Bombay High Court
In The High Court Of Judicature At ... vs Kaore on 1 July, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.305 OF 2003
APPELLANT: Sheikh Najju S/o Sheikh Nabab, Aged
about 48 years, Occupation -
(Original
Cultivastion,
Defendant)
Residing At & Post: Pawani (Sakraji)
Tahsil: Warud, Distt. Amravati........R.A.
-VERSUS-
RESPONDENTS: 1. Ashok S/o Domaji Khandar,
(Original Aged about 38 years, Occupation:
Plaintiff) Cultivation,
2. Prakash S/o Domaji Khandar,
Aged about 25 years,
Occupation:Cultivation,
Both residing at & Post: Pawani
(Sakaraji), Tehsil: Warud, Distt.
Amravati.................R.A.
Shri P. V. Kaore, Advocate for the appellant.
Shri A. Girdekar, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: 1
. JULY, 2017.
st
ORAL JUDGMENT :
1. This appeal has been filed by the original defendant
who is aggrieved by the decree passed by the appellate Court
directing the defendant to deliver possession of encroached
portion of land as shown in the map at Exhibit 72.
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2. The following substantial questions of law have been
framed for determination in the second appeal:
(1) Whether the lower appellate Court was
right in admitting in evidence the certified copy of
the sale deed Exh.57 as conditions prescribed in
the Evidence Act for production of the secondary
evidence were not fulfilled ?
(2) Whether the lower appellate Court
erred in holding that the plaintiffs had proved the
title to the property in the absence of the original
sale-deed?
3. The facts in brief are that it is the case of the
respondents - plaintiffs that on 20-3-1995, they had purchased the
suit house from Dhanorkar family. The house of the appellant -
defendant was adjoining to this property. According to the
plaintiffs, the defendant started construction of the premises in his
possession and while doing so committed encroachment to the
extent of 90 sq. feet After having the property measured, the suit
was filed for possession of 90 sq. feet area that was described in
the suit map.
4. The defendant filed his written statement and denied
the claim of the plaintiffs. According to him, the suit property did
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not belong to the plaintiffs and that the same vested in the Gram
Panchayat and therefore the suit was not maintainable. The
encroachment was denied and it was pleaded that the defendant
was in possession of his own property. A counter claim was also
filed by the defendant seeking to restrain the plaintiffs from
obstructing the user of a five feet lane alongwith mandatory
injunction for removal of the obstruction as caused.
5. The parties led evidence before the trial Court. The
trial Court held that the plaintiffs had not proved that the
defendant committed an encroachment. The ownership of the
plaintiffs was also not proved. It was further held that the
defendant did not prove any obstruction at the instance of the
plaintiffs. The trial Court therefore dismissed the suit as well as
the counter claim.
6. Being aggrieved the plaintiffs challenged the aforesaid
decree. The appellate Court held that the property in question
belonged to the plaintiffs and that they were entitled for
possession of the same. By allowing the appeal, the suit came to
be decreed with a direction to the defendant to deliver possession
of land admeasuring 3 ft x 19 ft. Being aggrieved the original
defendant has filed the present appeal.
7. Shri P. V. Kaore, learned Counsel for the defendant
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submitted that the plaintiffs had not proved their title to the suit
property. The sale deed at Exhibit-57 was not duly proved and
merely by placing a certified copy on record and without obtaining
permission to lead secondary evidence, the plaintiffs had relied
upon the same. He referred to the deposition of the witnesses and
the fact that the original of the aforesaid sale deed was not placed
on record. He submitted that without obtaining permission for
leading secondary evidence, the certified copy of the sale deed
could not have been taken into consideration. Though objection in
that regard was taken by the defendant during the course of
deposition of PW-7, the appellate Court without considering that
aspect of the matter held the title to be duly proved. According to
him, in the absence of any document of title, the suit could not
have been decreed. He placed reliance upon the judgment of the
Hon'ble Supreme Court in H. Siddiqui v Ramalingam AIR 2011 SC
1492 and judgment of learned Single Judge in Ganpat Pandurang
Ghongade V Nivrutti Pandurang Ghongade 2008(4) AIR Bombay R
132. It was therefore submitted that if the document at Exhibit-57
is excluded then there is no basis for granting relief to the
plaintiffs.
8. Shri A. P. Girdekar, learned Counsel for the plaintiffs
supported the judgment of the appellate Court. According to him,
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the sale deed had been duly proved and marked Exhibit-57 at
which point of time no objection was raised by the defendant. In
the absence of any objection being raised, the trial Court was not
justified in discarding Exhibit-57. According to him, the
subsequent raising of objection was by way of an afterthought and
the same was not permissible. He then submitted that the title of
the plaintiffs had been duly proved and the appellate Court was
justified in decreeing the suit. He referred to the other evidence on
record and submitted that no interference was called for with the
judgment of the appellate Court. In support of his submissions,
the learned Counsel placed reliance upon the judgments of the
Hon'ble Supreme Court in Dayamathi Bai Vs. K. M. Shaffi (2004) 7
SC 107 and Zarina Siddiqui v A. Ramalingam 2015 (4) Mh.L.J. 135
in that regard.
9. I have heard the learned Counsel for the parties at
length and I have perused the records of the case. Since the
question for determination is with regard to the evidentiary value
of the sale deed at Exhibit-57, it is necessary to consider the
evidence of the parties in that regard. The plaintiff no.1 examined
himself at Exhibit-56 and deposed that the suit house had been
purchased from Dhanorkar family by executing a sale deed. He
deposed that the original copy of the sale deed was placed on
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record and accordingly it was marked as Exhibit-57. He further
stated that on the eastern side, the house of the defendant was
located. It is however seen from the record that on 18-6-1999,
the plaintiffs sought permission to file documents on record as per
Exhibit-47 and as per the list of documents at Exhibit-48, the sale
deed dated 20-3-1995 was placed on record. This sale deed was
described as the original sale deed. In fact, what was placed on
record was the certified copy of the sale deed that was executed on
20-3-1995. From the deposition of PW-1 it can be seen that a copy
of the sale deed that was placed on record was marked as Exhibit-
57. During the course of deposition of PW-7 Ganesh Dhanorkar at
Exhibit-82, a reference was made to this document at Exhibit-57.
When this document was tendered to the witness an objection was
raised on behalf of the defendant that though it was earlier stated
that the original sale deed was placed on record, what was placed
was the only certified copy of the sale deed. The learned Judge of
the trial Court perused the records and observed that it was taking
a judicial note of this aspect.
10. The trial court in para 6 of its judgment thereafter
considered this aspect and held that the original sale deed had not
been placed on record and that the plaintiffs had filed only its
certified copy. It then observed that while leading evidence the
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plaintiffs had misled the court by stating that the original copy of
the sale deed was placed on record. It further observed that
production of the said document had been allowed as per
application at Exhibit-47 since it was mentioned in the list of
documents at Exhibit-48 that the document filed was the original
sale deed. It therefore found that there was no primary evidence
of the plaintiffs' title. PW-6 who has scribed the sale deed was
examined at Exhibit-85 and he stated that the said document did
not bear his signature and that the sale deed at Exhibit-57 was not
in his hand. In the light of provisions of Section 65 of the
Evidence Act, 1872 (for short, the said Act), it held that there was
no proof with regard to document of title.
11. The appellate Court found that no formal objection
had been raised to production of the sale deed at Exhibit-57 and
that the sale deed had gone on record without protest. The
appellate Court, therefore, held that non-consideration of this
document was not justified. Thereafter on the basis of this
document, the appellate Court proceeded to allow the appeal.
12. In M. Siddiqui through legal heirs (supra), the Hon'ble
Supreme Court while considering the provisions of Section 65 of
the said Act has observed in para 10 of the decision as under:
10. Provisions of Section 65 of the Act of
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1872 provide for permitting the parties to
adduce secondary evidence. However, such a
course is subject to a large number of
limitations. In a case where original documents
are not produced at any time, nor, any factual
foundation has been led for giving secondary
evidence, it is not permissible for the court to
allow a party to adduce secondary evidence.
Thus, secondary evidence relating to the
contents of a document is inadmissible, until the
non-production of the original is accounted for,
so as to bring it within one or other of the cases
provided for in the section. The secondary
evidence must be authenticated by foundational
evidence that the alleged copy is in fact a true
copy of the original. Mere admission of a
document in evidence does not amount to its
proof. Therefore, the documentary evidence is
required to be proved in accordance with law."
Similarly in Ganpat Pandurang Ghongade (supra), it was observed
that unless and until leave of the Court for leading secondary
evidence was sought, the same could not be taken into
consideration.
From the aforesaid, it can be seen that firstly there
should be some foundation in the pleadings accounting for non-
production of the original document. It is thereafter that
permission can be sought for leading secondary evidence. In the
present case this has not happened and without there being any
foundation in the pleadings and by placing on record a certified
copy of the sale deed by labeling it as the original sale deed, it was
got exhibited. The certified copy of the sale deed was secondary
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evidence and therefore it was necessary to obtain permission
before it was exhibited and taken on record. Without following the
mandate of Section 65 of the said Act, the secondary evidence was
brought on record. The trial Court in para 6 of its judgment has in
clear terms observed that the sale deed came to be marked and
exhibited as it was stated that it was the original copy when in
fact, it was the photo copy. The trial Court further observed that
it had been misled in that regard and when its attention was
drawn to this aspect during the deposition of PW-7, it noted that it
had taken judicial note of the same. Considering the contents of
Exhibit-48, the deposition of PW-1 at Exhibit-56 as well as
deposition of PW-7 at Exhibit-82, I find that the trial Court was
right in observing that in absence of any permission to lead
secondary evidence, Exhibit-56 could not have been taken into
consideration.
13. On behalf of the plaintiffs, it was urged that no
objection was taken when this document was marked as exhibit.
However, on considering the entire record it can be seen that the
plaintiffs sought to contend that the document was the original
sale deed as per Exhibit-48 and hence, the same was marked as
such. The trial court has observed that this was a mistake
committed at that stage as it was misled and this fact was rectified
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when PW-7 was being examined. It was therefore open for the
plaintiffs even at that state to take appropriate steps so as to lead
secondary evidence of the sale transaction. The appellate court
without considering these aspects of the matter incorrectly
observed that the sale deed had come on record without any
objection. For said reason, the observations in Dayamati Bai
(supra) cannot be made applicable to the facts of the present case.
14. Once Exhibit-57 which is the document of title of the
plaintiffs is held to be not proved in accordance with law then the
entire basis of the judgment of the appellate Court would not
survive. The decree by the appellate Court is principally based on
the title of the plaintiffs as was sought to be proved as per Exhibit-
57. On the other hand, the trial Court in paragraphs 9 to 17 of its
judgment has further considered the case of the plaintiffs even in
the light of sale deed at Exhibit-57. It has thereafter recorded a
finding that even on the strength of the sale - deed at Exhibit 57,
the plaintiffs had failed to prove encroachment to the extent of 90
sq. feet. The appellate Court has, however, appreciated the
evidence in the light of the sale - deed at Exhibit-57. Same is
therefore not sustainable.
15. The substantial questions of law as framed are
answered by holding that the appellate Court was not right in
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admitting evidence of the certified copy of the sale deed in absence
of any foundation or permission being sought to lead secondary
evidence. The title of the plaintiffs in absence of said sale deed was
therefore not proved.
16. In view of aforesaid discussion, the following order is
passed:
ORDER
(1) The judgment in Regular Civil Appeal No.101/2000
dated 20-3-2003 is quashed and set aside. The judgment of the
trial Court in Regular Civil Suit No.77/1997 stands restored.
(2) The second appeal is accordingly allowed in aforesaid
terms. No costs.
JUDGE
//MULEY//
