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Civil Appeal No.35 of 1987, decided on 5th March, 1988.

S. 63 Public document Certified copy of Admissibility Certified copy of a public document brought on file of Trial Court by plaintiff when he appeared &s a witness would be admissible in evidenceEntries made in such document sufficiently proved plaintiff to be the owner of disputed property.

Ss. 61, 65 & 76 Azad Jammu and Kashmir Land Revenue Act, S.149 Contents of public document Proof of Patwari with respect to any record in his custody deemed to be public officer Contents of a public document could be proved either by primary of by secondary evidence Mode of proof of public documents and issuing of certified copy of such documents stated.

Contents of a document can be proved either by primary or by secondary evidence and section 65 of the Evidence Act, permits production of the secondary evidence of the public document and it is laid down in section 149 of the Azad Jammur t Kashmir Land Revenue Act that a village officer (Patwari) shall, with respect to any record in his custody, be deemed for the purposes of the Evidence Act, 1872, to be a public officer having the custody of a public document which any person has a right to inspect and section 76 of the Evidence Act authorizes a public officer having the custody of a public document which any person has a right to inspect, to issue copy of the same together with a certificate written over it that it is a true copy of such document and it shall be called a certified copy. Survey registers are prepared by the public servants in discharge of their duties, therefore, those are public documents and a Patwari (Village Officer) who holds the custody of a survey register, is competent to issue, on demand, a copy of the same and if the copy is considered in the light of the provisions of section 76 of the Evidence Act, it comes out to be a certified copy, thus it is admissible in evidence.

S.61 Tendering of document in evidence Necessity of Formal tendering of a document in evidence would be necessary to call for attention of rival party that said document had been produced to be used against him so that he might not remain unaware of such document.

S.61 Civil Procedure Code (V of 1908), S.100 Second appeal Objection as to inadmissibility of document not to be allowed at the stage of second appeal.

(1879) 5 Q B.D. 26; 1943 PC 83 and A I R 1937 Nag. 13 ref.

S.10 Allotment of disputed property Proof of Allotment permit indicated that land comprising disputed property had been allotted in favour of plaintiff Claim of plaintiff of being allottee of land over which disputed shop stood constructed also found support from entries of survey register Payment of rent to Custodian by plaintiff also lent support to such claim Defendant as a witness had admitted that he was not allottee of land Plaintiff"s allotment of property was thus established on record.

S5.100 Second appeal Scope for interference Where two Courts below had reached the conclusion on appreciation of evidence that plaintiff was the owner of suit property there was no scope left for interference in second appeal.

Basharat Ahmad Sheikh for Appellant.

Muhammad Siddique Khan for Respondents.

This appeal has arisen out of an order dated 16th May, 1987, passed by the District Judge, Mirpur whereby an appeal filed by the appellant, against a decree dated 31st July, 1984, passed by Sub Judge Mirpur was rejected.

2. The brief facts leading to the filing of this appeal are summarised below: --

3. The appellant and the respondent No.1 are at dispute about the ownership of a shop which stands constructed over an evacuee piece of land comprising survey number 1566 min, situate in Village Hardo Ochhi, Tehsil Mirpur.

4. Respondent No.l who claims to be the sole owner of the shop in question, instituted a suit for its possession against the appellant on the basis of title. He also prayed for grant of a decree for payment of a sum of Rs.24,300 being the amount of rent of the said shop which was received by the appellant from the defendants (tenants).

5. The trial Court, after hearing the parties, found that the respondent No. 1 was owner of the shop hence a decree for possession of the same was granted but the claim with respect to the payment of the rent amount, was rejected, as it was found not proved.

6. The appellant challenged the aforesaid decree in the Court of District Judge Mirpur by way of an appeal but it was dismissed and this order is the subject matter of the instant second appeal.

7. The appellant"s case precisely is that he purchased land and raised the shop in dispute over it and he is its sole owner. He has assailed the findings of the lower Courts on the following grounds: ---

(a) The appellant is in possession of the disputed shop through tenants, since the time, it was constructed, as such, he cannot be ejected therefrom, unless, the respondent 1 proves his title over it positively; and

(b) The subordinate Courts granted decree for possession of the shop in favour of the respondent on the basis of his statement, the entries made in survey register, Ex. DB and allotment permit Ex.DA but this is an illegal finding. The document (DB) is not admissible in evidence, hence it cannot be adverted to. The allotment of the land whereupon the shop stands built up, once made in favour of the said respondent, has been cancelled and the statement of the respondent without corroboration, is not sufficient to prove his title over the shop.

8. The learned Counsel for the appellant, to elucidate his first ground of attack, argued that the ejectment of a person from a piece of property cannot be ordered by a Court unless the person who seeks such ejectment, proves his better claim over that property, as compared with the right of the person in possession of it. In the present case, the appellant is admittedly in possession of the shop since about 17/18 years through tenants and he is in enjoyment of its fruits, therefore, his ejectment cannot be ordered until respondent No.l establishes his better title over it.

9. To take up the second ground, he urged that the Courts below passed decree for possession of the said shop in favour of respondent No.l on the basis of entries made in survey register Exh.DB and the allotment order. The copy of survey register is not a port of the suit file. This copy was placed on the record maintained by the Custodian, when the matter, with regard to correction of the entry in the register of houses was agitated before him, as such it could have been read in evidence by the Courts below. Furthermore, the copy DB has not been proved as required by law because no officer of Revenue department who was in possession of the original survey register, appeared in the Court and testified the correctness of the entries made in it. The allotment permit of the land, upon which the said shop stands raised, once made in favour of the respondent, has been cancelled, hence neither copy DB nor allotment permit are of any help to the respondent No.1 and his solitary statement which is not supported by any tangible evidence, is not sufficient to order the ejectment of the appellant who is a legitimate owner in possession of the shop in dispute.

10. The learned Counsel has also made a reference to para.3 of the plaint and pointed out that the respondent No.l claimed that he remained in possession of the shop in question for two years but this stand of his, is contradicted with his main claim that the shop in dispute was constructed by the appellant for him with the funds provided by him and he (appellant) remained in its possession and afterwards he handed it over to the tenants. This contradiction, he maintained, cuts through his case and it requires dismissal.

11. The Counsel for the respondents controverted the stand taken up by the appellant"s Counsel and argued that the respondent No.1, after allotment of land, comprising survey number 1566 min, provided funds to the appellant for the construction of the said shop for him which was accordingly done and the appellant rented it out to the tenants or. behalf of and for the benefit of the respondent and this practice prevailed till the year 1980 when the appellant who is brother in law of the respondent No.l, fell out with him due to his second marriage and refused to acknowledge his title over the shop and to deliver its possession to him.

12. The respondent, it was argued, paid the rent of the land wherever the disputed shop is built up as an allottee of the land and owner of the shop as is obvious from receipts Exhs.Dh, DD/1 to DD/5, issued to acknowledge the payment of the rent.

13. The allotment of the land was not cancelled from the name of the respondent for the reason that his title was defective. It was cancelled because the officer who made the allotment, was not competent to pass the order of allotment. However, the allotment has since been restored.

14. The copy (DB) is admissible in evidence because it is a certified copy of a public document and it was brought on the file of the trial Court by the respondent when he appeared as a witness and the entries made in it, sufficiently prove that the respondent No.1 is the sole owner of the disputed shop.

15. The correctness of the view point of the appellant"s counsel that a person in possession of a piece of property, cannot be ejected therefrom or, the request of a person who does not possess better title as compared with the title of the person in possession of it, cannot be disputed. But before examining the title of the respondent No.l over the shop and the worth of his prayer for grant of decree for possession of it, the objection of the learned counsel for the appellant to the effect that the entry of the copy DB cannot be read in evidence because it was neither proved as required by law nor it had been placed on the suit file, is needed to be determined.

16. It is laid down in Section 61 of the Evidence Act that the contents of a document can be proved either by primary or by secondary evidence and section 65 of the Act, permits production of the secondary evidence of the public document and it is laid down in section 149 of the Land Revenue Act that a village officer Patwari shall," with respect to any record in his custody, be deemed for the purposes of the Evidence Act, 1872, to be a public officer having the custody of a public document which any person has a right to inspect and section 76 of the Act authorizes a public officer having the custody of a public document which any person has a right to inspect, to issue copy of the same together with a certificate written over it that is a true copy of such document and shall be called a certified copy.

17. Survey registers are prepared by the public servants in discharge of their duties, therefore, those are public documents and a Patwari (village officer) who holds the custody of a survey register, is competent to issue, on demand, a copy of the same and if the copy (DB) is considered in the light of the provisions of section 76 of the Evidence Act, it comes out to be a certified copy, thus it is admissible in evidence.

18. Now it remains to be considered as to whether copy (DB) which was produced by the respondent No. 1, in a case titled "Muhammad Amin v. Muhammad Yunus", pending before the Court. of Custodian, can form a part of the file of the trial Court and can be read in evidence in the instant case.

19. As observed earlier, (DB) is a certified copy of the survey register and it is obvious from the record of the case that it was produced by the respondent when the case between the parties about correction of an entry with regard to the possession of the disputed shop, was litigated before the Custodian and on the application of the respondent, the file of the Custodian was summoned by the trial Court and the respondent, when appeared as a witnesses, tendered it in evidence to support his claim.

20. Formal tendering of a document in evidence is only necessary to call for the attention. of the rival party that the said document has been produced to be used against him so that he may not remain unaware of it and in this view of the matter, the copy (DB) has rightly been tendered in evidence and no provision of law has been infringed.

21. Furthermore, the objection with respect to the inadmissibility of the evidence and defect in proof of it, cannot be allowed at this late stage of second appeal.

22. in a case titled "Robinson & Co. v. Davies & Co." reported in (1879) 5 QBD 26, it was held as under: ---

"Where under a commission to take evidence abroad in an action, copies of certain documents and answers of witnesses with regard to the contents of such documents were received by the Commissioners, in evidence on behalf of the plaintiff, without objection on the part of the defendant who joined in the commission and it was held that the secondary evidence of the documents having been taken under the commission without objection on the part of the defendant, was receivable before an arbitrator to whom the action was referred and that it was too late to take objection on the ground that the original documents were not produced."

23. The Privy Council, in a case reported in 1943 PC 83, observed that:--

"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. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial."

24. The Nagpur High Court in a case reported in A 1 R 1937 Nagpur 13, made the following observation: --

"When a document is tendered in evidence and no objection whatever is taken to it either as to its being secondary evidence or as to its being tendered in circumstances that would justify its being received as secondary evidence, it is too late in appeal to take the point that it should not have been received."

25. In the instant case, the copy (DB) was formally tendered in evidence by the plaintiff respondent and no objection, whatsoever, with regard to its inadmissibility or want of proof, was raised, therefore, at this stage, this objection cannot be allowed.

26. A study of the phraseology used in para.3 of the plaint, in the light of para. 3 of the written statement would show that respondent No.l (plaintiff), in fact intended to write the word "defendant" at the place where the word "plaintiff" has been written but inadvertently, the word "plaintiff" has been incorporated there. The defendant appellant, as it is borne out from para 3 of the written statement also read and understood the word "defendant" instead of the word "plaintiff" and admitted para 3 of the plaint as correct. This mistake, I believe, is not sufficient to deprive the respondent of his right, if he otherwise succeeds to prove his title over the disputed shop.

27. The dispute between the parties is about the ownership of a shop and to establish it, the respondent No.l produced copy of allotment permit, copy of survey register for the years 1976 to 1981 (DB) and receipts (DD and DD/1 to DD/5) showing the payment of the rent to the Custodian of Evacuee Property. He also appeared as a witness. The defendant appellant examined Muhammad Bashir and Muhammad Ashraf and also appeared as a witness.

28. A perusal of the allotment permit (DA) would indicate that four Marlas of evacuee land comprising survey number 1566 min was allotted in favour of the respondent No.l and his brother, Muhammad Yusuf, in equal shares on 30th May, 1970 by the Assistant Rehabilitation Commissioner Mirpur. Although there is a note on EXh.DA that the allotment has been cancelled, yet the respondent No.l has offered explanation of the cancellation of the allotment and has claimed that the same was, later on, restored. The claim of the respondent No.l of being an allottee of the land wherever the disputed shop stands constructed, also linds support from the entries of survey register (DB). The payment of rent to the Custodian also lends support to the said claim.

29. The appellant, as a witness, has" admitted that he is not allottee of the land upon which the disputed shop stands constructed and the respondent"s possession over it was recorded till the year, 1980 and when these facts are taken into consideration, there seems no justification for the appellant to raise shop over the land wherever he has no right.

30. The upshot of the above discussion is that the conclusion drawn by the subordinate Courts that the respondent No.l is the sole owner of the shop in dispute, is well found, I, therefore, find no reason to upset the findings of the Courts below. The appeal being devoid of any force, stands dismissed with costs.

A . A . / 341 / H . C . A . Appeal dismissed

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