Ram Prasad Vishwakarma vs Smt. Tulsabai
2022 Latest Caselaw 14637 MP

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           IN THE HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                                 BEFORE
                HON'BLE SHRI JUSTICE ATUL SREEDHARAN
                     ON THE 11TH OF NOVEMBER 2022

                    SECOND APPEAL No. 820 of 2010
   BETWEEN:-
   RAM PRASAD VISHWAKARMA S/O SHRI T.I. VISHWAKARMA,
   AGED ABOUT 60 YEARS, RAILWAY PUMP HOUSE RAMPUR
   JABALPUR (MADHYA PRADESH) (deleted)
   SMT. BUDHIA DEVI, W/O LATE RAM PRASAD, AGED ABOUT 69
1.
   YEARS, HOUSEWIFE.
   SMT. SANDHYA DEVI, W/O LATE RAM PRASAD, AGED ABOUT
2.
   65 YEARS, HOUSEWIFE.
   NEERAJ VISHWAKARMA, AGED ABOUT 36 YEARS,
3.
   OCCUPATION: HAVALDAR IN ARMY.
   DHEERAJ VISHWAKARMA, AGED ABOUT 35 YEARS,
4.
   OCCUPATION: NAIK IN ARMY
   AATISH VISHWAKARMA, AGED ABOUT 33 YEARS,
5.
   OCCUPATION: NAIK IN ARMY
   SATISH VISHWAKARMA, AGED ABOUT 32 YEARS, SERVICE IN
6.
   TCS
   NOS.1 TO 6 R/O NEAR LAXMI VIHAR COLONY, RAM NAGAR,
   RAMPUR, JABALPUR (M.P.)
   NOS.3 TO 6 SONS OF LATE RAM PRASAD VISHWAKARMA
                                                           .....APPELLANTS
   (BY SHRI R.K.SANGHI, ADVOCATE )
   AND
   SMT. TULSABAI W/O WD/O LATE SUNDERLAL GUPTA, AGED ABOUT 65
   YEARS, RAMANAGAR RAMPUR JABALPUR (MADHYA PRADESH)
                                                          .....RESPONDENT
   (BY NONE )
This appeal coming on for admission this day, the court passed the following:
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This appeal coming on for admission this day, the court passed the following:

                               JUDGMENT

The appellant is aggrieved by the judgment and decree dated 18.5.2010 passed by the learned First Additional District Judge Jabalpur in Civil Appeal No.4-A/2010 by which the appeal filed by the appellant herein was dismissed and the judgment and decree passed by the learned Trial Court dated 29.6.2009 in Civil Suit No.209-A/08 passed by the learned 10th Civil Judge Class-II Jabalpur was affirmed.

2. Briefly, the facts of this case are as follows. The appellant herein has filed civil suit wherein he stated that he had purchased a plot which constituted Khasra No.313/3, admeasuring 60 x 60 = 3600 sq.ft.,of Patwari Halka No.28 in Village Ram Nagar, Rampur, Jabalpur vide agreement dated 16.11.1981 allegedly for a consideration of Rs.7200/- from Sunderlal the late husband of the respondent herein. It was the assertion of the appellant/plaintiff that immediately after the agreement he obtained possession of the suit property and only the registration of the sale deed was required to be executed. He further stated that he had constructed a house on the said property in the year 1984 and had started the business of dairy-farming and is still continuing the said business in the suit property till date.

3. It is further the case of the appellant that the husband of the respondent informed him that after obtaining no-objection certificate from the Ceiling Department, the sale deed would be executed. However, before he could do that the husband of the respondent passed away and the appellant after repealing of the Ceiling Act is stated to have asked the respondent to

execute the sale deed which, however, was never done. It is also the case of the appellant that on 15.7.2005, at the house of the respondent, the appellant asked her to execute the sale deed which allegedly, the respondent refused. Thus, he says that the cause of action to file the civil suit arose on 15.7.2005.

4. The respondent/defendant filed a written statement and denied all the specific pleadings of the plaintiff and asserted that no agreement of sale has ever been executed between the plaintiff/appellant herein and her late husband Sunderlal. Also, the possession of the suit property by the appellant was also denied specifically and it was averred that the plaintiff had requested the late husband of the respondent for license to use the suit property to run the business of dairy-farming. This licence was oral stated to have been given by the late husband of the respondent, as so stated by her in her written statement. Likewise, the construction of the house in 1984 by the appellant has been denied by the respondent and the agreement of sale dated 16.11.1981, is alleged to be a forged document prepared by the appellant as so stated by the respondent in her written statement.

5. The learned Trial Court refused to give credence to the certified copy of the agreement dated 16.11.1981 as no permission was sought from the Court under 65 of the Evidence Act to lead secondary evidence. The Trial Court was of the opinion that the certified copy obtained from the office of the Deputy Registrar on 15.12.2003 has been produced giving an explanation that the original was lost and the same was filed without an application under section 65 of the Evidence Act for obtaining leave of the Court for adducing secondary evidence. The Trial Court had also dismissed the suit on the ground that the appellant herein was unable to

prove of any notice which was served on the defendant and that the suit was filed beyond the period of limitation.

6. It is necessary to record here the fact that after filing of the written statement, the respondent did not appear before the Trial Court to cross- examine the plaintiff and the witness produced by the plaintiff (P.W.2) who is the mother-in-law of the appellant and the proceedings before the Trial Court were ex parté against the respondent.

7. In order to prove his claim, the respondent filed before the learned Trial Court the certified copy of the agreement dated 16.11.1981. Copies of the receipts of tax paid before the Municipal Corporation (Ex.P/2 to P/8) and receipts of payment of electricity dues (Ex.P/9 to P/11). As regards the finding of the learned Trial Court with regard to the rejection of the certified copy of sale deed of 16.11.1981 for not having sought permission of the Trial Court under section 65 of the Evidence Act to lead secondary evidence, the learned Appellate Court agreed with the contention of the appellant that section 65 of the Evidence Act is attracted only when an objection is made by a party and as the respondent was proceeded ex parté and no such objection was taken to the production of the agreement of sale and so, the Trial Court fell into error in not considering this Court of the agreement of sale Ex.P/1, as an evidence.

8. However, the learned first appellate Court has considered the document Ex.P/1 which is the purported sale-deed dated 16.11.1981 in detail. In the said process, it held that though it may have been legitimate to mark the said document as Ex.P/1, it is quite another question whether the contents of the said agreement were proved by the appellant herein. In this regard, the reasoning of the learned first appellate Court in paragraph 23 of the

judgment is extremely relevant, where it held that the perusal of the agreement reveals that it is a unilateral agreement and that the same was only signed by the Vendor and not by the appellant, who was the purported Vendee and therefore, the first appellate Court rightly opined that the burden heavily lay on the appellant to examine the author of the document (Ex.P/1) and also held that it is settled proposition that a document becomes inadmissible in evidence unless the author thereof is examined. Here, it is relevant to mention that the appellant only got the testimony of two witnesses recorded; one was himself and the other his mother-in-law. Here, it can be reasonably held that it was an act of impossibility to produce the Vendor as he had already passed away before the case was filed before the learned trial Court. However, no attempt has been made by the appellant herein to get the said document proved by examining the attesting witness Chironjilal, son of Narpat Singh. The said document was also not proved by examining the Lawyer who drafted it or by sending the document U/s.45 of the Evidence Act to ascertain the signature of the Vendor. On that basis, the first appellate Court held that even though the learned trial Court had wrongly excluded Ex.P/1 from consideration on the erroneous ground that the procedure under Section 65 of the Evidence Act was not followed, it held that the said document, which is an agreement to sale itself was not proved by the appellant.

9. Once having arrived at that finding, the learned first appellate Court, on the question of limitation, arrived at an opinion that no decision is required on the same, as the appellant was not able to establish his case on the basis of the purported agreement to sale dated 16.11.1981. On that basis, the learned first appellate Court dismissed the appeal filed by the appellant herein. The reasoning giving by the learned first appellate Court far from

being perverse, are reasonable and sustainable in the eyes of law and therefore, the present second appeal does not raise any substantial question of law and therefore, the same is dismissed.

(ATUL SREEDHARAN) JUDGE ss/a

Digitally signed by ASHISH DATTA Date: 2022.11.11 11:26:13 +05'30' Adobe Reader version: 11.0.8