- (1.) SUDHIR Narain, J. The petitioners seek writ of certiorari quashing the judg ment and decree passed by the Judge Small Causes Court, respondent No. 2, dated 24-5-1996 and the judgment dated 23-4-1997 passed by respondent No. 1 dismissing the revision against the aforesaid order.
(2.) RESPONDENT No. 3 filed Suit No. 69 of 1994 for recovery of arrears of rent, eject ment and damages for use and occupation of the disputed property on the allegation that plaintiff-respondent No. 3 purchased the property in question on 10-2-1984 from its erstwhile owner Nazir Khan. The defen dant- petitioners were tenants of this property on monthly rent of Rs. 10/ -. The plaintiff sent a notice to the defendant on 14-9-1984, after purchase of the said property, intimating that he had purchased the said property and is entitled to receive the rent. The defendant did not pay the rent to the plaintiff. A notice dated 3rd Septem ber, 1993 was given demanding arrears of rent and terminating their tenancy. Another notice dated 28-4-1994 was given to the same effect but the defendants gave a wrong reply. Hence the suit. The petitioners filed written state ment and denied that the plaintiff was owner of the property in question. The sale-deed relied upon by him was fictitious. The property in question is House No. 11/2577/1 while the case of the plaintiff was that he purchased property No. 11/2577. The trial Court recorded a finding that the sale-deed was executed by Nazir Khan, the erstwhile owner, on 10-5-1984. The petitioners failed to comply with the notice sent by the plain tiff. They committed default in payment of arrears of rent and were liable to pay the same for which the suit was decreed on 24-5-1996 and it has been affirmed by respondent No. Ion 23-4-1997. Sri Ashfaq Ahmad Ansari, learned counsel for the petitioners, submitted that the sale-deed was not proved as none of the attesting witnesses of the sale-deed was produced to prove the execution of the sale deed. He placed reliance upon the decision Rajammal v. Chinnathal, AIR 1976 M4; wherein it has been held that once the ex ecution of a document cannot be admitted in evidence unless at least one attesting wit ness has been called for proving the execu tion of the document, if alive, and subject to process of the Court as provided under Sec tion 68 of the Indian Evidence Act. In this case the document in question was a mortgage deed. Section 68 of the Indian Evidence Act, 1872 provides that if a docu ment is required by law to be attested, it shall not be used as evidence until one at testing witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
(3.) THE attesting witnesses are required to be produced to prove a document when such a document is required by law to be attested. A will is required to be attested under Section 63 of Indian Cessation Act. A mortgage-deed is required to be attested under Section 59 of the Transfer of Property Act. THEre is no provision under the Trans fer of Property Act which requires attesta tion of a sale-deed. If a person relies upon a sale-deed it is not necessary for him to prove it by producing the attesting witnesses. He is required to prove the document as provided under Section 67 of the Evidence Act which provides the manner of proof of a docu ment. It requires that if a document is al leged to be signed or to have been written wholly or in part by any person, the signa ture or the hand writing of so much of the document as is alleged to be of that person's hand-writing must be proved to be in his own hand-writing. If the person relying upon the document proves the signature or the hand-writing of the executants of the document, the document is said to have been proved. In Gajraj and others v. Board of Revenue, UP. , Allahabad and others, 1966 ALJ 149, it has been held that in order to prove the writing of a person it is not neces sary that the person must know the language in which the document has been written. If he deposes that the execution has been made in his presence and he has seen the executant putting his signatures in his presence, the document stands proved. The case Ram Ratan Misra and another v. Smt. Bittan Kaur, AIR 1980 Al lahabad 895, relates to the execution of mortgage-deed and the case Brishnan Assart Velayudhan Assari v. Parameswaran Pillai Madhavan Pillai, AIR 1989 Ker 163, relates, to execution of the Will. These documents were required to be attested under law.;