Case Note & Summary
The case involves a second appeal before the Bombay High Court, Nagpur Bench, arising from a property dispute. The plaintiff-respondent, Jamila Khanam, filed a suit for possession of two rooms claiming ownership based on a registered sale deed dated 22.2.1989 executed by Sheikh Rahim in her favour. Sheikh Rahim had allegedly purchased the property from one Mehtabbi. The defendants-appellants, who were the mother and sister of Sheikh Rahim, resisted the suit contending that Mehtabbi was not the absolute owner and thus could not convey valid title to Sheikh Rahim, and consequently the plaintiff acquired no title. The trial court decreed the suit in favour of the plaintiff, and the first appellate court confirmed that decree. The defendants filed a second appeal, which was admitted on the substantial question of law whether a finding of title could be given in favour of Sheikh Rahim solely on the basis of an index entry from the registration office without producing the original sale deed from Mehtabbi to Sheikh Rahim or adducing secondary evidence of its execution and attestation. The High Court noted that the plaintiff did not produce the original sale deed from Mehtabbi to Sheikh Rahim, nor did she lay any foundation for leading secondary evidence. The courts below had relied on an index entry from the registration office to conclude that Sheikh Rahim had title. The High Court held that an index entry is not substantive evidence of title and cannot replace the requirement of proving the sale deed as per Section 68 of the Indian Evidence Act, 1872. The court further held that the plaintiff failed to prove the title of her vendor, and therefore the decree for possession could not be sustained. Consequently, the High Court allowed the appeal, set aside the judgments of the courts below, and dismissed the suit.
Headnote
A) Property Law - Title - Proof of Title - Sale Deed - Index Entry - The court considered whether a finding of title can be based solely on an index entry from the registration office without producing the original sale deed or secondary evidence of its execution and attestation. The court held that the index entry is not substantive evidence of title and cannot replace the requirement of proving the sale deed as per Section 68 of the Indian Evidence Act, 1872. The courts below erred in relying on the index entry to conclude that Sk. Rahim had title. (Paras 1-10) B) Evidence Act - Secondary Evidence - Conditions for Admissibility - Section 65, Indian Evidence Act, 1872 - The court examined whether secondary evidence of the sale deed could be admitted without proof of loss or inability to produce the original. The court held that the plaintiff did not lay any foundation for leading secondary evidence, such as proving that the original was lost or not in her power. Therefore, the index entry alone could not be used to prove title. (Paras 8-10) C) Registration Act - Index Entry - Evidentiary Value - Section 50, Registration Act, 1908 - The court clarified that an index entry under the Registration Act is only for the purpose of facilitating search and does not constitute proof of the contents of the document or its valid execution. It cannot be used to establish title in the absence of the registered document itself. (Paras 8-10)
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 High Court allowed the second appeal, set aside the judgment and decree of the first appellate court and the trial court, and dismissed the suit for possession filed by the respondent.
Law Points
- Title to immovable property cannot be established solely on the basis of an index entry from the registration office without producing the original sale deed or adducing secondary evidence of its execution and attestation
- Section 68 of the Indian Evidence Act
- 1872
- Section 50 of the Registration Act
- 1908
