Narasani Siva Rami Reddy, Guntur ... vs Narasani Jaya Surya, Guntur Dist
2022 Latest Caselaw 7869 AP

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          HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

             CIVIL REVISION PETITION No.6134 of 2016
ORDER:

This Civil Revision Petition is filed by the petitioner/plaintiff under

Article 227 of Constitution of India against the orders passed by learned II

Additional District Judge, Guntur in I.A.No.1487 of 2015 in O.S.No.161 of

2015 wherein and whereby learned trial Judge dismissed petition filed by

the petitioner to receive Photostat copy of partition list dated 01.09.1985

as secondary evidence.

2. Before the trial Court, petitioner filed petition under Section 65 of

Indian Evidence Act stating that he filed suit against the respondent

seeking declaration and permanent injunction. The revision petitioner

submits that himself, respondent and one Mr.Ravindra Reddy are real

brothers and he acquired the plaint schedule property by way of partition.

It is the contention of petitioner that on 01.09.1985 a partition list was

prepared among himself and his brothers and Photostat copy of the said

partition list furnished to him and original copy is kept with his brother

Mr.N.Ravindra Reddy. He submits that at the time of filing of suit, he filed

Photostat copy of partition list into the Court and he intended to mark the

said original partition list dated 01.09.1985 and filed petition in I.A.No.610

of 2013 to summon his brother Mr.N.Ravindra Reddy, who is custodian of

original partition list and cause production of the said document. The

petitioner also stated that on receiving summons from the Court his

brother Ravindra Reddy attended before the Court on 09.07.2015 and

deposed that original partition list is not available with him due to that

original partition list could not be produced, which could not be traced.

Therefore, petitioner/plaintiff filed petition to mark Photostat copy of

partition list, dated 01.09.1985 as secondary evidence on his behalf. For

which respondent/defendant filed counter before trial Court denying

averments in the affidavit of the petitioner. It is the contention of the

respondent that no partition of the properties took place in between

themselves and said partition list dated 01.09.1985 is not at all in

existence, which is created by the petitioner for the purpose of filing of

the suit. It is also the contention of the respondent that without proof of

existence of original partition list dated 01.09.1985 the question of filing

Photostat copy does not arise. He also alleged that petitioner did not

assign any valid reasons to mark Photostat copy of partition list dated

01.09.1985 as secondary evidence. He prays to dismiss the petition.

3. After hearing both sides, learned trial Judge dismissed petition filed

by the petitioner by observing that contents of the document shows that it

is a partition deed, which requires stamp duty as well as registration as

original itself is not registered and no stamp duty is paid, which cannot be

received as a secondary evidence.

4. Aggrieved by the orders passed by learned trial Judge, petitioner

filed present revision petition stating that orders of trial Court are contrary

to law weight of evidence and probabilities of the case. He submits that

trial Court ought to have seen that he has assigned reasons for adducing

secondary evidence and an opportunity ought to have given to him to file

Photostat copy of partition list. It is the contention of the revision

petitioner that mere marking of the document is not enough which

veracity or correctness shall be examined by the Court after considering

the overall evidence and also corroborating evidence available on record,

which failed to consider by the trial Court. He further submits that he

complied the requirements for adducing secondary evidence. He prays to

allow the civil revision petition and permit him to mark Photostat copy of

partition list dated 01.09.1985 as secondary evidence.

5. I have heard both sides.

6. Learned counsel for the revision petitioner would submit that

Photostat copy of partition list dated 01.09.1985 can be received in

evidence subject to proof and relevancy, which can be decided at the time

of final disposal of the case. He would further submits that though

petitioner laid foundation for receiving secondary evidence as required

under Section 65-(a) Indian Evidence Act by summoning Mr.Ravindra

Reddy, who also examined as CW.1, who deposed that document is not

available with him, trial Court refused to give an opportunity to the

petitioner to file Photostat copy of partition list. He relied on following

precedent law.

1) L.S.Sadapopan (Died) and another ... Appellants Vs. K.S.Sabarinathan ... Respondent AIR 2002 Madras 278 wherein it is held that the general principle is that if the original document exists and is available, it must be produced because it is the best evidence. However, if the original is lost destroyed, detained by the opponent, or third person who does not produce it before the Court or physically irrecoverable, the secondary evidence is admissible.

2) SaitTarajeeKhimchand and others ... Appellants Vs. Yelamarti Satyam and others ... Respondents AIR 1971 Supreme Court 1865 wherein it is held that mere marking of a document as an exhibit does not dispense with its proof.

3) MarwariKumhar and others ... Appellants Vs. Bhagwanpuri Guru Ganeshpuri and another ...

Respondents AIR 2000 Supreme Court 2629 wherein it is held that the ordinary copy of the judgment which is a public document is admissible in evidence, when the case of the party that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Under sub-clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of sub-clause (f). Secondary

evidence can led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. Clauses (a) and (c) of S.65 are independent of clause (f) and even an ordinary copy would, therefore, be admissible.

4) Prathipati Samba Siva Rao Vs. PrathipatiHanumantha Rao and others 2020 (1) ALT 177 (A.P) wherein it is held that unregistered documents can be looked into for collateral purposes.

5) N.S. Prakash Rao vsBala Krishna AndAnr. 2007 Law Suit (A.P) 927 wherein it is held that at para 11 that "the next question is whether the learned trial Judge was right in examining the nature of the document and rejecting to receive the document on the ground that it is lease deed. Insofar as examining the nature of the document is concerned, there cannot be any criticism. However, at the stage of production of secondary evidence, the document cannot be rejected raising a question that the same is not registered or not properly stamped. After receiving secondary evidence and before marking the document at the time of trial, it has to be verified whether such document is required to be stamped under the Stamp Act, 1899. Learned Counsel for the petitioner submits that his client is willing to pay the stamp duty. Whether a document offered as secondary evidence, attracts stamp duty - be it Xerox copy or carbon copy or certified copy made and

compared with the original; is a question that has to be gone into by the trial Court."

6) G.Sukender Reddy Vs. M.Pullaiah 2015 (3) ALT 575 (A.P.) wherein it is held that at para No.30 "Since, in the instant case, the order of the trial Court speaks of receiving of the document only without passing a judicial order on its admissibility, the defendant can as well raise his objection as to its admissibility at a later stage, and the trial Court shall consider the same and pass appropriate orders thereon. The objection relating to relevancy of the document need not be decided at the time of marking the document. It relates to admissibility and can be raised by the defendant at a later stage and should be decided by the Court at the time of pronouncement of judgment. Though the plaintiff has not sought leave of the Court while filing the list of documents on 30.04.2013, subsequent to the filing of the plaint, this Court considers the said defect as an irregularity and not an illegality. Since Exs.A6 to A10 were already marked from out of the list of documents, it is assumed that the trial Court has permitted such filing of the documents. However, the trial Court, hereafter, should scrupulously follow the provisions of CPC while receiving and marking the documents."

7) Order of this Court in C.R.P.No.838 of 2016 dated 19.09.2022.

He prays to allow civil revision petition.

7. Learned counsel for the respondent would submit that trial Court

even examined nature of the document and came to right conclusion that

it is unregistered partition deed and when original itself is unregistered,

unstamped document, copy of the said document cannot be marked in

evidence, which rightly rejected by learned trial Judge. He relied on

Judgment in...

1) BachuLaxmipathiVs. BachuKistaiah and others 2015 (5) ALT 795

2)Order of this Court in C.R.P.No.4766 of 2016 dated 07.08.2019.

8. Now, the issue that emerges for consideration by this Court is:

"Whether the orders under challenge are sustainable, tenable and

whether the same warrants any interference of this Court under

Article 227 of Constitution of India?"

POINT:

9. Before going to the merits of the case, it would be beneficial to

quote Section 65 of Indian Evidence Act, which reads as under:

"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--

(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) 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;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;

(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any

secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."

10. In the present case, suit is filed by the petitioner/plaintiff against

respondent/defendant, who is his real brother seeking declaration of his

right in respect of plaint schedule properties and for consequential

permanent injunction restraining the respondents interfering with his

possession and enjoyment of plaint schedule property. The contention of

the petitioner is basing on alleged partition of properties among the

brothers dated 01.09.1985. Now, it would be beneficial to extract para

No.2 of plaint, which reads as under:-

"Originally the plaint schedule properties as well as other properties belonged to one NarasaniGovinda Reddy of Jangamguntapalem village Hamlet of Medikonduru, SattenepalliMandal,Guntur District. After the death of said NarasaniGovinda Reddy, the plaintiff's father succeeded to the properties of late NarasaniGovinda Reddy including the plaint schedule properties. On 01.09.1985 the plaintiff, defendant, and one Ravindra Reddy and plaintiff's father and mother had a partition of their ancestral properties including the plaint schedule properties. According to the said partition, the plaint

schedule properties fell to the share of the plaintiff. Similarly the defendant also got his share in the said partition. Since then, the plaintiff has been in possession and enjoyment of the said plaint schedule properties in his own rights. Pattadar passbooks and Rythwari passbooks were also issued in the name of the plaintiff regarding the plaint schedule properties. The plaintiff also paid cist to revenue authorities regarding to the plaint schedule properties. Some of the receipts were signed by the brother of the plaintiff by name Ravindra Reddy in the capacity of V.A.O. Even pattadar pass books were also prepared by the said V.R.O., who is no other than the brother of this plaintiff as well as this defendant. The plaintiff also raised agricultural loan regarding the plaint schedule properties. The plaintiff also raised crop loan at State Bank of Hyderabad, Medikonduru Mandal, by hypothecating the plaint schedule properties. Therefore, the plaintiff is having all rights, interest and possession over the plaint schedule properties."

11. On perusal of para No.2 of plaint, which copy is filed by learned

counsel for the revision petitioner, which shows that there is no reference

of Photostat copy of partition list dated 01.09.1985 and at least there is no

mention about alleged partition is reduced into writing or it is not the

contention of petitioner that properties were already partitioned and

evidencing past transactions a partition list dated 01.09.1985 has been

entered into. Even there is no pleading in the plaint, the original partition

list has been prepared, which was kept with Mr.Ravindra Reddy (CW.1)

and a Photostat copy of document is given to the petitioner herein, which

clearly shows that no foundation is laid with regard to adducing secondary

evidence in the pleading of the petitioner/plaintiff. This Court while

considering similar aspect with regard to admissibility of Photostat copy of

agreement of sale after considering the fact that a foundation has been

laid in the pleading with regard to original kept with R.3, R.4/D.3, D.4 in

that suit in C.R.P.No.838 of 2016 and also after considering that petitioner

therein laid foundation for existence of the original and steps taken by

issuing notice to other side to produce original when they failed to

produce allowed the civil revision petition by relying on the ration laid

down by Hon'ble Apex Court in Bipin Shantilal Panchal Vs. State of

Gujarat (2001) 3 SCC 1 and also relying on the ration laid down in

R.V.E.Venkatachala Gounder.Vs.Arulmigu Viswesaraswami & V.P.

Temple and another (2003) 8 SCC 752 and permitted the petitioner

therein to mark Photostat copy of agreement of sale.

12. On perusal of section 65(a) to (g) of Indian Evidence Act, which

makes it clear that secondary evidence may be given to the existence,

condition or contents of document, when the original is shown or appears

to be in the possession or power or the person against whom the

document is sought to be proved or of any person out of which all are not

subject to the process of the Court, or of any person legally bound to

produce it and after the notice mentioned in Section 66 of the Act, such

person does not produce it. Learned counsel for the revision petitioner

vehemently submitted that petitioner has taken steps by filing petition to

summon Mr.Ravindra Reddy to produce original document, who appeared

and examined as CW.1 and not produced the original. A copy of

deposition of CW.1 Mr.K.Ravindra Reddy is made available by learned

counsel for revision petitioner, which shows that he was examined as

CW.1, who deposed that he was summoned to produce original partition

list dated 01.09.1985 but the above said partition list is not with him due

to that he has not produced the same before Court. It is pertinent to note

that it is not elicited from CW.1 when original was available with him and

where now the original is available and it is also not elicited from the

witness that original was with him and for some reason now it is not

available. It is the specific contention of respondent/defendant in the

pleading that no partition took place and alleged partition dated

01.09.1985 is a created one. Now, it would be beneficial to discuss ratio

laid down by this Court in Bachu Laxmipathi Vs. Bachu Kistaiah and

others 2015 (5) ALT 795, which relied on by learned trial Judge

wherein this Court held that question of adducing secondary evidence by

producing a Xerox copy of document does not arise when the existence of

original document itself is not believable, especially when the original

document is liable for stamp duty and registration. This Court also

discussed about definition of instrument as per Indian stamp and held that

impounding Xerox copy of instrument is unknown to law. The facts of the

above referred decision which relied on by learned trial Judge are similar

to the facts of the present case. In the present case also no foundation is

laid by the petitioner in the pleadings or in evidence for receiving

secondary evidence. The existence of original of alleged partition list dated

01.09.1985 is also not proved as required under Section 65-(a) of Indian

Evidence Act. The evidence of CW.1 Mr.Ravindra Reddy is only that

partition list dated 01.09.1985 is not with him due to that he could not

produce the same.

The ration laid down in L.S.Sadapopan case relied on by learned counsel for the revision petitioner is in respect of receiving secondary evidence when foundation is laid for existence of original and lost the original document.

The ratio laid down in Sait Tarajee Khimchand and others case relied on by learned counsel for the revision petitioner is with regard to proof of document, which is not in respect of receiving secondary evidence.

The ratio laid down in Marwari Kumhar and others case relied on by learned counsel for the revision petitioner is with regard to proof of copy of public document for receiving the same as secondary evidence.

The ratio laid down in Prathipati Samba Siva Rao case referred supra wherein this Court held that the rulings relied upon by the lower court to hold that the document even if it is unregistered can be relied upon for proving collateral purpose hold good for the gift deed, which

requires signatures of two witnesses and which contains attestation of only one witness as it too can be looked into for collateral purpose.

13. In the present case, the claim and relief sought by the petitioner

basing on alleged partition list dated 01.09.1985 only.

The ratio laid down in N.S. Prakash Rao case referred supra though it is in respect of receiving secondary evidence it is also held that whether a document offered as secondary evidence, attracts stamp duty be it Xerox copy or carbon copy or certified copy made and compared with the original; is a question that has to be gone into by the trial Court. The said question dealt with by this Court in Bachu Laxmipathi case referred supra relied on by learned trial Judge.

The ratio laid down in G.Sukender Reddy case referred supra is in respect of receiving document and relevancy of the document need not be decided at the time of marking the document, which can be decided at the time of final disposal of the case. In the said decision, this Court not discussed about Section 65 of Indian Evidence Act with regard to receiving secondary evidence.

The ratio laid down in Nagella Siva Kumar Vs. Smt.G.Sowjanya 2019(5) ALT 260 (AP) is that with regard to relevancy of document is different from marking the same, which can be decided at the final stages of the cases.

The ratio laid down in Maduraboina Deepika Vs.Kuna Sujatha Devi and another 2017(3) ALD 1 this Court held that when document is unregistered, not admissible in evidence and cannot be relied upon them for collateral purpose.

14. This Court in the above referred decision after elaborating

discussing the precedent law held that document which compulsory

registerable if it is not registered, not admissible in evidence. In the

present case also there is a finding with regard to contents of document

dated 01.09.1985 and trial Court held that property was divided on the

same day and document is said to be executed wherein there is no

mention that there was earlier partition and in reorganization of earlier

partition, a partition list was prepared. The petitioner has not laid any

foundation to show that original of partition list dated 01.09.1985 is

available as required under Section 65-(a) Indian Evidence Act, to permit

him to mark Photostat copy of the document as a secondary evidence.

The ratio laid down in decisions relied on by learned counsel for the

revision petitioner are not applicable to the facts of the present case,

which are rendered in respect of different facts and circumstances. This

Court also while considering the fact that foundation has been laid in the

pleading and steps have been taken as required under Section 66 of

Indian Evidence Act held in C.R.P.No.838 of 2016 that Photostat copy of

agreement of sale can be received in evidence as secondary evidence. The

same ratio cannot be applied in the present case after considering the fact

that no foundation is laid by the petitioner to receive the secondary

evidence. The ratio laid down in Bachu Laxmipathi case relied on by

learned trial Judge, which discussed supra is rightly applicable to the facts

of the present case. This Court did not find any illegality and irregularity in

the orders passed by the trial Court rejecting to mark the document dated

01.09.2022 as a secondary evidence, warrants interference of this Court

invoking jurisdiction under Article 227 of Constitution of India.

15. In the result, the Civil Revision Petition is dismissed. No order as to

costs.

Consequently, miscellaneous petitions pending, if any, shall stand

closed.

The interim stay if any granted is hereby vacated.

_______________________ BANDARU SYAMSUNDER, J Dt:17.10.2022.

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HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.6134 OF 2016

Date: 17.10.2022

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