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2010 DIGILAW 887 (GAU)

Camrus Zaman Ghafoor Pariat v. Union of India

2010-11-25

ANIMA HAZARIKA

body2010
JUDGMENT Anima Hazarika, J. 1. This Second Appeal arises out of the judgment and decree dated 24.08.2009, passed by the learned District Judge, Shillong in RFA No. 2(H)/2004, reversing the judgment and decree passed by the learned Assistant District Judge, Shillong in Title Suit No. 3(H)/1991. 2. The brief facts leading to this Second Appeal may be enumerated as follows : Plaintiff who is the Appellant in this Second Appeal filed Title Suit No. 3(H)/1991 before the Court of learned Assistant District Judge, Shillong inter alia pleading that his father Late M.A. Ghafoor was the absolute owner in possession and occupation of the suit premises known as "Lawn House" (formerly known as "Belle Vue") located at site No. 14 within the Cantonment area of Shillong together with all the buildings/structures standing thereon. The suit property as described in the schedule is quoted below: SCHEDULE All that part and parcel of the landed household property known as "Lawn House" (formerly known as Bellevue), Bungalow No. 14 in the Shillong Cantonment, with all buildings, dwelling houses, out houses, cooksheds, furnitures, furnishing fittings, gardens, garages, lands, trees, fences, etc more or less three acres and bounded as follows: North: The compound of the house known as 'Dekkachang'; South: Northbrook Road; East: Ridgeway Road; West: Compound of the house known as the Retreat. It is the case of the Plaintiff that the suit property formerly belong to one Mrs. F.M. Meiklejohn who by a Deed of Conveyance dated 21.01.1948 transferred and conveyed the same to the Plaintiff's father for a consideration of Rs.70,000/-. After the demise of his father the Plaintiff had been peacefully possessing the property and had also invested further sum towards renovation and repair of the property and had also planted trees on the compound. The Plaintiff received Memo No. 540/31/A/14 dated 12.01.1991 issued by the Administrative Commandant, for and on behalf of the Defendant No. 3 (Respondent No. 3 herein) intimating the Plaintiff that due to unavoidable reasons the Defendants were compelled to resume "...Cantt-14,SVY No. 61 which was leased to Mr. Mahammad Abdul Ghaffor on 'Old Grant Terms'...". The Plaintiff received Memo No. 540/31/A/14 dated 12.01.1991 issued by the Administrative Commandant, for and on behalf of the Defendant No. 3 (Respondent No. 3 herein) intimating the Plaintiff that due to unavoidable reasons the Defendants were compelled to resume "...Cantt-14,SVY No. 61 which was leased to Mr. Mahammad Abdul Ghaffor on 'Old Grant Terms'...". Being aggrieved by the aforesaid order the Plaintiff filed the suit for Decree against the Defendants to the following effect: (i) a declaration that the Plaintiff is the owner of Bungalow No. 14 within the Cantonment area of Shillong and described in the schedule below; (ii) a further declaration that the Memo No. 540/31/Q/14 dated 12th January, 1991 intimating initiation of resumption proceedings issued in respect of the suit property described in the schedule by the Station Commander, Shillong on the Plaintiff is illegal, malafide, and violative of the Plaintiff's right to property guaranteed under the Constitution; (iii) a perpetual injunction restraining the Defendants from proceeding with the resumption proceeding in respect of the said Bungalow No. 14 as indicated in the Memo dated 12.1.1991 or from taking possession of the said property on the strength of any such resumption proceedings;... 3. The Defendants filed a common written statement denying the averments made in the plaint. Else then taking the pleas that the suit was not maintainable, that there was no cause of action for the suit and that the same was barred by the laws of estoppel, waiver, acquiescence, limitations etc., the Defendants charted out a long history of the Shillong Cantonment as well as the suit land in Paragraph 8 of the written statement. In summary the case of the Defendants is that in terms of the Governor General's order No. 179 dated 12.09.1836 the grant of the land made to the individuals are termed as "Old Grant". Though no precise authority is available prescribing the use of the term "Old Grant" as such, it was stated that all Grants made under Governor General's order can be termed and distinguished as "Old Grant" from the lease granted under the Cantonment code and the Cantonment Land Administrative Rules, 1925 and 1937. It is the case of the Defendants that title and ownership of a parcel of land of which the suit property is a part was vested on the British Government by the Raja of Mylliem on 10.12.1863. It is the case of the Defendants that title and ownership of a parcel of land of which the suit property is a part was vested on the British Government by the Raja of Mylliem on 10.12.1863. The land comprising survey No. 61 of which Bunglow No. 14 is situated is very much a part of Cantonment area which was first granted in favour of one Mr. G.F. Smith on 17.09.1917, who in turn had transferred the property to his wife by will dated 2.08.1918 and the wife gifted the said property to her daughter on 11.11.1941 and the said daughter Mrs. F.M. Meiklejohn sold the suit property with prior sanction of the Government of India, Ministry of Defence contained in letter dated 14.11.1947 to the father of the Plaintiff who purchased the same by way of a registered sale deed dated 21.01.1948. It is the specific case of the Defendants that as per the terms of the Grant the property right belongs to Government of India and hence, the Government reserves the right to resume the land which was also admitted by both the Plaintiff and his father by admission deeds executed by them on 29.01.1957 and 11.01.1983. 4. The Plaintiff examined himself as PW 1 while the Defendants examined one Sri N.V. Nair, Assistant Defence Estate Officer, Guwahati Circle as DW 1. The Plaintiff adduced the following documentary evidences : Exhibit 1: Sale Deed dated 21.01.1948. Exhibit 2: Indenture dated 5.01.1917. Exhibit 3: Letter dated 11.11.1982 issued by Military Estate Officer to the Plaintiff regarding mutation of suit property. Exhibit 4: Draft deed of admission. Exhibit 5: Letter to the Counsel of the Plaintiff by the Defence Estate Officer on 17.10.1984 to furnish heirship certificate for mutation of land in Plaintiff's name. Exhibit 6: Letter to the Counsel of the Plaintiff by the Defence Estate Officer on 13.08.1984 for production of heirship certificate. Exhibit 7: Letter to the Counsel of the Plaintiff by the Defence Estate Officer on 31.08.1984 for production of heirship certificate. Exhibit 8: Letter to the Plaintiff by the Defence Estate Officer on 12.05.1989 to produce heirship certificate. Exhibit 9: Resumption Notice dated 12.01.1991 to the Plaintiff issued by the Colonel, Administrative Commandant for Station Commander. 5. Exhibit 7: Letter to the Counsel of the Plaintiff by the Defence Estate Officer on 31.08.1984 for production of heirship certificate. Exhibit 8: Letter to the Plaintiff by the Defence Estate Officer on 12.05.1989 to produce heirship certificate. Exhibit 9: Resumption Notice dated 12.01.1991 to the Plaintiff issued by the Colonel, Administrative Commandant for Station Commander. 5. The Defendants did not adduce any documentary evidence but sought to rely upon copies of some documents without producing originals thereof before the Trial Court and hence the copies of those documents were marked as Paper Marks A to I by the Trial Court instead of marking the same as Exhibits. It appears that on contest the plaint was also allowed to be amended. 6. On the basis of the pleadings of the parties, the following 6 issues were framed and after the amendment of the plaint additional 5 issues, as quoted below, were framed by the Learned Trial Court: ISSUES : 1 Whether there is cause of action for the suit? 2. Whether the property belongs to the Government of India? 3. Whether the Plaintiff is the absolute owner of the Property? 4. Whether the Government of India is the owner and has the right to resume the land? 5. Whether the land covered by Old Grant contained in Governor General's Order No. 179 dated 12.09.36? 6. What reliefs the Party are entitled to? ADDITIONAL ISSUES: 7 Whether the property in suit is covered by any 'Old Grant' ? 8. Whether the affidavit executed by the Plaintiff was taken by the Defendants on the plea of mutating the suit property in his name as such, whether the same can be used for the purpose of resumption of the suit property ? 9. Whether the recital in the Sale Deed dated 21st January, 1948 executed in favour of the Plaintiff's father as also in all other Sale Deeds, declaring that the purchaser may possess and enjoy the said property absolutely as his own from generation to generation was made with prior approval of the Draft of the Defendants by the concerned authorities? 10. Whether the Plaintiff is entitled to mutation of the suit property in his name? 11. Whether the attempt of the Defendant to resume the Property is bonafide and legally tenable? 7. The learned trial Court vide judgment and order dated 19.9.2002 decreed the suit in favour of the Appellant/Plaintiff. 8. 10. Whether the Plaintiff is entitled to mutation of the suit property in his name? 11. Whether the attempt of the Defendant to resume the Property is bonafide and legally tenable? 7. The learned trial Court vide judgment and order dated 19.9.2002 decreed the suit in favour of the Appellant/Plaintiff. 8. While deciding Issue No. 2 in favour of the Plaintiff the learned trial Court held that Plaintiff is the absolute owner in possession and occupation having acquired transferable and inheritable right over the property by clear purchase and thus Government of India can claim only revenue. The learned trial Court based his decision on force of the Sale Deed Exhibit-1 and further on the deposition of DW 1 to the effect that the Defence Establishment have accorded sanction for sale and transfer of the property by way of Sale Deed dated 14.11.1947 (Exhibit 1) through sanction letter dated 21.11.1947. Consequently, Issue No. 3 was also decided in favour of the Plaintiff. Issue Nos. 5 & 7 were decided together in negative. The decision of the trial Court was basically based on the premise that although the Defendants had given the history of the land in their written statement, their sole witness DW 1 in his deposition had admitted that except Paper Marks A, B, C, D, E & F there was absolutely no documents before the Court to support the contention of the Defendants. The learned Court concluded that as it was incumbent upon the Defendants to prove their case by producing original documents which are admissible as primary evidence, the Court could not presume in the absence of production of such documents that the land was covered under Old Grant. Paper Mark A to E being only copies and that too, according to the trial Court, they do not speak about the terms and conditions of the "Old Grant" except some passing reference. Hence, the trial Court held that Defendant had miserably failed to proof their case with the support of any documentary evidence. Paper Mark A to E being only copies and that too, according to the trial Court, they do not speak about the terms and conditions of the "Old Grant" except some passing reference. Hence, the trial Court held that Defendant had miserably failed to proof their case with the support of any documentary evidence. Regarding the question of the alleged admission by the Plaintiff as contained in the affidavit executed by him, the learned trial Court decided the question vide Issue No. 8 wherein on prima facie examination of Exhibit 3, as reproduced in the judgment itself, the learned trial Court held that the Exhibit 3 is the letter dated 11.11.1982 was at best a draft and Exhibit-4 deed of admission meant merely for mutation of the property and these documents can not be used for the purpose of resumption of the property by the Government of India. As a consequence of this finding, Issue No. 10 was also answered in negative. Issue Nos. 1 and 6 were decided in affirmative. As a result, the suit was decreed in favour of the Plaintiff. 9. The judgment and Decree of the title Suit was carried on to Appeal by the Defendants in the suit by way of RFA No. 2(H)/2004 before the Court of learned District Judge at Shillong. The learned first appellate court upon hearing the counsel for the parties formulated the following points for decision in the Appeal : 1 Whether the suit premises covered under the "Old Grant"? 2. If it is under 'Old Grant' then in that case whether Respondent has only occupancy right over the structure and land? 3. Whether resumption notice is in accordance with law? 10 The learned appellate court took into consideration the copies of some documents relied on by the Defendants in the suit which were marked as Paper Marks A to I. Placing total reliance on the contents of these Paper Marks, the learned appellate court reversed the findings of the trial Court holding that the suit premises was regulated and guided by "Old Grant" conditions under the control and management of Military Estate Officers and Government of India is the land lord of the suit property. Consequently, the first appellate court further held that the suit premises was regulated and guided by C.G.O. No. 179 of 1836 and Government has got right for resumption of the said property subject to proper notice from appropriate authority and compensation or value for the authorised construction erected thereon. However, while allowing the appeal and setting aside the trial Court's judgment and order dated 19.09.2002 the learned appellate court held that the resumption notice was found to be defective and accordingly no resumption can be resorted to on the basis of the impugned resumption notice, further holding that Government of India can resume the property after issuing appropriate notice as per law. 11. The present Second Appeal is preferred by the Plaintiff against the aforesaid judgment dated 24.08.2009 passed by the first appellate court. The Appellant, Union of India and Others have not preferred any appeal against the finding of the first appellate court regarding the resumption notice being declared to be defective. 12. While admitting the Second Appeal for adjudication, the following substantial questions of law were framed for decision of this Court vide order dated 19.10.2009 : 1 Whether after the specific pleading in the plaint that the suit land is covered under lease right and the same be also admitted in the written statement by the Respondent, the appellate court was right in going beyond the pleadings of the parties and hold that the suit land is covered by 'Old Grant' ? 2. Whether in the absence of the specific denial in the written statement that the suit land is not lease land and no counter claim or affirmative pleadings by the Respondent that the suit land is "Old Grant" appellate court judgment is highly illegal and perverse ? 3. Whether the paper mark documents with doubtful entries therein without production of the original papers and absence of recitals about "Old Grant" in admission deed dated 28.1.1957 can sufficiently prove that the suit property is "Old Grant"? 4. Whether the appellate court's judgment on most of the issue is based on perverse finding of fact as neither the evidence has been discussed nor has any reason been given while reversing the trial court judgment? 13. 4. Whether the appellate court's judgment on most of the issue is based on perverse finding of fact as neither the evidence has been discussed nor has any reason been given while reversing the trial court judgment? 13. However, during the course of argument, this Court felt it necessary to formulate few more substantial questions of law which were deemed indispensable for a just and proper adjudication of this Second Appeal and heard the arguments of both sides on the basis of the newly formulated following substantial questions of law : 5. Whether the learned court of appeal below is justified in reversing the judgment of the learned trial Court relying and accepting the Paper Marks A, B, C, D, E, F, G, H and I in evidence in absence of foundation being laid as required under Clause (a) of Section 65 of the Indian Evidence Act, 1872 ? 6. Whether the learned court of appeal below is justified in reversing the judgment of the learned trial Court when the Defendants have failed to prove existence and execution of the original documents to be valid which itself is a bar to introduce secondary evidence of Paper Marks A to I or its contents being inadmissible under Sections 63, 64 and 65 of the Indian Evidence Act, 1872 requiring interference under Section 100 of the Code of the Code of Civil Procedure being substantial question of law? 7. Whether the learned court of appeal below is justified in reversing the judgment of learned trial Court relying on alleged admission dated 29.1.1957 and 11.1.1983 by the Plaintiff superseding the sale deed dated 21.1.1948 (Exhibit 1) executed after obtaining prior sanction from the Defendants? 8. Whether the learned court of appeal below is justified in reversing the judgment of the learned trial court in deciding the question as to whether the suit premises covers under the "Old Grant in absence of pleadings in the written statement thereby traversing beyond the pleadings which is perverse and deserves to be interfered with in exercise of power under Section 100 of the Code of Civil Procedure? 14. I have heard Mr. S.S. Dey, learned Counsel assisted by Mr. M. Nath, Advocate for the Appellant and Mr. R. Debnath, learned Central Govt. Counsel for the Respondents extensively on the aforesaid questions of law. 15. Substantial question Nos. 14. I have heard Mr. S.S. Dey, learned Counsel assisted by Mr. M. Nath, Advocate for the Appellant and Mr. R. Debnath, learned Central Govt. Counsel for the Respondents extensively on the aforesaid questions of law. 15. Substantial question Nos. 3, 5 & 6 are identical and they revolve around the legal question of admissibility of documentary evidence and interpretation of the provisions contained in Chapter v. of the Indian Evidence Act 1872, more specifically Sections 61, 62, 63, 64 and 65 thereof. There is no dispute at the bar that none of the documents marked as Paper Marks A, B, C, D, E, F, G, H & I produced by the Defendants in the Title Suit No. 3(H)/1991 are original documents, rather they are copies of some other documents, originals whereof were neither produced in any manner, nor put up for comparison of the Court with the copies available on record. DW 1, Sri N.V. Nair, the Assistant Defence Estate Officer of Guwahati Circle in his evidence has asserted as follows: 1. Paper Mark A is the certified true copy of General Land Registrar maintained by the Defence Estate Officer. 2. Paper Mark B is the certified true copy of the Admission Deed by the then Original Guarantee G.F. Smith. 3. Paper Mark C is the certified true copy of the letter dated 28.05.1947 of Mrs. F.M. Meiklejohn. 4. Paper Mark D is the copy of the sanction letter of the Government of India dated 14.11.1947. 5. Paper Mark E is the certified copy of the letter written by MA Ghafoor to the Military Estate Officer dated 13.04.1957. 6. Paper Mark F is the certified copy of the Admission Deed dated 28.01.1957 by the father of the Plaintiff. 7. Paper Mark G is the Xerox copy of the site plan enclosed with Paper Mark E. 8. Paper Mark H is the certified true copy of the affidavit dated 11.01.1983 by the Plaintiff. 9. Paper Mark I is the certified copy of the letter dated 30.06.1997 from the Divisional Forest Officer, East Khasi Hills, Government of Meghalaya. The paper marks E, F, H and I had been certified to be true copies by one Sri R.P. Singh, Joint Director of Defence Estates, North East who has not been produced/examined as a witness. 16. 9. Paper Mark I is the certified copy of the letter dated 30.06.1997 from the Divisional Forest Officer, East Khasi Hills, Government of Meghalaya. The paper marks E, F, H and I had been certified to be true copies by one Sri R.P. Singh, Joint Director of Defence Estates, North East who has not been produced/examined as a witness. 16. To assure myself of the actual position, I have scrutinized the Lower Court records and found that documents produced by the Defendants which are marked as Paper Marks A to I are mere photocopies/typed copies of some documents, originals of which were never exhibited before the trial Court nor brought for comparison with the copies i.e. the Paper Marks A to I. In the cross-examination, the said DW 1 also admits that Annexure 20 to the written statement which is said to be a document to show that the land in question was purchased from the Raja of Mylliem is only an unauthenticated copy, original whereof was neither produced nor proved. In fact, the said witness said that the said Annexure 20 has not even been certified to be true copy by anyone. About the Paper Marked documents the said witness says that "...they are true copies of originals held by us. It is not a fact that we have no original documents of these papers." Having said so there is absolutely no explanation as to why those original records were never produced nor exhibited before the Court. The learned trial Court has quoted the following part of the cross examination of DW 1: ...I have seen the land from outside, I can say about the land only as per the records, but I cannot say about what is in it. I have not produce or brought any document to show that only the Government of India Defence Ministry reserves the right for taking decision for resumption of land, other then Exhibit paper mark 'B' 'F' 'H'. I have not brought any decision of the Government of India Defence Ministry for resumption of this land,... 17. Although law permits contents of documents to be proved either by primary or secondary evidence, Section 64 and 65 of the Indian Evidence Act, puts effective guidelines and limitations in respect of proof of documents by secondary evidence. As a general rule, documents must be proved by primary evidence. 17. Although law permits contents of documents to be proved either by primary or secondary evidence, Section 64 and 65 of the Indian Evidence Act, puts effective guidelines and limitations in respect of proof of documents by secondary evidence. As a general rule, documents must be proved by primary evidence. However, Section 65 makes an exceptions thereby allowing proof by way of secondary evidence regarding the existence, condition or contents of documents on the following conditions : (a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out to 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 Section 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 a public document within the meaning of Section74; (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 consists of numerous accounts or other document 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. 18. 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. 18. It is not the case of any party that originals of Paper Marks A to I is in the possession of the Plaintiff. None of these documents have been admitted by the Plaintiff against whom these are sought to be proved. It is also not the case of the Defendants that the originals had been destroyed or lost or can not be produced for any reason enumerated in Section 65(c). The Defendants also have not raised any plea that the originals are not easily removable or they are Public Documents within the meaning of Section 74 of the Indian Evidence Act. In case they were Public Documents, the copies thereof have to be certified by a Public Officer having custody of the said Public Documents. There is no evidence on record that these Paper Marks conform to the test of law prescribed under Section 76, 77 & 78 of the Indian Evidence Act. There is also no material on record to presume the genuineness of these documents which are admittedly mere copies in the absence of the prove that they were duly certified by an officer of the Central Government who is duly authorised thereto by the Central Government. In the absence of the above requisites the Paper Marks A to I cannot be taken into consideration by any Court of Law. The learned trial Court in my considered view had rightly held that "It is incumbent upon the Defendants to prove their case by producing original documents which is admissible as primary evidence." In the absence of any evidence admissible under law the trial Court rightly discarded the Defendant's case. However, the first appellate court in total disregard of the aforesaid cardinal principles of law regarding documentary evidence reversed the findings of the trial Court solely relying on the contents of the Paper Mark documents produced by the Defendants inspite of the fact that none of these documents were admissible in evidence and they were not even exhibited or marked as Exhibits before the Court. This has caused serious infraction of the mandates of Section 64 and 65 of the Indian Evidence Act. 19. To buttress the aforesaid issue, Mr. Dey, the learned Counsel for the Plaintiff/Appellant has placed reliance on the following decisions: 1. AIR 1948 PC 114 [Raja Mahadeva Royal Y.B. v. Viravasava Chikka Royal and Ors.] 2. (2009) 6 SCC 681 [Ram Suresh Singh v. Prabhat Singh Alias Chhotu Singh and Anr. (2009) 6 SCC 681 . 3. (2006) 12 SCC 545 [Subhash Harnarayanji Laddha v. State of Maharashtra. (2006) 12 SCC 545 . 4. AIR 2007 SC 1721 [Smti J. Yashoda v. Smti. K. Shobha Rani. AIR 2007 SC 1721 ]. 5. AIR 1995 Gau 23 [State of Meghalaya and Ors. v. Joinmanick Nosmel Giri. AIR 1995 Gau 23 . 6. AIR 1987 All 83 [Union of India (UOI) v. Nirmal Singh]. The first case relied on by Mr. Dey is of Raja Mahadeva (supra) wherein dispute regarding succession to the estate of a Jamindari in the province of Madras arising out of an adoption was the subject matter of adjudication. The matter was first brought to the Court of subordinate Judge against whose decision Appeal and Cross objection were preferred before the High Court of Madras. Thereafter, the matter was taken to Privy Council. The Privy Council in paragraph 17 of the judgment observed that the documentary evidence particularly Exs. JJJ, KKK, LLL and MMM were held to be inadmissible by the High Court although they were accepted by the trial Court and the admissibility of these documents formed the main theme of argument of the Appellant. Paragraph 20 of the judgment describes these documents as copies of translations of what purport to be some original letters. There was no proof that those original letter were produced during the initial enquiry. It was argued on behalf of the Appellant that the originals had been destroyed, but this fact again was not proved. Paragraph 20 of the judgment describes these documents as copies of translations of what purport to be some original letters. There was no proof that those original letter were produced during the initial enquiry. It was argued on behalf of the Appellant that the originals had been destroyed, but this fact again was not proved. The documents were certified to be public documents by the Resident of Hyderabad but only the copies of the same were filed and it was observed that "the word "original" in the certificates can only refer to the copies filed and not the original documents." Before the trial Court the admissibility of these documents were objected on the ground that there is no proof of correctness or genuineness of the translations while it is remarked by Privy Council that the real point that these documents were only copies of copies and not originals was missed. In paragraph 21 of the judgment it was finally held that "The documents being merely copies of copies, the originals not having been satisfactorily accounted for, their Lordships agree with the High Court that Exs. JJJ, KKK, LLL and MMM are inadmissible in evidence and must be rejected." Paragraph 22 of the judgment further proceeds to hold "The documents being inadmissible, it is needless to consider the question how far, if admitted, they would affect the decision of the case." In the case of Ram Suresh Singh (supra) the Hon'ble Apex Court while dealing with the question of age of Respondent No. 1 therein who claimed to be a Juvenile had declined to consider the Xerox copy of an age certificate granted by a Principal of the School in the absence of the original having not been produced inasmuch as the Xerox copy was held to be inadmissible in evidence. In the case of Subhash Harnarayanji Laddha (supra) the Hon'ble Apex Court refused to look into the Xerox copy of an agreement for sale in the absence of any explanation whatsoever as to why the original agreement for sale was not produced. In the case of Smti J. Yashoda (supra) admissibility of some photocopies marked as Exh. B-1 to B-8 being tested, the Hon'ble Apex Court in paragraphs 7, 8 and 9(partly) held as follows : 7. ...Secondary evidence, as a general rule is admissible only in the absence of primary evidence. In the case of Smti J. Yashoda (supra) admissibility of some photocopies marked as Exh. B-1 to B-8 being tested, the Hon'ble Apex Court in paragraphs 7, 8 and 9(partly) held as follows : 7. ...Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kind of secondary evidence. 9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.... Relying on the law laid down in an earlier judgment of Supreme Court in Ashok Dulchand V. Madahavlal Dube reported in (1975) 4 SCC 664 the Hon'ble Court concluded that admittedly in the case at hand the originals being at the hand of some other person and the condition precedent prescribed in Section 65(a) of the Indian Evidence Act. Relying on the law laid down in an earlier judgment of Supreme Court in Ashok Dulchand V. Madahavlal Dube reported in (1975) 4 SCC 664 the Hon'ble Court concluded that admittedly in the case at hand the originals being at the hand of some other person and the condition precedent prescribed in Section 65(a) of the Indian Evidence Act. having not been satisfied the High Court's decision of not receiving the photocopies as secondary evidence was held to be not suffering from any infirmity to warrant interference. In the case of State of Meghalaya and Ors. v. Joinmanick Nosmel Giri (supra), this Court had pronounced in paragraph 20 of the judgment that "...It is also settled law that in a civil suit, the burden of proof lies on the Plaintiff to substantiate his claim, but when both the parties led evidence the concept or consideration of onus is immaterial. The truth has to be adjudged on the evidence of the parties. Regarding non-production of available evidence, the law is settled. For non-examination of Defendant No. 5 adverse presumption has been drawn by both the courts below. The law is stated by the Apex Court of the land as follows : (i) AIR 1981 SC 2235 (Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar. AIR 1981 SC 2235 ), the Supreme Court in paragraphs 11 and 13 of the judgment has pointed out as follows: "The question of drawing an adverse inference against a party for his failure to appear in court would arise only when there is no evidence on the record." (ii) AIR 1975 SC 2299 (Smt. Indira Nehru Gandhi v. Raj Narain. AIR 1975 SC 2299 ) it was pointed out by the Supreme Court as follows: "Drawing of adverse inference for non-production of available evidence, to support his case is always optional. Such a presumption under Section 114 of the Evidence Act has to be drawn as one of fact depending upon the whole state of fact and it is not obligatory. Now let us have a look at the Exhibits 14, 15, 16 and 18. Ext. 15(1) is a exercise book containing some entries. Also it contain some slip of papers. There is no page number in the exercise book. Each and every entry was not proved by any of the witness. Now let us have a look at the Exhibits 14, 15, 16 and 18. Ext. 15(1) is a exercise book containing some entries. Also it contain some slip of papers. There is no page number in the exercise book. Each and every entry was not proved by any of the witness. It is not understood as to why this book was admitted in the evidence without proving entries made therein. This Ext. does not come within the definition of Section 34 of the Evidence Act. It is not understood as to why both the courts below accepted this exercise book with some entries made therein along with some slip papers to thrust the liability on the Plaintiff. No doubt, this book was exhibited without objection from the Defendant. But that did not take away right of the court to question and/or scrutinize the evidentiary value of the same, Section 61of the Evidence Act provided that contents of documents may be proved either by primary or by secondary evidence. Here the contents of the Exhibits were not proved either by primary or secondary evidence. So these exhibits must be brushed aside. These Ext. 15(1) and 15(2) are mere scrap of papers. They were not kept in the regular course of business and the same could never be admitted as evidence under the provisions of law. The said measurement book did not bear any signature of the departmental officers and that were never seen or submitted prior to the same being exhibited in court. Ext. 14 is a typed copy which claims to be the work done from March, 16, 1975 up to 31st March, 1976. It gives the nature of work carried out and engaging average labour strength of 150 members daily and it also gives the volume and value of work. This also has no evidentiary value at all. Ext 16 is another sheet which claims that it is work done from April, 1976 up to 31st March, 1977. It shows the nature of work carried out and also volume and value of the work. It does not bear the signature of anybody. The typed copies were exhibited by the Plaintiff. Exts. 17 and 18 are another two typed copies of the same nature. All these exhibits have no evidentiary value whatsoever and they cannot thrust any liability on any person. It does not bear the signature of anybody. The typed copies were exhibited by the Plaintiff. Exts. 17 and 18 are another two typed copies of the same nature. All these exhibits have no evidentiary value whatsoever and they cannot thrust any liability on any person. The way these exhibits are sought to be utilized to thrust the liability on the Defendant, may give rise dangerous precedent in the field of civil litigation...." I humbly agree to the aforesaid proposition of law. As regards documents being regarded as Public Documents, Mr. Dey has placed reliance on a judgment of the Allahabad High Court in the Case of Union of India v. Nirmal Singh (supra). While placing special emphasis on paragraphs 6, 7 & 8 of the said judgment, it has been contended before this Court that none of these documents fall within the parameters of Section 74 and/or 78of the Indian Evidence Act. The facts and circumstances revealed on record of the case, as discussed above, persuades me to follow and apply the ratio of this judgment of Allahabad High Court. 20. Per contra Mr. Debnath, learned Central Govt. Counsel for the Defendants Union of India and others have placed reliance on the following judgments: 1. (2004) 7 SCC 107 [Dayamathi Bai v. K.M. Shaffi]. 2. (1995) Supp. 1 SCC 462 [Government of A.P. v. Karri Chinna Venkata Reddy]. 3 AIR 1973 Delhi 169 [Raj Singh v. Union of India and Ors.]. 4 AIR 1979 All 170 (FB) [Mohan Agarwal v. Union of India and Ors.]. 5 AIR 1991 Delhi 253 [Shital Prasad Jain v. Union of India and Ors.]. 6 AIR 1991 Delhi 265 [Sri Phool Chand Sardana v. Delhi Development Authority and Ors.]. 7 AIR 2004 Delhi 389 [Jor Bagh Association (Regd.) and Ors. v. Union of India and Ors.]. 8 (1999) 3 SCC 555 [Chief Executive Officer v. Surendra Kumar Vakil]. In the case of Dayamathi Bai (supra), the Apex Court while considering admissibility of a 30 years old document and presumption of genuineness thereof under Section 90 of the Indian Evidence Act held that the document in question which was the certified copy of a sale deed was put to evidence and taken on record as well as marked as an exhibit without any objection from the contesting side. Hence, it was not open for the same party being Appellant to challenge the same before the Apex Court without taking the objection at the time of admission of the document at trial stage. It is not discernable how this judgment can advance the case of the Defendant/First Appellant, inasmuch as, evidently the Paper Mark A to I were not even accepted or marked as Exhibits by the trial Court and the objection and resistance against the admissibility of these documents put up by the Plaintiff is apparent on the face of the cross examination of DW 1 by the said Plaintiff. Next case relied by the Defendants is Government of A.P. v. Karri Chinna Venkata Reddy (supra) where the dispute was regarding power of the High Court to entertain photostat copies of documents in exercise of discretion under writ jurisdiction and the measures to be taken if such documents are alleged to be tempered or fictitious. By no stretch of imagination the ratio of this case can be of any guidance for the purpose of decision in a civil suit which is strictly governed by the Code of Civil Procedure and the Evidence Act. In the next case cited by the Respondents i.e. Raj Singh v. Union of India (supra) the Delhi High Court held that Government Grants Act, 1895 and Order No. 179 of 1836 regarding land grant on "Old Grant" terms were made under statutory provisions and the land which are subject matter of such grant can be resumed by the Government. There is absolutely no dispute to the said proposition but in the case at hand the Union of India has pleaded that the land in question was originally acquired from the Raja of Mylliem by way of a Deed, purported copy whereof was produced as a part of the written statement as Annexure 20. The said Annexure 20 is a copy of so called document which is not even certified to be true copy in any legally permissible manner. There is no whisper regarding production of the original of the said copy. In fact Annexure 20 is a part of the written statement which is not supported by any affidavit nor any attempt has been made by the Respondents to introduce or prove the same as an evidence before the trial Court. There is no whisper regarding production of the original of the said copy. In fact Annexure 20 is a part of the written statement which is not supported by any affidavit nor any attempt has been made by the Respondents to introduce or prove the same as an evidence before the trial Court. This fact coupled with the fact of inadmissibility of the Paper Mark documents produced by the Respondents renders the ratio of the aforesaid decision of Delhi High Court without any relevance or assistance to the case of the Respondents. The right of resumption would have arisen only if the Union of India had factually on evidence established its ownership and title over the property, which unfortunately is not the case here. The next case is a Full Bench judgment of Allahabad High Court in Mohan Agarwal (supra). The question referred for decision of the Court was whether the Bengal Army Regulation Governor General's order No. 179 dated 12.09.1836 continues to be the law in force even after the enforcement of the British Statutes (Application to India) Repeal Act, 1960. The question was answered in affirmative but I failed to understand how this citation is relevant for deciding the case at hand inasmuch as, none of the parties have put to question the validity of the aforesaid Governor General's Order in question. The factual question as to whether the suit land is an Old Grant Land within the ambit of the Governor General's Order could not be proved at trial and the first appellate court solely relying on the Paper Mark documents produced by the Defendants which are prima facie inadmissible as evidence had reversed the finding of the trial Court. It is the legality of this first appellate court judgment which is under challenge in the present Second Appeal. The next case of Shital Prasad Jain (supra), cited by Mr. Devnath is regarding the applicability of the same order of the Governor General dated 12.09.1836 and the validity of the resumption of the Grant thereunder. The law laid down there does not rescue or absolve the Respondents from proving their case to title and ownership of the suit land on the basis of convincing admissible evidence under law which they have failed to do during the trial. The law laid down there does not rescue or absolve the Respondents from proving their case to title and ownership of the suit land on the basis of convincing admissible evidence under law which they have failed to do during the trial. The rest of the cases pressed by the Respondents, namely, Phool Chand Sardana (supra), Jor Bagh Associstion (supra) are absolutely without any relevance for decision of the case at hand. Although the Jor Bagh case (supra) is regarding right of a grantee under the Government Grants Act, 1895, the case of the Plaintiff here is that he is not a grantee under the Government, rather claims declaration and confirmation of his title and ownership over the suit land by means of registered sale deed which has been proved as Exhibit 1. The case of the Defendants having been rested solely on inadmissible documents was rejected by the trial Court and it is the primary question of admissibility or otherwise of these Paper Mark exhibits which is to be decided by the Court. The last case cited by Mr. Devnath is of Chief Executive Officer v. Surendra Kumar Vakil (supra). This case was relied on by the Respondents before the trial Court also, the ratio of which was held to be of no support to the Respondents in view of the proven right of the Appellant arising out of the Sale Deed by which the suit land was purchased by the Appellant as well as the admitted position of the said sale having been concluded after sanction of the same was given by the Defence Authorities, the land being situated in the Cantonment area. In the case before the Apex Court the suit property in question was proved to be a part of the Defence Establishment and the same was proved to be entered in the General Land Register maintained under the Cantonment Rules where the suit property was shown to be held on "Old Grant Terms". The Sale Deed pressed by the occupier as the basis of his right, however did not disclose the nature of the rights possessed by his predecessor in interest. The facts of the case are totally different from the fact of the present case. In the said case the Respondents who resisted the resumption of the land by the Government could not produce any title deed relating to the land in question. The facts of the case are totally different from the fact of the present case. In the said case the Respondents who resisted the resumption of the land by the Government could not produce any title deed relating to the land in question. The documents produced by the Respondents in the said case did not contain any clear recitations of the nature of their rights in the land held by the vendor. Although in that case the Appellants i.e. the Defence authorities did not produce the file/register of grants, they had led evidence to show that the file concerned of grants was stolen in the year 1985 and therefore they were unable to produce the said files. The endorsement of the officer maintaining land register under the Cantonment Land Administration Rules of 1925 which clearly showed that the suit land in question was held by Old Grant basis by the private person was also produced as evidence before the Court. No evidence to the contrary could be led by the Respondents against the Defence Establishment. Positive evidence by way of admissible evidence including the General Land Register maintained by the Defence Establishment under the Cantonment Land Administration Rules 1925 had been produced before the Court to support the contention of the Appellants i.e. the Defence Authorities that the land in question was held on "Old Grant Basis". In the case at hand neither the claimed transfer of right from the Raja of Mylliem to the Defence Department could be proved nor any attempt was made to produce the General Land Register or any other document as legally admissible evidence before the trial Court to prove that the suit land was in fact a property of the Government of India in the Defence Department. On the contrary, the registered Sale Deed, Exhibit 1 through which the Appellant proved his right, title and ownership weighs heavier tilting the balance of decision regarding right over the suit land towards the Appellant. Hence, the case of Surendra Kumar Vakil on facts is of no avail to the Respondents herein. The case of Union of India v. Purushotam Das Tandon reported in 1986 Supp. SCC 720 which is also referred to in the judgment of Surendra Kr. Hence, the case of Surendra Kumar Vakil on facts is of no avail to the Respondents herein. The case of Union of India v. Purushotam Das Tandon reported in 1986 Supp. SCC 720 which is also referred to in the judgment of Surendra Kr. Vakil (supra) emphatically places onus on the Union of India to establish its title by producing the particular Grant relating to the land sought to be resumed by it. In circumstances incidentally similar to the case at hand where the Defence Department had sought to establish their title on the basis of so called admissions made by the Appellant in the draft affidavit praying for mutation of the name of the Appellant on the death of his father, the Apex Court in the case of Purushotam Dass (supra) has held that title can not pass by such mere admission and any admission by the party in standard draft for seeking permission of the Cantonment Board for transfer is no proof of title for Union of India. Under the facts and circumstances of the case, the Hon'ble Apex Court held that it was the Appellant and not the Union of India who was the title holder of the suit property therein. 21. The sum total of the above discussion leads this Court to the inevitable conclusion that the Paper Mark documents A, B, C, D, E, F, G, H & I relied on by the Respondents can not be regarded and accepted as admissible evidence under law, inasmuch as, they are neither primary evidence nor admissible as secondary evidence in terms of the requirements of Chapter v. of the Indian Evidence Act. Consequently, the judgment of the first appellate court which reversed the judgment and decree of the trial Court primarily on the basis of the contents of those Paper Mark documents is liable to be interfered with. Even at the cost of repeatation, I am inclined to echo the pronouncement contained in State of Meghalaya and Ors. v. Joinmanick Nosmel Giri (supra) that utilization of such documents which are bereft of the sanctity of any evidentiary value may give rise to dangerous precedent in the field of civil litigation injuring the rights of many. 22. In the light of the above conclusion it is not required to answer the substantial question Nos. v. Joinmanick Nosmel Giri (supra) that utilization of such documents which are bereft of the sanctity of any evidentiary value may give rise to dangerous precedent in the field of civil litigation injuring the rights of many. 22. In the light of the above conclusion it is not required to answer the substantial question Nos. 1, 2 & 4 as the same in either way cannot tilt the ratio of conclusion arrived at by this Court. 23 Accordingly, the judgment and decree dated 24.08.2009 passed by the Learned District Judge, Shillong in RFA No. 2(H) of 2004 is set aside and quashed and the judgment and decree dated 19.09.2002 passed by the learned Assistant District Judge, Shillong in Title Suit No. 3(H)/1991 is hereby affirmed. 24. In the facts and circumstances of the case, parties are left to bear their own costs. Petition allowed.