Orissa High Court
Bhaskar Sahu vs Anama Swara And Ors. on 1 July, 1986
Equivalent citations: AIR 1987 Ori 138
Bench: P Misra, D Mohapatra
1. Defendant 1 in Title suit No. 23/70 of the Court of the Subordinate Judge, Berhampur is the appellant in this appeal. The suit is one for division of the suit properties in two equal shares and allotting one such share to the plaintiff.
2. The plaintiffs case as stated in the plaint is that one Agadhu Kavi Ratna and one Lakshman Padhi constitute a joint Hindu Mitakshara family and the said family possessed ancestral as well as sell-acquired properties. Agadhu Kavi Ratna died in or about the year 1980 and Lakshman Padhi died in the year 1939. After the death of Lakshman differences arose among the members of the joint family and the two branches represented by their respective successors became divided in status partitioning amicably the moveables possessed by the joint family between themselves half and half. There was no partition of the residential houses and the two branches used to occupy different portions thereof by mutual arrangement. The other lands belonging to the family were not partitioned by metes and bounds and each branch was possessing portions thereof more or less proportionate to their shares. Defendants 2 to 7 are the successors of the branch of Agadhu Kavi Ratna whereas defendant 8 is the sole survivor of the branch of Lakshman. During the amicable arrangement in the matter of cultivation and enjoyment of the properties, disputes arose between the two branches as a consequence of which Bhagirathi Padhi, father of defendants 3 and 4 instituted, T. S. No. 46 of 1955 in the Court of the Subordinate Judge, Berhampur, for partition. The said suit was decreed directing division of the joint family properties in two equal shares allotting one to each of the branches. Defendant 8, the son of Lakshman Padhi, carried up the matter in appeal which was dismissed on merits confirming the judgment and decree passed by the trial Court. It has been alleged in the plaint that the final decree proceeding in the said suit was still pending at the time of institution of the present suit and, therefore, the state of affairs in the matter of possession of the properties had been continuing as before.
3. The suit land bearing survey No. 498/3 of village Ladhi measuring A. 0.19 cents had not been included in the schedule of properties sought to be divided in the aforesaid suit. According to the plaintiff the said item of property did exclusively belong to and possessed by defendant 8 being the self-acquired and separate properties of his father late Lakshman Padhi for which the same was excluded in the aforesaid suit. The plaintiff purchased the said item of properties from defendant 8 under Ext. 4 dt. 31-7-62 for a consideration of Rs. 1500/- in pursuance to which the plaintiff was put in possession of the properties so conveyed. On the day following the sale deed defendant 1 asserted his title to the suit land saying that he is a purchaser of the said properties from Shyamsundar Padhi and his son Rajanikanta Padhi (defendant 4) and has acquired full title thereof. According to him, the said properties were the self acquired properties of Shyamsundar Padhi and not of Brajamohan Padhi (defendant 8). The plaintiff thereafter approached Shyamsundar Padhi who told him that it was not the exclusive property of Brajamohan Padhi but it was jointly purchased by him and late Lakshman Padhi under a sale deed dt. 28-9-1934 from one Biswambar Padhi of Lathi. Shyamsundar Padhi, however, assured the plaintiff that since Brajamohan Padhi is undoubtedly entitled to half of the said property he would intervene and settle up the matter amicably. Pursuant to such assurance the plaintiff was allowed to possess and enjoy half of the suit land and it was settled that a deed of partition, would be executed between the plaintiff and defendant 1 dividing the properties half and half to avoid any future dispute with respect to the title of each of the parties to the suit land. The cause of the suit arose while defendant 1 evaded execution of the partition deed on some plea or other and the plaintiff in this suit has prayed for dividing the suit properties half and half allotting one of the shares to him.
4. Defendant 1 filed a written statement denying the plaint allegations. His case is that the suit property was the exclusive property of Shyamsunder Padhi who had been in continuous enjoyment thereof. He along with his son sold the suit property to defendant 1 under a sale deed (Ext. A) dt. 2-1-1962, under which the purchaser acquired full title to the said property. It is contended by defendant 1 that the property did never belong to Brajamohan Padhi and the conveyance made by him in favour of the plaintiff is fraudulent and collusive by which the plaintiff could not acquire any title to the suit property. It has been alternatively pleaded that the title of defendant 8, if he had any, had been extinguished by open continuous adverse possession by Shyamsundar Padhi for more than the statutory period.
5. The other defendants, namely, defendant 4, defendants 5 and 6 and defendant 7 filed separate written statements, the details of which are unnecessary so far as this appeal is concerned inasmuch as they are not aggrieved by the judgment and decree passed by the trial Court and have not preferred any appeal or cross-appeal against the same.
6. The learned trial Court framed the issues which arose out of the pleadings and after recording evidence adduced by each of the parties decreed the plaintiffs suit declaring the share of the plaintiff to be half in the suit properties and further directing that southern half of the suit properties to be allotted to the plaintiff and the northern half to defendant 1 as defendant 1 has constructed a mill on the northern portion of the suit properties. Defendant 1 being aggrieved by the aforesaid judgment and decree passed by the trial Court has preferred this appeal.
7. The only point urged by Mr. Rath, learned counsel appearing for the appellant, is that the plaintiff did not make out a case that the suit land was joinly purchased by Shyamsundar Padhi and Lakshman Padhi under a sale deed the certified copy of which is Ext. 1. In that connection it has been further urged that the certified copy of the sale deed dt. 28-9-1934 could not have been marked as an exhibit as the original was a private document and no foundation had been laid for admitting the certified copy thereof which again was not proved in accordance with the provisions of the Evidence Act. Mrs. Padhi, learned counsel appearing for the contesting respondent 1 on the other hand contended that the plaint read as a whole would establish that the plaintiff relied upon the sale deed dt. 28-9-1934 as the basis of the title of the plaintiffs vendor and the argument that the plaintiff did not plead a case of joint purchase by Shyamsundar Padhi and Lakshman Padhi under the said document is not correct. It has also been argued on behalf of the respondent 1 that the certified copy of the sale deed dt. 28-9-1934 was marked as an exhibit subject to objection and at no point of time the trial Court overruled the admission of the document in evidence. According to Mrs. Padhi it, therefore, follows that the court did not accept the objection raised against the admissibility of the document and had it been so done, the plaintiff would have availed of the opportunity of adducing further and better evidence in that behalf. It has also been urged by Mrs. Padhi learned counsel appearing for respondent 1, that no ground having been taken regarding the admissibility of Ext. 1, the appellant should not be permitted to raise such a plea.
8. Before going into the legal question as to whether Ext. 1 was admissible in evidence and had been properly proved, it is necessary to consider the primary issue raised by the appellant as to whether there has been pleading by the plaintiff to the effect that the sale deed dt. 28-9-1934 is the document of title by virtue of which the plaintiffs vendor had acquired right, title and interest in respect of the suit properties. A reference to the plaint would show that the plaintiff has claimed half share in the suit properties on the assumption that it was jointly purchased by Shyamsundar Padhi and Lakshman Padhi under a sale deed dt. 28-9-1934 as disclosed by Shyamsundar Padhi himself on his enquiry. Ext. 4 is the sale deed under which the plaintiff purchased the whole of the suit plot from Brajamohan Padhi. The plaint read as a whole would indicate that having purchased the entire plot under Ext. 4, the plaintiff confined his claim to half of the said plot as he was obviously satisfied by the representation of Shyamsundar Padhi that the suit plot was jointly purchased by Shyamsundar Padhi and Lakshman Padhi under a sale deed dt. 28-9-1934. The plaintiff has made the aforesaid assertion in para 12 of the plaint to which there has been no specific denial in the written statement. Defendant 1 in his written statement has merely stated that he specifically denies the allegations in paras 7 to 17 of the plaint which have to be strictly proved. It has been further stated that the story of the plaintiff that it was a joint property of Shyamsundar Padhi and Lakshman Padhi is not true. From these pleadings it is apparent that the plaintiff had set up a case of joint purchase by Shyamsundar Padhi and Lakshman Padhi which was denied by the defendant without disclosing as to in whose name the suit plot was originally purchased. Defendant 1 has not pleaded any other story as to the source of title of Shyamsundar Padhi except saying that the suit property, was his separate property who had been in continuous enjoyment in exercise of his exclusive right and title by paying cist and exercising acts of ownership thereon. In the aforesaid circumstances, the conclusion is irresistible that the story of joint purchase of the suit property by Shyamsundar Padhi and Lakshman Padhi under a sale deed dt. 28-9-1934 was very much there in the plaint and it was not a new story advanced at the hearing of the suit.
9. Now coming to the admissibility of Ext. 1, the certified copy of the sale deed dt. 28-9-1934 it is beyond controversy that the said sale deed is a private document as distinguished from a public document. It is the source of title of the purchases thereof, namely Shyamsundar Padhi and Lakshman Padhi who were said to be the joint purchasers. The plaintiff produced a certified copy of the said document from the Sub-Registrar's Office in the year 1965. 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 sale deed dt. 28-9-1934 which is a source of title of the plaintiffs vendor is an important document to establish the plaintiffs title as the plaintiffs vendor would have no title to convey, but for the sale deed of the year 1934. 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.
From the evidence on record we do not find that the plaintiff has adduced any evidence explaining the reasons for non-production of the original sale deed, even though objection was taken to its admissibility at the time when the certified copy of the sale deed was sought to be introduced in evidence. The certified copy of the sale deed was tendered in evidence through P. W. 1 and in the deposition recorded, the certified copy of the sale deed is mentioned to have been marked as Ext. 1 with objection. It was improper on the part of the Court not to make a note thereof in the order-sheet of the date on which the document was so admitted in evidence and not to decide the objection at all which he was expected to do either immediately thereafter or at least at the close of the evidence. It further appears that the contesting defendant did not press their objection against the admissibility of Ext. 1 for which there is no mention about the same in the impugned judgment. That apart, from the evidence of P. W. 1 we do not find any statement which will prove the contents of the original the certified copy of which was sought to be proved. When a certified copy is allowed to be produced under Section 65, Evidence Act, there is no presumption as to the genuineness or the execution of the original and the Court should not admit a document merely on the ground that it is a certified copy of the original, unless the execution of the original is proved or admitted by the persons against whom the same is to be relied on. The admission of Ext. 1 in evidence without laying the foundation for reception of secondary evidence and without proof of the contents of the original by proving its execution was improper specially when the objection raised about its admissibility was never decided by the Court.
10. True it is that the appellant in the memo of appeal did not take any specific ground against the admissibility of Ext. 1, but a ground was taken that the Subordinate Judge has erred in holding that Lakshman had eight annas share in the suit property. The sale deed dt. 28-9-1934, the certified copy of which has been marked as Ext. 1, was an important piece of evidence the same being the source of title of plaintiffs vendor. Even though defendant 1 had not disclosed in his written statement as to how the plaintiffs vendor acquired title to the suit property, his specific plea was that his vendor Shyamsundar Padhi was the exclusive owner in possession of the suit property and had otherwise acquired valid title by adverse possession. Assuming that there was a sale deed jointly in the name of Shyamsundar Padhi and Lakshman Padhi in the year 1934, Shyamsundar Padhi would be one of the co-owners in respect of the suit property in which even he would not acquire valid title to the whole of it unless ouster is pleaded and proved. In this view of the matter the sale deed of the year 1934 assumes greater importance.
11. From the aforesaid state of affairs, we feel that the plaintiff should be given an opportunity of adducing further evidence to prove Ext. 1 in accordance with law specifically because the trial Court having marked it with objection left the matter undecided, the accepted principle being that no party should suffer for the lapse on the part of the Court. We would, therefore, set aside the judgment and remand the suit to the trial Court for giving an opportunity to the plaintiff to adduce further evidence to prove Ext. 1 in accordance with law with an equal opportunity to the contesting defendants to adduce evidence of rebuttal. Mr. Rath, appearing for the appellant, vehemently argued that the purpose of remand should not be to permit a party to fill up the lacuna which as a general principle cannot be doubted. His argument was that the plaintiff having not claimed title under the sale deed dt. 28-9-34 no further opportunity should be given to him to prove the certified copy thereof by way of secondary evidence. He has relied upon some decisions in support of the aforesaid proposition and contends that remand in such a case is improper. A specific reference to the decision cited is unwarranted in the facts and circumstances of the case as we have already recorded a finding that the plaint read as a whole makes out a case of joint purchase in the year 1934 and it was not a subsequent development in the course of trial as urged by Mr. Rath.
12. During the pendency of this appeal an application under Order 41, Rule 27, C.P.C., was filed on behalf of the appellant to admit certain documents as additional evidence. This Court by its orders dt. 3-11-77 and 8-4-82 postponed the consideration of the said application to be taken up at the time of hearing. Since we have decided that the case is to be remanded to the trial Court it would be appropriate to direct that the said application for additional evidence be also considered by the trial Court.
13. In the result, the appeal is allowed and remanded to the trial Court to be disposed of afresh in accordance with law subject to the observations already made. Each party shall bear their respective costs.
D.P. Mohapatra, J.
14. I agree.
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