Punjab-Haryana High Court
Rajesh Yadav And Others vs Balbir Singh And Others on 6 May, 2014
CR No.2359 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.2359 of 2008.
Decided on:-May 06, 2014.
Rajesh Yadav and others .........Petitioners.
Versus
Balbir Singh and others .........Respondents.
CORAM: Hon'ble Mr. Justice Dr. Bharat Bhushan Parsoon.
*****
Argued by:- Mr. Kulbhushan Sharma, Advocate
for the petitioners.
None for LRs of respondent No.1.
None for respondents No.2 to 4.
Mr. V.K.Jain, Senior Advocate with
Mr. Ravi Kadyan, Advocate
for respondent No.5.
None for respondents No.7 to 9.
Dr. Bharat Bhushan Parsoon, J.
The petitioners have invoked supervisory jurisdiction of this court under Article 227 of the Constitution of India for setting aside impugned order dated 9.4.2008 (Annexure P-1) passed by learned Civil Judge (Junior Division), Rewari, vide which application (Annexure P-2) filed by petitioners for permission to lead secondary evidence with regard to four registered sale deeds, was dismissed.
2. Before the entire controversy is evaluated in the interface of facts and circumstances of the case, it would be appropriate to take stock of Yag Dutt 2014.05.08 12:38 I attest to the accuracy and integrity of this document CR No.2359 of 2008 -2- facts about which there is no dispute.
3. Case of the plaintiffs is that Khub Ram son of Nand Lal was owner in possession of the land in question which had been allotted to him during consolidation of holdings. The land interalia was inherited by Smt. Sarwan, defendant No.5/respondent No.6 his widow as Khub Ram had died after six months of his marriage. Nothing was heard of Smt. Sarwan thereafter but before her disappearance, she had relinquished her share in favour of Buti Ram father of plaintiffs No.1 to 4, Hari Singh father of plaintiff No.5 and Suraj Bhan father of defendants No.6 to 8. Claiming Smt. Sarwan to be civilly dead, plaintiffs claim themselves to be owners in possession of the suit land.
4. Defendants No.1 to 4, on the other hand, have claimed ownership from defendant No.5. They had set up sale deeds from Smt. Sarwan in their favour and claim the sale deeds to be valid and legal.
5. Per contra, stand of the plaintiffs was that the sale deeds in favour of the contesting defendants No.1 to 4 were result of fraud as those had been got executed in favour of the defendants by impersonating vendor- defendant No.5.
6. The suit was decided in favour of the plaintiffs on 27.8.2002; but in first appeal, setting aside the said judgment and decree, the matter was remitted to the lower court as the contesting appellant-defendants who were claiming themselves to be bonafide purchasers, had not been given opportunity by the lower court to lead evidence. The suit was ordered to be decided afresh after completion of evidence which was to be lead by the contesting defendants.
7. In pursuance to this order of 20.8.2007 of the then Additional Sessions Judge, Rewari, proceedings of the suit with the lower court were Yag Dutt 2014.05.08 12:38 I attest to the accuracy and integrity of this document CR No.2359 of 2008 -3- going on. Contesting defendants, now petitioners, had made an application for leading secondary evidence. Claiming the sale deeds as having been misplaced and further that the same had not been traced despite best efforts made by them, secondary evidence was sought to be led. This application was strongly contested by the plaintiffs asserting that genuineness and authenticity of the documents was in dispute and thus, the application was having no merit. Providing hearing on the rival claims of the parties to their counsel, the application was dismissed by the lower court. It is this order which is under challenge in this revision petition.
8. The petitioners are contesting defendants before the lower court. Their plea is that accepting their application under Order XLI Rule 27 CPC, made during the course of appeal against the judgment and decree dated 20.8.2007, the case was remanded to the lower court with a direction for receiving evidence from the contesting defendants before making fresh adjudication in the matter between the parties. It is claimed that when certified copies of the sale deeds had been produced by the plaintiffs themselves in their evidence during the course of proceedings of the suit and the case of the applicants/defendants was that original sale deeds have been lost, request to produce secondary evidence should not have been denied by the lower court. Claiming findings of the lower court to be unsustainable in the eyes of law, acceptance of the revision petition has been sought so as to enable the contesting defendants to prove their case by leading secondary evidence of sale deeds which allegedly were lost and had not been found despite search made by them.
9. While going through the paper book as also the impugned order, hearing to the counsel for the parties has been provided.
10. The plaintiffs claim ownership by inheritance and contesting respondents claim ownership by transfer of the land vide the sale deeds from Yag Dutt 2014.05.08 12:38 I attest to the accuracy and integrity of this document CR No.2359 of 2008 -4- the owner Smt. Sarwan. There is no dispute that Smt. Sarwan defendant No.5/respondent No.6 was the owner in possession of the land in dispute. Case of the petitioners-defendants is based on four registered sale deeds mutations whereof were sanctioned and revenue record was corrected accordingly. When ownership by inheritance in favour of the plaintiffs is sought to be dislodged by contesting defendants No.1 to 4, proof of sale deeds in their favour from the vendor-defendant, is to be produced by them. Original sale deeds from vendor Smt. Sarwan in favour of the contesting defendants No.1 to 4 are claimed to have been lost and hence, there is request emanating from the defendants for leading secondary evidence.
11. As per Section 61 of the Indian Evidence Act, 1872 (hereinafter to be referred as the 'Act') contents of a document may be proved either by primary or by secondary evidence. Secondary evidence has been explained in Section 63 of the Act, which reads as under:
"63.Secondary Evidence.- 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) Counterparts of documents as against the parties who did not execute them; and, (5) Oral accounts of the contents of a document given by some person who has himself seen it."
12. Section 65 of the Act provides that secondary evidence can be given in certain circumstances; it reads as under:
"65. Cases in which secondary evidence relating to Yag Dutt 2014.05.08 12:38 I attest to the accuracy and integrity of this document CR No.2359 of 2008 -5- documents may be given.- 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 whom 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 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 section 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; and,
(g) When the originals consists 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."
Admissibility of evidence, relevance of evidence, proof of evidence and Yag Dutt 2014.05.08 12:38 I attest to the accuracy and integrity of this document CR No.2359 of 2008 -6- probative value of evidence all are distinct and separate matters. Mode of leading secondary evidence is yet another aspect. Nuances and shades of these concepts should not blur adjudication of the matter in dispute.
13. Perusal of these statutory provisions leaves no manner of doubt that secondary evidence can be given and is receivable by the courts in specified circumstances. It is further clear that there is no express provision in the Act for making an application for leading secondary evidence. During the process of leading of evidence by a party, if it makes out a case for leading secondary evidence in terms of Sections 63 and 65 of the Act, it may do so and no formal permission from the court in this behalf for leading secondary evidence is required. As has already been noticed relevance, admissibility and probative value of evidence all are different from each other and require separate and distinct handling. Leading of evidence cannot be shunned merely because its probative value would not be of high order.
14. Short and straight question to be answered here rather is:
As to whether secondary evidence of sale deeds (certified copies of which have already been placed in their evidence by the plaintiffs as Ex.PO, Ex.PP, Ex.PR and Ex.PQ) is permissible or not?
15. Perusal of the impugned order reveals that loss of sale deeds forms the foundation for prayer of the defendants for leading secondary evidence. Absence of averments of date of loss of documents and other connected matters in the application for seeking permission to lead additional evidence under Order XLI Rule 27 CPC before the Appellate Court has weighed very heavily with the lower court for dismissal of the application. When loss of documents was not an issue till that time, the application filed before the first appellate court for leading additional evidence in respect of the sale deeds, could not have been an application for additional evidence for tendering of documents by way of secondary Yag Dutt 2014.05.08 12:38 I attest to the accuracy and integrity of this document CR No.2359 of 2008 -7- evidence.
16. Strangely enough, the learned lower court has gone even to draw an adverse inference against the petitioner-defendants on account of non-pleading of loss of documents at the time of filing of the application for additional evidence during the appeal proceedings, even when no such question of loss of documents then was in issue. Similarly, misplacement and loss of all the four original sale deeds ipso facto is no ground to doubt the intentions of the defendants, but motives have wrongly been imputed to the applicant/defendants by the lower court.
17. Allowing of the defendants to lead secondary evidence to prove sale deeds in their favour from vendor Smt. Sarwan would in no way dwarf or dilute the stand of the plaintiffs that such sale deeds were procured by the defendants by impersonation of vendor Smt. Sarwan. Plea of the plaintiffs and some of the remaining defendants is that the impugned sale deeds were not executed by Smt. Sarwan but were executed fraudulently by some other female impersonating her.
18. Since title in the land is sought to be established in themselves by the contesting defendants through the impugned sale deeds, it is for them to prove execution of such sale deeds and then veracity and genuineness as well of the same. Merely by allowing them to lead secondary evidence of the primary documents i.e. the sale deeds, burden of the defendants is nowhere lightened to prove their case in repudiation of the claim of ownership and possession of the plaintiffs. Existence of sale deeds which are registered documents is not disputed. To suffer repetition, certified copies of these documents have already been produced in their own evidence by the plaintiffs. Loss of documents has prominently been pleaded by the petitioner-defendants in their application.
19. Counsel for the petitioner-defendants has sought support from Yag Dutt 2014.05.08 12:38 I attest to the accuracy and integrity of this document CR No.2359 of 2008 -8- Udai Shanker Versus Rattan Singh 1993(1) RRR 370 (P&H) wherein, a case of allegations that sale deed and power of attorney (which were registered documents) had been misplaced and the application for leading secondary evidence was refused, it was held by this Court that the trial court ought to have allowed the parties to adduce evidence. In Smt. Sobha Rani Versus Ravi Kumar 1999(1) RCR (Civil) 98 (P&H) it was held that when loss itself had been pleaded in the application seeking permission to adduce secondary evidence, the same was not required to be proved in absolute terms. Allowing of application for leading secondary evidence by the lower court, was upheld.
20. Going a step further, this Court in Om Parkash and others Vs. Ram Gopal @ Paali Ram @ Doojpuri 2012(5) RCR (Civil) 740 had held that findings of the trial court to the effect that certified copies of an original sale deed could not be taken as a secondary evidence, were erroneous. It was held that certified copy of a registered sale deed is an admissible piece of evidence.
21. Keeping in view the totality of facts and circumstances, impugned order rejecting request of the contesting defendants to lead secondary evidence to prove sale deeds to establish their title to the land, is wrong on facts as also in law as it takes into account aspects of apprehensions, inferences and intentions which are totally alien to the domain and sweep of the controversy as to whether the defendants are to be permitted to lead secondary evidence, when they have pleaded loss of original documents and certified copies thereof have already been produced, by the plaintiffs in their own evidence?
Question posed for answer in earlier part of this order is answered in the affirmative.
22. Resultantly, accepting the revision petition, impugned order Yag Dutt 2014.05.08 12:38 I attest to the accuracy and integrity of this document CR No.2359 of 2008 -9- dated 9.4.2008 (Annexure P-1) passed by learned lower court is set aside. As a consequence thereof, application (Annexure P-2) filed by the petitioner- defendants before the learned lower court for permission to lead secondary evidence of four registered sale deeds mentioned therein, is allowed.
23. Since the suit was remanded by the first appellate court to the lower court for providing opportunity to the contesting defendants to lead their evidence and the matter is now almost two decades old, the court concerned would finalise the adjudication within three months even by conducting day to day proceedings, if need so arises.
24. The parties are directed to appear before the learned lower court on 24.5.2014.
25. Nothing observed above shall have any bearing on the merits of the case.
(Dr. Bharat Bhushan Parsoon) Judge May 06, 2014 'Yag Dutt'
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes Yag Dutt 2014.05.08 12:38 I attest to the accuracy and integrity of this document