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2001 DIGILAW 1601 (AP)

Juturu Satyanarayana v. Juturu Lakshmi Devamma

2001-12-10

S.ANANDA REDDY

body2001
( 1 ) THIS revision petition is by the plaintiff directed against the order of the Junior Civil judge, Badvel in I. A. No. 889 of 2000 in o. S. No. 225 of 1998, dated 14th December 2000, whereby the Court below dismissed the application to mark the Photostat copy of the agreement of sale dated 26-5-1993 as an exhibit. ( 2 ) THE Petitioner herein, who is the plaintiff, filed the suit against the respondent/defendant for specific performance of an agreement of sale. As per the petition averments, the said agreement of sale was executed by the Petitioner s father, Juturu Reddinarayana agreeing to sale two houses, bearing Nos. 4/182 and 4/159. It is also his contention that in pursuance of the agreement of sale, as the required registered deeds were not executed, a notice was issued by the petitioner and on receipt of the notice dated 13-12-1995 sent through an Advocate, the petitioner s father executed a registered deed in respect of one of the items covered by the said agreement and with reference to the other item, the Petitioner s father sought for some time to execute the necessary registered deed. But, however, subsequently he died on 05-06-1996, leaving behind him his wife, the Respondent/ defendant. Though there are other sons to the said vendor of the Petitioner, they have already relinquished their shares in the joint family property. Therefore, the Petitioner approached his mother, the Respondent to execute necessary registered document. As she insisted for the production of the original agreement, he had handed over the original agreement of sale to her. But when later demanded for execution of the registered deed as well as for return of the original agreement, she refused to return and denied about the receipt of original agreement by her. According to the petitioner, a Photostat copy of the agreement was taken at the time of the agreement itself. As the said document was obtained by mechanical process, it ensures accuracy of the original document and the same would be equivalent to the original document. Hence, the same should be accepted as secondary evidence, under the above circumstances. According to the petitioner, a Photostat copy of the agreement was taken at the time of the agreement itself. As the said document was obtained by mechanical process, it ensures accuracy of the original document and the same would be equivalent to the original document. Hence, the same should be accepted as secondary evidence, under the above circumstances. ( 3 ) THE said contention of the Petitioner was opposed by the Respondent/ defendant denying the execution of agreement of sale by her husband as well as execution of a registered deed in respect of one of the items of property mentioned in the alleged agreement and in fact according to the Respondent/defendant the alleged agreement is a forged document and as the original was not placed before the Court to prove the execution of the said agreement by her husband, the Photostat copy could not be admitted as it is not a certified copy and the original was not produced before any authorities in connection with any of the proceedings and as it is only a Xerox copy of the alleged agreement. The same could not be marked as an exhibit, as it does not confirm the requirements of Section 65 of the Indian Evidence Act, 1872. ( 4 ) THE lower Court after considering the rival contentions and also referring to various judgments relied upon by the petitioner concluded that the said judgments referred to and relied upon are not of any assistance, as those judgments would not apply to the facts of the present case. It is further held that the document could not be marked as an exhibit as a secondary evidence, as the genuineness of the very original document is disputed and the Petitioner also failed to prove the custody of the document with the respondent/defendant. Therefore, the petitioner/plaintiff has come up with the present revision. ( 5 ) THE learned Counsel for the Petitioner contended that the Court below has committed serious error in not receiving the document and not marking the same as an exhibit. The learned Counsel contended that the agreement was executed by the father of the Petitioner and the husband of the respondent and in conformity with the said agreement, a registered deed. was executed in favour of the plaintiff in respect of one of the items of property, which was filed as one of the exhibits. The learned Counsel contended that the agreement was executed by the father of the Petitioner and the husband of the respondent and in conformity with the said agreement, a registered deed. was executed in favour of the plaintiff in respect of one of the items of property, which was filed as one of the exhibits. The execution of the said document proves the existence of the agreement of sale executed in favour of the petitioner/plain tiff. The learned Counsel also contended that as the original agreement is not in the possession of the petitioner, as according to him it is in the possession of the Respondent/defendant/ against whom the Petitioner/plain tiff wants to prove the document and as the respondent is denying having received the said agreement from the Petitioner/ plaintiff, the alternative to the Petitioner/ plaintiff is only to seek marking of the photostat copy, which is available with him. Therefore, it was contended that in the interest of justice, the document has to be marked by treating the same as secondary evidence. The learned Counsel also contended that he has specified the person, who nad scribed the document and also the attestors. In the light of the above facts, there is absolutely no justification for the court below in not accepting the contention of the Petitioner/plaintiff. The learned counsel also contended that it is only the piece of evidence, which is available and under the peculiar circumstances, especially taking into account the relationship of the parties, the version of the Plaintiff has to be accepted and the Photostat copy should be received as secondary evidence and the same should be marked as an exhibit. The learned Counsel also relied upon the judgments referred to by the lower Court. ( 6 ) THE learned Counsel for the respondent/defendant, on the other hand, opposed the contention of the Petitioner/ plaintiff. It is contended by the learned counsel that though the Petitioner/plaintiff stated that a registered document was executed in respect one of the items of property, which is also the subject matter of the agreement of sale in question, but the said registered document shows that it is only a gift deed and not a sale deed to support the contention of the Petitioner/ plaintiff. According to the learned Counsel, if the Petitioner had purchased two items of property under the agreement of sale, there is absolutely no reason for getting a gift deed executed by the vendor of the plaintiff and there is no proper explanation under what circumstances such a deed was executed/obtained. The learned Counsel also contended that the Respondent/ defendant had obtained an encumbrance certificate from the concerned Sub-Registrar office for the year 1996, with reference to the property in respect of which a registered deed was said to have been executed in favour of the Petitioner/plaintiff, but the said encumbrance certificate shows that no transaction was affected in respect of the property bearing No. 4/182. The respondent /defendant also relied upon ex. B-6 paper publication issued by the petitioner s father on 18-12-1995 cautioning the public from purchasing any of the items mentioned therein from the Petitioner, which are the subject matter of the alleged agreement of sale. The said paper publication was not at all countered or disputed by the Petitioner/plaintiff. The learned Counsel also relied upon Ex. B-1 house tax demand extract for the years 1996-97 to 1999-2000 showing that the plaintiff s name was not incorporated in respect of the said property even in respect of the alleged item for which a registered deed was obtained. Apart from that the learned counsel also contended that the alleged document shows that it contains certain recitals showing that as if the property was sold under the said agreement and the recitals clearly shows that the property was sold to the Petitioner and he has to enjoy the property with all rights including the right of sale by the petitioner/plaintiff and his successors. Therefore, it is contended that even the recitals of the document show that it is a sale deed, not an agreement of sale, though in fact the Petitioner could not get delivery of possession of the property. Therefore, even basing on the terms of the agreement, it could not be treated as an agreement of sale. Hence, even on that ground also as it is not a registered deed, it is inadmissible. The learned Counsel also relied upon the following decisions in support of his contention:- ashok v. Madhavlal; B. Ramathuylasamma v. Yedem Masthan Reddy; and Badrunnisa begum v. Mohamooda Begum. ( 7 ) HEARD both sides and considered the material on record. Hence, even on that ground also as it is not a registered deed, it is inadmissible. The learned Counsel also relied upon the following decisions in support of his contention:- ashok v. Madhavlal; B. Ramathuylasamma v. Yedem Masthan Reddy; and Badrunnisa begum v. Mohamooda Begum. ( 7 ) HEARD both sides and considered the material on record. ( 8 ) THE dispute relates to the admissibility of the disputed document as a secondary evidence. The document in question is an alleged agreement of sale said to have been executed by the Petitioner s father/ who is the husband of the Respondent/defendant. According to the Petitioner, the original agreement was handed over to the respondent/defendant on her demand to show the original, but she did not return the same. Therefore the Photostat copy of the original agreement available with the petitioner/plaintiff is to be accepted as secondary evidence. The version of the respondent/defendant is total denial of the execution of the said agreement by her husband. In fact, even according to the petitioner/plain tiff two items had purchased under the said alleged agreement and in respect of one of the item he obtained a registered deed from his father. But, even the execution of the said document is also disputed by the respondent/defendant. To prove her case, she has filed the, encumbrance certificate obtained from the Sub-Registrar s Office, showing that no document was executed in respect of the said item in respect of which the Petitioner/plaintiff claims to have obtained a registered deed. Another factor is that though according to him, he purchased the property under the agreement, but the alleged document is only a gift deed. So the said document is also not in conformity with the averments of the Petitioner/plaintiff. Further when the respondent is disputing the genuineness and existence of the disputed document, unless the Petitioner proves the requirement of Section 65 of the Indian evidence Act, the secondary evidence is inadmissible. The lower Court after considering the rival contentions elaborately held that the document in question is inadmissible in evidence as it did not confirm the requirement of I section 65. Though the Petitioner reiterated the contentions that are advanced before the lower Court, I do not find any merit in the said contention of the Petitioner/plaintiff. The lower Court after considering the rival contentions elaborately held that the document in question is inadmissible in evidence as it did not confirm the requirement of I section 65. Though the Petitioner reiterated the contentions that are advanced before the lower Court, I do not find any merit in the said contention of the Petitioner/plaintiff. ( 9 ) A similar issue was considered by the supreme Court in the case of Ashok v. Madhavlal (1 supra) where the appellant wants to mark a Photostat copy of a manuscript of a leaflet alleged to have been written by the candidate making defamatory and false averments against the unsuccessful candidate and the Petitioner failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time of its photograph was taken, the photostat copy being not above suspicion the Petitioner could not be permitted to lead secondary evidence in the shape of photostat copy when there was neither any averment nor any material to show that the original document was in possession of the successful candidate. ( 10 ) SIMILARLY, a Division Bench of this court in the case of Badrunnisa Begtim v. Mohamooda Begum (3 supra) considered the issue as to the admissibility of a copy of the agreement, where neither the original agreement nor its certified copy was filed in the Court. The Division Bench of this Court held that such a document is not admissible in evidence as secondary evidence and the decree based on such document cannot be sustained. ( 11 ) IN the light of the above decisions, i do not find that the Photostat copy of the document, the original of which is not available and not even a certified copy of the original was available for comparison, could be received as secondary evidence to prove the contents of the agreement. In fact, even the Petitioner did not issue a notice seeking to produce the document into the court. Apart from that even the recitals contained in the document shows that it is only a sale deed, as held by this Court in the case of B. Ramathuylasamma v. Yedem masthan Reddy (2 supra ). In fact, even the Petitioner did not issue a notice seeking to produce the document into the court. Apart from that even the recitals contained in the document shows that it is only a sale deed, as held by this Court in the case of B. Ramathuylasamma v. Yedem masthan Reddy (2 supra ). ( 12 ) UNDER the above circumstances, I do not find that there is any error warranting interference with the order passed by the junior Civil Judge, Badvel. The revision is accordingly dismissed. No costs.