' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment of the High Court dated 3-9-1990.
2. The facts of the case are that on 2-10-1962, the respondents filed a suit against the appellants Nos.2 and 3 and Khan Bahadur (deceased) for possession of the house in dispute, situate in the Abadi of the Pindigheb Town. The claim of the plaintiffs in the suit was that they are owners in possession of the house in dispute but the defendants had about 12 days prior to institution of the suit, forcibly turned out the plaintiffs. The suit was contested by the defendants. The learned trial Court, by its judgment, dated 27-3-1963, decreed the suit in favour of the plaintiffs. On appeal filed by the defendants the learned Appellate Court by its judgment dated 17-6-1963 remanded the case to the trial Court with the direction that the plaintiffs be given an opportunity to produce the original of Exh.P.1, deed of gift. Against this decision, the defendants filed a second appeal in the Peshawar High Court which was accepted on 2-2-1966. The order of remand passed by the first Appellate Court was set aside and the case was remanded to the District Judge with a direction that he should address himself to the question whether the case of the plaintiffs is covered by section 65, clause (c) of the Evidence Act. On remand, the learned District Judge on 31-10-1966 accepted the appeal, set aside the judgment and decree of the trial Court. The plaintiffs then challenged the judgment of the District Judge in second appeal before the High Court. The learned High Court by means of the impugned judgment accepted the appeal, set aside the judgment and decree of the District Judge and restored that of the trial Court.
3. Leave was granted to consider the question whether the grounds had been laid for leading secondary evidence with regard to the Gift Deed.
4. Learned counsel for the appellants submitted that as the original Gift Deed was not produced by the plaintiffs/respondents in spite of the fact that the same was in possession of their mother, the secondary evidence should not have been taken into consideration as the plaintiffs' case is based on the Gift Deed. The suit should have been dismissed for want of proof. He further submitted that if the mother was not supporting the respondents, they could summon her as a witness under Order XVI. The admitted position is that one of' the plaintiffs was a minor at the time of institution of the suit. It is also an admitted fact that their mother had married second time after the death of their father. The High Court has recorded a finding that after her second marriage she seemed to have lost her interest in them and it was natural because had she been interested in their welfare, she would have come forward to depose in their favour and produced the original gift deed but she did not do so. In these circumstances, the plaintiffs-appellants were not in a position to cause the production of the original gift deed before the trial Court and get it formally proved. Therefore, they could produce secondary evidence and they, did produce the certified copy (Exh.P.1) of gift deed, about the authenticity of which there could be no cavil, particularly when the reliable witnesses had in their testimony also proved orally the fact of the gift made by the father of plaintiffs- appellants in their favour.
5. According to section 65(c) of the Evidence Act, "secondary evidence may be given when the 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". The failure to produce the original gift deed has been explained by the High Court. Even otherwise, the certified copy of Exh.P.1 had been produced. The gift deed is a public document under section 74(2) of the Evidence Act. According to section, 76, certified copies of the public documents shall be given. Certified copy of a public document is a proof of the contents of the public document (section 77). There is a presumption as to the genuineness of certified copy of public document under section 79 of the Evidence Act. In the present case, P.W.4 Gul Muhammad one of the marginal witnesses of the gift deed has produced copy of the gift deed. No objection was raised when this document was tendered in evidence. Even no cross-examination was made that it was not a genuine document.
6. The deed was admitted by the trial Court without any objection. It is well-settled that certified copy of a registered deed evidenced in private transaction is admissible in evidence. It is designed for the purpose of proving the contents of original and shall be admissible without any further proof, as public documents are acts of public functionaries. Section 51 of the Registration Act provides that all Registration Officers to keep certified books in which all documents that have been registered are to be entered. According to section 57(5) of the Registration Act, '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'. A registered copy is really a copy of an entry in the Register which is itself a copy of the original document. There is no evidence to controvert the genuineness of the document Exh.P.1.
7. Learned counsel for the appellant has referred to Hemanta Kumar Das v. Alliantz Ins. Co. (AIR 1938 Cal. 120) wherein it is stated that 'a certified copy of the entry of registration of a deed is admissible in evidence under sections 74 and 77 as proof of the entry, but not of the contents of the deed'. This observation is to be read in the context of the facts of that case and it does not apply as universal proposition in each case. The facts of each case have to be considered while considering the reception of certified copy of a public document.
8. It is also pertinent to point out that the case of the appellants is that the disputed house did not belong to the father of the parties as according to Khan Bahadur who appeared as D.W.5 his mother informed him that the house was gifted by their maternal grandfather. The witnesses admitted that this information was conveyed to him when he was aged about 3 years and his mother had died when his wife was aged 3-1/2 years. Even, a layman will laugh in his sleeves on such statement. Khan Bahadur had given his age at the time of his statement as 33 years. It is very strange that he had stored this. Information in his memory for about 30 years. It could not be imagined that a boy of 3 years was capable of remembering this fact for such a long time. There is no evidence worth consideration that the property belonged to the maternal grandfather of Khan Bahadur and that he had gifted it to them.
9. In conclusion we see no merit in this appeal. The same is dismissed with no order as to costs.