A.K. Shrivastava, J:

1. This is plaintiffs second appeal whose suit has been dismissed by learned first Appellate Court reversing the judgment and decree passed by learned trial Court decreeing his suit.

2. No exhaustive statement of facts are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that a suit for eviction on the basis of relationship of landlord and tenant has been filed by the. plaintiff/appellant on the grounds envisaged under section 12(1)(a) and (c) of the M. P. Accommodation Control Act, 1961 (in short "the Act") against the original defendant/tenant. Baldu, who had died during the pendency of this second appeal and his LRs have been brought on record as respondents arraying them as defendants.

3. Learned trial Court on the basis of the pleadings of the parties found both the grounds to be proved and decreed the suit on both counts. The appeal which was filed by defendant Baldu has been allowed by the impugned judgment and decree and the suit of the plaintiff/appellant has been dismissed.

4. In this manner this second appeal has been filed by the appellant/plaintiff.

5. This Court on 28-6-1990 admitted the second appeal on the following substantial question of law :

"Whether the lower Appellate Court has acted contrary to Exhibit P-7, which is a public document?

6. The contention of Shri Sanjay Sarvate, learned counsel for the appellant is that property in question was purchased by plaintiff in auction sale in which the defendant was residing and who was later on inducted as tenant by the plaintiff. The sale certificate is Exhibit P-10. By inviting my attention to the document of warrant of possession (Exhibit P-6) issued by the First Civil Judge, Class-II, Khurai dated 12-1-1972 it has been submitted that this warrant of possession was issued against defendant Baldu who was residing in the suit premises and thereafter the possession of the property in question was also handed over to the auction purchaser/plaintiff and this has been so embodied on the rear side of document of warrant of possession (Exhibit P-6). The receipt of possession (Exhibit P-7) is a document in consequence to Exhibit P-6. Learned counsel submits that since Exhibit P-7 is the certified copy of public document, mere production of it would be sufficient proof of public document in terms of section 77 of the Indian Evidence Act, 1872 (for short "the Act"). In support of his contention, learned counsel has placed reliance on the decision Balku and others v. King Emperor, AIR 1925 Oudh 183.

7. On the other hand, Shri Amod Gupta, learned counsel for the respondents/defendants argued in support of the impugned judgment.

8. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed and the case is required to be sent back to the learned first Appellate Court to decide the appeal on merits.

Regarding Substantial Question of Law

9. On bare perusal of the judgment of learned first Appellate Court (para- 11 onwards) it is gathered that learned first Appellate Court has held that possession of the suit property was given to the plaintiff/appellant in pursuance to possession receipt, Exhibit P-7, is not proved since the said document is not a public document and, therefore, in these circumstances, the plaintiff ought to have summoned the file of Court having the original possession receipt in it and, therefore, since the Exhibit P-7 is not a certified copy of a public document, its mere production would not be sufficient in order to prove the factum of delivery of possession of the suit property to the plaintiff who was an auction purchaser.

10. On the other hand, Shri Amod Gupta, learned counsel for respondent argued in support of the impugned judgment.

11. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

12. On bare perusal of the possession receipt Exhibit P-7 this Court finds that it is in consequence to the warrant of possession (Exhibit P-6) issued against defendant Baldu, dated 12-1-1972. On the rear side of this document Exhibit P-6, this Court finds that there is an endorsement and report of the Bailiff (Process Server) dated 19-1-1972 that the possession of the disputed house has been delivered to the plaintiff. Hence, according to me, the certified copy of the document of the receipt of possession Exhibit P-7, which is in consequence to Exhibit P-6 is a public document.

13. Even otherwise, on bare perusal of section 74 of the Evidence Act this Court finds that the possession receipt is kept in a judicial record. The delivery of possession of the suit house was given to the plaintiff in pursuance to auction sale in favour of appellant. According to me, the possession receipt is a part of Court's record and the report made to the Court by a Bailiff stating that the order has been carried out by delivering possession to the plaintiff/auction purchaser, therefore, undoubtedly it is a public document. Hence, mere production of certified copy of the receipt of possession Exhibit P-7 with an endorsement of the Bailiff that the possession has been delivered to the auction purchaser (present plaintiff) would be sufficient proof of a public document and is admissible in evidence in terms to section 77 of the Evidence Act.

14. On going through the commentary of famous book 'Law of Evidence', 15th Edition page 1197 of eminent Jurist P.C. Sarkar it has been held by the author that Peon's return in execution proceedings being an official record made by a public servant in the discharge of official duty and is admissible in evidence. In this context, I may also profitably place reliance on the Division Bench decision of Patna High Court in Heramba Nath Bandhopadhyay v. Surendra Nath Mitra, 1919 (LIII) Indian Cases 20.

15. Hence, the finding of learned first Appellate Court, holding that Exhibit P-7 which is a certified copy of the receipt of possession is not a public document and is inadmissible and therefore, the possession of plaintiff is not proved, is contrary to the law.

16. The substantial question of law is, thus, answered in favour of appellant that the certified copy of the possession receipt, Exhibit P-7, is a public document and is admissible in evidence.

17. Since the learned first Appellate Court has held that there is no material on record in order to hold that the possession of the suit property was delivered to the plaintiff in pursuance to Exhibit P-7 and therefore, it cannot be held that later on he inducted respondent as his tenant is set aside and it is hereby held that in pursuance to Exhibit P-7 the possession was delivered to the plaintiff. The case is sent back to learned first Appellate Court to decide the appeal of tenant afresh.

18. Resultantly, this second appeal is allowed and the judgment and decree passed by learned first Appellate Court is hereby set aside. The case is sent back to the learned first Appellate Court to decide the first appeal afresh in order to ascertain whether any ground of eviction as found

to be proved by learned trial Court is made out or not. 19. Since the case is remanded to the learned first Appellate Court, Application IA. No. 1609/2009 which has been filed under section 100(5) Civil Procedure Code is not being decided. 20. Registry is directed to send the record posthaste to learned first Appellate Court so as to reach that Court on or before 9th May, 2011 and for this date no notice is required to be sent to any of the parties. The parties shall remain present before that Court on this date. Since the civil suit is of the year 1983 the learned first Appellate Court is hereby directed to decide the appeal on or before 30-6-2011. 21. This appeal is accordingly allowed with costs. Counsel fee Rs. 10,000/-, if certified. Appeal allowed.