In this behalf, it would be appropriate to quote
following portion from Vishwanath Vithoba. ..vs.. Genu Kisan &
ors.; cited by Mr. Purohit, learned counsel for the appellants.
“3.
.....Mr. Sukhthankar has urged that these
copies of the saledeeds are not admissible in
evidence. The plaintiff has stated in his evidence that
the original saledeeds are not in his possession but
they are in the possession of defendant 1. The
plaintiff did not, however, give any notice to
defendant 1 asking him to produce the original sale
deeds.
Mr. Sukhthankar has, therefore, urged
that the certified copies are not admissible in
required by Clause (a) of Section 65, Evidence Act.
The proviso to Section 66, however, enables the
evidence as no notice was given to defendant 1 as
Court to dispense with such notice in any case, in
which the Court so thinks fit. In 'Surendra Krishna
v. Mirza Mahamed Syed All', 1936 PC 15 (AIR V23)
(A) Their Lordships observed:
"The only purpose of a notice under Ss.
65 and 66, Evidence Act, is to give the party an
opportunity by producing the original document to
secure, if he pleases, the best evidence of Its contents,
The difference between a certified copy and the
original for the purposes of the present case is not
very obvious but secondary evidence is admissible
when the party offering evidence of its contents
cannot for any reason not arising from his own
default or neglect produce the original document in
reasonable time; and under Section 66 the court has
absolute power, when it thinks fit, to dispense with
a notice under these sections".
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Second Appeal No.554/2003
Madanlal Virbhanji Madan, V Ramrao Mahadeorao Gomase,
Citation;AIR 2015(NOC)654 Bom
Dated;30-7-2014
Being aggrieved by judgment and decree dated
28.11.2003 passed by 3rd Ad hoc Addl. District Judge, Wardha in
Reg. C. A. No. 149/1996, decreeing the civil suit filed by
respondent/plaintiffRamrao by reversing the judgment decree
dated 19.09.1996 passed by 2nd Jt. Civil Judge Jr. Dn. Wardha, in
Reg. C. S. No. 406/1988, the present second appeal was filed by
the appellants/defendant.
FACTS:
The respondent/plaintiffRamrao filed a suit for
2.
possession of the suit premises denominating it as a tenanted
premises leased out by him to the appellants/defendant. The case
was that he and his brother Amrutrao had purchased the entire
suit house by registered sale deed dated 03.12.1952. There was a
family partition amongst the two brothers on 05.01.1962 and the
area of the suit house came to his share. Accordingly, it was
mutated and taxes were being paid to the Gram Panchayat, Anji
(Mothi), after dividing the house into two parts. The suit block
was originally let out to Anji Cooperative Society for running a
grain shop. The society vacated the same on 30.04.1972 and,
therefore, the premises was let out from 01.10.1972 to the
appellants/defendant by Bhade Chitti dated 17.09.1972. From
March1981, the rent was increased to Rs.100/ from Rs.50/ p.m.
and the original defendant had promised to vacate the premises by
the end of March1982 as per agreement of lease dated
15.03.1981 and that the rent was paid up to 28.02.1986. The
appellant/defendant, in the written statement, contended that, in
fact, the suit premises were purchased by him by sale deed dated
20.07.1960 from Amrutrao, elder brother of plaintiffRamrao. The
respondent/plaintiff, however, denied execution of the sale deed
or execution of Power of Attorney in favour of Amrutrao for the
said sale and contended that on 04.04.1988, he determined the
tenancy of the original defendant and thereafter filed the suit for
possession along with arrears of rent. As earlier stated, the
defendant denied the ownership of the plaintiff and on the
contrary, by amending the pleadings exhaustively in the written
statement, stated that he purchased the suit property from Ramrao
through his Power of AttorneyAmrutrao. The defendant also
denied the very title of the plaintiff and his brother Amrutrao,
which they claimed to have acquired by sale deed dated
03.12.1952. The parties went on trial. Original defendant
Virbhanfather of the appellants, was very old at the time of
evidence and, therefore, his sonPower of Attorney holder, entered
the witness box. He also examined witnesses while plaintiff
examined himself and his witnesses. The trial Court, thereafter,
framed in all 10 issues and finally dismissed the suit holding that
the original defendant, in fact, was owner by virtue of the sale
deed dated 02.08.1960, executed by Amrutrao as Power of
Attorney holder of plaintiffRamrao. The respondent, being
aggrieved by the said judgment and decree of dismissal of the suit,
filed Reg. C. A. No.149/1996 before District Judge, Wardha which
was decided by the impugned judgment and decree. Hence, this
In support of the appeal, Mr. S. V. Purohit, learned
3.
SUBMISSIONS:
Second Appeal.
counsel for the appellants, made the following submissions:
(i)
The lower appellate Court committed serious error in
holding that the appellants were tenant of the respondentplaintiff,
which finding is perverse when, in fact, the appellants are owners
of the suit property.
(ii)
The lower appellate court committed error in rejecting
the document of sale deed Exh.86 dated 02.08.1960 in favour of
the appellants for total consideration of Rs.1,000/ and the said
finding is perverse. The reason for rejection of Exh.86 was that it
was a certified copy of the sale deed and that the appellants did
not prove the fact of loss of original document of sale deed.
Mr. Purohit submitted that there is unchallenged evidence on
record about loss of original sale deed and, therefore, what more
the evidence could be brought on record, which has not been
explained by the lower appellate court. Document Exh.86, which
was a certified copy of the sale deed, was duly proved and,
therefore, the evidence which is irrelevant about identification of
signature on the Bhade Chitti and rent agreement for proof of sale
deed was considered is wholly wrong. The lower appellate Court
committed serious error in giving importance to documents Exh.
47 and 48 rent agreements which were rightly rejected by the trial
Judge and at any rate, when title of the appellants by virtue of the
sale deed Exh.86 was categorically proved by documentary
evidence, subsequent documents Exh.47 and 48, did not
absolutely have any relevance.
(iii)
The lower appellate Court has given cryptic reasons for
overturning the finding of fact recorded by the trial Judge and,
therefore, there is perversity on the part of the lower appellate
court in reversing the decree passed by the trial Judge. Counsel
for the appellants, therefore, submitted that the appeal deserves to
be allowed.
Mr. Purohit, learned counsel for the appellants, placed
reliance on the decision in Vishwanath Vithoba ..vs.. Genu Kisan
and ors; 1956 Bombay 555.
4.
Per contra, Mr. Saboo, learned counsel for the
respondent, submitted that the finding of fact recorded by the
lower appellate court about inadmissibility of Exh.86sale deed is
legal, correct and proper. He argued that it was not proved that
the original document of sale deed was lost by the appellants. He
argued that the secondary evidence could not be allowed to be led
in the absence of appropriate and legal procedure namely; full
details and proper evidence ought to be given about the alleged
loss of original document of sale deed. According to Mr. Saboo,
the said evidence was not tendered by the appellants, therefore,
the trial Judge was guilty of overlooking provisions of Sections 65
and 66 of the Evidence Act and the lower appellate court was fully
justified in reversing the decree. Mr. Saboo, then continued his
argument citing the following decisions to argue that the sale deed
Exh.86 was rightly rejected and that was foundation of the case of
the appellants.
State of Rajasthan & ors. ..vs.. Kemraj & ors.; AIR 2000 SC
(i)
(ii) Ganpat Pandurang Ghongade & ors...vs..Nivrutti
Pandurang Ghongade; 2008 (5) Mh. L. J. 153.
CONSIDERATION:
Nale; AIR 1984 BOM 19.
(iii) Shiolalsingh Gannusingh Rajput ..vs.. Shankar Motiram
5.
Upon hearing learned counsel for the rival parties, I
proceed to frame the following substantial questions of law:
(i)
Whether certified copy of sale deed Exh.86
dated 02.08.1960 being secondary evidence was
proved in accordance with the provisions of Section
65 of the Evidence Act and the procedure
thereunder?
Answer: Yes.
(ii) If the sale deed Exh.86 stands proved in
accordance with law, whether Bhade Chitti Exh.47
and 48 even if proved according to law and
admissible in evidence, would be of any
significance?
Answer: No.
This is a case of an unfortunate refugee who was
6.
residing in Punjab province before partition and which province
went to Pakistan in partition. The appellants' fatherVirbhan
during the tumultuous period of partition, wandered in India for
few years and moved to Panipat, Sonepat, Jalandar in search of
life and finally in the year 1952 landed at village Kharangana in
Wardha District where his relation Harishchandra Juneja was
residing. On his advise, Virbhan in the year 195253 went to Anji
(Mothi) for earning livelihood. He was illiterate and did not know
Marathi but knew only Punjabi and Urdu languages. Amrutrao
and Madhavrao of Anji were influential persons in that Amrutrao
was a local board member. Amrutrao claimed to be the owner of
the house property and started recovering rent from him. In July
1960, Amrutrao approached him and told him that both the
brothers namely; Amrutrao and Ramrao wanted to dispose of the
suit house and since Virbhan was residing therein and if interested
he should purchase it. Since Virbhan was residing there and
running a Kirana shop, he purchased the portion of Amrutrao first
by sale deed dated 20.07.1960 Exh.82, about which there is no
dispute. Amrutrao then obtained a power of attorney from
Ramraothe plaintiff for executing sale deed of the house block of
Ramrao because Ramrao was serving at Rajnandgaon in Madhya
Pradesh and accordingly on 02.08.1960 he sold the remaining
share of Ramrao which is the suit property in the present suit. The
sale deed was executed on 02.08.1960 and Exh.85 and thus
However, from perusal of the entire records,
7.
Virbhan became the owner of the suit property.
pleadings, evidence and documents it appears that the
appellants/defendants made a goofup by unnecessarily projecting
the story that Amrutrao and Ramrao were not having any title to
the entire property; and besides the story that rent was paid by
them to the 'rightful' owner adding to the confusion about
tenancy. In order to overshadow the sale deed Exh.86, the
plaintiff in a smart move, projected BhadeChittis Exh. 47 and 48.
This was totally misdirectional. Exh.47 and 48 are documents
relied upon by the respondentplaintiff to buttress his claim about
the appellants being tenants and not the owners. There is a reply
notice from the appellantsdefendant about the payment of rent to
the rightful owner. However, after amendment of pleadings, the
ownership by virtue of sale deed Exh.86 dated 02.08.1960 was
properly projected before the Court. In my opinion, the duty of
the court is to be infallible for finding out the truth, even if the
parties to the suit have created confusion, misdirected themselves
or inserted irrelevant and unnecessary pleadings. Therefore,
according to me, the crux of the matter is to find out whether the
sale deed dated 02.08.1960 executed by Amrutrao, acting as a
Power of Attorney of Ramrao in favour of Virbhan, is legal, correct
and proper and is proved according to law or not. If the sale deed
Exh.86 is proved to be legal, correct and proper, the question
whether the appellants had the character of tenants subsequently
or by virtue of Exh.47 or 48, would be wholly irrelevant and
redundant.
8.
Thus, viewing the case from the above angle, I
proceed to determine the question framed as above.
9. As to question no. (i):
Sale deed Exh.86 was rejected by lower appellate
court for the reasons stated in para 11, which reads thus:
“11. From the above evidence of the respondent, it
is clear that the respondent did not state the
particulars and circumstances as to when and how
Indian Evidence act, 1872 provides that the
documents must be proved by primary evidence
the original sale deed was lost. Section 64 of the
expert in the case as provided by the Section 65 of
the Indian Evidence Act, 1872. It has already been
pointed out that the respondent did not prove the
fact that original sale deed was lost. In these
circumstances, it cannot be said that the respondent
is entitled to prove the certified copy of such sale
10.
deed and get it exhibited as Exh.86.”
As against above, the learned trial Judge recorded
finding on the said aspect as under:
“17. The plaintiff has contended that he never
executed any power of attorney in favour of his
brother nor consented him to transfer his 1⁄2 share in
the suit house. The deed of power of attorney is
produced on record by the defendant and the
defendant's witness has deposed that the power of
attorney is executed by the plaintiff came in
possession of the defendant at the time of saledeed.
The power of attorney to his brother by the plaintiff
is not exhibited and I have to consider if this
document requires to be executed or not. The point
is required to be dealt with by taking into
consideration the preponderance of probabilities as
While considering preponderance of probabilities it
is to be borne in mind that the defendant is refugee
the very execution of it is disputed by the plaintiff.
and had not fully settled as those of natives in the
year 1960 and could not dare to prepare fabricated
document particularly, prejudicial to the persons
like plaintiff and his brother who had hold in the
village and and had influence over the village
people. Admittedly, in the year 1960, the plaintiff
was serving at Rajnandgaon in Madhya Pradesh.
The Special Power of Attorney is accompanied with
treasury voucher of Rs.2/ paid in the sub treasury
of Rajnandgaon towards attestation fee. It appears
that the document of power of attorney required to
be attested by Judicial Magistrate. The Special
Power of Attorney bear seals of Rajnandgaon Sub
Treasury and Court Stamp Vendor Tayyabali for T.
Hussain of Rajnandgaon. The challan deposit
receipt Exh.83 is of Rajnandgaon Treasury which his
also produced by the defendant and his witness has
deposed that it came to the defendant at the time of
saledeed in question. Notably, the power of attorney
showing execution of it by the plaintiff is attested on
25.7.1960 by the 2nd Class Judicial Magistrate,
Rajnandgaon. The fact that the plaintiff was
residing at Rajnandgaon and the defendant was not
in position to fabricate or prepare false document,
the only probability that remains is of execution of
favour of his brother Amrutrao. No allegation of
making false document by the plaintiff's brother is
the Special power of attorney by the plaintiff in
made by the plaintiff. The document being attested
by the Judicial Magistrate and the plaintiff not
specifically denying his signature on Special Power
of Attorney culminates that the plaintiff and only
plaintiff could have executed the document. The
document is an original document and attested by
the Executive Magistrate by accepting attestation fee
18.
deserves to be exhibited and I exhibit it as Ex.90.
The circumstances considered in the
preceding paragraph and the contents of the sale
deeds Ex.82 and 86 read along with the contents of
the power of attorney Ex.90 are explicit to draw
inference that the entire suit house was decided to be
sold to the defendant by the plaintiff and his brother
for Rs.2,000/ and vide Ex.82 sale deed of 1⁄2 share
of plaintiff's brother was executed on 20.7.1960.
Thereafter, to complete the agreed transaction the
plaintiff executed power of attorney Ex.90 dt.
23.7.1960 in favour of his brother Amrutrao and
accordingly he executed a sale deed Ex.86 on
2.8.1960 for remaining consideration of Rs.1,000/.
The sale deed Ex.86 was argued to be not admissible
in evidence by the learned counsel of the plaintiff as
it is not the original. However, the defendant's
original sale deed is lost. Therefore, the certified
copy of the sale deed is allowed a secondary
witness has made it clear in his evidence that the
evidence. The loss of original cannot be strictly
proved and the only mode to establish loss is
assertion on oath by the person having custody or
control of the document in question. The sale deed
being registered long back i.e. more than 30 years
ago has evidentiary value. The sale deeds Ex.82 and
86 and the power of attorney Ex.90 are in harmony
and in consonance with the the defendant's claim of
ownership of the suit house.”
11.
I have myself perused the entire evidence as well as
documents about which the trial Judge and lower appellate court
have made discussion as above. Upon perusal of the documents, I
fully concur with the finding of fact recorded by the learned trial
Judge as above and I completely disagree with the learned lower
appellate court in rejecting document of sale deed Exh.86. I find
that the evidence of Madanlal s/o Virbhan (DW1), who was the
person in custody of original sale deed dated 02.08.1960,
categorically stated in his evidence that original sale deed was lost
and so the certified copy thereof was filed. This evidence stood
unchallenged. If, according to the respondentplaintiff, no details
were given as to the date when it was lost and so on so forth;
there ought to have been proper crossexamination of this witness
who was custodian of the original document of sale deed. There
was absolutely no reason for the lower appellate court in ignoring
the said evidence and holding that the proof about loss was not
established. Section 65 of the Evidence act reads thus:
“65. Cases in which secondary evidence relating to
documents may be given
Secondary evidence may be given of the existence,
condition or contents of a document in the following
cases:
...
(b) ...
(a)
(c) When the original has been destroyed or lost, or
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;
(d) to (g) ...
In cases (a), (c) and (d), any secondary evidence of
the contents of the documents is admissible.”
12.
From the perusal of the above provision, it is clear
that the only requirement of the provision is that the original must
be shown to have been lost. In the instant case, there is clear cut
unchallenged evidence that the original is lost and the evidence
has come from the person who was the custodian of the
document, to which there is no crossexamination at all. Thus, I
do not think that any additional evidence on the loss of document
could possibly be given that too in the absence of any cross
examination on that point since it was never the case of the
respondent that the original was still lying with somebody. I
the said fact.
wonder what more details or evidence could be brought to prove
13.
In this behalf, it would be appropriate to quote
following portion from Vishwanath Vithoba. ..vs.. Genu Kisan &
ors.; cited by Mr. Purohit, learned counsel for the appellants.
“3.
.....Mr. Sukhthankar has urged that these
copies of the saledeeds are not admissible in
evidence. The plaintiff has stated in his evidence that
the original saledeeds are not in his possession but
they are in the possession of defendant 1. The
plaintiff did not, however, give any notice to
defendant 1 asking him to produce the original sale
deeds.
Mr. Sukhthankar has, therefore, urged
that the certified copies are not admissible in
required by Clause (a) of Section 65, Evidence Act.
The proviso to Section 66, however, enables the
evidence as no notice was given to defendant 1 as
Court to dispense with such notice in any case, in
which the Court so thinks fit. In 'Surendra Krishna
v. Mirza Mahamed Syed All', 1936 PC 15 (AIR V23)
(A) Their Lordships observed:
"The only purpose of a notice under Ss.
65 and 66, Evidence Act, is to give the party an
opportunity by producing the original document to
secure, if he pleases, the best evidence of Its contents,
The difference between a certified copy and the
original for the purposes of the present case is not
very obvious but secondary evidence is admissible
when the party offering evidence of its contents
cannot for any reason not arising from his own
default or neglect produce the original document in
reasonable time; and under Section 66 the court has
absolute power, when it thinks fit, to dispense with
a notice under these sections".
In the present case after the death of
Gyanuji, the next senior member of the family was
Vithoba. The three saledeeds therefore in all
probability went into the possession of Vithoba and
after his death into the possession of the defendants.
The plaintiff has stated that the original saledeeds
are not with him. He has also stated that they are in
the possession of defendant 1. There was no cross
statement on this point.
Defendant 1 in his evidence did not deny
examination of the plaintiff in regard to his
that the original saledeeds were in his possession. It
would have been desirable If a question had been
put to him on this point in the crossexamination by
the plaintiff. But as the record stands, the plaintiff's
statement that the original saledeeds are with
defendant 1 remains unchallenged. This is also in
accordance with the probabilities of the case.
The certified copies of three saledeeds
Exhs. 75, 76 and 77 were also produced by the
plaintiff along with the plaint. He has specifically
stated in the plaint that these saledeeds related to
the three suit houses. There was no denial of this
statement In the defendants' written statement.
If, therefore, the original sale deeds are
in the possession of the defendant 1 as deposed to by
the plaintiff and as the plaintiff's statement that the
certified copies of the three saledeeds produced by
him related to the suit houses has not been denied
by the defendants, we think this would be a proper
case in which notice as required under Clause (a) of
Section 65, Evidence Act, should be dispensed with.
In that case, the three certified copies, exhs. 75, 76
find 77 would be admissible under Clause (a) of
Section 65, Evidence Act.
not in the possession of the defendants and as they
are also not in the possession of the plaintiff, they
On the other hand if the saledeeds are
must be deemed to have been lost. In that case, the
certified copies would be admissible under Clause (c)
of Section 65. The learned Judge was therefore right
in admitting these three documents in evidence”
I think, the facts and the law stated by the Division
Bench of this Court in the above case are somewhat akin to the
facts in the instant case.
The reported decisions in this behalf cited by
14.
Mr. Saboo, have been seen by me. In the case of State of
Rajasthan ..vs.. Khemraj & ors. (supra), the Supreme Court
permitted the appellant therein to file fresh application to seek
permission to lead secondary evidence. In the case of Ganpat
Pandurang Ghongade & ors. ..vs.. Nivrutti Pandurang
Ghongade; (supra), there was no evidence at all on record to
show that the original was not available. In the case of
Shiolalsingh Gannusing Rajput..vs.. Shankar Motiram Nale;
AIR 1984 Bom. 19 the issue was totally different about the
permission arising under section 90 of the evidence Act.
To sum up, I must hold that the sale deed Exh.86
15.
was duly, properly and legally proved and the requirement of
section 65 of the Evidence Act, proof of loss was also established.
Section 65 of the Evidence Act does not contemplate any specific
requirement of filing application for leading secondary evidence.
But, it is always better to have application with properly affirmed
pleadings. To sum up, I answer the question no.(i) in the
affirmative.
16.As to question no. (ii):
I have already found that Bhade Chitti or
agreements of rent Exh.47 and 48 produced and relied upon by
the respondent/plaintiff even if proved, lose all the relevance and
all the more so in view of the answer to question no.(i) as above.
To repeat, when the appellants were successful in proving title
unto them by virtue of sale deed Exh.86 dated 02.08.1960 from
the respondentRamrao, the question of the appellant being
treated as tenant as per Exh.47 and 48 or as the case may be does
not at all arise. Hence, I answer question no. (ii) accordingly.
17.
In view of above, I pass the following order:
(I)
Second Appeal No. 554/2003 is allowed.
(ii) Impugned judgment and decree dated
ORDER
28.11.2003 in Reg. C. A. No.149/1996
passed by 3rd Ad hoc Addl. District Judge,
Wardha is set aside.
(iii) Judgment and decree dated 19.09.1996
in Reg. C. S. No. 406/1988 passed by 2nd Jt.
Civil Judge Jr. Dn. Wardha is restored.
JUDGE
No order as to costs.
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