- (1.) THIS appeal under Sec. 100 of the Code of Civil Procedure is directed against the judgment and decree dated 13th January, 1964, passed by the learned District Judge, Ajmer in Civil First Appeal No. 294 of 1960, affirming the judgment and decree dated 23rd August, 1960, passed by the learned Addl. Munsiff No. 1, Ajmer City, Ajmer in Civil Suit No. 140 of 1956 (183/1958 ).
(2.) BRIEFLY stated the facts of the case are that the plaintiffs-appellants filed a suit for rent and eviction of the suit premises against the defendants respondents on the basis of a registered lease deed alleged to have been executed by the defendant in his favour on 2nd April, 1947. The suit was contested only by respondent No. 1 and the suit proceeded exparte against the another respondent. The plaintiff stated in the plaint that he was a landlord of the property No. AMC 11/133 situated at Imambada Mohalla, Khadiran. Ajmer and that defendants Mst. Rafiqa Bibi and Zainul Salheem are his tenants with effect from 29th March, 1947, on a monthly rent of Rs. 10/ -. It was also contended by the plaintiff that originally the said property was leased out, to the defendants by the plaintiff along with Sheikh Fida Hussain; but. on 19th May, 1948, Sheikh Fida Hussain sold his share in this property to the plaintiff by means of a registered saledeed and since then the plaintiff has been the exclusive owner of the property and was entitled to recover its rent. According to the plaintiff, the defendants failed to pay rent and committed defaults in the payment of rent since 29th Nov. 1952. Before filing the suit, the plaintiff served a notice on the defendants on or about 28th December, 1955, terminating their tenancy. The plaintiff claimed a sum of Rs. 316/- as arrears of rent and ejectment of the defendants from the suit premises. Defendant No. 1 did not appear in the trial Court and the case proceeded exparte against him. Defendant No. 1 denied the tenancy and contended that she never paid any rent to the plaintiff. It was contended by defendant No. 1 that about 9 to 10 years ago, defendant No. 1 executed a document at the instance of defendant No. 2, alleged to be in respect of some money transaction. It was also contended that while reposing full confidence in defendant No. 2 and believing him in what he was then representing, the defendant had executed the document without the same having been read out and explained its contents to her. Defendant No. 1 also pleaded that she is an illiterate and Pardanashin lady. She also pleaded that no lease-deed was ever executed by her in respect of the suit premises much less in favour of the plaintiff and Sheikh Fida Hussain and, if the above document executed by the instance of defendant is the same as alleged by the plaintiff it is absolutely fraudulent, illegal, void and inoperative against her. On the pleadings of the parties, the learned trial Court framed the following issues: - 1. Is the plaintiff landlord of the property No. AMC IX/133 in suit and are the same defendants his joint tenant in this property since 29-3-1947 on the monthly rent of Rs. 10/ -. ? 2. (a) Where notice served by the plaintiff on the defendants and, if so. where they refused by the defendants as alleged in para 3 of the plaint? (b) In case issue No. 2 (a) is decided in favour of plaintiff, is the notice of ejectment valid and in accordance with the provisions of law? 3. Does the plaint not disclose any cause of action against the defendants having accrued against them on 29/1/1956 as stated in para 5 of the plaint? 4. Is the alleged lease-deed dated 2/4/1947 fraudulent, illegal and inoperative against the defendant No. 1 for reasons alleged in paras 8 to 12 of the written statement? 5. Is the suit by the plaintiff alone not maintainable for reasons alleged in para 13 of the written statement? 6. To what relief, if any, is the plaintiff entitled? Both the parties adduced evidence, both oral and documentary. The learned Addl. Munsiff No. 1. Ajmer City, Ajmer dismissed the suit of the plaintiff with costs vide judgment and decree dated 23rd August, 1960. An appeal was preferred by the plaintiff and the learned District Judge vide his judgment and decree dated 13th January, 1964. dismissed the appeal affirming the judgment and decree passed by the learned Add!. Munsiff Aggrieved by the judgment and decree passed by the learned Appellate Court, dated 13th January, 1964, the plaintiff has filed this second appeal before this Court under Sec. 100 of the Code of Civil Procedure. Shri Ajeet Bhandari, learned counsel for the appellant, submitted that the findings recorded by the learned lower Courts on issues No. 1 and 4 are perverse. It was urged that the learned District Judge totally ignored the material evidence on record, misread the evidence of Sayed Asaf Ali and did not examine Exs. 10, 12, 13 and 18 which were relevant for the decision of the case. Shri Bhandari also challenged the finding recorded by the learned lower Courts about the defendant's contention that she was an illiterate pardanashin lady. The main contention raised by Shri Bhandari is that Ex. 1 is a registered lease deed and the plaintiff proved the execution of the document by the defendant. Shri Bhandari submitted that from the written statement itself it is clear that the execution of the document was admitted by defendant No. 1 and further the document should be taken to be proved by virtue of Sections 59 and 60 of the Registration Act. Shri Bhandari also submitted that when defendant No. 1 had taken the plea that the document is fraudulent, illegal, void and inoperative and was got executed by defendant No. 2 through misrepresentation, the execution of the document by defendant No. 1 should be taken to have been admitted. His submission is that since the execution of the document Ex. 1 is admitted, the burden heavily lies upon defendant No. 3 to prove that the document was void and inoperative against her and it was the outcome of some fraudulent advice practised upon him. His further submission is that there is no finding recorded by the learned lower Courts that any fraud was practised upon her, or that defendant No. 2 got it executed from her by misrepresentation, or other-wise. In order to substantiate his contention, Shri Bhandari, learned counsel for the appellant, placed reliance on Narain vs. The Chamber of Commerce Ltd. , Kishangarh (1), a division bench judgment of this Court. This judgment has considered the evidentiary value of the endorsement made by the Registrar while registering the document. This Court held that- "as their Lordships of the Privy Council pointed out in Gopal Dass vs. Sri Thakurji (1), there is presumption that registration proceedings were regular and honestly carried out and unless it is shown that the person admitting registration before the Registrar is an imposter it should be taken that the executant admitted the signature in the mortgage-deed. There is another important case which has a bearing on the fact in issue. In Gan-gamoyi Debi vs. Triluckhya Nath Chowdhry (2), it was observed by the Privy Council that registration is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend the parties and see that proper persons are competent to act and are identified to his satisfaction and things done in his presence will be presumed to have been done duly and in order. Consequently, the admission of the executant before the Registrar must be deemed to have been proved by the endorsement of the Registrar in view of the provisions of Secs. 59 and 60. Such being the settled law, we are not prepared to accept the contention of learned counsel for the appellants that the certificate of the Sub-Registrar under Sec. 60 of the Registration Act cannot be considered as a substantive piece of evidence and that Sec. 68 of the India Evidence Act required independent proof that the alleged signature of the executant was in his handwriting and that mere proof of presentation of the document or its admission does not satisfy that requirement. "
(3.) RELIANCE has also been placed by Shri Bhandari on Govind Ram v. Abdul Wahab (2) in which the following observations were made by this Court :- "there is authority for holding that the execution or authorship of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence, although it must be further promised that the circumstantial evidence must be of sufficient strength to carry conviction. It has been further laid down that Section 67 does not lav down any specific mode of proof, and therefore, circumstantial evidence as a mode of proof of authorship or execution of documents is not excluded as a legitimate method of proving a document and such evidence may consist of the internal evidence contained in the document itself about the execution of which there is a dispute and the oral evidence of the witnesses to prove other surrounding circumstances. " On Ex- 1, there is the following endorsement made by the Sub-Registrar while registering the document: - "execution admitted before me by Mst. Rafiqa Bibi, aged 34 years d/o Syed Fiaiyaz Ali Musalman Khadimi of Iman R/o Khadimi Mohalla, Ajmer. The said executant is identified by Hashmat Ali aged 26 years s/o Haji Niamat Ali Syed and Mumtaz aged 25 years s/o Fiaiyaz Ali Syed, resident of Khadimi Mohalla, Ajmer. Further Zahoor Ali aged 37 years s/o Niawaj Syed of Khadimi Mohalla, Ajmer identified the above witnesses who is known to me personally. " This document was registered. Mst. Rafiqa Bibi admitted execution of it as would be evident from the endorsement made by the Sub-Registrar. Ex. 1 bears the thumb impression as well as the signatures of Rafiqa Bibi. On Ex. 1, there is an endorsement made by the Sub-Registrar about the registration of the document, which says that the document has been registered and it has been copied out in the register in Vol. 1134 page 91/94. Thus, there is a certificate of registration of Ex 1 as is required under Sec. 60 of the Registration Act, 1908. Since there is a certificate of registration as required by Sec. 60 of the Registration Act, it has given the document a character of a registered document. The endorsement made by the Sub-Registrar on Ex. 1 goes to prove that its execution was admitted by the executant and, since it being an act performed by the Sub-Registrar in his official capacity it should be presumed that he would not make such an endorsement unless the execution was admitted before him. On the basis of this endorsement, the Court can presume that the executant admitted the execution of the document before the Sub-Registrar. Undoubtedly, there cannot be further presumption that the deed had been executed by the executant with the knowledge of its contents. Shri A R. Salim, learned counsel for respondent No 1, submitted that the respondent did not admit the execution of the deed and had contended that in the written statement that she was an illiterate and Pardanashin lady. He further submitted that in view of the finding recorded by the learned lower Courts on issue No. l, which is a finding of fact, this Court in second appeal, cannot inquire into the correctness of the finding. Shri Salim, learned counsel for respondent No. 1, also submitted that there is evidence on record to prove that fraud was played upon her by respondent No 2. He further submitted that from the statement of Rafiqa Bibi it is clearly established that she is an illiterate Pardanashin lady and she never put her signatures on Ex. 1. It was also urged by the learned counsel for respondent No. 1 that unless it is proved that the alleged document was read out and explained to her the document Ex. 1 should not be taken to have been proved against her. He has also urged that defendant No. 1 was a Pardanashin lady and there is a clear finding recorded by the learned lower Courts and a finding whether a particular woman is a Pardanashin lady or not, is a finding of fact and cannot be assailed in second appeal. Shri Bhandari, learned counsel for the appellant, submitted that defendant No. 1 cannot be regarded as a Pardana-hsin lady. He further submitted that there is enough evidence on record to prove that defendant No. 1, Rafiqa Bibi was not a Pardanashin lady in the true sense of the expression. He has drawn the attention of the Court to Ex. 10, Ex. 12, Ex. 13, Ex. 17, Ex- 18, Ex. A7, Ex. A8. and Ex. A9. On the basis of these documents, the submission of Shri Bhandari is that Mst. Rafiqa Bibi is not an illiterate as she had signed the document. Shri Bhandari also urged that she was dealing in money transactions and she did not observe parda from strangers. Shri Bhandari also submitted that the learned lower Courts did not consider the material evidence on record in this regard and, thus, the finding recorded by the learned lower Court can be characterised as perverse finding and the same can be assailed in second appeal also. Shri Bhandari also submitted that Ex. 10, Ex. 12, Ex 13, and Ex. 18 are the documents from public records and they have been duly proved to show that Mst. Rafiqa Bibi is not illiterate and she signs in Urdu, in which the lease-deed Ex. 1 has been written. He also submitted that the trial Court has misread Ex 18. a registered mortgage - deed executed by her and proved by the petitioner holding that it bears the thumb impression of Rafiqa Bibi and is not signed by her, whereas, actually it does not bear her thumb impression at all and was signed by her. On Ex- 13 which is a registered deed about the portion of the suit property, executed by her, in appellant's favour, there is evidence that it also bears her signatures Ex 15 is a compromise signed by the parties. In this document there is a mention of Ex. 13, sale-deed dated 6th June, 1943 and Ex A7. a decree-sheet based on Ex. 15. This document also bears the testimony about the fact that Rafiqa Bibi used to sign the documents. Thus, Shri Bhandari urged that the finding recorded by the learned lower Courts is perverse and he contended to assail the finding in second appeal before this Court. ;