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Patna High Court
Bibi Qamrunnisa Khanam @ Bibi Kamrunisa … vs Ekbal Khan on 22 May, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1588 of 2019
======================================================
1.1. Seema Afzal Wife of Najmul Hoda Khan, Resident of Dariyapur, P.S.
Sangrampur, District- East Champaran.
1.2. Noor Afzal @ Noor Matin Wife of Dr. Matinuddin Haidar Resident of Bank
Road, P.S. Gandhi Maidan, District- Patna.
1.3. Isra Rahima Wife of Sajid Khan Resident of Bank Road, P.S. Gandhi
Maidan, District- Patna.
1.4. Barkatullah Khan @ Md. Umar Saifullah Khan Son of Late Md.
Hedayatullah Khan Resident of Village - Pathanpatti, P.O. - Kariyapur, P.S.
Harsidhi, District- East Champaran.
1.5. Bushra Khanam @ Bushra Imran Wife of Imran Khan Resident of K. Hat,
P.S. K. Hat, District- Purnea.
1.6. Md. Nasar Asadullah Khan Son of Late Md. Hedayatullah Kha Resident of
Village - Pathanpatti, P.O. Dariyapur, P.S. Harsidhi, District- East
Champaran.
... ... Petitioner/s
Versus
Ekbal Khan Son of Muzaffar Imam Khan Alias Babu Khan Resident of
Mohalla- Chikpatti, Post Office- Motihari, District- East Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Raghib Ahsan, Sr. Adv.
Mr. Wasi Akhtar, Adv.
For the Respondent/s : Mr. Arbind Kumar Sharma, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 22-05-2025
The present petition is filed for setting aside the order
dated 04.09.2019 passed by the learned Sub Judge-13, Motihari,
East Champaran in Title Suit No. 524 of 2008, whereby and
whereunder an application dated 24.04.2019 filed by the
plaintiff has been allowed and certain documents have been
marked as exhibits as public documents.
2. Briefly stated, the facts of the case are that the
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
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respondent is plaintiff before the learned trial court who has
filed Title Suit No. 524 of 2008 for declaration of his title over
the suit land and for confirmation of possession thereon as well
as a declaration that registered deed of sale dated 21.08.2018
executed by Most. Rojidan in favour of Md. Hedyatullah Khan,
original defendant no.1 (since dead), is void ab initio and not
binding upon the plaintiff. The suit land is situated in Mauza
Tarkalwa, P.S.- Motihari Town, District.- East Champaran
having area of 1 bigha 16 katha 2 dhur. The plaintiff claims
himself to be the karta and manager of his family whereas the
original defendant was the karta and manage of his family. The
suit land was khatiani land of Most. Rojidan who was the
maternal grandmother of the father of the plaintiff. Most.
Rojidan had only one daughter Kulsum Bandi who was married
to Md. Taqui Khan, grandfather of the plaintiff. From their
wedlock, father of the plaintiff was born. Most. Rojidan
executed a registered deed of Waqf in respect of the suit land
and other properties on 12.02.1916. The beneficiaries of the
waqf were Kulsum Bandi and her descendants. After death of
Kulsum Bandi, the grandfather of the plaintiff and the father of
the plaintiff came in possession of the waqf properties and
remained in its possession. Father of the plaintiff died in the
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
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year 1983 and the plaintiff came into possession of the waqf
properties. The grandmother of the plaintiff executed registered
deed dated 16.06.1972 in favour of her grandsons. The suit land
was a ditch (Gaddha) and as it was not a productive land, no
steps were taken for its mutation by the grandfather or the father
of the plaintiff but they remained in its peaceful possession. On
15.12.2007
, the plaintiff filed an application for mutation of his
name in the Anchal Office and he came to know that jamabandi
of the suit land has been running in the name of Md.
Hedayatullah Khan. Since neither the father of the plaintiff nor
the plaintiff had knowledge about the aforesaid fact, no claim on
spot was made by anyone. In March, 2008, the plaintiff filed an
application for cancellation of the jamabandi in the name of
defendant no.1. Subsequently, on 06.05.2008, the plaintiff filed
an appeal before the DCLR, Motihari. In this proceeding, the
plaintiff came to know that a report has been submitted that
Most. Rojidan had executed a sale deed dated 21.08.1948 in the
name of defendant no.1. The plaintiff obtained certified copy of
the sale deed on 19.10.2008 and told the defendant not to make
any claim of right on the basis of the said sale deed as it was
forged and fraudulent. But as the defendant did not pay any heed
to the request of the plaintiff, the plaintiff was compelled to file
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Title Suit No. 524 of 2008. The defendant appeared and
contested the suit by filing written statement submitting that
deed of waqf dated 12.02.1916 executed by Most. Rojidan was
not acted upon and she never treated the suit land as waqf land
and on 21.08.1948 sold the suit land to Md. Hedayatullah Khan,
original plaintiff no.1 who got his name mutated in revenue
records and used to pay rent. The defendant further submitted
that the deed of waqf dated 12.02.2016 does not relate to the suit
land as Mauza was different. In the aforesaid proceeding on
24.04.2019, the plaintiff filed an application for taking into
evidence the documents mentioned therein which includes
certified copies of the deed of gift dated 20.02.1972, the
waqfnama dated 12.02.2016 and the sale deed dated 21.08.1948
as public documents. On 04.09.2019, the defendants filed a
rejoinder to the said application of the plaintiff objecting to the
prayer of the plaintiff. However, vide impugned order dated
04.09.2019, learned Sub Judge allowed the application and
marked the documents as exhibits considering the documents to
be public documents.
3. Learned senior counsel appearing on behalf of
defendant/petitioner submitted that the learned trial court erred
in marking certified copies of deed of gift dated 20.02.1972,
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
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deed of waqf dated 12.02.2016 and the sale deed dated
21.08.1948 as exhibits treating the same as public documents.
The impugned order is erroneous as without being satisfied
about the non-availability of the original documents, the learned
trial court marked the documents exhibit as public documents.
Learned senior counsel further submitted that the impugned
order is illegal and arbitrary. The documents marked exhibits are
not public documents and the learned trial court fell into error.
Under Section 65 of the Evidence Act, the aforesaid documents
could not be taken into evidence as secondary evidence without
satisfying the grounds mentioned therein but the learned trial
court committed error of jurisdiction in allowing the application
dated 24.04.2019. Learned senior counsel further submitted that
the documents can be taken into secondary evidence when it can
be shown that original has been destroyed or lost or when the
party offering evidence of its contents cannot, for any other
reason not arising from his own default or neglect, produce it in
reasonable time. Learned senior counsel further submitted that
the original of the documents are not public documents within
the meaning of Section 74 of the Evidence Act. Therefore, the
learned trial court has passed the orders without having
regard to the legal position and the impugned order is
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
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not sustainable.
4. Learned counsel appearing on behalf of the
respondent vehemently contended that there is no infirmity in
the impugned order and the same does not need any interference
by this Court. Learned counsel submitted that even though the
documents are private documents but record kept in the office of
Sub-Registrar is a public record of said private document,
certified copies of the same are admissible documents. Learned
counsel further submitted that under Section 74 of the Evidence
Act, it has been clearly specified that where a document, a part
thereof is a public document within the meaning of the Section,
it does not require any further proof. It is also settled principle
of law that when documents are tendered in evidence and
marked as exhibits, three types of objections could be taken, viz,
(i) Objection to the document purely on ground of
absence/insufficiency of stamp duty. (ii) Where a document is
by itself admissible in evidence but the objection is directed
towards the mode of proof alleging the same to be irregular or
insufficient. (iii) Objection that document sought to be produced
in evidence is ab initio inadmissible in evidence in terms of the
relevant statutory provisions, for instance under the provisions
of Registration Act, 1908 or the Transfer of Property Act, 1882.
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
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The objections taken by the defendant/petitioner does not fall
within any of the three categories. Learned counsel further
submitted that Section 65 of the Evidence Act has no relevance
so far as applicability of Section 74 of the Evidence Act is
concerned. The learned counsel relied on the decision of
Appaiya Vs. Andimuthu @ Thangapandi & Ors., reported in
AIR 2023 SC 4810 in support of his contention that in similar
manner objection was taken that the document produced i.e.,
Exhibit-A1 was only certified copy of the sale deed and its
original was not produced in evidence, the Hon’ble Supreme
Court held that the document in question was certified copy of a
registered sale deed, falling within the definition of a public
document, the question is whether there exists any law declaring
such certified copy of document as admissible in evidence for
the purpose of proving the contents of the original documents
and answered the question relying on Section 57(5) of the
Registration Act that provides certified copy given under
Section 57 of the Registration Act shall be admissible for the
purpose of proving the contents of its original document. The
Hon’ble Supreme Court further noted that certified copy issued
thereunder is not a copy of original document but is a copy of
registration entry which is itself a copy of the original and is a
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
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public document under Section 74(2) of the Evidence Act. Thus,
learned counsel submitted that present petition is devoid of any
merit and the same be dismissed.
5. Having considered the rival submission and on
perusal of record, it appears that the issues before this Court are
whether certified copies of the documents are public documents
and whether the documents are admissible as secondary
evidence without laying any foundation. The same issue came
before this Court in the case of Ram Briksha Singh & Ors. vs.
Ramashray Singh & Ors. (Civil Misc. No.1824 of 2018) and
paragraph nos. 7, 8, 9 & 10 are quire apposite for consideration
of the issues raised in the present matter and the same are
extracted for ready reference. Paragraph nos. 7, 8, 9 & 10 of the
same read as under:-
“7. Section 75 of the Evidence Act provides that all
other documents are private. Now a sale deed is no
doubt a private document but whether its certified
copy would come under the category of public
records kept in any state of private document? The
Division Bench of Madhaya Pradesh High Court in
the case of Smt. Rekha Rana & Ors. Vs. Smt.
Ratneshree Jain, reported in AIR 2006 MP 107 has
held the proposition that a certified copy of a sale
deed is a public document or a registered sale deed is
a public document are erroneous. It has further been
held that a registered document (deed of sale etc.) is
not a public document. It is a private document.
Further, a certified copy of a registered document,
copied from Book and issued by the Registering
Officer, is neither a public document, nor a certified
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
9/16copy of a private document, but is a certified copy of
a public document. In other words, a certified copy of
a registered document is a certified copy of public
document. The basis for saying so lies in the fact that
when a sale deed is registered before the Registering
Authority, necessary entries are maintained in the
book kept at the Registration Office and, thus, it is a
record ‘kept in a state of private documents’ and,
therefore, a public document. When a person applies
for the certified copy of document registered in the
office which is entered/filed in Book 1, a certified
copy of document as copies/filed in Book 1 is
furnished to the applicant. Such certified copy of any
entries in Book 1 is a certified copy of a public
document. But such certified copy of registered
document extracted from Book 1 is not itself a public
document. It is really a true copy of a copy (copy of
original deed entered in Book 1). The discussion has
been made by the Division Bench of the Madhya
Pradesh High Court considering the provisions of
the Registration Act, 1908, specially Sections 51 and
57. Thus, it has been concluded that a certified copy
of a registered document issued by Registering
Officer, by copying from Book 1, is a certified copy of
a public document. Similar question came up before
the Hon’ble Supreme Court in the case of Appaiya
Vs. Andimuthu @ Thangapandi & Ors., [Civil
Appeal No. 14630 of 2015 {@ SLP (C) No. 10013 of
2015}], wherein the Hon’ble Supreme Court has
observed in paragraph no. 29, which reads as
under:-
“29. Having regard to all the aforesaid
circumstances and in the light of the various
provisions of the Evidence Act mentioned
hereinbefore we will firstly consider the question
whether the appellant/plaintiff had succeeded in
proving the contents of Ext.A1. Going by Section
65(e) when the original of a document is a public
document within the meaning of Section 74,
secondary evidence relating its original viz., as to
its existence, condition or contents may be given
by producing its certified copy. Ext.A1,
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
10/16indisputably is the certified copy of sale deed No.
1209/1928 dated 27.08.1928 of SRO Andipatti. In
terms of Section 74(2) of the Evidence Act, its
original falls within the definition of public
document and there is no case that it is not
certified in the manner provided under the
Evidence Act. As noticed hereinbefore, the sole
objection is that what was produced as Ext.A1 is
only a certified copy of the sale deed and its
original was not produced in evidence. The
hollowness and unsustainability of the said
objection would be revealed on application of the
relevant provisions under the Evidence Act and
the Registration Act, 1908. It is in this regard that
Section 77 and 79 of the Evidence Act, as
extracted earlier, assume relevance. Section 77
provides for the production of certified copy of a
public document as secondary evidence in proof
of contents of its original. Section 79 is the
provision for presumption as to the genuineness
of certified copies provided the existence of a law
declaring certified copy of a document of such
nature to be admissible as evidence. When that
be the position under the aforesaid provisions,
taking note of the fact that the document in
question is a registered sale deed, falling within
the definition of a public document, the question
is whether there exists any law declaring such
certified copy of a document as admissible in
evidence for the purpose of proving the contents
of its original document. Sub-section (5) of
Section 57 of the Registration Act is the relevant
provision that provides that certified copy given
under Section 57 of the Registration Act shall be
admissible for the purpose of proving the
contents of its original document. In this context
it is to be noted that certified copy issued
thereunder is not a copy of the original
document, but is a copy of the registration entry
which is itself a copy of the original and is a
public document under Section 74(2) of the
Evidence Act and Sub-section (5) thereof, makes
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
11/16it admissible in evidence for proving the contents
of its original …………………………………………
………………………………………………………”
(Underlined for emphasis)
8. Now coming back to the dispute in the present
case, in the light of discussion made
hereinbefore, it could be safely concluded that
the certified copy of a registered sale deed would
fall under the category of public document under
Section 74 (2) of the Evidence Act.
9. Last question which remains is whether this
document could be marked an exhibit waiving the
requirement of formal proof. Section 76 of the
Evidence Act empowers an officer having the
custody of a public document to give a certified
copy at the Registrar’s Office keeps a public
record of all sale deeds registered in that office.
The definition of public document under Section
74 of the Evidence Act takes in public records
kept in any state of private document. A certified
copy is therefore admissible in evidence both
under Section 65 (e) and 65 (f) of the Evidence
Act. The certified copy is, therefore, secondary
evidence of public record of sale deed kept in the
office of the Registrar. Invoking Section 57(5) of
the Registration Act, the said copy becomes
admissible for the purpose of proving the
contents of the original document itself.
Therefore, the certified copy becomes admissible
in evidence but proof of execution could not be
dispensed with.
10. Section 65 (e) and Section 77 of the Evidence
Act read as under:-
“(a)…………
(b)…………
(c)………….
(d)…………
(e) when the original is a public document within
the meaning of section 74;
(f)…………
(g)………..
77. Proof of documents by production of certified
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
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copies.-Such certified copies may be produced in
proof of the contents of the public documents or
parts of the public documents of which they
purport to be copies.”
At the same time, Section 57 (5) of the Registration
Act reads as under:-
“57 (5) All copies given under this section shall
be signed and sealed by the registering officer,
and shall be admissible for the purpose of
proving the contents of the original
documents.””
6. Similar question came up before the Hon’ble
Supreme Court in the case of Appaiya (supra) wherein the
Hon’ble Supreme Court has observed in paragraph no. 29,
which reads as under:-
“29. Having regard to all the aforesaid
circumstances and in the light of the various
provisions of the Evidence Act mentioned
hereinbefore we will firstly consider the question
whether the appellant/plaintiff had succeeded in
proving the contents of Ext.A1. Going by Section
65(e) when the original of a document is a public
document within the meaning of Section 74,
secondary evidence relating its original viz., as to
its existence, condition or contents may be given
by producing its certified copy. Ext.A1,
indisputably is the certified copy of sale deed No.
1209/1928 dated 27.08.1928 of SRO Andipatti. In
terms of Section 74(2) of the Evidence Act, its
original falls within the definition of public
document and there is no case that it is not
certified in the manner provided under the
Evidence Act. As noticed hereinbefore, the sole
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
13/16objection is that what was produced as Ext.A1 is
only a certified copy of the sale deed and its
original was not produced in evidence. The
hollowness and unsustainability of the said
objection would be revealed on application of the
relevant provisions under the Evidence Act and
the Registration Act, 1908. It is in this regard that
Section 77 and 79 of the Evidence Act, as
extracted earlier, assume relevance. Section 77
provides for the production of certified copy of a
public document as secondary evidence in proof
of contents of its original. Section 79 is the
provision for presumption as to the genuineness
of certified copies provided the existence of a law
declaring certified copy of a document of such
nature to be admissible as evidence. When that
be the position under the aforesaid provisions,
taking note of the fact that the document in
question is a registered sale deed, falling within
the definition of a public document, the question
is whether there exists any law declaring such
certified copy of a document as admissible in
evidence for the purpose of proving the contents
of its original document. Sub-section (5) of
Section 57 of the Registration Act is the relevant
provision that provides that certified copy given
under Section 57 of the Registration Act shall be
admissible for the purpose of proving the
contents of its original document. In this context
it is to be noted that certified copy issued
thereunder is not a copy of the original
document, but is a copy of the registration entry
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
14/16which is itself a copy of the original and is a
public document under Section 74(2) of the
Evidence Act and Sub-section (5) thereof, makes
it admissible in evidence for proving the contents
of its original …………………………………………
………………………………………………………”
(Underlined for emphasis)
7. Thereafter, a Constitution Bench of the Hon’ble
Supreme Court in the case of N.N. Global Mercantile (P) Ltd.
vs. Indo Unique Flame Ltd., reported in (2023) 7 SCC 1
wherein paragraph no. 141.2, the Hon’ble Supreme Court
recorded as under:-
“141.2. What Section 74 read with Section 76
of the Evidence Act provides for is, the issuance
of certified copies. Certified copies can be
issued only in respect of public documents.
Section 62 inter alia of the Evidence Act defines
primary evidence as the document itself
produced for the inspection of the court. Section
63 of the Evidence Act defines ‘secondary
evidence’ as meaning and including, inter alia,
‘certified copies under the provisions
hereinafter contained’. The provisions
‘hereinafter contained’ referred to in Section 63
must be understood as Section 74 read with
Section 76. A certified copy can be given, no
doubt, of ‘public records kept in any State of
private documents’. Thus, if a sale deed
between two private parties comes to be
registered, instead of producing the original
document, a certified copy of the sale deed, may
qualify as secondary evidence and a certified
copy can be sought for and issued under
Section 76 of the Evidence Act. The expression
‘public records kept in any State of a private
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
15/16document’ in Section 74 is not confined to
documents, which are registered under the
Registration Act. A private document, which is
kept as a public record, may qualify as a public
document. What is important is, to bear in mind
that in view of Section 33 of the Stamp Act, an
instrument, which is not duly stamped, if it is
produced before any Public Office, it would
become liable to be impounded and dealt with
as provided in the Stamp Act.”
8. Recently, this Court in the case of Abdul Rashid vs.
Iftakhar Hussain @ Dablu & Ors., (Civil Misc. No. 1651 of
2019), considered the aforesaid decisions as well as the decision
of Hon’ble Supreme Court in the case of Deccan Paper Mills
Company Limited vs. Regency Mahavir Properties & Ors.
reported in (2021) 4 SCC 786 and came to a finding that
certified copy of a registered document would be deemed to be
considered as public document under Section 74(2) of the
Evidence Act and read with Section 57(5) of the Registration
Act, it would be admissible in evidence. It has further been held
that certified copy of sale deed can be produced in proof of
contents of the public document or part of public document
which purports to be a copy and can be produced as secondary
evidence of the public document without laying any foundation.
At the same time, it has also been observed that it will only
prove the contents of the original document and not be a proof
of execution of the original document. The facts of the present
Patna High Court C.Misc. No.1588 of 2019 dt.22-05-2025
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case are squarely covered by the decision of Abdul Rashid
(supra).
9. Moreover, it is to be reminded that merely marking
a document exhibit does not mean it has become an admissible
piece of evidence. An objection to its admissibility does not get
excluded when the document is marked as exhibit.
10. In the light of aforesaid discussion, I have no
hesitation in holding that though the impugned order is
completely a cryptic order but for the reasons discussed as
aforesaid by this Court, the impugned order could not be said to
be suffering from any infirmity and, hence, the impugned order
dated 04.09.2019 passed by learned Sub Judge-13, Motihari,
East Champaran in Title Suit No. 524 of 2008 is sustained.
11. Accordingly, the present petition stands dismissed.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR NAFR CAV DATE 05.03.2025 Uploading Date 22.05.2025 Transmission Date NA
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