secondary evidence and leave was granted, no Secondary
evidence could have been looked into. Exh. 47 being secondary
evidence, could not have been looked into at all by lower
appellate Court. The logic behind the arrangement as found by
learned lower appellate Court in Exh. 47 is already considered by
me above. The arrangement allegedly made in favour of present
respondent does not appear to be consistent with the earlier part
of the document. However, it cannot be forgotten that Exh. 47 is
only a xerox copy. Whether the alleged portion is an alteration or
not also cannot be conclusively decided as original document has
not come on record. It is a well known fact that in the process of
preparing xerox copy, there can be several manipulations and
hence it is unsafe to act upon said xerox copy.
NAGPUR BENCH
SECOND APPEAL NO. 427 OF 1992
Ganpat Pandurang Ghongade
Versus
Nivrutti Pandurang Ghongade,
CORAM : B.P. DHARMADHIKARI, J.
MARCH 14, 2008.
Citation: 2008(3)ALLMR629, 2008(5)MhLj153
The original plaintiff has filed this Second Appeal
challenging the concurrent dismissal of his suit for removal of
encroachment and for restoration of possession. He has also
challenged the reversing judgment of lower appellate Court by
which counter claim filed by present respondent (original
defendant) came to be allowed and one acre of land from
possession of present appellant is directed to be handed over to
the respondent. The appeal has been admitted on questions No.
2 and 10 mentioned in memo of appeal as substantial questions.
Those questions are as under :
“2. Whether, contents of the document can be
said to have been proved, specifically when the parties
are disputing the truth of what the document states
specifically when the document is in handwriting of
petitioner writer and who is not examined although he
was available ?
10. When the party who is found to suppress
the original document can be allowed to rely on xerox
copy thereof without production of original ?”
2. The parties before this Court are real brothers. The
present appellant filed Regular Civil Suit No. 253 of 1986
complaining that the respondent – defendant took forcible
possession of one acre of land out of Survey No. 42/6 from its
Western side in the month of May 1986. He points out that in
partition between brothers effected on 8.4.1971, said portion was
given to him. According to respondent – defendant, two acres
portion of survey No. 42/6 was earmarked for maintenance of
their mother during her lifetime and after her lifetime, it was to
come to him and accordingly on the date of festival of Guddi
Padwa (Hindu New Year's day), he was put in possession of said
portion admeasuring two acres. Thereafter, the plaintiff forcibly
took possession of field from him and has cultivated it. He,
therefore, filed a counter claim for restoration of said portion of
one acre which, according to him, was forcibly taken back by the
plaintiff from him. The trial Court dismissed the suit as also the
counter claim after noticing that partition deed dated 8.4.1971
between the brothers itself was not proved. Both the brothers
then filed Regular Civil Appeals. Regular Civil Appeal filed by
present appellant was registered as RCA No. 51 of 1991 while
RCA filed by respondent was registered as RCA No. 46 of 1991.
The learned lower appellate Court found that xerox copy of
partition deed at Exh. 47 needed to be accepted. It placed
reliance upon the said xerox copy as also oral evidence and hence
allowed RCA No. 46 of 1991 filed by present respondent and
dismissed RCA No. 51 of 1991 filed by present appellant.
3. In this background, I have heard Shri Palshikar, learned
counsel for the appellant – original plaintiff and Shri Ingle,
learned Advocate for the respondent.
4. Shri Palshikar, Advocate for the appellants has
contended that there were two copies of partition deed on record.
One was at Exh. 38 while other was at Exh. 47. He points out
that Exh. 38 is typed copy of partition deed produced by present
appellant while Exh. 47 is xerox copy of partition deed produced
by present respondent and there were material differences
between two copies. He further points out that the trial Court
has for valid reasons recorded a finding that the original of
partition deed was in possession of present respondent and he did
not produce it. The trial Court, therefore, did not grant his
counter claim and dismissed the same. He further contends that
learned lower appellate Court has not touched this finding about
custody of original partition deed at all and still has proceeded to
accept and act upon Exh. 47. He further points out that the
consideration of typed copy of partition deed and its xerox copy
by learned lower appellate Court in para 11 is not correct and
material differences in both copies are lost sight of. He further
points out that if xerox copy is relied upon, property which is
given absolutely to present appellant in first part is shown as
given to present respondent after the death of mother. He
contends that the arrangement as shown in xerox copy is
improbable. He invites attention to stand of present appellant
that there was no right of maintenance given to mother on any
portion allotted in partition to the share of appellant – plaintiff.
He, therefore, contends that xerox copy Exh. 47 was a fabricated/
interpolated document and could not have been relied upon by
lower appellate Court at all. He contends that therefore the
counter claim of present respondent allowed by learned lower
appellate Court needs to be rejected by setting aside said
application of mind by it.
5. Shri Ingle, learned counsel for the respondent, on the
other hand, contends that partition between brothers was oral
partition and the document is only a memorandum prepared later
on. He points out that lower appellate Court has found that
being memorandum, it did not require registration under Section
17 of Indian Registration Act. He further contends that the oral
partition is also proved on record by examining brother Kisan and
said Kisan has also deposed that right of maintenance given to
mother was earmarked on two acres portion of present appellant
and said portion after death of mother was to devolve upon
present respondent. He contends that in view of this oral
evidence and position emerging on record, learned lower
appellate Court has found Exh. 47 to be a true and correct copy
of partition between brothers. He states that the lower appellate
Court has, therefore, proceeded to reject typed copy Exh. 38
produced by present appellant and as such no substantial
question of law arises in this Second Appeal. In the alternative,
he states that matter should be remanded back to lower appellate
Court for fresh consideration.
6. He invites attention to grievance made in Civil
Application No.4026 of 2005 and states that during the pendency
of matter, the appellant – Ganpat has proceeded to sale the land
in dispute in favour of one Datta Sakharam Ghatfode. He argues
that this conduct of appellant disentitles him to any relief at the
hands of this Court.
7. Thus, the only question which needs consideration in
this matter is whether reliance upon xerox copy of partition deed
at Exh. 47 by lower appellate Court in present facts is justified or
not ?
8. The perusal of records reveal that Exh. 47, xerox copy
of partition deed in dispute, is produced by present respondent.
The learned trial Court has found that defendant also filed true
copy of partition deed attested by Chief Officer of Municipal
Council, Washim, on 22.11.1985. The trial Court has noticed
that mother has expired on 23.9.1985 and then true copy was got
certified after her death. The said typed true copy has been filed
with list of documents at Exh. 27 with its one another copy in
handwriting of petition writer but then respondent – defendant
did not take any steps to prove this copy through petition writer.
The learned trial Court has found that when such endorsement
was obtained from the Chief Officer, Municipal Council, Washim,
it is apparent that the original of partition deed was shown to
said Chief Officer and therefore original was in custody of
respondent – defendant.
9. In para 17, the trial Court has found that the original
was not produced because there were additions and alterations in
xerox copy at Exh. 47. This specific finding and application of
mind by trial Court is not at all looked into by the lower appellate
Court. There is no finding about correctness or otherwise of this
conclusion drawn by the trial Court. The lower appellate Court
has straightway proceeded to compare the documents at Exh. 38
and Exh. 47 and has commented in para 11 that except for the
portion which required present appellant to give two acres of his
land to respondent, both these documents were identical. In his
evidence, the appellant Ganpat has stated that there was no
obligation on him to earmark any portion for maintenance of
mother and he stated that two acres of his portion was not
reserved for that purpose. The perusal of Exh. 38, the typed copy
of alleged partition deed reveals that the obligation to maintain
mother was cast only upon two brothers viz., Namdeo and Kisan.
There was no such obligation upon present appellant or also upon
present respondent. In said typed copy apart from this, it is also
not mentioned that two acres portion of plaintiff is to go to
respondent after death of mother. As there was no earmarking
for maintenance of mother, the further devolution after death of
mother was not necessary and therefore has not been recorded.
The lower appellate Court has lost sight of these differences
between the two documents.
10. In xerox copy (Exh. 47), there are two additions. By
first, a right has been created on two acres portion allotted to
share of appellant – plaintiff while by later, after her death, said
portion has been given to present respondent. The perusal of
both these documents reveal that it is a copy of document of
partition dated 8.4.1971. Copy further mentions that parties have
by this document effected severance and distributed properties
amongst themselves and details thereof are then mentioned
against the name of each brother. The finding of learned lower
appellate Court in para 13 that it is only a memorandum of
partition, therefore, is not borne out either from Exh. 38 or Exh.
47. The severance of status and distribution of properties has
been done only via the document i.e. partition deed. It is,
therefore, apparent that registration of said document was
essential.
11. In any case, the matter was not for partition but was
only to find out whether the appellant was entitled to claim
removal of encroachment from two acres of land which had fallen
to his share in partition. There is no dispute between the parties
that said two acres has fallen to share of present appellant in said
partition effected on 8.4.1971. The dispute is only in relation to
its devolution after death of mother. As already observed above,
the mother has expired after about 14 years of execution of this
document.
12. The perusal of both the copies reveal that after
mentioning property alloted to share of each brother, it has been
specifically recorded that his share has been satisfied. Thus, there
are total five brothers as parties to this document and at the end
of description of property falling to the share of each brother,
such specific stipulation has been recorded. Thereafter in last
para, it has been mentioned that all brothers have taken
possession of their respective shares on 8.4.1971 itself. It is
further mentioned in type copy (Exh. 38) that some portion of
land of brother Namdeo and Kisan is reserved for maintenance of
their mother. It is further recorded that after her death, the said
portion will revert back to respective owner i.e. brother to whose
share that property has been allotted. However, in xerox copy,
such reservation for maintenance of mother is also recorded on
two acres portion which has fallen to share of present appellant –
Ganpat. There is a deviation from the entire scheme of document
by what has been recorded in this xerox copy thereafter and on
which the present respondent relies to show his entitlement. In
xerox copy, it is recorded that after the expiry of mother, this two
acres portion from Western side of present appellant/ plaintiff
would fall to the share of present respondent. It is, therefore,
clear that if this portion was to be given to Nivrutti, it could have
been given to his share in substantive part of partition while
describing this property. The obligation of maintenance of
mother could have been recorded against that portion even by
giving said portion fully to Nivrutti and it would have been in
consonance with the treatment of lands given to share of other
brothers viz., Namdeo and Kisan. If ultimately the land was to be
given to Nivrutti, there was absolutely no justification and reason
to give it to present appellant in substantive part of partition in
first place. Thus, this stipulation that said portion of two acres
shall fall to the share of Nivrutti after the death of mother
introduced a discordant note in entire document. This comment
becomes necessary because of application of mind to this
document by lower appellate Court.
13. Exh. 38 as also Exh. 47 are secondary evidence. There
is no evidence on record to show that original was not available.
On the contrary, the trial Court has already recorded a finding
that it is in possession of respondent. The lower appellate Court
has not considered this aspect at all. On the strength of oral
evidence of brother Kisan, the lower appellate Court has found
the contents of Exh. 47 to be more correct and therefore for this
reason only it has refused to act upon Exh. 38. However, it has
overlooked provisions of Sections 65 and 66 of Indian Evidence
Act. Until and unless there was a leave sought to tender
secondary evidence and leave was granted, no Secondary
evidence could have been looked into. Exh. 47 being secondary
evidence, could not have been looked into at all by lower
appellate Court. The logic behind the arrangement as found by
learned lower appellate Court in Exh. 47 is already considered by
me above. The arrangement allegedly made in favour of present
respondent does not appear to be consistent with the earlier part
of the document. However, it cannot be forgotten that Exh. 47 is
only a xerox copy. Whether the alleged portion is an alteration or
not also cannot be conclusively decided as original document has
not come on record. It is a well known fact that in the process of
preparing xerox copy, there can be several manipulations and
hence it is unsafe to act upon said xerox copy.
14. I, therefore, find that reason given by the learned lower
appellate Court to allow counter claim of present respondent is
non existent. The substantial question of law as formulated i.e.
questions No. 2 and 10, therefore, need to be answered in favour
of present appellant by holding that contents of partition deed
were not at all proved by present respondent. It is also apparent
that the present respondent did not point out to lower appellate
Court the finding of trial Court that original document was in his
custody. In the circumstances, he suppressed the original
document and tried to rely upon xerox copy for the reasons best
known to him. The adverse inference, therefore, ought to have
been drawn against him. As the encroachment and story in
support thereof is not proved, the suit of present appellant –
plaintiff has been rightly accordingly dismissed and no substantial
question of law arises on that count.
15. Thus, the judgment of lower appellate Court insofar as
it allows Regular Civil Appeal No. 46 of 1991 filed by present
respondent is unsustainable and the same is accordingly quashed
and set aside. Second Appeal is thus partly allowed. However, in
the circumstances of the case, there shall be no order as to costs.
JUDGE
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