Sri Sasary Kanakaiah vs Smt. Kashannagary Shanthoshamma
2021 Latest Caselaw 4677 Tel

THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                         CRP No.3344 of 2014

ORDER:

1. This civil revision petition is filed by the first revision petitioner

/respondent/plaintiff aggrieved by the order dated 26.06.2014 in IA

No.51 of 2014 in OS No.67 of 2008 on the file of the learned Junior

Civil Judge, Andole at Jogipet. During pendency of the proceedings

before this Court, the revision petitioner/plaintiff died and his legal

representatives are brought on record as petitioners 2 to 6.

2. IA No.51 of 2014 was filed by the defendant, who is the

respondent herein under Sections 63 to 65 of the Indian Evidence Act

seeking to receive photostat copy of patta certificate dated 20.10.1982

on the ground that the original of the said document was misplaced

and it could not be traced by her and that she has got the attested copy

of the same by the Tahsildar, Pulkal Mandal, Medak District.

3. This application was allowed by the Court below with an

observation that the Tahsildar, who has got knowledge about the

things, has attested the said document as the original is not traceable

and a foundation as required u/s.65 (c) of the Indian Evidence Act,

1872 is laid, accordingly, the said document dated 20.10.1982 can be

admitted into evidence on behalf of the petitioner/defendant as

secondary evidence. This order is challenged by the plaintiff/revision

petitioner on the ground that the Court below ought to have seen that

AVRJ CRP No.3344 of 2014

without proper foundation such document ought not to have received

in secondary evidence. Though attested copy of patta certificate dated

20.10.1982 is produced, it cannot satisfy the ingredients of Section 65

of Evidence Act, which require proper authentication of having drawn

by mechanical process. The defendant has failed to specify on which

date he lost the original certificate and the steps taken by her including

filing of the police complaint, if any.

4. Heard learned counsel for the revision petitioners/plaintiffs and

the respondent/defendant. Perused the material placed on record.

5. The Original Suit was filed for perpetual injunction by the

plaintiff against the defendant in respect of suit schedule property.

The schedule property is plot No.6 admeasuring East to West - 11

yards, North to South - 12 yards of Chowtkur Village, Pulkal Mandal,

Medak District. In respect of the very same plot, it appears the

respondent/defendant has made a claim stating that she was given

patta certificate by the revenue authorities on 20.10.1982 and that she

has applied for permission from the Gram Panchayat, Chowtkur on

31.10.2008 for construction of RCC building, but the Gram Panchayat

has failed to intimate to the defendant either granting or refusing the

permission within a period of 60 days. Thereafter, the defendant has

started construction, as the permission is deemed to have been granted

after expiry of 60 days time.

AVRJ CRP No.3344 of 2014

6. Be that as it may, when the plaintiff is claiming suit plot and

filed the suit for perpetual injunction, it is for him to establish his

case. But, the defendant having pleaded that plot bearing No.6 was

allotted to her and constructed a house, filed the present application in

IA No.51 of 2014 stating that original certificate is lost and that

attested photo copy of patta certificate dated 20.10.1982 in file No.C-

5/7563/82 is available with her and the same may be received in

secondary evidence.

7. The learned counsel for the revision petitioners/plaintiffs

questioning the legality of the order impugned argued that no

foundation is laid by the defendant for adducing secondary evidence

and she has failed to prove the existence of the original document

itself and relied on the principles laid down in the following decisions:

          i)      J. Yashoda v. K. Shobha Rani1; and

          ii)     Jagmail Singh and another v. Karamjit Singh and others2.

8. Per contra, the learned counsel for the respondent/defendant has

submitted that the respondent has laid the foundation for leading

secondary evidence and that she lost the original document. However,

the attested copy of patta certificate is available with her and she has

mentioned the same in her affidavit and that there can never be an

absolute proof of fact that the document had in fact been lost and that

the statement made by her in the affidavit itself is sufficient proof and

(2007) 5 SCC 730

(2020) 5 SCC 178

AVRJ CRP No.3344 of 2014

she is not expected to file a police complaint etc., and relied on the

following decisions:

i) Sattamma and others v. Ch. Bhikshapati Goud @ Ch. Bhupal Goud and others3; and

ii) Kodali Jhansi Rani v. Valasala Venkata Ramana @ Ramana (Died) and others4.

9. I have carefully perused the principles laid in the above

judgments relied by the learned counsel for the revision

petitioner/plaintiff and the respondent/defendant.

10. The respondent/defendant has pleaded in her written statement

that the suit plot was allotted to her, vide File No.C-5/7563/82 dated

20.10.1982 and since then she is in exclusive possession and

enjoyment and that she has also applied for construction of a house to

the Gram Panchyat on 31.10.2008. As the Gram Panchayat failed to

grant permission, she has constructed the house in the said plot under

deemed permission after 60 days. The evidence of plaintiff is

concluded. The evidence affidavit of defendant is filed as DW1.

Along with her evidence affidavit, she has filed this document/attested

copy of patta certificate dated 20.10.1982. It is attested by the

Tahsildar, Pulkal Mandal.

11. Section 65 (c) of the Evidence Act provides that the secondary

evidence can be adduced relating to a document when the original has

2010 (3) ALD 634

2019 (5) ALD 63 (TS)

AVRJ CRP No.3344 of 2014

been destroyed or lost 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.

12. In Ramakrishna Constructions, Karimnagar District v. Singareni

Collieries Co., Ltd., Warangal5, this Court while dealing with the

similar facts held that a bare statement made in affidavit by a party

would be sufficient proof of fact that the document has been lost or

not traced out and that a statement of the person that the document

was lost and in spite of best efforts, he could not trace out the

document would be sufficient evidence of fact that the document had

been lost.

13. In Kodali Jhansi Rani's case (4 supra), this Court while relying

on the above decision and also other decisions, held that secondary

evidence can be permitted to be led in. In such circumstances and that

the merits and demerits, truth or otherwise and validity of the said

document can be gone into at the appropriate stage. In J. Yashoda and

Jagmail Singh'cases (1 & 2 supra) relied by the learned counsel for the

revision petitioners/plaintiffs, it was held that facts have to be

established by primary evidence and secondary evidence is only an

exception to the rule for which foundational facts have to be

established to account for the existence of the primary evidence.

2015 (1) ALD 427

AVRJ CRP No.3344 of 2014

14. In the case on hand, the factual foundation is laid by the

respondent/defendant and she has filed her affidavit stating that the

original patta certificate is lost and it is beyond traceable and that

photocopy of the same duly attested by the Tahsildar, Pulkal Mandal

is available with her, considering the same, the Court below has given

an opportunity to the respondent/defendant to lead secondary evidence

of the same. In such circumstances, in the aforesaid factual situation

considering the principles laid in the above decisions, I am of the

opinion that the factual foundation as required under Section 65 (c) of

the Evidence Act is laid by the defendant for leading secondary

evidence. She has filed the photo copy of patta certificate, attested by

the Tahsildar, Pulkal Mandal as secondary evidence. The Court below

has not committed any jurisdictional error and the order impugned

does not warrant any interference. It is needless to observe that merely

the admission in evidence and marking of the document does not

prove it automatically unless the same has been proved in accordance

with law and it is for the respondent/defendant to prove the

authenticity and truthfulness or genuineness of said patta certificate,

which will have to be established in the course of trial in accordance

with law. Therefore, in my considered opinion that the order

impugned does not warrant any interference by this Court.

15. In the result, the Civil Revision Petition is dismissed,

confirming the impugned order dated 26.06.2014 in IA No.51 of 2014

in OS No.67 of 2008 on the file of the learned Junior Civil Judge,

AVRJ CRP No.3344 of 2014

Andole at Jogipet. The stay granted, vide CRPMP No.4573 of 2014

on 26.09.2014 is vacated. However, considering the fact that the

Original Suit is filed in the year 2008 and the evidence of defendant

was in progress at the time of passing the impugned order, the Court

below shall make every endeavour to dispose of the Original Suit,

within four months from the date of receipt of a copy of this order.

Both the parties to the suit shall cooperate with the Court below for

expeditious disposal of the Original Suit as directed. In the

circumstances of the case, there shall be no order as to costs.

16. Miscellaneous applications, if any pending in this revision

petition shall stand closed.

_______________________________ A. VENKATESHWARA REDDY, J.

Date: 30.12.2021 Isn