Case Note & Summary
The case involves a second appeal before the Bombay High Court, Nagpur Bench, arising from a suit for possession filed by the respondent, Jamila Khanam, against the appellants, Jugnabi and Rukshanabi. The respondent claimed to have purchased a plot with a house from Sheikh Rahim, who was the son of appellant no. 1 and brother of appellant no. 2, by a registered sale deed dated 22.2.1989. The appellants were residing in two rooms of the house and had agreed to vacate within 46 months but failed to do so. The appellants denied the respondent's title, alleging that Sheikh Rahim's vendor, Mehtabbi, was not the absolute owner and thus could not convey valid title. The trial court and the first appellate court decreed the suit in favor of the respondent, relying on an index entry from the Registrar's office to prove Sheikh Rahim's title, without requiring production of the original sale deed from Mehtabbi to Sheikh Rahim or secondary evidence of its execution and attestation. The appellants challenged this in second appeal, which was admitted on the substantial question of law regarding whether title can be established solely on the basis of an index entry without producing the sale deed or secondary evidence. The High Court held that the courts below erred in law. It emphasized that under the Indian Evidence Act, 1872, title to immovable property must be proved by producing the original sale deed or by adducing secondary evidence of its execution and attestation. An index entry from the Registrar's office is merely a record of registration and does not prove the contents or validity of the deed. The court allowed the appeal, set aside the judgments of the lower courts, and remanded the matter to the trial court for fresh consideration, giving the respondent an opportunity to produce the original sale deed or secondary evidence. The court directed the trial court to decide the suit afresh in accordance with law, without being influenced by the earlier findings.
Headnote
A) Evidence Act - Proof of Documents - Title to Property - Section 65, 67 Indian Evidence Act, 1872 - In a suit for possession, the plaintiff must prove title by producing the original sale deed or by adducing secondary evidence of its execution and attestation. An index entry from the Registrar's office is not sufficient to prove title in the absence of the original deed or secondary evidence. The court held that the courts below erred in relying solely on the index entry to conclude that Sk. Rahim had title. (Paras 2, 7-9)
Issue of Consideration
Whether in absence of production of sale deed alleged to be executed by Mehtabbi in favour of Sk. Rahim, can the finding of title be given in favour of Sk. Rahim only on the basis of index entry even without adducing secondary evidence of said sale deed and proof of due execution and attestation of said sale deed?
Final Decision
The appeal is allowed. The judgment and order passed in Regular Civil Appeal No. 69 of 1997 and the judgment and decree dated 11.4.1997 passed by the Joint Civil Judge, Junior Division, Buldana are set aside. The matter is remanded to the trial court for fresh decision in accordance with law, after giving the plaintiff an opportunity to produce the original sale deed or secondary evidence of its execution and attestation. The trial court shall decide the suit afresh without being influenced by the earlier findings.
Law Points
- Title to immovable property must be proved by production of the original sale deed or by adducing secondary evidence of its execution and attestation
- Index entry from the Registrar's office is not sufficient proof of title
- Section 65 of the Indian Evidence Act
- 1872
- Section 67 of the Indian Evidence Act
