Gujarat High Court
Patel Chandubhai Ishverbhai vs Patel Motibhai Lallubhai on 19 December, 1990
Equivalent citations: (1992)1GLR101
JUDGMENT V.H. Bhairavia, J.
1. This appeal is directed against the judgment and decree dated 17-4-1978 passed by the learned Jt. District Judge, Ahmedabad (Rural) at Narol in Regular Civil Appeal No. 47 of 1977 dismissing the appeal preferred by the appellant herein and confirming the judgment and decree dated 31-3-1977 passed by the learned Civil Judge (J.D.), Dholka in Regular Civil Suit No. 101 of 1972 whereby the suit filed by the plaintiff was dismissed with costs.
2. The brief facts of the present appeal are that the appellant (Original plaintiff) has filed Regular Civil Suit No. 101 of 1972 in the Court of the learned Civil Judge (J.D.), Dholka for perpetual prohibitory injunction restraining the present respondent from obstructing the appellant-plaintiff in passing on the suit way with or without cattle, agricultural implements, bullock, bullock-cart etc. and for declaration that the land in dispute be declared as public road. That the houses of the plaintiff and defendant are situated in a Khadki known as Nadiadrani Khadki located in the locality known as Derasar of village Chaloda. The appellant-plaintiff used his house for tethering cattle and original defendant No. 1 who is not the respondent and against whom the suit was not pressed and who has also expired had got her house to the south of and adjacent to the house of the appellant-plaintiff. The present respondent-defendant has got his house to the south and adjacent to the house of original defendant No. 1 Bai Diwali. There is osari in front of the house of the present respondent and said Bai Diwali. There is open piece of land in front of and to the east of the house of the appellant-plaintiff. There are two houses to the north of this open piece of land. One house belongs to one Shri Himabhai Somabhai and the other house belongs to one Nagarbhai Waghjibhai. According to the appellant-plaintiff, this open piece of land which is in front of and to the east of his house and which is also to the south and at the back of bonbas of said Himabhai & Nagarbhai is nothing but a public road. According to the plaintiff-appellant, respondent obstructed his right of way by tethering cattle on this portion of land. It is the further case of the appellant-plaintiff that the respondent-defendant had started tethering the cattle since April, 1970, but on objection by the appellant, he stopped tethering cattle. Appellant-plaintiff made an application to the Gram Panchayat pointing out that the land in dispute was a public road. Again respondent made obstruction by tethering cattle in June, 1970. According to the appellant-plaintiff, notice was issued by the Panchayat to the respondent. Respondent replied to that notice but thereafter no action was taken against the respondent. In the alternative, the appellant pleaded that he has got a right of easement of way to pass through this portion of the land as he and his predecessors in title have been passing on this road since the lime immemorial to the knowledge of the respondent and his predecessor in title and as of right and without any obstruction. As no action was taken against the respondent-defendant, the appellant-plaintiff filed suit being Reg. Civil Suit No. 101 of 1972 in the Court of the learned Civil Judge (J.D.), Dholka for declaration and permanent perpetual prohibitory injunction as stated above. Said suit came to be dismissed by the learned Magistrate by his judgment and decree dated 31-3-1977. Appeal filed by the appellant against the said judgment and decree dated 31-3-1977 being Reg. Civil Appeal No. 47 of 1977 in the Court of the learned Jt. District Judge, Narol also came to be dismissed by the learned Jt. District Judge by his judgment and order dated 17-4-1978.
3. The substantial question of law involved in this appeal as raised by the learned Counsel for the appellant is "whether in absence of any evidence to show that the original document was lost or was not available, certified copy thereof Exhibit 94 could have been admitted in evidence?"
4. It has been submitted by Mr. J.J. Shah, learned Counsel for the appellant that the certified copy of the sale-deed (Exh. 94) produced in the Court is not admissible in evidence as per the provisions of the Indian Evidence Act, 1872 and in absence of any evidence to show that the original document was lost or was not available, benefit of presumption as to due execution of the said document as per Section 89 of the Indian Evidence Act could not have been given in favour of the respondent. He has further submitted that though the respondent-defendant was not served with the notice to produce original as required, Exh. 94 being secondary evidence, is not proved by the respondent-defendant as per the provisions of Section 65 of the Evidence Act, and therefore, the contents thereof cannot be said to have been proved. He, therefore, submitted that the document Exh. 94 is not proved by the respondent-defendant and, therefore, the Courts below have erred in relying on the said documents. In support of his submissions, he has relied on catena of decisions, i.e., (Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju) ; (Sir Mohammed Yusuf v. D.) ; (Shiolalsing Gannusing Rajput v. Shankar Motiram Nale) ; (Prakash Cotton Mills Pvt. Ltd. v. Mum. Comml for Greater Bombay) ; and (Madholal Sindhu v. Asian Assurance Co. Ltd.) AIR 1954 Bom. 305.
5. The learned Counsel for the appellant took me through the ratio of the above decisions. There cannot be any dispute regarding the preposition of law laid down by the various High Courts as well as Supreme Court in the above decisions and I am fully in agreement with the ratio enunciated in the said decisions. I, therefore, accept the arguments of the learned Counsel for the appellant regarding inadmissibility in evidence of the document Exh. 94 Sale-deed and that the Courts below have erred in relying on said document Exh. 94. It is an admitted that the document Exh. 94 is a secondary evidence and it should be proved as per the provisions of Section 65 of the Indian Evidence Act. Section 65 of the Act reads as under.
65. Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition, or content of a document in the following cases:
(a) When the original is shown or appears to be in 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 moveable;
(e) when the original is a public document within the meaning of Section 74;
(J) when the original is a document of which certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (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.
6. In the instant case, admittedly, Exh. 94 was produced by the defendant No. 1 who has not entered into witness box as she expressed her helplessness because of ill-health and endorsement to that effect was made by the Bailiff of the Court who submitted report, and therefore, contents of the document Exh. 94 not proved and, therefore, no reliance could have been placed on this document. Both the Courts have relied on the said document and in my view, the Courts below have committed grave error in relying on the said document and on this ground alone, the judgments and orders of the Courts below are liable to be quashed and set aside.
7. Even if the submissions of the learned Counsel for the appellant are accepted and it is held that the Courts below have erred in relying on the document Exh. 94 which is not admissible in evidence as per the provisions of the Evidence Act, the judgments and orders of the Courts below do not require any interference in view of the clear finding and admission made by Talati-cum-Mantri of village, i.e., Kalidas (Exh. 76) that the land in dispute is not a public street or public road. This is fatal for the appellant's case. Once it is admitted by the officer of the Gram Panchayat who is competent to give evidence regarding the properties vested in the Gram Panchayat. that the said land is not street land or public road, in my view, there is no reason for interference in the orders passed by the Courts below. Further, the Courts below have not accepted the evidence of the appellant (Exh. 99) and it has been observed that the appellant as well as his witnesses were totally liar when they tried to make out case regarding obstruction caused by the respondent by tethering cattle on that land since the year 1977. Thus, the appellant-plaintiff failed to prove that the disputed land was public road or public street and that respondent was causing obstruction in his easemcntary rights. Further, if appellant bonafidely believes that the land in dispute is open land or public street or public road, he should have filed suit against Gram Panchayat for such declaration, but it has not been done. In view of the above observations and discussions, in my view, the appellant-plaintiff has miserably failed to prove his case.
8. In view of the concurrent finding of the facts of the Courts below, there is no substance in this appeal and it requires to be dismissed.