ARUNKUMAR PRITAMLAL v. RAMANLAL BHAGUBHAI — 1974 DIGILAW 3 (GUJ)

C. V. RANE, J. ( 1 ) THIS appeal is directed against the decree passed by the learned Judge City Civil Court Ahmedabad in Civil Suit No. 547 of 1963 on 20th April 1966. The facts of the above suit were in brief as under Two houses bearing survey Nos. 364/1/2 and 32 and two plots of land bearing survey Nos. 363 and 662 were purchased by the ancestors of the plaintiff Ramanlal Bhagubhai from one Bai Jakal the widow of Tarachnd Laxmichand under the sale deed executed by her on 13th June 1898. The aforesaid survey numbers 364/1/2 363 662 and 32 were subsequently renumbered as survey numbers 354a 355 356 and 357 respectively. The house bearing survey No. 357 was subsequently sold to Dolatram Nagindas on 29 The plaintiff is now the owner of the property bearing survey Nos. 354a 355 and 356. Bai Samrath who was the widow of Dolatchand Nagindas bequeathed house bearing S. No. 357 to the Pathshala and Panch of Gusa Parekhs Pole by her will dated 8-3-1945. Neither Dolatchand nor Bai Samrath had any title to the land bearing survey No. 355 but as the owner of house bearing survey No. 357 they were merely given a right to use the latrine constructed on that survey number. In the year 1962 the plaintiff came to know that the name of Bai Samrath was shown in the City Survey Record as a co-owner in respect of survey No. 355. He therefore made an application to the City Survey Officer to correct the record but his request was not accepted. He therefore filed the aforesaid suit to obtain a declaration that the open land bearing survey No. 355 and admeasuring 12 sq. yards was in his possession as an exclusive owner thereof and that the defendants who are the Vahivatdars of the Panch of Gusaparekhs pole had no right to or interest in that land. ( 2 ) THE defendants by their written statements Exhs. 15 and 21 denied the suit. According to them their prodecessor-in-title namely Bai Samrath was joint owner of the suit property. It was their further contention that the suit was barred by limitation. ( 2 ) THE defendants by their written statements Exhs. 15 and 21 denied the suit. According to them their prodecessor-in-title namely Bai Samrath was joint owner of the suit property. It was their further contention that the suit was barred by limitation. ( 3 ) THE learned trial Judge has held that the suit land was of the exclusive ownership of the plaintiff subject to the right of the defendants to use one of the latrines constructed on that land. He accordingly allowed the suit and being aggrieved by his decision the defendants have come in appeal. ( 4 ) THE most important evidence on the point would be the sale deed executed by the predecessor-in-title of the plaintiff in favour of Dolatchand Nagindas. As survey No. 357 has been bequeathed by Bai Samrath by her will to the Path Shala on the Panch of the pole a reasonable inference arises that the sale deed in respect of that survey number would be in the possession of the defendants. The defendants have not produced that sale deed. Defendants witness Shantilal who is a member of the Panch in question does not know anything about the sale deed and he has admitted in his cross-examination that he does not know as to what documents were handed over by Bai Samrath to the Panchas of the pole. It is not likely that Bai Samrath would fail to hand over the deed of title to the house bearing S. No. 357 to the persons to whom she had bequeathed the property in question by her will dt. 8-3-1945. Under these circumstances it can be reasonably inferred that the defendants had deliberately withheld the production of the sale deed executed by the predecessors-in-title of the plaintiff in favour of Bai Samraths husband in the year 1900. ( 5 ) IT is found from the evidence on record and it is not disputed that the record of the Sub-Registrars office in which the sale deed was registered was also destroyed during riots in the year 1919 as a result of which the plaintiff could not obtain a certified copy of the sale deed in question. ( 5 ) IT is found from the evidence on record and it is not disputed that the record of the Sub-Registrars office in which the sale deed was registered was also destroyed during riots in the year 1919 as a result of which the plaintiff could not obtain a certified copy of the sale deed in question. The evidence of P. W. Hiranand Keshvani who is serving as the Joint Sub-Registrar shows that the plaintiffs son had made an application in the year 1966 for obtaining a certified copy of the sale deed but it could not be supplied to him as the records were destroyed during the riots. It appears from the judgment in civil suit No. 29 of 1937 filed by the plaintiff against Bai Samrath (vide Ex. 28) that she had produced only a copy of the sale deed in question in support of her contention that she was the joint owner of S. No. 356. Under these circumstances even if it is held that the sale deed in question is lost it would be open to the plaintiff to tender secondary evidence in respect of the sale deed. ( 6 ) THE plaintiff has produced a copy of the above sale deed with his list Ex. 27. According to him the copy of the sale deed has been prepared by deceased Ratilal Laxmichand who was the clerk of advocate Dalpatbhai Popatlal Shah on the basis of the certified copy of the sale deed produced by deceased Bai Samrath in Civil Suit No. 29/37. He identifies the handwritings of deceased Ratilal. The copy was compared by the plaintiff himself. The evidence of Dilipkumar who is a clerk in the City Civil Court shows that the certified copy of the sale deed produced in the above case is not available as certain documents have been destroyed after 12 years. It appears that the learned advocate for the defendants had raised an objection that the above copy was not admissible in evidence. The learned trial Judge has accepted the above contention. The relevant observations of the learned trial Judge on the point are:- but the document which is sought to be produced is a copy made from certified copy produced in another suit namely civil suit No. 9 of 1937. Now secondary evidence is admissible of the original document which was lost. The learned trial Judge has accepted the above contention. The relevant observations of the learned trial Judge on the point are:- but the document which is sought to be produced is a copy made from certified copy produced in another suit namely civil suit No. 9 of 1937. Now secondary evidence is admissible of the original document which was lost. Since the document sought to be introduced on record is not a copy made from the original document it cannot be received in evidence. I therefore uphold the objection raised by the learned counsel for the defendants and have to turn down the request of the plaintiffs counsel for marking it as an exhibit. He has not made it clear in his judgment as to on the basis of which particular section of the Indian Evidence Act he has taken the above view. According to sec 61 of the Indian Evidence Act the contents of documents may be proved either by primary or by secondary evidence. According to sec. 62 Primary evidence means the document itself produced for the inspection of the Court. Sec. 63 of the Act provide Secondary evidence means and includes (1) Certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counter-parts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it. ( 7 ) SEC. 64 provides that Documents must be proved by primary evidence except in the cases hereinafter mentioned. Sec. 65 reads as under:- Secondary evidence may be given of the existence condition or contents of a document in the following cases:- (A) When the original is shown or appears to be in the possession or power of the person against whorl the document is sought to be proved or of any person out of reach of or not subject to the process of the court or of any person legally bound to produce it and when after the notice mentioned in sec. 66 such person does not produce it:- (B) When the existence condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (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) When the original is of such a nature as not to be easily movable; (E) When the original is 2 public document within the meaning of sec. 74; (F) When the original is a document of which a certified copy is permitted by this Act or by any other law in force in India to be given in evidence; (G) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved is the general result of the whole collection. In cases (a) (c) and (d) any secondary evidence of the contents of the document is admissible. In case (b) the written admission is admissible. In case (e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible. In case (g) evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents. ( 8 ) IN the present case as observed above the presumption arises that the sale deed executed by the predecessor-in-title of the plaintiff in favour of the husband of Bai Samrath is in possession of the defendants It is not disputed that the defendants were called upon to produce that sale deed. They have however not produced it on the ground that it is not in their possession. This shows that; the request of the plaintiff for permitting him produce the copy of the 5ale deed falls under sec. 65 (a) of the Indian Evidence Act. If it is held that the original sale deed has been destroyed or lost then clause (c) of sec. 65 would be applicable. This shows that the plaintiffs request for admitting the copy of the sale deed in evidence would fall both under clauses (a) and (c) of sec. 65 or under either of them. If it is held that the original sale deed has been destroyed or lost then clause (c) of sec. 65 would be applicable. This shows that the plaintiffs request for admitting the copy of the sale deed in evidence would fall both under clauses (a) and (c) of sec. 65 or under either of them. Now according to the above section In cases (a) (c) and (d) any secondary evidence of the contents of the document is admissible. The above provisions clearly show that the contents of the document in a case like the present one can be proved not only by the secondary evidence of the kind specified in sec. G3 of the Act but (also by any secondary evidence as contemplated by the aforesaid provisions of sec. 65. The relevant provisions of sec. 65 seem to have been enacted in order to safeguard the interest of the person who is unable to produce either the original document or a secondary evidence of the type mentioned in section 63 of the Act in the circumstances mentioned in clauses (a) (c) and (d) of that section. Thus in view of the above provisions of sec. 65 of the Indian Evidence Act the copy of the sale deed produced by the plaintiff with his list Ex. 27 is admissible in evidence and neither sec. 63 nor clause (f) of sec. 65 would come in the way of doing so. The learned advocate for the appellants is unable to controvert the above position. ( 9 ) IF any authority is needed on the point it is provided by the decision in the case of Bibi Aisha v. Bihar S. S. M. Avacaf A. I. R. 1969 S. C. 253 in which it has been held:- under sec. 65 (a) of the Evidence Act secondary evidence may be given of the existence or contents of a document when the original is shown or appears to be in the possesrion or power of the person against whom the document is sought to be proved and when after the notice mentioned in sec. 66 such person does not produce it. Where the case falls under see. 65 (a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of sec. 65 (a) were satisfied. 66 such person does not produce it. Where the case falls under see. 65 (a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of sec. 65 (a) were satisfied. The plain copy of the waqf was therefore admissible On behalf of the appellant it was argued that Cl. (f) of sec. 65 was applicable and that as the certified copy of the deed dated August 20 1827 was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible though the case may also fall under clause (f) Clause (a) is not controlled by Clause (f ). According to their Lordships the position would be the same even if the provisions of clause (c) of sec. 65 are attracted as would be evident from the following observations in that case:- in the case of A Collision Between the Ava (1879) I. L. R. 5 Cal. 568 a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted Cl. (c) of sec. 65 and the failure to produce it after notice attracted cl. (a ). Clause (f) of sec. 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and secondary evidence was admissible. We agree with this decision. Wilson J. said:- by sec. 65 cases under cls. (a) and (c) any secondary evidence is admissible in cases under cls. (e) and (f) only a certified copy. The present case falls under cls. (a) or (c) and also under (f ). In such a case which rule applies ? I think the words In cases (a) (c) and (d) any secondary evidence is admissible are too clear and too strong to be controlled by anything that follows and that therefore in this case any secondary evidence might be received. ( 10 ) IN view of the above clear authorities and of what is stated earlier on the point it becomes evident that in cases (a) (c) and (d) of sec. 65 of the Indian Evidence Act any secondary evidence is admissible irrespective of the provisions of sec. ( 10 ) IN view of the above clear authorities and of what is stated earlier on the point it becomes evident that in cases (a) (c) and (d) of sec. 65 of the Indian Evidence Act any secondary evidence is admissible irrespective of the provisions of sec. 63 or clause (f) of sec. 65 of the Act. The learned trial Judge does not seem to have considered the above provisions of sec. 65 of the Act while coming to the conclusion that the aforesaid copy of the sale deed is not admissible in evidence. In view of the reasons mentioned above his finding to the above effect cannot be sustained. . . . . . . . . . . . . . . . . Appeal dismissed. .