Bombay High Court
Shri. Anil S/O. Damodhar Tanksale ... vs Shri. Ramchandra S/O. Sakharam ... on 20 April, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1959 of 2016.
1] Anil Damodar Tanksale,
aged about 58 yrs, Occ.-Business,
R/o.-Jaiprakash Nagar, Nagpur.
2] Sunil Damodar Tanksale,
aged about 58 years,
R/o.-near T point, Hingna Road, Nagpur.
3] Smt. Shobha wd/o Damodar Tanksale,
aged about 83 years, R/o.-near T point,
Hingna Road, Nagpur.
4] Sharad Vishnupant Tanksale,
aged about 62 years, Occ.-Retired,
R/o.-Ranapratap Nagar, Nagpur. ..... Petitioners.
Versus
1] Ramchandra Sakharam Mahajan,
aged about 80 years, Occ.-Business,
R/o.-Mahajan Chawl, Sitabuldi, Nagpur,
2A] Shirish Mahadeo Mahajan,
aged about 62 years, Occ.-Service,
2B] Sharad Mahadeo Mahajan,
aged about 59 years, Occ.-Service,
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2C] Mrs Nandini Sathe,
aged about 60 years, Occ.-Household,
Shrifal, Ghole Road, Pune.
2D] Mrs Anita w/o Vidyadhar Kanitkar,
aged Major, R/o.-Kothrud, Pune.
3] Dattatray Sakharam Mahajan,
aged about 80 years, Occ.-Business,
4]
Bhaskar Sakharam Mahajan,
aged about 75 years, Occ.-Business.
5A] Nitin Shrikrushna Mahajan,
aged about 50 years, Occ.-Business,
5B] Sachin Shrikrishna Mahajan,
aged about 48 years, Occ.-Business,
5C] Mrs Priyanka w/o Anurag Dharaskar,
aged major,
resp. nos.2A to 5C, R/o.-Mahajan Chawl,
Sitabuldi, Nagpur.
6] Vishwas Damodar Tanksale,
aged about 60 years,
R/o.-near Hanuman Mandir,
Ujwal Nagar, Nagpur.
7] Sau.Rekha w/o Sudhakar Parkhi,
aged about 58 years, R/o.-near Dindayal Hall,
Swawlambi Nagar, Nagpur.
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8] Deepak Damodar Tanksale,
aged about 55 years, R/o.-Tanksale
Complex, Sitabildi, Nagpur.
9] Sau. Sunanda w/o Madhup Pandey,
aged about 62 years, R/o.-Verma Lay Out, Nagpur
Sau. Suwarna w/o Arun Nagarkar,
aged about 56 years,
R/o.-Shriram Apartments, Jaitala, Nagpur.
10]
Sau Jaishri w/o Vikas Bobde,
aged about 54 years, R/o.-S E Railway
Colony, Pratap Nagar, Nagpur.
11] Nitin Vasant Giridhar,
R/o.-near Tople Hospital, Jatharpeth, Akola.
12] Jayant Vasant Tanksale,
aged about 58 years, Occ.-Business,
R/o.-Dharampeth, Nagpur. ..... Respondents.
Shri N.R. Bhishikar, Adv for petitioners.
Shri R. Joshi, Adv for resp.no.1.
Shri I. J. Damle, Adv for resp.no.12.
Shri U.M. Aurangabadkar, Adv for resp.nos.2A to 2D,
3, 4, 5A to 5C.
Coram : S.B. Shukre, J.
th
Dated : 20
April, 2016.
ORAL JUDGMENT
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1] Rule. Rule made returnable forthwith. Heard finally by
consent.
2] The portion of the order dated 20-02-2016 passed below
Exhibit-341 by the 7th Joint Civil Judge Senior Division, Nagpur,
has been challenged in this Writ Petition. This portion is related to
exhibiting and admitting in evidence the two documents, which
are Exhibit Nos. 343 and 344 viz; the certified copy of the 1875
lease deed in 'Modi' language and the certified copy of its
translation in 'Marathi' language. Both these documents have
been admitted and exhibited in evidence primarily for the reason
that the Hon'ble Apex Court has allowed the original plaintiff i.e.
respondent no.1 to lead secondary evidence in respect of the
documents by judgment dated 09-07-2007 rendered in Civil
Appeal No.2920 of 2007 (Ramchandra Sakharam Mahajan v
Damodar Trimbak Tanksale (D) and others). On perusal of the
judgment of the Hon'ble Apex Court, however, I find that the
reason so stated by the learned Civil Judge is not consistent with
the observations of the Hon'ble Apex Court. In the said judgment
what the Hon'ble Apex Court has observed is only about giving of
an opportunity to the plaintiff to produce the original lease deed of
the year 1875 or to adduce evidence in support of his claim and
get the certified copy marked by way of secondary evidence. The
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Hon'ble Apex Court has also observed that such an opportunity
must be granted by the trial Court to the original plaintiff. Once an
opportunity is granted to produce original lease deed or lead
secondary evidence, it is for the party to make the most of it by
fulfilling requisite conditions prescribed in law. So, it was
necessary for the trial Court to have satisfied itself about
fulfillment of the requirements of the applicable provisions of law
before exhibiting and admitting in evidence both these documents.
That has not been done by the trial Court.
3] Upon further consideration of the arguments of both the
sides, I find that the limited dispute involved in this petition can be
resolved by clarifying the position as regards the proof of the
contents of the documents marked as Exhibits-343 and 344. Even
though, the learned Civil Judge has not considered the applicable
provisions of law, I find that in view of Sections 74 and 77 of the
Indian Evidence Act, 1872, and also the decision of the learned
Single Judge of this Court in the case of Gurudev Ganba Sinai
Gaitonde vrs Special Land Acquisition Officer (N), Mapusa Goa
and another, reported at 2011(1) All MR 59, following the law laid
down by the Hon'ble Apex Court in (2001) 6 Supreme Court Cases
254 equivalent to AIR 2001 SC 2532 (State of Haryana vrs Ram
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Singh), the documents in question could have been exhibited. It is
well settled law that mere exhibition of the documents is not equal
to proof of the contents of the documents and therefore, if there are
some objections as to the admissibility of the contents of the
documents and also the reliability of these documents, those
objections will have to be dealt with appropriately by the trial
Court before reliance on these documents is placed. Therefore,
purpose of this Writ Petition shall be served by modifying the
interim order accordingly.
4] In the circumstances, it is directed that the impugned portion
of the order passed below Exhibit-341 by the 7th Joint Civil Judge
Senior Division, Nagpur, shall stand modified by the clarification
that although the documents in question have been exhibited, same
shall be subject to the proof of reliability of these documents which
shall be decided by the trial Court by appropriately dealing with
all the objections taken in that behalf by the petitioners. The
petitioners and the other defendants shall be at liberty to raise all
objections regarding reliability of these documents and also proof
of the contents of these documents. The petitioners shall be at
further liberty to raise objections as regards the reliability of other
exhibited documents. The parties shall also be at liberty to lead
further evidence if necessary, including further examination-in-
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chief of P.W.1.
5] Writ Petition is thus partly allowed to the extent of above
modification. Parties to cooperate for expeditious disposal of the
suit.
6] Rule is made absolute in above terms. No order as to costs.
JUDGE
Deshmukh
