Page No.# 1/12 GAHC010164222010 2026:GAU-AS:7096 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/92/2010 SRI AKBAR ALI S/O MD. ABED ALI, R/O VILL. DALUR PATHAR, MOUZA-HASTINAPUR, SUB-DIVISION-BAJALI, DIST. BARPETA, ASSAM. VERSUS ABDUL MAJID and ORS S/O LATE MIR ALI. 2:MD. ISAB ALI S/O LATE MIR ALI. 3:MD. INSAN ALI S/O LATE MIR ALI 4:MD. SULTAN ALI S/O LATE KUBED ALI 5:MD. HAJRAT ALI S/O LATE KUBED ALI. 6:MD. ISAB ALI S/O LATE KUBED ALI. 7:MD. ABBASH ALI S/O LATE MUNIR ALI. Page No.# 2/12 8:MD. ABBASH ALI S/O LATE KUMED ALI ALL ARE R/O VILL. DALURPATHAR MOUZA-HASTINAPUR SUB-DIVISION-BAJALI DIST. BARPETA ASSAM Advocate for the Petitioner : MRK UDDIN, MR.S K DEORI,DR.B AHMED,MR.N HAQUE Advocate for the Respondent : MR.D KONWAR, MS.R LAGACHU,MR.R GOSWAMI,MR.H KALITA BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 19.05.2026 Heard Mr. N. Haque, learned counsel for the petitioner as well as Mr. R. Goswami, learned counsel for the respondents. 2. By filing this appeal under Section 100 of the CPC, the appellant has assailed the judgment and order dated 18.05.2009, passed by the learned Civil Judge, Barpeta in Title Appeal No. 12 of 2008, and the consequential decree by which the said appeal was dismissed, and the judgment and decree dated 24.03.2008 passed by the learned Munsiff, Bajali at Pathshala in T.S. No. 1 of 2007 was affirmed. 3. In brief, the case of the appellant is that he had filed a suit against the respondents for a declaration of right, title, and interest, and for recovery of khas possession by evicting the respondent-defendants from the suit land described in Schedule B (out of the land described in Schedule A of the plaint), Page No.# 3/12 for the removal of the house described in Schedule C of the plaint, and for a permanent injunction. The said suit was registered as Title Suit No. 1 of 2007. It is stated that in the plaint, apart from the 8 respondents as defendants, there are two proforma defendants. Defendant Nos. 1, 2, and 3 contested the suit by filing their written statement, denying the execution of the sale deed, asserting their possession of the suit land, and claiming the sale deed to be forged. 4. In the course of the trial, the learned trial Court framed nine issues, which are as follows: 1. Whether plaintiff has right, title and interest over suit land? 2. Whether plaintiff purchased “Schedule A” land vide registered Sale Deed No. 2659/05? 3. Whether registered sale deed No. 2659/05 is a forged one? 4. Whether the defendants dispossessed the plaintiff from the suit land on 25-1-07 thereby erecting thatched house and planting trees? 5. Whether there is cause of action for the suit? 6. Whether suit is valued properly and proper court fee paid thereof? 7. Whether suit is bad for non-joinder and mis-joinder of necessary parties? 8. Whether suit is barred by law of limitation? 9. To what relief/reliefs parties are entitled to? 5. In support of the plaint, the petitioner examined four witnesses and exhibited five documents, being a certified copy of the registered sale deed No. 2689/05 (Ext.1), original land revenue payment receipts for the years 2000- 2001, 2004-2005, and 2005-2006 (Ext. Nos. 2, 3, and 4), and a certified copy of the Jamabandi (Ext. 5). 6. The contesting respondents had also examined four witnesses and Page No.# 4/12 had exhibited a certified copy of the Jamabandi (Ext. Ka), a certified copy of the Chitha (Ext. Kha), and the original registered sale deed No. 3087/75 dated 25.11.1975 (Ext. Ga). 7. In respect of issue No. 2, the learned trial Court, on the basis of evidence on record, recorded a finding that in the pleadings, the number of the certified copy of the sale deed is 2689/05. As per the pleadings in the first paragraph, it is claimed that the scheduled suit land was bought from the proforma defendant, Mokshed Ali, by registered sale deed No. 2659/05. In the evidence-on-affidavit of PW-1, the petitioner stated the number of the registered sale deed as 2659/05, whereas PW-3 referred to the said registered sale deed number as 2359/05. As per the evidence of Abed Ali (PW-4), the original sale deed was with the office of the Sub-Registrar, Barpeta. However, the vendor Mokshed Ali, proforma defendant No. 2 examined as DW-3, denied having sold any land to the appellant and according to him, he was the owner of only 2 katha 10 lessas of land in Dag No. 299. 8. The learned trial Court also recorded that PW-2 and PW-3 could not say where the sale deed was registered. Accordingly, taking into account the provision of Section 65 of the Evidence Act, 1872, which provides that secondary evidence of a document can be given when the original is in possession of the adverse party, and since the appellant-plaintiff did not pray to call the said document from the Sub-Registrar's office, issue No. 2 was decided in the negative and against the appellant. 9. In respect of issue No. 1, relating to the right, title, and interest of the appellant over the suit land, as the appellant had failed to produce the original sale deed for the 1 bigha of land, the issue was decided in the negative and Page No.# 5/12 against the appellant. In respect of issue No. 3, relating to whether the registered sale deed No. 2659/05 is forged, the learned trial Court held that the respondent-defendants had failed to prove forgery and therefore, the issue was decided in the negative and against the respondents. In respect of issue No. 4, which relates to the dispossession of the appellant-plaintiff, the learned trial Court, by referring to the evidence of PWs 1, 2, and 3, held that the plaintiff's witnesses had admitted that they had no idea what was written in the evidence on affidavit and as it was not stated under what circumstances and events the dispossession took place, the issue was decided against the appellant. As regards issue No. 5, relating to the cause of action, the learned trial Court held that the appellant had failed to prove the case against the defendants in view of issue Nos. 1, 2, 3, and 4 discussed by the learned trial Court. 10. In respect of issue No. 6, though the suit was valued at Rs.5,000/- in view of the evidence of the petitioner that the suit land is valued at Rs. 12,500/- it was held that the ad-valorem Court fee would be Rs.957.85. Therefore, the appellant was required to pay an additional Court fee of Rs.495, and accordingly, issue No. 6 was decided against the appellant. Issue No. 7, relating to the non-joinder of necessary parties, was decided against the respondent- defendants. In respect of issue No. 8, it was held that the suit is not barred by limitation and accordingly, the issue was decided in favour of the appellant. In respect of issue No. 9, the appellant-plaintiff was not found entitled to any relief. 11. The first appellate Court by the impugned judgment and consequential decree dated 18.05.2009, affirmed the decision passed by the Court of learned Munsiff, Bajali, Pathshala, and accordingly, the appeal was dismissed. As no infirmity was found in respect of the judgment and decree passed by the Page No.# 6/12 learned trial Court, there is no reason to burden this order with the discussion of the first appellate Court. 12. The instant appeal was admitted for hearing on the following substantial question of law by an order dated 31.05.2010. “Whether certified copy of the sale deed (Ext.1) is a public document within the meaning of Section 74 of the Evidence Act and, if so, whether the same is admissible under Section 65 of the Act? 13. In support of the appeal and the substantial question of law on which this appeal was admitted for hearing, the learned counsel for the appellant has cited the case of Appaiya vs. Andimuthu alias Thangapandi and Ors., AIR 2023 SC 4810 : (2023) 0 Supreme (SC) 974. It is submitted that the said decision is an authority on the point that once a document is registered under the Registration Act, there is permissibility for the production of a certified copy as secondary evidence in law in regard to the existence, condition, or contents of a document. Accordingly, it was held that a certified copy of a sale deed is admissible in evidence for the purpose of proving the contents of the original documents. In light of the said decision, the issue relating to the non-production of the original sale deed has been examined. 14. The respondent-defendant Nos. 1, 2, and 3, in their written statement had not admitted the execution of the sale deed by proforma respondent No. 2. Rather, by giving a general denial, it was stated that the same was false and the appellant-plaintiff was bound to prove it by adducing evidence. Later on, it was stated that the appellant-plaintiff may have a registered sale deed in his name, but no actual survey by the revenue staff and no formal delivery of possession was handed over to the seller at any point in time. It was alleged that the appellant-plaintiff was trying to get a decree by giving a false statement on the Page No.# 7/12 basis of a forged registered sale deed. In the proceedings before the learned trial Court, no effort was made to bring the original registered sale deed on record. 15. As already indicated above, while deciding issue No. 2, the learned trial Court found a variance in the registered sale deed number. In the certified copy of the sale deed, the number of the deed is 2689/05 and in paragraph 1 of the plaint, the number of the sale deed was mentioned as Deed No. 2659/05. While PW-1 has given the number of the sale deed as 2659/05 in his evidence-on- affidavit, according to PW-2, the number of the sale deed at paragraph 3 of his evidence on affidavit is 2351/05. Furthermore, PW-3, in paragraph 3 of his evidence-on-affidavit, referred to the said sale deed number as 2359/05. Under such circumstances, when there is a variance between the pleadings and the evidence tendered by the witnesses, it cannot be said that without proving the original sale deed, a certified copy would be good evidence. 16. There is no quarrel with the decision of the Supreme Court of India in the case of Appaiya (supra). However, the said decision must be viewed in the context of the facts and circumstances of that case. In the case of Appaiya (supra), the original judgment in O.S. No. 104 of 1996 was passed on 30.09.1997. The appellate judgment in A.S. No. 65/67 was passed on 03.07.2001, and the second appellate judgment by the High Court was passed on 17.10.2012 in Second Appeal (MD) No. 802 of 2004. 17. Therefore, when the judgments of the learned trial Court and the first appellate Court were passed, they were based on the provisions of Order XVIII as it stood prior to its amendment by way of substitution by the Code of Civil Procedure (Amendment) Act, 1999, with effect from 01.07.2002. After the Page No.# 8/12 amendment to the provisions of the CPC, Order XVIII Rule 4 was substituted. Accordingly, on a comparative study, the provisions of Order XVIII Rule 4 CPC as it stood earlier prior to the amendment and the provisions of the Order XVIII Rule 4 as it stood after the amendment are quoted below: Prior to amendment After amendment “Rule 4. Witnesses to be examined in open Court. — The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.” “Rule 4. Recording of evidence.— (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. (2) The evidence (cross- examination and re-examination) of the witness in attendance, whose examination-in-chief by affidavit has been furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit. (3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing the Commissioner. (4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination: Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (5) The report of the Commissioner shall be submitted to the Court appointing the Commissioner within sixty days from the date of issue of the commission Page No.# 9/12 unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule. (7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner. (8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, insofar as they are applicable, shall apply to the issue, execution and return of such commission under this rule.” 18. Under the proviso to Order XVIII Rule 4, it is provided that where documents are filed and the parties rely upon them, the proof and admissibility of such documents filed along with the affidavit shall be subject to the orders of the Court. Therefore, when there is an evident discrepancy in the pleadings and proof of the sale deed number, and when DW-3, who is the vendor of the sale deed comes and deposes as DW-3 and disputes and denies the execution of the sale deed and confirms that he had not executed any such deed and such evidence could not be demolished during cross-examination and the sale deed was not sent for forensic examination of the signature, in the considered opinion of the Court, reliance on a certified copy of the sale deed would be impermissible as the vendor denied execution of the sale deed. Therefore, on the facts, the present case is distinguishable from the facts of the case in Appaiya (supra) as well as on the change of law under which the judgment was passed. 19. It is made clear that there is no quarrel with the proposition that the sale deed would be covered by the provisions of Section 74(2) of the Evidence Act, being public records of private documents kept in the State of Assam. 20. In the course of this appeal, the appellant has filed I.A. (Civil) No. 273 Page No.# 10/12 of 2025 under Order XLI Rule 27 of the Code of Civil Procedure for the production of additional evidence at the stage of the second appeal. It is projected that as a layman, the appellant could not have known the legal provisions regarding how a sale deed is to be proved. It is stated that the certified copy of the sale deed had the registration No. 2689/05, and as the appellant was an illiterate person, he had no knowledge of discrepancies in the sale deed numbers across the pleadings and the evidence of the witnesses. It was submitted that the appellant was not aware of the provisions of Order XLI Rule 27 CPC that could have been applied at the first appellate stage and it is only at this stage that the appellant came to know about the provision to produce the original sale deed at the appellate stage. The learned counsel for the appellants had submitted that the said document is vital to decide the substantial question of law involved in this appeal. In support of his submission, the learned counsel for the appellants has cited the case of Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247. 21. Per contra, the learned senior counsel for the respondent has opposed the prayer. 22. In this regard, in the considered opinion of the Court, the law relating to additional evidence has been well settled by the decision of the Supreme Court of India in the case of Union of India vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148 : (2012) 0 Supreme (SC) 465. As per the said decision, if evidence is available on record, sufficient for the judgment, the provision of Order XLI Rule 27 cannot be resorted to and there must exist sufficient cause for not invoking the said provision. It has also been held that if the appellate Court requires additional evidence when evidence taken by the trial and First Appellate Court is Page No.# 11/12 so imperfect that a satisfactory judgment cannot be passed on that basis only then Order XLI Rule 27 be resorted to. In this case, there is a contrary finding of fact of dismissal of suit on account of non-exhibiting of the original sale deed. Therefore, it cannot be said that he second appellate court cannot hear and dispose of the appeal on the basis of the evidence already on record. This is not a case where there exist a doubt in the mind of the Court and the additional evidence sought to be adduced would remove the cloud of doubt over the case. 23. There can be a view in this case that as the suit and the first appeal were decided against the appellant, an additional evidence, the lacuna of which remained in the trial Court be filled up. It is not the case of the appellant that any prayer was made before the trial Court as well as the First Appellate Court to call for the original sale deed. No steps were taken to have the original document exhibited. 24. Therefore, this is not found to be a fit and proper case to entertain and allow the application filed under Order XLI Rule 27 CPC, registered as I.A. 273 of 2025. Accordingly, a separate order is being passed in the said interlocutory application. 25. Resultantly, the substantial question of law, in view of the provisions of Order XVIII Rule 4 as amended, is amended by holding that though the certified copy of the sale deed is a public document within the meaning of Section 74(2) of the Evidence Act, as there is variance between the pleadings and evidence regarding the sale deed number as referred to above. Accordingly, in the facts unique to this case, the certified copy of the sale deed would not be admissible without compliance with Section 65 of the Evidence Act, because the executor of the sale deed was examined as DW-3, namely, Mokshed Ali, had denied Page No.# 12/12 executing the said sale deed and whose evidence could not be demolished during the cross-examination. Thus in this case not only the registration, but also the execution of the sale deed was required to be proved. 26. Accordingly, the substantial question of law is decided against the appellant. Consequently, the appeal fails and the same is dismissed. 27. The Registry shall send back the records of the trial Court and the learned First Appellate Court. JUDGE Comparing Assistant