NARBADA DEVI GUPTAversusBIRENDRA KUMAR JAISWAL AND ANR.

                                                                                     "'I
A                            NARBADA DEV'. GUPTA
                                          V.

                   BIRENDRA KUMAR JAISWAL AND ANR.

                               NOVEMBER 3, 2003

B          [SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.]


        Evidence Act, I 872-Documentary Evidence-Proof of execution-Suit
  for recovery of possession of suit premises alleging forcible possession-
C Defendant's claim to be in possession as a tenant-Production ofrent-receipts
  having signature ofplaintiff-Admission of signature by plaintiff-Documents
  marked as exhibits-Admissibility and evidentiary value of the rent receipts-
  Decree ofsuit by trial Court-Dismissal ofappeal by High Court-On appeal,
  held: Suit liable to be dismissed-The documents are admissible as the same
  and the signatures thereon were admitted and they were marked as exhibits.
D
           Original plaintiff (proforma respondent in the appeal) filed suit for
    recovery of possession of the suit premises alleging wrongful and forcible
    possession by the contesting respondent-defendant. Appellant was the
    transferee of the suit property. It was pleaded in the plaint that certain
    blank stamp papers thumb marked and signed by the plaintiff were given
E   to the defendant authorizing him to represent them in various pending
    litigations. Respondent-defendant, in his written statement, claimed to be
    in possession of suit premises as tenant. In order to prove the tenancy,
    apart from oral evidence he produced rent receipts with thumb
    impressions thereon of the landlady and endorsement of plaintiff on the
F   back portions of the receipts. Despite specific plea of tenancy, plaintiff did
    not make any consequential amendment to plaint as to how blank printed
    rent receipts came to be thumb marked and signed by him. After
    examination of the plaintiff, his having admitted his signatures on the rent
    receipts, the same were marked as exhibits. Trial Court decreed the suit
    concluding that defendant had somehow access to the rent bill kept by
G   plaintiff and the same were utilized for fabricating the rent receipts.
    Appeal to High Court was allowed holding that in the face of specific plea
    of tenancy, onus to prove the signatures on the back of the receipts was
    on the plaintiff.


H                                         90
               NARBADA DEVI GUPTA v. BIRENDRA KUMAR JAISWAL                91
        In appeal to this Court, appellant contended that mere admission of      A
  signature of the plaintiff on the back portion of rent receipts and their
· marking as exhibits by Court cannot be taken as due proof of execution
  of the rent receipts.

       Respondent contended that plaintiff having not disputed his
 signatures and the documents having been marked exhibits, there was no          B
 necessity to lead any further evidence by respondent-defendant to prove
 writings on the. receipts and their due execution.

      Dismissing the appeal, the Court

       HELD : 1. High Court rightly took a view that in face of the specific     C
 plea of tenancy by the tenant based on rent receipts, onus of proof, in fact,
 lay on the plaintiff to explain how blank printed rent receipts came to be
 signed by him on their back portions. What has been pleaded is that
 certain signed stamped blank papers were given to the defendant to be
 used for the pending litigations of the landlady and for administration of      D
 her estate. The plaintiff failed to lead any evidence to show what were those
 pending litigations and what was the occasion and necessity to sign printed
 blank receipts at their back by the plaintiff. (97-B-D)

      2. Mere production and marking of a document as exhibit by the
court cannot be held to be a due proof of its contents. Its execution has to     E
be proved by admissible evidence that is by the 'evidence of those persons
who can vouchsafe for the truth of the facts in issue'. The situation is,
however, different where the documents are produced, they are admitted
by the -opposite party, signatures on them are also admitted and they are
marked thereafter as exhibits by the court. It cannot be said that as the
mark of exhibits has been put on the back portions of the rent receipt near      F
the place where the admitted signatures of the plaintiff appear, the rent
receipts as a whole cannot be treated to have been exhibited as an admitted
document. [96-F-H]                                                  '

     Dattatraya v. Rangnath Gopalrao Kawathekar (dead) Thr Lrs., AIR             G
(1971) SC 2548; Kamji Dayawala and Sons (P) Ltd v. Invest Import, (1981)
1 SCC 80 and Om Prakash Berl/a and Anr. v. Unit Trust of India and Ors.,
AIR (1983) Bombay t, referred to.

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 315 of 1998.
                                                                                 H
    92                        SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R. ·

A        From the Judgment and Order dated 12.1.96 of the Calcutta High Court
    in Appeal from Original Decree No. 397 of 1984.

          Jaideep Gupta and Nalin Tripati for Ms. Sarla Chandra for the Appellant.

          Raj Kumar Gupta and Sheo Kumar Gupta for A.N. Bardiyar for the
B Respondents.
          The Judgment of the Court was delivered by                                   •
         DHARMADHIKARI, J. The suit for recovery of possession of the
  suit premises on the allegation of taking wrongful and forcible possession by
C the contesting respondent was decreed by the city civil court, Calcutta by its
  judgment dated 29.6. 1984. The Division Bench of the High Court of Calcutta
  by judgment dated 12.01.1996, has set aside the judgment of the city civil
  court and allowed the appeal of the respondent. The petitioner, being plaintiff
   in the trial court has, therefore, approached this Court in the present appeal.
D         The suit premises belong to the deceased Gokul Chand. On his death,
    it was inherited by his wife Ram Moni Devi. She also died and the original
    plaintiff - Gangadhar Halder (who is proforma non-contesting respondent no.
    2 in this appeal), claims to be her successor-in-interest as the adopted son.
    The present appellant is transferee of the suit property from the original
E   plaintiff - Gangadhar Halder.

          The contesting respondent resisted the suit claiming to be in possession
    of suit premises as tenant. Apart from leading oral evidence to prove tenancy,
    he produced rent receipts marked as Exs. A, A-1, and A-2. An Agreement of
    tenancy dated 12.12.1970 marked as Ex-C was also produced to prove his
F   status as tenant in the suit premises.

         The main question raised by the appellant before this Court is on the
    admissibility and evidentiary value of the three rent receipts relying on which
    the High Court has dismissed the suit.

G         In paragraphs 8 & 9 of the plaint, anticipating the plea of the defendant,
    following averments are made:

            "8. That the defendant is a near relation of Anil Kumar Gupta, tenant
            of the northern shop room and was working in the said shop and
            became friendly with said Ram Moni Devi and the plaintiff and after
H           death of Gokul Chand he voluntered to help per in various pending
   NARBADA DEVI GUPTA v.BIRENDRA KUMARJAISWAL [DHARMADHIKARI, J.] 93

        litigations and administration of the estate left by said Gokul chand    A
        and said Ram Moni Devi, and illiterate lady and the plaintiff being
        practically an illiterate man deposed utmost faith upon the defendant.

       9. That after death the plaintiffs adoptive father for looking after the
       village properties he began to stay at his native village at Kashinagar
       and in this absence for conducting the litigations at the instance of B
       the defendant for authorising him to represent said Ram Moni Devi
       the defendant took thumb impression of Ram Moni Devi on some
       blank stamp papers and blank papers with one or two signatures of
       the plaintiff also thereon. ''

                                          [Underlining for pointed attention]    C
      The defendant Birendra Kumar Jaiswal in the written statement made
specific reference to the rent receipts issued in his favour by landlady late
Ram Moni Devi with thumb impressions on the stamps affixed on them and
endorsements of the plaintiff by putting his signatures on the back portion of
those rent receipts. The defendant thus denied the allegation of the plaintiff   D
that he had trespassed into the suit premises taking advantage of the absence
of the original plaintiff-Gangadhar Halder.

      The specific plea of the defendant based on the rent receipts contained
in paragraph 16 of the written statement reads thus:                             E
       "16. The allegations contained in para 9 of the plaint are specifically
       denied. The defendant have no concern or any knowledge about the
       plaintiff or that the plaintiff was adopted son of Gokul Chand. It is
       absolutely false that the defendant took thus impression of Ram Moni
       Devi on some stamp blank paper. As a matter of fact, the defendant F
       was the monthly tenant under Smt. Ram Moni Devi in respect of two
       rooms on the ground floor at 76, Amherst street, Calcutta-9 at a
       monthly rental of Rs. I00 according to English Calendar. At the time
       of payment of rent the rent receipts were also endorsed by the plaintiff
       by putting his name. The defendant further states that on the request
       for Ram Moni Devi, he paid Rs. 5,200 on a pro-note date 21.7.1971 G
       and after receiving the said amount the said Ram Moni Devi duty put
       her left thus impression and the said pro-note was also signed by the
       plaintiff a witness.

     Despite the above specific plea of tenancy based on the rent receipts H
    94                           SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A taken by the defendant in the written statement, the plaintiff did not make
    any consequential amendment to his plaint and offered no explanation how
    blank printed rent receipts came to be thumb marked and singed on their
    back portions by the plaintiff.

          On the above pleadings, the parties went to trial. On the question of
B admissibility of the rent receipts, the Order No. 53 of the trial court dated
    3.9.82. (wrongly mentioned by the High Court as dated 5.9.82) reads as
    under:

            "53/3.9.82..................................... PW-2 Gangadhar Holder is examined
            and cross-examined. Documents are marked as Exs. A (2) and B-
c           B( I) on admission. No other witnesses are present today. Adjourned
            to 7.9.1982 for further hearing.

           The trial court on appreciation of oral and documentary evidence on
    record came to the conclusion that the defendant had somehow access to the
D   rent bills kept by plaintiff-Gangadhar Halder and those seem to have been
    utilised for fabricating the rent receipts. The relevant portion of the finding
    of the trial court reads thus:

            "The evidence on record, therefore, shows that defendant Biren
            Jaiswal had access to the rent bill kept by Gangadhar. The evidence
            on record further shows that defendants utterly failed to prove formally
E
            rent receipts dated 18th March, 1972, 2nd Feb., 1974 and 8th May,
            1976 and the genuineness of these rent receipts. Considering the facts
            of the case, I am inclined to observe that the rent receipts produced
            by the defendant have been manufactured by him on abusing a faith
            reposed on him by plaintiff Gangadhar holder".
F
                                            [Underlining to highlight the conclusion]

         The Division Bench of High Court, in appeal, re-appreciated the oral
    and documentary evidence and reversed the finding of the trial court. On the
    admissibility and reliability of the disputed rent receipts, the High Court
G   made the following comments in paragraph 7 of its judgement:




                                                                                                -
            "7. Upon consideration of the rival submissions it appears to us that
            the propriety of the decision of the learned trial judge things on our
            conclusion about the status of the defendant. The defendant has claimed
            a tenancy and in support thereof rent receipts have been produced,
H           admitted signatures whereon were of Gangadhar Halder and thumb
     NARBADA DEVI GUPTA v.BIRENDRA KUMAR JAISWAL [BALAKRISHNAN, J.]           95

         impressions of Ram Moni Devi could not be shown to be not genuine.         A
        The only ground on which such receipts have been discarded by the
        learned trial judge is a finding of fraud by conversion of blank stamp
        papers into rent receipts through perpetation of fraud in that way was
        never pleaded in the plaint. It is well settled that a case which has not
        been pleaded in the plaint cannot be made out by evidence. It is also
        well settled that signatures to the documents having been admitted or       B
        proved the. contents thereof automatically go into evidence, when
        documents were admitted into evidence without objection (See Order
        No. 53 dated 5.9.1982) (vide AIR 1972 S.C. 608 P.C.-Purushothama
        Reddiar, Appellant-v-S. Perumal, Respondent.) The same reasonings
        apply to the agreement in questions. If the existence and genuineness       C
        of the rent receipts cannot be doubted then the existence of the
        agreement also has to be accepted because of its consistency in facts.
        According to our view, therefore, the net effect of the above renders
        the case of tenancy as pleaded by the dependent credible and the
        case of the plaintiff of the defendant being trespasser cannot but has
        to be rejected. We do not agree with the reasonings of the learned          D
        trial Judge because his entire approach was vitiated by non·
        consideration of absence of specific plea of fraud and surmines and
        presumption.

                                                [Underlining to add emphasis]       E
       The main thrust of the argument strenuously advanced by the learned
counsel appearing for the plaintiff as appellant is that mere admission of the
signatures of the plaintiff on the hack portion of the rent receipts and their
marking as exhibits by the court cannot be taken as due proof of execution
of the rent receipts by the original landlady Ram Moni Devi. It is argued that      p
the defendant failed to lead any evidence to prove writings on the rent receipts
and their due execution and issuance by the landlady with her thumb
impression. It is argued that exhibits are marked to the admitted signature of
the plaintiff on the back portion of the rent receipts and such marking could
not be taken to be proof of the due execution and issuance of the rent
receipts. Learned counsel contends that marking documents as exhibits and           G
their proof are two different legal .concepts. Reference is made to Section 66
of the Evidence Act and reliance is placed on Dattatraya v. Ranganth Gopalrao
Kawathekar (dead) Thr LRs., AIR (1971) SC 2548; Kamji Dayawala & Sons
(P) Ltd. v. Invest Import, [1981] I SCC 80 and Om Prakash Berl/a and Anr.
v. Unit Trust of India and Ors., AIR (1983) (Bombay) I.                             H
    96                        SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A       Learned counsel appearing for the contesting responde<nt supported the
  judgement of the High Court and submitted that the plaintiff having not
  disputed his signatures on the back portion of the three rent receipts and the
  documents having been admitted and marked as exhibits by order No.53
  dated 3.9.82 of the trial court, there was no necessity. to lead any further
B evidence by the defendant to prove writings on the rent receipts and their due
  execution in favour of the tenant by the landlady.

          We have purposely reproduced the relevant parts of the pleadings of
   the plaintiff in the plaint and of the defendant in the written statement to
   show the rival cases respectively set up by the contesting parties. At the
C. earliest stage, in the written statement, the defendant has clearly pleaded that
   he is in occupation of the suit prem:ses on a monthly rental of Rs. I00 per
   month and had been paying rent and obtaining rent receipts which were
   thumb marked by the original landlady late Ram Moni Devi and singed on
   the back by the original plaintiff - Gangadhar Halder.

D       As seen above, it was pleaded in the plaint that certain blank stamp
  papers thumb marked and signed by the plaintiff were given to the defendant
  authorising him to represent them in various pending litigations. Even after
  the specific plea in the written statement of the defendant claiming status of
  a tenant on the basis of rent receipts, the pleadings in the plaint were not
  amended by the plaintiff to explain how on back of printed rent receipt, he
E happened to put his signatures. No consequential amendment was made in
  the plaint taking a plea of fraud and forgery of rent receipt. There is also no
  evidence to that effect.

        Reliance is heavily placed on behalf of the appellant on the case of
F Ramji Dayawala & Sons (P) Ltd., (supra), The legal position is not in dispute
  that mere production and marking of a document as exhibit by the court
  cannot be held to be. a due proof of its contents. Its execution has to be
  proved by admissible evidence that is by the 'evidence of those persons who
  can vouchsafe for the truth of the facts in issue'. The situation is, however,
  different where the documents are produced, they are admitted by the opposite
G party, signatures on them are also admitted and they are marked thereafter as
  exhibits by the court. We find no force in the argument advanced on behalf
  of the appellant that as the mark of exhibits has been put on the back portions
  of the rent receipts near the place where the admitted signatures of the plaintiff
  appear, the rent receipts as a whole cannot be treated to have been exhibited
H as an admitted documents.
     NARBADA DEVI GUPTA v.BIRENDRA KUMAR JAISWAL [BA LA KRISHNAN, J.]         97

      We have already reproduced above the contents of the order no. 53             A
dated 3.9.82 of the trial court. The appellant cannot be allowed to question
the correctness of the said under. The documents were admitted and then
exhibited. The plaintiff did not dispute his signatures on the back of them.
There was, therefore, no further burden of proof on the defendant to lead
additional evidence in proof of the writing on the rent receipts and its due        B
execution by the deceased landlady.

       The High Court rightly took a view that in face of the specific plea of
tenancy by the tenant based on rent receipts, onus of proof, in fact, lay on the
plaintiff to explain how blank printed rent receipts came to be signed by him
on their back portions. We have extracted above the relevant pleadings in the C
plaint. What has been pleaded in that certain signed stamped blank papers
were given to the defendant to be used for the pending litigations of the
landlady and for administration of her estate. The plaintiff failed to lead any
evidence to show what were those pending litigations and what was the
occasion and necessity to sign printed blank receipts at their back by the
plaintiff.                                             .                         D
      The High Court being the first court of appeals was fully within its
powers to re-examine and re-appreciate the documentary and oral evidence.
It could come to a conclusion contrary to the one reached by the trial court.
As discussed above, we find that the High Court was fully justified in taking
a contrary view as it did and upsetting the judgment of the trial court resulting   E
in dismissal of the suit. In the result, the appeal fails and is, accordingly,
dismissed but in the circumstances, we leave the parties to bear their own
costs in this appeal.

K.K.T.                                                      Appeal dismissed