Grover, J. - (1.) THIS is an appeal under Clause 10 of the Letters Patent against a judgment of a learned Single who affirmed the order of the lower appellate Court which had granted a decree for possession of land measuring 277 bighas and 3 biswas in reversal of the decree of the trial Court by which the suit had been dismissed as against the contesting Defendants. The Plaintiffs instituted a suit for possession of the aforesaid land on the ground that they had acquired it by purchase from one Kuldip Singh by means of a registered sale deed and that the Defendants who were his tenants had surrendered possession voluntarily but after a few days they again forcibly occupied the land and had no right to it being trespassers. The contesting Defendants pleaded that the Plaintiffs had never purchased the land and that the Defendants had never delivered its possession to the Plaintiffs and further they were in possession as tenants and not as trespassers. The jurisdiction of the Civil Court to entertain the suit was also challenged. The trial Court passed a decree for possession against Defendants 9, 10, 11 and 12 who had admitted the claim. With regard to the contesting Defendants it was held that the Plaintiffs had not purchased the land in dispute and that they had never got its possession. It was further found that the Defendants had not been dispossessed as alleged in the plaint and were still in possession of the land as tenants under Kuldip Singh and they could not be ejected otherwise than in due course of law in accondance with Section 7 of the Pepsu Tenancy and Agricultural Lands Act, 1965, and that the Civil Court had no jurisdiction to try the suit. In appeal the learned District Judge decided the question whether the possession of the land had been given up to the Plaintiffs by the contesting Defendants after the former had acquired the laid from Kuldip Singh by purchase. It is stated in his judgment as follows: - It is not disputed before me that the Plaintiffs are owners of the land since they have purchased the same and that the Defendants were in occupation of the land at the time of the sale as tenants under the vendor. After referring to Exhibit C, which is a copy of the registered sale deed, and other evidence, the learned Judge came to the conclusion that the land had been sold to the Plaintiffs by Kuldip Singh and thereafter the possession had been delivered to the Plaintiffs by the Defendants who forcibly occupied the same after few days. He allowed the appeal and granted a decree for possession in favour of the Plaintiffs against all the Defendants including those who had admitted their claim.
(2.) ON second appeal before the learned Single Judge, an affidavit was filed by Shri Sunder Lal, Advocate, who had appeared before the District Judge on 10th February 1960 in the appeal decided by him. It was stated in the affidavit that the ownership of the Plaintiffs had been denied and objections on the ground of non -production of the original sale deed had also been taken and that the learned Judge was wrong in stating in his judgment that the ownership of the Plaintiffs had not been disputed before him. It is apparently for this reason that the learned Single Judge heard arguments with regard to the question of ownership of the Plaintiffs. With regard to the objection that neither the original sale deed in favour of the Plaintiffs executed by Kuldip Singh had been produced or properly proved, the learned Judge observed as follows: - What I find on the record is that the Plaintiffs have produced a certified copy of the registered sale deed, Exhibit C, and a number of jamabandis and khasra girdawaris in winch ownership of this land has been shown in the name of the Plaintiffs. No objection was taken by the Defendants when certified copy of the registered sale deed was exhibited in the trial Court. The learned Judge was of the opinion that since no objection had been raised to the production of the secondary evidence in the trial Court, such an objection could not be allowed to be taken at the stage of appeal. This view may be unassailable but he proceeded to say that with regard to non -production of the attesting witness of the sale deed, it was not necessary to produce him firstly, when the transaction of sale was being proved by the production of the certified copy of the registered sale deed and the various jamabandls and khasra gindawaris and secondly, the proviso to Section 68 of the Indian Evidence Act, 1872, was applicable since Kuldip Singh, the vendor, who had executed the document had not denied its execution. Now, Kuldip Singh was not a party to the litigation and no question arose of his having denied the execution of the document. The proviso clearly means that it is necessary to call an attesting witness in proof of execution of any document which has been registered only if its execution by the person by whom it purports to have been executed is specifically denied. The denial should be by the party to the litigation and not by an executant who is not a party as was the case here. In our opinion, it was necessary to call an attesting witness, alive and available in proof of the execution of the document in question but no objection was raised when it was produced and exhibited by the trial Court. It is significant that when Exhibit C was produced, the counsel for the Plaintiffs made a statement on 29th June 1959 as follows: - I produce copies of sale deeds marked A and B (Objected). I also produce C, copy of sale deed. * * * " It is noteworthy that although objection was taken to the production of the copies of sale deeds marked A & B but no objection was taken to the copy of the sale deed, Exhibit C. In these circumstances the Defendants cannot now be heard to say that the document was not properly proved. At any rate, even if Exhibit C is to be excluded from consideration, the jamabandis as also khasra girdawaris together with the other evidence clearly establish the purchase by the Plaintiffs from Kuldip Singh. The other important question was whether possession had been surrendered to the Plaintiffs by the contesting Defendants after the purchase from Kuldip Singh. On that point the learned Single Judge is right in saying that the matter was concluded by a finding of fact in as much as the District Judge had considered the documentary and oral evidence which had been produced on the point and had come to the conclusion that the Defendants had given up possession of the land to the Plaintiffs after the latter had acquired the land by purchase. The learned Single Judge even perused the evidence of all the witnesses and found that they had deposed to the effect that possession had been delivered by the Defendants to the Plaintiffs.
(3.) MR . Atma Ram, the learned Counsel from the Appellants, has submitted with a certain amount of vehemence that the finding of the learned District Judge was perverse and was based on improbabilities because it is difficult to conceive that any tenant in the presence of the various tenancy laws conferring manifold privileges and benefits on them would quietly surrender possession voluntarily. It has further been urged that as a matter of fact the contesting Defendants had obtained proprietary rights under the various provisions of the Pepsu Tenancy and Agricultural Lands Act, 1955, in the land in dispute. Copies of orders relating to acquisition of those rights have been sought to be taken in additional evidence by us. There is no question of their being admitted into evidence at this stage because no such application was made either before the District Judge or before the learned Single Judge and no question arises now of admitting them into additional evidence keeping in view the principles which are well settled with regard to admission of such evidence.;