V.R. Newaskar, J.@mdashRespondents Harsingh and his three brothers filed the present suit out of which this second appeal arises on the allegations that the agricultural holding in suit had been purchased by Plaintiffs'' father Kishan from the Defendant Jadibai for a consideration of Rs. 150 and that sanction for the sale had been obtained from the Subha as far back as in the year 1(sic)32; that the Plaintiffs'' father and after his death the Plaintiffs had been in occupation from that time till 25-6-1953 when the Defendant Jadibai taking advantage of the circumstance that Plaintiff No. 1 Harsingh had been imprisoned in connection with a criminal case took forcible possession of the land The Plaintiffs therefore claimed possession on the strength of the alleged purchase.
2. The Defendant Jadibai denied the Plaintiffs'' assertions. She denied that she had sold the suit land or that any sanction from the Subha had been obtained by her. She also denied receipt of Rs. 150 as the consideration for the sale. She asserted her own title and possession over the suit land. She denied her having committed trespass in the year 1953 as alleged. In her special pleadings she asserted that during the minority of her son the Plaintiffs taking advantage of her position as a helpless woman forcibly took possession of her land but that on her son attending majority he got back the land.
3. On these pleadings the trial Court found the Plaintiffs'' allegations as regards sale of the land by Jadibai to Kishan established. It also held that there was sanction for the sale as required by law. Plaintiffs'' possession upto the year 1953 was held to be established. Accordingly it held the Plaintiffs'' claim established. It consequently decreed the same. On appeal the decision of the trial Court was confirmed and the appeal was dismissed.
4. This is a second appeal against that decision.
5. The principal points raised by Mr. Sanghi for the applicants in this case are:
1. That although there was sanction or the Subha for the sale of the land in question yet the sanction was conditional and the condition had not been fulfilled. The same was therefore null and void.
2 The Plaintiffs produced at a late stage of the case certain documents. Although the Defendant objected to their production yet the documents bad not been formally admitted in evidence. There was no endorsement of the trial Court regarding v. their having been so admitted. The Courts below therefore were not justified in treating them as evidence in the case. At any rate the Plaintiffs should have been required to prove them according to law.
3. The Plaintiffs cannot stand on the alternate basis that their possession had become adverse from the inception and had matured into ownership by the year 1953 in the absence of definite pleading and an opportunity to the Defendant to meet the case.
6. As regards the first Mr. Sanghi relied upon the admission of Plaintiff Harsingh that he had not deposited the Nazarana as contemplated u/s 45 of the Indore Land Revenue and Tenancy Act. According to the learned Counsel on the terms of the sanction, as we find it, the sanction was conditional and not absolute, the condition being that the purchaser should pay Rs. 21-0-6 as Nazarana before the sanction would be operative. In view of the terms of the sanction and the admission of Harsingh, it was contended, the sale was null and void and conferred no title upon the Plaintiffs.
7. Section 45 of the Indore Land Revenue and Tenancy Act is material in this connection. That provision is:
(1) A Pattered tenant may, with the previous sanction of the Subha of the District, and after payment to Government by the prospective transferee of a fee equal to one year''s revenue or rent of the land, transfer his rights in the whole, or any part, of his holding by sale to a bona fide agriculturist, as defined by rule made u/s 63.
(2) A transfer by sa(sic)e effected without the Subha''s sanction shall be null and void; provided that the transfer may be validated by the Subha on payment by the transferee of a penalty which may extend to three years'' revenue or rent of the land transferred.
8. The wording of the section indicates that there were two facts to the transaction of voluntary sale of an agricultural holding situated in the erstwhile Holkar State. One was as between the vendor and the vendee. For this previous sanction of the Subha was necessary. Where there was no such prior sanction the sale was to be regarded as null and void and no title passed from the vendor to the vendee. The void sale of this nature however was not an irremedial matter. The Collector was empowered to come to the aid of a bona fide agriculturist purchaser. The Subha could validate such void sale by imposing a condition for payment of three years'' revenue by way of penalty. The second fact to the transaction of sale was between the purchaser and the State. The purchaser was required to pay one year''s revenue, commonly called Nazarana, as a fee to the Government.
Unlike however to the provision for previous sanction there was no provision in the Section or elsewhere in the Act for rendering the sale, effected without payment of requisite fee, null and void. Where there is this non- payment of one year''s revenue as fee the sale was not to be rendered nugatory as between the parties although it would be open for the Revenue Authorities not to recognise the sale so far as their record goes. They may refuse to effect mutation until the requirement of law regarding payment of one year''s revenue was fulfilled.
9. It might be contended that, even in the absence of a specific provision for rendering such sale void where there was no prior payment of the requisite fee by the prospective purchaser, the use of the expression'' after payment to Government'' made it a condition precedent to the sale and that where the condition is not fulfilled there was no recognizable sale.
10. In my opinion in the entire setting in which the expression is used and having regard to the provisions contained in both the subsections. I am not pursuaded to hold that nonpayment of one year''s fee was a matter which would enable the vendor to put it forward as a ground for going back on his sale which he had otherwise completed. The purchaser had to do nothing so far as the vendor was concerned. And the vendor too had done everything to part with his title in favour of the purchaser. I am therefore unable to treat the provision as as to one year''s fee as a condition precedent which would justify the vendor to treat the sale as null and void and to take the law in his own hand to oust the purchaser. It is a different matter whether the Government would rest content by requiring the purchaser to pay one year''s revenue even afterwards or require him to pay more upto three times the annual revenue as indicated in Sub-section (2) of Section 45 of the Indore Land Revenue and Tenancy Act. About the legality of such higher imposition it is not necessary to pronounce in this case. The provision as to one year''s Revenue as fee before sale, in my opinion, s directory because even in the case of sales without sanction subsequent payment of fees, though on a higher basis, is not excluded
11. On the second contention regarding the use made of documents produced by the Plaintiff without the documents not having been endorsed Mr. Sanghi''s contention is that these documents could not have been read by the Courts below as evidence in the case in the absence of endorsement as required by the provisions contained in Order 13 Rule (sic) Code of CPC The learned Counsel relied upon the dictum of the their Lordships of the Privy Council in Sadik Hussain v. Hashim Ali Khan 43 IA 212 in this connection.
12. In order to appreciate the contention of the learned Counsel it is necessary to refer certain facts.
13. The case was fixed for Plaintiffs'' evidence to begin with. After examination of one of the Plaintiffs and some of his witnesses their evidence was closed on 15-5-1954 and the case was fixed for Defendant''s evidence on 17-7-1954. On that day an application was submitted on behalf of the Plaintiffs that during the course of trial due to unhappy involvement of all the Plaintiffs in a murder case they were unable to secure certified copies of certain revenue records which had a vital bearing on the issues involved in the case that they had secured such copies on the date of the application and that therefore they might be permitted to be admitted in evidence. The Court, after hearing arguments of both parties and on expression of consent by the Defendant''s counsel for their being produced and put on record, allowed them to be so produced on payment of Rs. 6 as costs for their late production. These documents were certified copies of the revenue records and excepting the application of Defendant Jadibai (Nishani 43) dated 16-3-1931 were public documents which required no proof. These documents therefore can be held to be properly produced and, excepting document at Nishani 43, proved. The making of endorsement regarding them having been admitted was the function of the Court and any mistake or even failure on the part of the Court to comply with the formalities ought not to have the effect of depriving the Plaintiff the use of these documents. It is well settled that the provision regarding performance of certain formalities which under the circumstance of a particular case, might be of ministerial nature, are merely directory and not mandatory because any failure on the part of the public officer to comply with the legal provision is a matter upon which a party to the litigation cannot have control. Their Lordship in Sadik Hussain''s case, no doubt, strongly deprecated the practice of not making necessary endorsement, and, with a view to secure strict compliance of Order 13 Rule 4 C. P. C. expressed that they would not in future look into documents which were not duly endorsed but what their Lordships said indicated the importance of such endowments upon documents which needed proof and were disputed and should not be read as meaning that trial Court''s failure to comply with a formality of endorsement with reference to document which needed no proof should have the effect of visiting; a party desirous of using such documents, with a penalty of being left without them. In
These observations of their Lordships of the Privy Council certainly show the great importance to be attached to the endorsement required by Order 13 Rule 4 because it avoids all complications at a later stage as to whether a particular document has been admitted in evidence or not.
14. In
15. It is thus clear that their Lordships of Privy Council in deprecating non-observance of the Rule and in giving a warning of the character referred to above had in their mind the situation in which controversy had legitimately arisen whether certain documents had been properly produced and admitted in evidence or not. It is in connection with such a matter that the non-observance of the Rule should be considered fatal. But where the documents are duly produced without objection and being certified copies of public documents can be taken to be proved and where after such production the opposite party had fair opportunity to rebut that material it cannot be said that the documents should be left out of consideration on account of non-compliance with what may be called a mere formality of making an endorsement as to their admission. Evidently the Plaintiffs had no control over the presiding officer and in the entire context such non-compliance should not in any way prevent this Court from referring to those documents.
16. The irregularity regarding non-compliance with Order 13, Rule 4 C. P. C. is one in a proceeding in the suit and Section 99 C. P. C. fully justifies the view that for such irregularity which does neither affect the merits of the case or the jurisdiction of the Court the decree of the Court below need not be set aside.
17. As regards the third contention regarding absence of specific and alternate plea regarding the acquisition of title by adverse possession the same need only be considered in case the Plaintiffs are liable to fail on their title based on the transaction of sale. Since, I hold that the sale is not rendered void due to non-payment of the fee, it would really be unnecessary to consider the matter in detail It would be sufficient however to point out that the Plaintiffs had specifically made averment in the plaint regarding Kisan''s possession having started from 1932 on the basis of the sale by the Appellant and regarding he and after him the Plaintiffs having continued in possession upto 1953. The Defendant who was a party to the bargain had notice to meet this case which clearly gave indication of adverse character of possession in case the transaction of sale was to be regarded as conferring no title upon Kisan. There is concurrent finding by the two Courts below regarding Plaintiffs'' possession during this period. The fact that it was adverse was a mere legal inference to be drawn on the facts and circumstances of the case and the relationship of the parties. Failure, therefore, on the part of the Plaintiffs to mention the plea by a legal formula should not prevent them from putting forward that plea if the facts on record justify such course.
18. For all these reasons the contentions raised in this appeal do not deserve to be upheld and the appeal is consequently dismissed with costs.
