the sale in favour of Rehmat Ali:

4. On the pleadings of the parties, after disposing of certain preliminary objections, the trial Court framed the following issues:‑ (1) Has the mortgage of the land in suit in favour of the defendant been paid off? (2) Did Wali Muhammad become owner of the land in suit by, virtue of a suit for pre-emption and did he mortgage it with possession with the plaintiff? (3) If so, is the mortgage collusive, fictitious and void?

5. The original mortgage deed executed by Nur Muhammad, father of Zahur Din, was not placed on the record, nor was its copy produced by the appellant. Copies of the mortgage deed and the sale deed in favour of Rehmat Ali were placed on the record, but they were not admitted into evidence by the trial Court on the ground that the same were "tendered" at a late stage. On the first issue the finding of the trial Court was that the appellant had failed to prove that the mortgage in favour of the respondent had been paid off. On the second issue the finding was that Wali Muhammad had become owner of the whole of the land in dispute, except Khasra Nos. 607/1 and 589, and that he had mortgaged this land in favour of the appellant. No determination was given on the third issue because, in the opinion of the trial Court, this did not arise. As a result of these findings, the suit, as stated above, was dismissed.

6. The finding on the second issue, except with regard to Khasra Nos. 607/1 and 589, was in favour of the appellant. It has not been challenged by either party, nor could it be challenged, because from a perusal of the copy of the decree (Exh. P. 7) passed in the, pre‑emption suit and the mortgage deed (Exh. P. 3) in favour of Allah Ditta appellant, it is established that Wali Muhammad obtained a decree for possession of 56 kanals of land, including the land in dispute, except Khasra Nos. 607/ I and 589, and that, subsequently, he mortgaged. 98 kaAals of land, including the land which he had acquired by means of pre‑emption decree, in favour of the appellant. No mention having been made of Khasra Nos. 607/1 and 589 in the pre‑emption decree, nor in the mortgage deed dated the 27th April 1951, the appellant could not claim possession of that land as mortgagee, even if he was able to establish the rest of his allegations. The finding of the trial Court on this issue being correct, is,, hereby upheld.

7. The main issue requiring decision in the case was whether the mortgage debt due to Sadar Din respondent had been paid. The trial Court found the first issue against the appellant, pri marily on the grounds that "essential" documents had been withheld by him, that the respondent denied having received the money and that there was no reliable proof on the record to show that the mortgage debt had been paid to him. The Court observed in its judgment that the respondent had been summoned by the appellant with certain documents, but when he was cross‑examined no reference was made to those documents. The Court also observed that when arguments in the case had concluded, the appellant sought permission to "tender" certain documents in evidence. In our opinion, if copies of the mortgage deed dated the 3rd of March 1949 and of the sale deed dated the 26th of May 1949, which had been produced by the appellant on the 19th of January 1955, had been admitted into evidence, the decision on this issue would have been different, because the contents of those documents, coupled with the admission made by the respondent himself in the trial Court, would have been sufficient to hold that the mortgage debt had been paid off.

8. The original documents, of which copies were placed on the record by the appellant, should be in possession of the res pondent, or to that of his son, Rehmat Ali. On the 19th May 1955, an application for summoning Sadar Din respondent was filed, by the appellant and in that application, a request was made that Sadar Din be asked to produce the mortgage; deed with regard to the land in dispute, whether the same was in his possession or in that of his son, Rehmat Ali. Sadar Din was accordingly summoned but he was not produced as a witness by the appellant. He appeared as his own witness, but surprisingly enough, the appel lant's counsel did not question him about the mortgage deed, which he had been asked to produce in the Court, nor about the sale deed dated the 26th May 1949 a copy of which had been placed on the record. On the 29th June 1955, after arguments had been concluded, an application was moved by Mr. Sultan Ali Advocate, counsel for the appellant, in which it was stated that the two copies (one of the mortgage deed and the other of the sale deed) had not been tendered on account of inadvertence and a request was made that those two documents be read in evidence. The trial Court rejected that application, on the grounds that the judgment was being dictated and that the documents were copies but were not of public documents. Two questions arise, firstly, whether the trial Court was justified in rejecting the application of the appellant's counsel for reading the two documents in evidence, and, secondly, whether the two copies could be legally made a part of the record of the case.

9. The documents in question being copies of private docu ments of which a record was kept by a public officer, they fall with in the purview of subsection (2) of section 74 of the Evidence Act. These copies appear to have been obtained from a public officer, under section 76 of the Evidence Act, and, as such, could be produced under section 77 of the Act in proof of their contents. The legal position, about such documents, has been summed up in the following words, by the late Chief Justice of Pakistan in his Principles and Digest of the Law of Evidence, Fourth Edition, at page 463 :-- "Section 51 of the Registration Act directs all registration offices to keep certain books in which all documents that have been registered are to be entered. Section 57 of the same Act directs the registration officer to give certified copies of all documents entered in such books. The copies thus given are admissible for the purpose of proving the contents of the original documents. It should, however, be noted that registered documents evidencing merely private transactions are not public documents and must be proved in the ordinary way like other documents.' But where a case for the reception of secondary evidence is made out under the provisions of section 65, a certified copy of the registered documents becomes admissible in proof of the contents of the original document under the provisions of section 57 (5) of the Registration Act." Another learned author, Woodroffe, in his Law of Evidence Ninth Edition, page 570, sums up the position in the following words :‑ "Public records kept in British India of private documents are also under the second Clause public documents within the meaning of the section. Thus certain register‑books are directed to be kept in all registration‑offices. Under this clause [74 (2)) entries of the copies of private documents in Books Nos. I, 3 and 4 of the Registration‑Office being public records kept of private documents, are public documents, and as such may be proved by certified copies ; that is certified copies may be offered in proof of these entries, but neither these entries, nor verified copies of these entries, are admissible in proof of, the contents of the original documents so recorded unless secondary evidence is allowable under the provisions of this Act." Reference, in this connection, may also be made to a case of the Bombay High Court reported as Vithoba Savlaram v; Shrihari Narayan (A I R 1945 Bom. 319). in which it was held that a mortgage deed is, under section 74, Evidence Act, a public document because public records of mortgages are kept in British India, that under section 65 secondary evidence can be given when the original is a public document and that under section 77 certified copies may be produced in proof of the contents of the public documents.

10. It is, therefore, obvious that if the appellant had been able to make out a case for the reception of secondary evidence, under section 65 of the Evidence Act the two copies which had been obtained by him from the registration office, could be admitted into evidence under section 77 of the Evidence Act for proving their contents.' The present case would be covered by clause (a) of section 65 of the Evidence Act which reads as follows :‑ "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 to be in the 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 to7produce it, and when, after the notice mentioned in section 66, such person does not produce it." It would be useful, at this stage, also to reproduce the relevant portion of section 66 of the Act. This provision reads as follow :‑ "Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previ ously given to the party in whose possession or power the document is (or to his attorney or pleader) such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case ; Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it: (1) * * * * * * * * * * (2) when, from , the nature of the case, the adverse party must know that he will be required to produce it; (3) * * * * * * * * * * (4) * * * * * * * * * *

11. This means that if the appellant had given a notice to the opposite‑party for the production of the original documents, he could, as of right, produce the two copies under section 65 of the Act. If no such notice was given, a case for the reception of secondary evidence could be made out if the appellant was able to show that the respondent must have known that he would be required to produce those documents. Under the proviso to section 66 the Court could dispense with the formality of giving a notice and if it did so, without such a notice being given, the appellant could produce the copies in evidence. 11‑A. So far as the mortgage deed dated the 3rd of March 1949, is concerned, a notice, as required by section 66 of the Evidence Act, was given to Sadar. Din. There has thus been sufficient compliance with this provision of law. With regard to the sale deed, dated the 26th of May 1949, no such notice was given, but as the fact of that sale was admitted by Sadar Din and as he should have known that be would be required to produce C that document, the case would be covered by the proviso to section 66 of the Evidence Act and the necessity of giving the notice could be dispensed with. In any case, considering that the factum and the validity of the mortgage deed and the sale deed were not being denied by the respondent this Court would be justified in dispensing with the notice.

12. As. to the propriety of the order of the trial Court in l rejecting the two copies from evidence, our view is different from that of the learned Court. As stated above, the two copies had been placed on the record on the 19th of January 1955. Those documents were _accompanied by an accurate list, as required by Order XIII, rule ‑I of the Civil Procedure Code. On the 29th of June 1955, the appellant's counsel made a prayer that the D documents be read in evidence. Until that time the judgment had been not written and, as such, the trial Court should have waived the formalities and allowed the two documents to be read in evidence, especially when there was no dispute about the factum and validity of those documents.

13. Having held that the trial Court was not justified in rejecting the two copies from evidence and having also held that the appellant has been able to make out a case for reception of secondary evidence, we admit both these documents under section 77 of the Evidence Act.

14. In the mortgage deed dated the 3rd of March 1949, executed by Zahur Din in favour of Rahmat Ali, it was stated that this land was under mortgage with Sadar Din respondent, in consideration of a sum of Rs. 1,

200. It was further stated that a sum of Rs. 500 was due to Sadar Din, on the basis of an agreement dated the 11th June 1,

946. Out of the mortgage money of Rs. 2,000, a sum of Rs. 1,700 was kept with the mortgagee (Rahmat. Ali) for payment to his father, Sadar Din. The document was duly registered on the 3rd March 1949, and, at that time, only a sum of Rs. 225 was paid, in cash, by Muhammad Bakhsh, an uncle of Rahmat Ali, to Zahur Din. According to the sale deed dated the 26th May 1949, this land was sold to Rahmat Ali, in consideration of a sum of Rs. 3,

500. Out of the agreed sale‑price, a sum of Rs. 2,000 was adjusted towards the mortgage debt payable to Rahmat Ali. This document was duly registered on the 26th May 1949, and at the time of registration, a sum of Rs.200 only was paid by Muhammad Bakhsh, an uncle of Rehmat Ali, to Zahur Din.

15. The respondent's contention before the trial Court was that after the land in dispute was sold to his son, Rahmat Ali, the mortgage debt due to him was not paid. In this evidence, as D. W. 3, the respondent, however, admitted that Wali Dad pre‑emptor had deposited a sum of Rs. 3,500 in the Court and that he withdrew that money on behalf of Rahmat Ali, as his guardian. He, however, added that the whole of this money was paid by him to Rahmat Ali's mother and that the mortgage debt payable to him was not deducted from this amount. Although the respondent was not a witness of the mortgage deed dated the 3rd March 1949, nor of the sale‑deed dated the 26th May 1949, and although he was not present at the time of the registra tion of these two documents, both of them being in favour of his son, he could not have been unaware of their contents, especially when he was representing his son in the suit which Wali Muhammad had filed to pre‑empt the sale. He could not have been unaware that the mortgage money payable to him had not been paid to the mortgagor and that it was agreed upon between the parties at the time of the execution of the mortgage deed dated the 3rd March 1949, that the subsequent mortgagee, namely, Rahmat Ali, would discharge the mortgage debt of his father, Sadar Din: Whether the respondent was or was not aware of the contents of the mortgage deed at the time of its execution, he must have known those contents during the pendency of the pre emption suit and hence when he withdrew the sum of Rs. 3,500 from the Court, he must have known that this amount also included the mortgage money payable to him. We cannot, therefore, believe that, without deducting his mortgage money, he paid the whole of the sale‑price to Rahmat Ali's mother, namely, his own wife. Even if he did so, he must have done this with open eyes and therefore, cannot now turn round and say that his mortgage debt was not discharged.

16. For reason given above, we are of opinion that the appellant has been able to establish that the mortgage debt payable to Sadar Din respondent had been discharged. We, therefore, accept this appeal with costs, set aside the judgment and decree of the trial Court, and hereby, grant the appellant a decree for possession of the land in dispute, except khasra Nos. 607/1 and 589.

17. Before parting with this case, we would like to point out that it was not properly conducted by Mr. Sultan Ali, Advocate, in the trial Court, because, firstly he did not give a formal notice for production of the sale deed to Sadar Din respon dent and, secondly, when Sadar Din appeared as his own witness, no questions were put to him regarding the various documents. But for this negligence on the part of the counsel, the decision of the case might have been different. A notice should, therefore, be issued to the counsel asking him to show cause why disciplinary action should not be taken against him. A. H. Appeal accepted.