Ct. 8 vs State Of West Bengal & Ors
2023 Latest Caselaw 2542 Cal

SAT 174 of 2015 Item-57.

           13-04-2023

  sg
                                                 Pan Mohammad
             Ct. 8                                    Versus
                                          State of West Bengal & Ors.

                              Mr. Ramkrishna Bhattacharya, Adv.
                              Mr. K. Chowdhury, Adv.
                              Mr. Busra Khatun, Adv.
                                                         ...for the appellant

We have heard the learned counsel for the appellant.

We are in agreement with the judgements passed by the

learned Trial Judge as well as the Learned First Appellate Court

that the certified copy of the deed being No. 2495 dated 10-07-

1950 has not been proved in accordance with law.

The learned Counsel for the appellant submits that in view

of the judgment passed in Bhaskar Sahu vs. Anama Swara &

Ors. reported in AIR 1987 Orissa 138, the matter may be

remanded to the First Appellate Court by giving an opportunity to

the appellant to cure the defects.

We are unable to accept the same at this stage. The appellant

had the opportunity before the trial court as well first appellate

court as they were aware that the said document was marked with

objection. In fact, the judgment relied upon by the learned counsel

clearly states that:

"The rule of evidence requires that a document must be

proved by primary evidence exception being that the secondary

may be given of the existing condition, or contents of a document

in cases enumerated in Section 65, Evidence Act. One of the

conditions where secondary evidence can be admitted in evidence

is, when the party offering evidence of the contents of the

document cannot, for any reason, not arising from his own default

or neglect, produce the original document in a reasonable time. In

the present case the plaintiff wants to bring his case within the

aforesaid exception contending that, it was a fit case where the

certified copy of the sale deed should be accepted as secondary

evidence as the original thereof is not available to be produced. It

is so well settled in law that it requires no reference to any

decided case for the proposition that a foundation must first be

laid for the reception of secondary evidence and no secondary

evidence of a document is permissible unless the conditions

mentioned in Section 65 are satisfied."

The deed of gift which the source of title of the appellant is

an importune document and where a person relying on a document

is unable to bring the original thereof before the Court, the Court

is competent to admit secondary evidence for the purpose of

having the contents of the original document proved, only when

non-production of the original is satisfactorily accounted for.

Moreover, the said alleged Heba was never acted upon as would

be evident from the conduct of the parties. PW1 could not prove

the contents of the document which became necessary as the name

of Chaitu Mohammad was not recorded in the settlement record

which would have been natural consequence of the Heba-bil-ewaz

being actually executed in his favour by Hasiruddin.

The appeal fails in both the counts. The appeal stands

dismissed at the admission stage. However, there shall be no order

as to costs.

   (Uday Kumar, J.)                            (Soumen Sen, J.)