Second Appeal No.554 of 2003

30th July, 2014.

Petitioner Counsel: Mr. S.V. PUROHIT
Respondent Counsel: Mr. N.R. SABOO

Cases Cited:
Vishwanath Vithoba Vs. Genu Kisan & Ors., 1956 Bombay 555 [Para 3,13]
State of Rajasthan & Ors. Vs. Kemraj & Ors., AIR 2000 SC 1759 [Para 4,14]
Ganpat Pandurang Ghongade & Ors. Vs. Nivrutti Pandurang Ghongade, 2008(3) ALL MR 629=2008 (5) Mh. L. J. 153 [Para 4,14]
Shiolalsingh Gannusingh Rajput Vs. Shankar Motiram Nale, AIR 1984 Bom 19 [Para 4,14]

JUDGMENT

JUDGMENT :- 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/plaintiff-Ramrao 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:

2. The respondent/plaintiff-Ramrao filed a suit for 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 March-1981, 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 March-1982 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 plaintiff-Ramrao. 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 Attorney-Amrutrao. 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 Virbhan-father of the appellants, was very old at the time of evidence and, therefore, his son-Power 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 plaintiff-Ramrao. 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 Second Appeal.

SUBMISSIONS:

3. In support of the appeal, Mr. S. V. Purohit, learned 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 respondent-plaintiff, 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.-86-sale 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.

(i) State of Rajasthan & ors. ..vs.. Kemraj & ors.; AIR 2000 SC 1759

(ii) Ganpat Pandurang Ghongade & ors...vs..Nivrutti Pandurang Ghongade; 2008 (5) Mh. L. J. 153 : [2008(3) ALL MR 629].

(iii) Shiolalsingh Gannusingh Rajput ..vs.. Shankar Motiram Nale; AIR 1984 BOM 19.

CONSIDERATION:

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.

6. This is a case of an unfortunate refugee who was residing in Punjab province before partition and which province went to Pakistan in partition. The appellants' father-Virbhan 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 1952-53 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 Ramrao-the 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 Virbhan became the owner of the suit property.

7. However, from perusal of the entire records, pleadings, evidence and documents it appears that the appellants/defendants made a goof-up 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 Bhade-Chittis Exh. 47 and 48. This was totally misdirectional. Exh.47 and 48 are documents relied upon by the respondent-plaintiff to buttress his claim about the appellants being tenants and not the owners. There is a reply notice from the appellants-defendant 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 the original sale deed was lost. Section 64 of the Indian Evidence act, 1872 provides that the documents must be proved by primary evidence 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 deed and get it exhibited as Exh.-86."

10. 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 ½ 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 sale-deed. 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 the very execution of it is disputed by the plaintiff. While considering preponderance of probabilities it is to be borne in mind that the defendant is refugee 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 sale-deed 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 the Special power of attorney by the plaintiff in favour of his brother Amrutrao. No allegation of making false document by the plaintiff's brother is 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 deserves to be exhibited and I exhibit it as Ex.90.

18. 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 ½ 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 witness has made it clear in his evidence that the original sale deed is lost. Therefore, the certified copy of the sale deed is allowed a secondary 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 respondent-plaintiff, no details were given as to the date when it was lost and so on so forth; there ought to have been proper cross-examination 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:

(a) ...

(b) ...

(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 cross-examination 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 wonder what more details or evidence could be brought to prove the said fact.

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 sale-deeds are not admissible in evidence. The plaintiff has stated in his evidence that the original sale-deeds 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 evidence as no notice was given to defendant 1 as required by Clause (a) of Section 65, Evidence Act. The proviso to Section 66, however, enables the 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 sale-deeds 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-examination of the plaintiff in regard to his statement on this point.

Defendant 1 in his evidence did not deny that the original sale-deeds were in his possession. It would have been desirable If a question had been put to him on this point in the cross-examination by the plaintiff. But as the record stands, the plaintiff's statement that the original sale-deeds are with defendant 1 remains unchallenged. This is also in accordance with the probabilities of the case.

The certified copies of three sale-deeds Exhs. 75, 76 and 77 were also produced by the plaintiff along with the plaint. He has specifically stated in the plaint that these sale-deeds 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 sale-deeds 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.

On the other hand if the sale-deeds are not in the possession of the defendants and as they are also not in the possession of the plaintiff, they 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.

14. The reported decisions in this behalf cited by 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; [2008(3) ALL MR 629] (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.

15. To sum up, I must hold that the sale deed Exh.86 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 respondent-Ramrao, 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:

ORDER

(I) Second Appeal No. 554/2003 is allowed.

(ii) Impugned judgment and decree dated 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.

No order as to costs.

Appeal allowed.