GAUHATI HIGH COURT ISSUES ORDER ON RAMA DEVI HIMATSINGKA AND ANR. V/S PAWAN KUMAR HIMATSINGKA AND ORS.

GUWAHATI, India, Feb. 3 -- Gauhati High Court issued the following order on Jan. 6:

1. Heard Mr. G. N. Sahewalla, the learned senior counsel assisted by Mr. H. K. Sarma, learned counsel for the petitioners. Also heard Mr. S. K. Singh, the learned senior counsel appearing through Video Conferencing assisted by Mr. P. Sundi, learned counsel for the respondent.

2. This application under Article 227 of the Constitution of India has been filed by the petitioners, namely, Rama Devi Himatsingka and Rajesh Himatsingka impugning the order dated 11.09.2024 passed in Title Suit No. 72/2014 by the Court of learned Civil Judge (Junior Division), No. 2, Sonitpur, Tezpur, whereby the application filed by the present petitioners under Section 63 of the Indian evidence Act, 1872 was rejected and the respondent was allowed to exhibit the sale deed No. 1173/1961 dated 28.08.1961 as Exhibit-2.

3. The facts relevant for consideration of the instant Civil Revision Petition, in brief, are that the present respondent No.1 as plaintiff had instituted a title suit being Title Suit No. 72/2014 for declaration of right, title and interest over the suit premises and also for relief that the mutation of defendant No. 2 and that of his father in respect of the suit property is illegal.

4. The learned senior counsel for the petitioners has submitted that in the aforesaid suit, the respondent exhibited a certified copy of the sale deed No. 1173/1961 dated 28.08.1961. The learned senior counsel for the petitioners submits that since the original sale deed was not produced by the respondent no. 1 before the Trial Court, hence, the present petitioners had filed an application under Section 63 of the Indian Evidence Act, 1872 objecting to the admissibility of the said sale deed without following the requirement as prescribed under Section 65 of the Indian Evidence Act, 1872.

5. The learned senior counsel for the petitioners has submitted that however, by the impugned order the Trial Court held the Exhibit No. 2 to be a public document and erroneously held that there is no requirement of fulfilling the norms laid down in Section 65 of the Indian Evidence Act, 1872 before admitting the said sale deed.

6. The learned senior counsel for the petitioners submits that the trial court had erred in holding that the sale deed which is exhibited as Exhibit No. 2 is a public document. He submits that the Apex Court in the case of "Deccan Paper Mills Co. Ltd. Versus Regency Mahavir Properties and Others", reported in (2021) 4 SCC 786 have very clearly held that a sale deed which is a deed of conveyance is not a public document but a private document. He relies upon the following observations made by the Apex Court in the aforesaid case:

"22. Let us see whether Section 31(2) makes any difference to this position in law. According to the judgment in Aliens Developers [Aliens Developers (P) Ltd. v. Janardhan Reddy, 2015 SCC OnLine Hyd 370 : (2016) 1 ALT 194 (DB)] , the moment a registered instrument is cancelled, the effect being to remove it from a public register, the adjudicatory effect of the court would make it a judgment in rem.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=bzPoyUlszYLCUcCpirIpqMzlpr2qMy5awGFqtVOmZ3Ew63Agh3pXvro%2Boh7xK3MX&caseno=CRP(IO)/374/2024&cCode=1&cino=GAHC010198972024&state_code=6&appFlag=)

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