Jharkhand High Court
Jirwa Devi W/O Ambika Ram vs Bangali Ram @ Bangali Dusadh on 24 April, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
( 2025:JHHC:12235 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 390 of 2017
1. Jirwa Devi W/o Ambika Ram
2. Prabhu Ram S/o Shivdutta Ram, both residents of Village-
Ahirpurwa, P.O., P.S.- Nagar Untari, District- Garhwa
...... ... Defendants/Respondents/Appellants
-Versus-
1. Bangali Ram @ Bangali Dusadh
2. Jangali Ram @ Jangali Dusadh
3. Kamalu Ram @ Kamalu Dusadh
Sl. Nos. 1 to 3 all sons of Late Fagu Ram
4. Pramila Devi W/o Late Daharu Ram
5. Pappu Kumar S/o Late Daharu Ram
6. Rambha Kunwar D/o Late Daharu Ram
7. Sandhya Kunwar D/o Late Daharu Ram
Sl. Nos. 6 & 7 are minors, represented through their legal and natural
guardian mother- Respondent No.4
Sl. Nos. 1 to 7 all residents of Village- Ahirpurwa, P.O., P.S.- Nagar
Untari, Distict- Garhwa
...... ...... Plaintiffs/Appellants/Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Sanjay Kumar Tiwari, Advocate For the Respondents : Mr. Shailendra Kumar Tiwari, Advocate
---
Lastly heard on 04.02.2025 18/24.04.2025 This second appeal has been filed by the defendants against Judgment dated 12.07.2017 (Decree sealed and signed on 24.07.2017) passed by the learned Principal District Judge, Garhwa in Civil Appeal No. 09 of 2016 whereby the appeal filed by the plaintiffs was allowed and the Judgment dated 23.12.2015 (Decree sealed and signed on 19.01.2016) passed by the learned Civil Judge (Jr. Division)-II / Munsif, Garhwa in Title Suit No. 65 of 2002 was set aside to the extent mentioned in the judgement passed by the learned first Appellate Court, i.e. only with respect to the property claimed by the plaintiffs in connection with registered partition deed dated 07.06.1969 (Exhibit-4- area 56 decimals).
2. The suit was filed by the plaintiffs primarily for adjudication and declaration of right, title and possession of the plaintiffs over the suit land irrespective of order/orders passed by Sub-Divisional Magistrate, Nagar Untari in the case under Section 145 of Cr.P.C. and also the order ( 2025:JHHC:12235 ) of revisional court in the said matter. The plaintiffs had also prayed for confirmation of possession of the plaintiffs and if they are found out of possession, a prayer was made to restore the possession through the process of court. The suit was relating to two properties covered by two registered documents - Exhibit-2 to the extent of 16 decimal of land and Exhibit-4 to the extent of 56 decimals of land.
3. The suit was dismissed with regard to the properties covered by registered deed dated 11.06.1996 (Exhibit-2- area 16 decimals) and also with respect to the claim arising out of registered partition deed dated 07.06.1969 (Exhibit-4- area 56 decimals) as claimed by the plaintiffs, but the learned first appellate court allowed the appeal of the plaintiffs only with respect to registered partition deed dated 07.06.1969 (Exhibit-4- area 56 decimals) and confirmed the dismissal of the suit with resect to covered by registered deed dated 11.06.1996 (Exhibit-2- area 16 decimals). The defendants are the appellants before this court.
4. This second appeal was admitted for hearing on 31.10.2018 after framing substantial questions of law which was modified vide order dated 04.02.2025. The substantial questions of law were relating to Exhibit-4 as the judgement relating to Exhibit-2 rejecting the claim of the plaintiffs was confirmed by the learned first appellate court and the defendants are in second appeal with respect to the property covered under Exhibit-4. The substantial questions of law as framed are as under:
"A. Whether the Findings of the learned court of appeal below on Ext 4, a true copy of the partition deed and as a consequence there of reversing the judgment and decree of the trial court partly and there by decreeing the suit in part even without meeting the reasonings of the learned trial court, is legally and factually sustainable?
B. Whether the learned court of appeal below has applied correct principle of law and was justified in relying upon the Ext 4 a true copy of the partition deed and also has further misconstrued with the admissibility of the said document as taking secondary evidence when in absence of attracting the 2 ( 2025:JHHC:12235 ) foundational facts u/s 65 of the Indian Evidence Act and more particularly denial of its execution by the defendants?
C. Whether the learned court of appeal below misdirected himself relying upon EX 1, 1/1 &1/2 the rent receipt, though not a document of title in holding that plaintiff have right title over 0.56 acres out of suit land?
D. Whether the learned court of appeal below was justified in giving the finding beyond pleadings merely on conjecture and surmises and such a finding can be sustained in the eye of law?"
Argument on behalf of the appellants
5. The learned counsel appearing on behalf of the appellants has submitted that two material documents were subject matter of consideration before the learned Trial Court, Ext. 2 and Ext. 4. So far as the claim of the plaintiffs in connection with the property involved in Ext. 2 is concerned, the same has been concluded against the plaintiffs inasmuch as the learned Trial Court as well as the first Appellate Court has negated the claim of the plaintiffs with respect to the property of 16 decimals of land contained in Ext. 2. He submitted that no cross-appeal has been filed and therefore, the finding with respect to Ext. 2 has become final and binding on the parties.
6. With respect to Ext. 4 [in connection of which the substantial question of law has been framed], the learned counsel has submitted that the learned Trial Court has cited numerous reasons to disbelieve the Ext. 4, but those reasons have not been met with by the learned first Appellate Court while reversing the judgment and decree passed by the learned Trial Court. He has submitted that this also applies to the other substantial questions of law including the rejection of secondary evidence by the learned Trial Court inasmuch as the plaintiffs had tried to make out a specific case that the original sale deed was produced in relation to proceeding under Section 145 of CrPC and was lost, but the learned Trial Court recorded that the documents which was produced before the S.D.O. under Section 145 Cr.PC was the same document which was exhibited by the plaintiffs before the learned Trial Court.
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7. With respect to the substantial question no. (B), it has been submitted that the learned Trial Court has also recorded that execution of the document was being disputed by the defendants. He submits that the reasons for not accepting the secondary evidence in connection with Ext. 4 has not been met by the learned first Appellate Court while accepting the secondary evidence.
8. With respect to the substantial question no. (C), the learned counsel for the appellants has submitted that Exts. 1, 1/1 & 1/2 were recent rent receipts issued in the year 2007 and suit was pending since 2002. He has also submitted that the learned Trial Court has rejected the exhibits on the ground that the said exhibits did not give the details of the land for which the rent receipts were issued. He has submitted that the learned first Appellate Court has not considered this aspect of the matter and has not returned any finding while relying upon Ext. 1, 1/1 & 1/2 and thus, the learned first Appellate Court has not met with the reasons assigned by the learned Trial Court in respect to all these exhibits also.
9. With respect to substantial question no. (D), learned counsel for the appellants has submitted that the learned Trial Court had given specific finding that the plaintiffs were trying to plead their case beyond pleadings, but this aspect of the matter has not been considered by the learned first Appellate Court, rather the learned first Appellate Court has given the findings beyond pleadings. He has submitted that the matter is to be remanded to the learned first Appellate Court in view of the judgment passed by the Hon'ble Apex Court in case of Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRS, reported in (2001) 3 SCC 179 and also S.A. No. 28 of 2017 (Sangram Basky & Anr. Vs. Hauwa Hembrom & Ors.).
10. He submitted that in the case of the judgment of reversal, the learned first appellate court is under a legal obligation to deal with the reasons which have been assigned by the Trial Court. Learned counsel has submitted that the learned first Appellate Court is duty bound to deal with both question of fact and law and it is the final Court so far as the question of fact is concerned. He has also submitted that no specific 4 ( 2025:JHHC:12235 ) point of determination has been formulated by the learned first appellate Court. Learned counsel has submitted that the original Ext. 4 is not a public document, so its certified copy is not required. Argument on behalf of the respondents
11. The learned counsel appearing on behalf of the respondents on the other hand vehemently opposed the prayer and submitted that the judgment passed by this Court in S.A. No. 28 of 2017 and also the judgment passed by the Hon'ble Supreme Court in the case of Santosh Hazari (supra) do not apply to the facts and circumstances of the present case. He has submitted that the learned first Appellate Court has formulated specific point for determination and for that purpose he has referred to the internal page 8 of the Appellate Court's judgment wherein the learned first Appellate Court has recorded that "however, there is no counter-claim and therefore, the only point required to be considered in this case regarding rights of plaintiffs-appellants".
12. The learned counsel has submitted that so far as Ext. 4 is concerned, everything depended upon the fact that the Trial Court had rendered Ext. 4 inadmissible in evidence and the first Appellate Court has held that the same was admissible in evidence. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Appaiya Vs. Andimuthu @ Thangapandi & Ors., Civil Appeal No. 14630 of 2015, decided on 20.09.2023 to submit that the registered documents have been held to be public documents and they were admissible in the evidence. He submitted that it was not mandatory for the plaintiffs to proof the original registered document Ext. 4 to sustain their case. He has also submitted that it was the specific case of the plaintiffs that the original deed was lost while the same was produced before the Court in 145 CrPC proceeding. The learned counsel submitted that not only the registered document was admissible in evidence, but the plaintiffs had duly explained the reasons for non- production of original deed. Learned counsel has also relied upon the judgment passed by the Hon'ble Supreme Court in the case of Sirajudheen Vs. Zeenath & Ors., Civil Appeal No. 1491 of 2023, decided on 27.02.2023 to submit that the principle of remand has been 5 ( 2025:JHHC:12235 ) dealt with by the Hon'ble Supreme Court in the said judgment. The learned counsel has further submitted that the rent receipts were rightly considered by the learned first Appellate Court and it is not necessary to give the exact plot number, as mentioning of khata number was itself sufficient to rely upon the exhibits to show that plaintiff was in possession of the property.
13. He has further submitted that findings of the learned first Appellate Court are not beyond the pleadings and therefore, the substantial question no. (D) is also fit to be answered in favour of the respondents.
14. Learned counsel has further submitted that the first Appellate Court has committed no illegality in reversing the decree and all the substantial questions of law are fit to be answered in favour of the respondents and this Second Appeal is fit to be dismissed. Findings of this Court
15. The suit land is having area 0.97 acres of Plot No.502 under khata no. 114 of Village- Ahirpurwa, P.S.-Nagar-Untari, District- Garhwa. It is not in dispute between the parties that Ram Prasad Ram along with Jitan Dusadh, Baleshwar Dusadh, Hari Dusadh, Arjun Dusadh and Gudan Dusadh jointly reclaimed 5.84 acres of land in plot no. 502 of khata no. 114 and after vesting of Zamindari, the State of Bihar settled the entire land in their favour jointly, Jamabandi was created and rent receipts were issued on the payment of rent. It is further not in dispute that in amicable partition between the settled raiyats, Ram Prasad Ram was allotted 0.97 acres of land (suit land).
16. It is the case of the plaintiffs that Ram Prasad Ram was the eldest son and karta of undivided Hindu family including his brother Fagu Ram; Fagu Ram was the joint cultivator of the land and had worked in reclamation of the land, but the land was settled only in the name of Ram Prasad Ram; Later Ram Prasad Ram thought it expedient and necessary to declare the property jointly with Fagu Ram and accordingly partitioned the land by executing a deed of partition "Waseequaa Taqseem nama Ba Khudha" whereby 0.56 acres of land was allotted to Fagu Ram [the father of plaintiffs] and 0.25 acres of land 6 ( 2025:JHHC:12235 ) was allotted to Ram Prasad Ram. The detail of partition was mentioned in registered deed of partition bearing no. 5653 dated 07.06.1969 (Exhibit-4). The plaintiffs did not file the original deed of partition bearing no. 5653 dated 07.06.1969 and filed a certified copy of the same as Exhibit-4 and it was the case of the plaintiffs that the original deed of partition bearing no. 5653 dated 07.06.1969 was produced and exhibited before the court of SDM, Nagar-Untari, but thereafter the original deed of partition went missing and hence the plaintiffs obtained the certified copy thereof from the registry office.
17. Further case of the plaintiffs was that Ram Prasad Ram orally transferred 0.16 acres of land in favour of his daughter Kunwar Kalia Devi for her residential purpose which was accompanied with delivery of possession. Subsequently, Kunwar Kalia Devi transferred the said 0.16 acres of land to plaintiffs through registered sale deed no. 3594 dated 11.06.1996 (Exhibit-2) and put the plaintiffs in possession thereof. The plaintiffs did not file the original sale deed no. 3594 dated 11.06.1996 also and filed a certified copy of the same as Exhibit-2.
18. It was further case of the plaintiffs that prior to the transfer of said 0.16 acres of land to Kunwar Kalia Devi, Ram Prasad Ram died leaving behind no male issue and hence put the plaintiffs in possession of his 0.25 acres of land of plot no. 502 and thereby the entire area of 0.97 acres of suit land came in exclusive right, title and possession of plaintiffs, who acquired the same.
19. It is the case of the plaintiffs that the defendants are stranger to their family who started claiming the land on the ground of being legal heirs of Ram Prasad Ram. It was their case that the Defendant No.1, Prabhu Ram was a business man and came to the plaintiffs for the portion of house for his business, which the plaintiffs allowed and thus the status of defendants is of a tenant. The main intention of defendants was detected by them, only when the defendants started claiming the land on the basis of being heirs and also purchasers. On that very basis, the defendants approached revenue officer for "Basgit Purcha" and subsequently case under Section 145 of CrPC was initiated by the defendants in the court of SDM, Nagar-Untari and a criminal case was 7 ( 2025:JHHC:12235 ) also instituted by defendant Prabhu Ram against the plaintiffs. The SDM, Nagar-Untari in the proceeding under Section 145 of CrPC passed collusive and illegal order, whereby possession of defendant Prabhu Ram was declared that too, for more land than claimed by him. Against the order passed by S.D.M., Nagar-Untari, plaintiffs preferred a revision, which was dismissed. Neither the court of S.D.M., Nagar- Untari, nor the revisional court appreciated the admitted fact that plaintiffs are having their residential house over the suit land. The plaintiffs claimed to have valid right, title and possession over the suit land and the same could not be adversely affected by aforesaid orders.
20. The defendants denied participation of Fagu Ram in reclamation of land and also denied that Ram Prasad Ram executed any deed of partition in favour of Fagu Ram, whereby Fagu Ram was allocated 0.56 acres of land. The defendants also denied execution and existence of registered partition deed bearing no. 5653 dated 07.06.1969. The defendants have also denied that original of the said partition deed was produced in the proceeding under Section 145 of CrPC. The defendants also denied any oral transfer of 0.16 acres of land by Ram Prasad Ram, in favour of his daughter Kunwar Kalia Devi.
21. The case of defendants was that Ram Prasad Ram had his first wife namely, Tetri Devi and from this wedlock, Jirwa Devi (defendant no.2) was born and after the death of Tetri Devi, Ram Prasad Ram married Gangia Devi and a daughter, namely, Hirmani Devi was born. Defendant No.1, Prabhu Ram is the son of Gangia Devi, from her first husband namely, Shiv Dutt Ram.
22. It was the further case of the defendants that out of 0.97 acres of land, Ram Prasad Ram allotted 0.39 acres each to his two daughters, namely, Jirwa Devi and Hirmani Devi and remaining 0.19 acres was given to Prabhu Ram (Defendant No.1) by "Sada Patta" in presence of villagers, who put their signatures thereon as witnesses, and the rent receipts were being issued in the name of two defendants with respect to the share of land allocated to them, whereupon both of them are residing after constructing house thereon.
8( 2025:JHHC:12235 )
23. The defendants have denied the existence of Kunwar Kalia Devi and also denied the right, title and possession of plaintiffs over the suit land on the ground as contended by them. The Defendant No.1, Prabhu Ram also denied that he was a business man and was allocated a portion of house within plot no. 502 by the plaintiffs and contended that he was a labourer and was residing in his house constructed on 0.19 acres of land transferred in his favour by original settlee Ram Prasad Ram by "Sada Patta". Defendant no.1, Prabhu Ram had initiated a proceeding under Section 145 of Cr. P. C before S.D.M., Nagar-Untari.
24. The Trial Court framed 8 issues for consideration which are quoted as under: -
1. Is the suit maintainable as framed?
2. Had the plaintiffs cause of action for the suit?
3. Is the suit barred by law of limitation, estoppel, waiver and adverse possession?
4. Whether the suit barred by the principal of non-joinder and mis-joinder of necessary parties?
5. Whether the suit is under-valued?
6. Whether plaintiffs have right, title and possession over the suit land?
7. Whether the defendants have right, title and possession over the suit land?
8. Is the plaintiffs entitled for the relief claimed?
25. The plaintiffs examined 11 witnesses and the Plaintiff No.1 was examined as P.W.-11 and so far as P.W. 6 is concerned, his evidence was expunged vide order dated 13.02.2008. The plaintiffs exhibited the following documents: -
Exhibits Documents
Ext. 1 Govt. rent receipt no. 392999 dt. 05.10.2007
Ext. 1/1 Govt. rent receipt no. 111209 dt. 04.12.2007
Ext. 1/2 Govt. rent receipt no. 018024 dt. 13.02.2008
Ext. 2 Certified copy of sale deed no. 3594 dated
11.06.1996
Ext. 3 Original Voter List of Village Ahirpurwa
Ext. 4 Certified copy of deed of partition (Waseequaa
Taqseem nama Ba Khudha bearing registration
no. 5653 dated 07.06.1969
9
( 2025:JHHC:12235 )
26. The defendants examined 3 witnesses. D.W. 1 was the defendant No.1 and D.W.2 was the husband of Defendant No.2 and they produced and exhibited two documents as follows: -
Exhibits Documents
Ext. A Certified copy of order dated 29.11.2009 in Misc.
Case No. 237/1992
Ext. B Certified copy of order in Criminal Revision no.
06/2000.
D.W-3 is one Nageshwar Ram, an independent witness. Findings of the learned Trial Court
27. The case of the defendants before the learned Trial Court was that the entire case of the plaintiffs was based on registered deed of partition executed between Ram Prasad Ram and Fagu Ram and also the registered sale deed executed by Kunwar Kalia Devi in favour of the plaintiffs, but the plaintiffs failed to produce the originals thereof and have produced the certified copies of the said documents. It was submitted that the parties should prove their case by best and direct evidence and not otherwise and secondary evidences are permissible only within the scope of relevant provisions of Indian Evidence Act. The specific case of the defendants was that the plaintiffs have not produced the original of the alleged partition deed purposely, just to evade the same being verified by the original of the sale deed said to be executed by Ram Prasad Ram. It was their case that the plaintiffs have concocted a fabricated story that the original was misplaced from the office of Sub-Divisional Magistrate, Nagar Untari, but failed to prove the loss by leading any cogent evidence even though the defendants had challenged the same in their written statement. It was also submitted that the plaintiffs have also failed to produce the original of sale deed said to be executed by Kunwar Kalia Devi in their favour. The existence of Kunwar Kalia Devi was questioned and the plaintiffs have failed to adduce any evidence to prove her existence as daughter of Ram Prasad Ram, even though the defendants had challenged the same since beginning.
28. It was argued on behalf of the plaintiffs that the adducing of secondary evidence of public document is permissible and the partition 10 ( 2025:JHHC:12235 ) deed (Exhibit-4) and also the sale deed (Exhibit-2) being public documents have rightly been admitted as secondary evidence by the court and it is only then, both of these documents were marked as exhibits. The plaintiffs had further referred to Sections 32, 37 and 50 read with illustration (b) to Section 104 of the Indian Evidence Act and stated that the plaintiffs have validly and rightly proved the existence, as well as, the relationship of Kunwar Kalia Devi with Ram Prasad Ram and even if, the contention of the defendants be taken as true for the sake of arguments, then also the defendants were not entitled to claim their right over suit property in the capacity of step son of the settled raiyat.
29. The learned Trial court first decided Issue No. 6 which was the main point of controversy between the parties. With respect to the oral partition between Fagu Ram and Ram Prasad Ram, the plaintiffs produced the certified copy of partition deed bearing No. 5653 dated 07.06.1969 (Exhibit-4) and the learned Trial Court recorded that the contents of Exhibit-4 showed that father of the plaintiffs, namely Fagu Ram was allocated 0.56 acres of land, whereas Ram Prasad Ram himself kept merely 0.25 acres and the total land allotted in favour of Ram Prasad Ram was 0.97 acres, but the Exhibit-4 did not disclose anything about remaining 0.16 acres of land. The learned Trial Court also recorded that it was own case of the plaintiffs that Exhibit-4 was the partition deed between two brothers, but perusal of the same transpired that one brother got more than twice, but no reason was assigned for such discrepancy in allocation of land between two co- sharers. The learned Trial court also recorded that it was the case of the plaintiffs that Fagu Ram also endeavoured in reclaiming the suit land, but have failed to produce even a single chit of paper in support of their contention. With the aforesaid background, the learned Trial court recorded that admittedly the land was settled in the name of Ram Prasad Ram only and thus the same was his self-acquired property. Hence, no question of partition arises so far as 0.97 acres of land of Plot No. 502 Khata No.114 is concerned as the plaintiffs have failed to adduce any evidence to show unity of title of two brothers over the suit land.
11( 2025:JHHC:12235 )
30. While considering the certified copy of the sale-deed executed by Kunwar Kalia Devi bearing No. 3594 dated 11.06.1996 (Exhibit-2), the learned Trial court recorded that it was the own case of the plaintiffs that Ram Prasad Ram had only one daughter, namely Kunwar Kalia Devi and even if the case of the plaintiffs is taken as true as per law of succession, the self-acquired property of Ram Prasad Ram shall devolve to his daughter and not in favour of plaintiffs. However, the defendants had challenged the existence of Kunwar Kalia Devi and submitted that Ram Prasad Ram had two daughters namely, Jeerwa Devi and Hirmani Devi, one from his first wife and another from his second wife, but the learned trial court was of the view that such objection raised by the defendants need not be entertained because that was not a mater in controversy and will not affect the main issue. The learned trial court also recorded that even otherwise the plaintiffs' witnesses during cross-examination had admitted that Ambika Ram is the son-in-law of Ram Prasad Ram, who has been shown as husband of defendant No.2 in the cause title of the plaint itself, and thus the case of the plaintiffs that Ram Prasad Ram had only one daughter was demolished on the preponderance of evidence as the Defendant No. 2 was also the daughter of Ram Prasad Ram. The learned Trial court thereafter considered the contradictions in the plaint by observing that the plaintiffs in their plaint had submitted that Ram Prasad Ram out of his allotted share of 0.25 acres orally transferred 0.16 acres of land in favour of Kunwar Kalia Devi whereas under para 5 of their plaint, the plaintiffs have contended that prior to transfer of land in favour of Kunwar Kalia Devi, Ram Prasad Ram died. Meaning thereby, the oral transfer of land to Kunwar Kalia Devi was by a dead person. The learned Trial court observed that the plaint of the plaintiffs itself was full of material contradictions and contest thereof has not been fully supported by the documents adduced by them. The learned trial court also considered the certified copy of the sale-deed executed by Kunwar Kalia Devi bearing No. 3594 dated 11.06.1996 (Exhibit-2) wherein it was recorded that she had obtained the land in succession after death of her father and out of her share she was partly transferring 0.16 acres of 12 ( 2025:JHHC:12235 ) land in favour of plaintiffs and this recital of sale deed was in contradiction to the statement made in the plaint. The learned Trial court recorded that the recital of Exhibit-2 further disclosed that the vendor succeeded 0.16 acres of land being legal heirs of the settlee and the said land was gifted by her in favour of vendee and therefore, it was apparent that the recital of Exhibit-2 was not in consonance with the pleadings of the plaintiffs and there was much deviation. It was also observed that the plaintiffs contended that the deed of transfer in their favour was executed by Kunwar Kalia Devi whereas the recital of Exhibit-2 reveal that it was a gift-deed.
31. After having disbelieved the case of the plaintiffs on facts with respect to Exhibit-2 and also Exhibit-4, the learned Trial Court proceeded to discuss the reason and consequences of non-production of original deeds and production of certified copies which were marked as Exhibit-2 and 4 in the light of the provisions of Sections 62, 64 and 65 of the Indian Evidence Act,1872, the learned Trial court observed that Section 64 of the Indian Evidence Act imposes responsibility upon the party to prove his case by primary evidence as defined under Section
62. However, in the instant case, the documents which were relied upon by the plaintiffs are Exhibit-2 and 4 and the documents have been issued in their favour, hence they were accountable for their originals. The learned trial court observed that non-production of originals will draw inference against the plaintiffs themselves and also recorded that the plaintiffs had produced the certified copy of these documents [Exhibit-2 and 4] even when the original thereof have been challenged by the defendants. Thereafter, the learned trial court referred to the Section 65 of the Indian Evidence Act and observed that in absence of primary evidence, documents could not be proved by secondary evidence and has also referred to the circumstances provided under Section 65 which enumerates the cases where secondary evidence relating to documents may be given and such evidence may be given with regard to existence, condition or contents of a document. With regard to production of secondary evidence i.e. certified copy of Exhibit-2 and 4, and non-production of the originals of the said 13 ( 2025:JHHC:12235 ) document, the learned trial court referred to illustration (b) of Section 104 which provides that if a person wishes to prove, by secondary evidence, the content of lost document, he must prove that the document has been lost. The court observed that the plaintiffs failed to prove that the documents relied upon by him were lost or the plaintiffs cannot produce the same because of any reason as provided under Section 65 of the Indian Evidence Act.
32. With respect to Exhibit-4, the learned Trial court also recorded that in the instant case, the plaintiffs pleaded that the original of Exhibit- 4 was filed by him in the proceeding under Section 145 before Sub- Divisional Magistrate, Nagar Untari where from it went missing and besides this pleading, no explanation has been given by the plaintiffs for non-production of the original of Exhibit-4. However, the learned Trial Court was of the view that the reason so assigned was not sufficient to allow the plaintiffs to lead secondary evidence as the plaintiffs first have to prove that the document was lost, but the plaintiffs failed to adduce any evidence in this regard. The learned Trial court also recorded that the Exhibit-4 reveal that the same certified copy, which was marked as Exhibit-4 in this case, was filed before the Sub-Divisional Magistrate, Nagar Untari as the original endorsement by the court of SDM, Nagar Untari was inscribed thereon. This was also supported by the order dated 29.11.1999 passed by the learned Sub- Divisional Magistrate, Nagar Untari in Case No. 237/1992 as the certified copy was marked as exhibit-A in the said proceedings.
33. Thus, the learned Trial court by citing numerous reasons, rejected the reason cited by the plaintiffs for production of secondary evidence by way of certified copy of deed of partition bearing no. 5653 dated 07.06.1969 and non-production of the primary evidence i.e. original deed of partition bearing no. 5653 dated 07.06.1969 and rejected the plea that original deed of partition bearing no. 5653 dated 07.06.1969 was lost in the proceedings before the Sub-Divisional Magistrate, Nagar Untari.
34. The learned Trial court also considered the plea of the plaintiffs that the certified copy of Exhibit-2 and 4 are public documents and can 14 ( 2025:JHHC:12235 ) be proved by secondary evidence. With this respect, the learned trial court referred to Section 65(e) of the Indian Evidence Act and observed that secondary evidence is permissible only when the original is public document. The learned Trial Court observed that neither the partition deed nor the sale deed is a public document within Section 74 of the Indian Evidence Act, hence permission could not be granted to lead secondary evidence, unless the plaintiffs proved the loss thereof. Thereafter the learned Trial Court has referred to the judgment passed by the Hon'ble Supreme Court reported in 2015 SCC OnLine SC 1149 (Rakesh Mohindra vs. anita Beri & Others) and held that the onus of proving was upon the plaintiffs which the plaintiffs miserably failed and in absence of which the certified copies of partition deed as well as the sale-deed were not admissible in evidence. It was further observed that the argument of the learned counsel for the plaintiffs that the onus of proving forgery was upon the defendants and held that the burden to proof that there was forgery would shift upon the defendants only when the plaintiffs proved the partition deed by producing the original but the certified copy filed was itself not admissible and therefore the burden will not shift upon the defendants and mere marking of the document did not mean that the said document has been admitted. The learned Trial Court ultimately held that the very basis and foundation of the plaintiffs' case in the form of Exhibit-2 and 4 was not proved by them and also the contents thereof was contrary to the pleadings of the plaintiffs.
35. With respect to Exhibit-2 which was instrument of transfer of property to the extent of 16 decimals by Kunwar Kalia Devi in favour of the plaintiffs, it was held that the same was hit by Section 46 of the Chhota Nagpur Tenancy Act as the parties thereto belong to Scheduled Caste and under the provisions of CNT Act, previous sanction was not sought from the Deputy Commissioner, Garhwa and in absence of which Exhibit-2 was declared null and void. The learned trial court ultimately held that the plaintiffs do not get any right, title and interest over the subject-matter of Exhibit-2 to the tune of the land to the extent of 0.16 acres.
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36. With regard to possession, finding has been recorded in Paragraph-25 of the trial court's judgment whereby the claim of the plaintiffs based on rent receipts produced by the plaintiffs marked as Exhibit- 1, 1/1 and 1 /2 has been rejected by citing reasons and also considering other materials on record. Paragrap-25 of the trial courts judgement is quoted as under: -
"25. With regard to contention of plaintiffs, as to their possession over the suit land, it is pertinent to mention herein, that the passing of order by learned SDM, Nagar-Untari in Misc. Case No. 237/1992, whereby defendants was found in possession over the suit land and subsequently it's confirmation by revisional court, suggests that plaintiffs are not in actual physical possession over the suit land, and the same has also been stated by PW2 under para 15, PW3 under para 13, PW9 under para 10, wherein all of these witnesses have stated that the plaintiffs owned their house over plot no. 501, whereas the suit plot is 502. The plaintiffs have produced rent receipts been marked as Ex-1, Ex-1/1 and Ex-1/2, but the perusal thereof discloses that these rent receipts does not contain the plot no. with respect to which, it has been issued. PW11, who is the plaintiff himself, during his chief has stated under paragraph 34, that rent receipts are still being issued in their favour, but has not produced even a single rent receipt in support of his contentions."
37. With respect to leading evidence beyond pleadings, the learned trial court in Paragraph 24 of the judgment has recorded that the plaintiffs have led evidence beyond the pleadings and the evidences has been discussed in Paragraph- 11, 12, 13 and 24 of the judgment which are quoted as under: -
"11. PW-1, during his chief has stated, that the entire land was settled in the joint name of Ram Prasad Ram, as well as Fagu Ram, and in partition. Ram Prasad Ram got 0.25 decimal in the western side. Under para 8 of his cross-examination he has stated that Ram Prasad Ram transferred 0.56 acres of land in favour of Fagu Ram by sale deed. The witness has deposed beyond the pleadings and in contrary to the documents been adduced on record, the contradiction so occasioned and the deposition beyond pleading renders the witness as not reliable."
12. PW-2 again has deposed beyond pleading and has deposed that both Ram Prasad Ram and Fagu Ram obtained the entire suit land in settlement and has also deposed that later Ram Prasad Ram purchased some land from his daughter Kunwar Kalia Devi. But during cross-examination under para 15, he stated that Plaintiff are residing within plot no 501, whereas under para 10, he stated that 16 ( 2025:JHHC:12235 ) Ambika Ram is the son-in-law (damaad) of Ram Prasad Ram, who has been shown as husband of Defendant no2 in the cause title of the plaint itself, which means that the pleading of plaintiff that Ram Prasad Ram has only one daughter Kunwar Kalia Devi has been negated by this witness.
13. PW-3, during his chief, has deposed with regard to the possession of the plaintiff over the suit land, but during cross-examination under para 10, he stated that both Ram Prasad Ram and Fagu Ram were jointly allocated one acre of land in the settlement, whereas under
para 12, he deposed that Ram Prasad Ram transferred more than 0.57 acres in favour of Fagu Ram by sale deed, which is against the pleadings. Under para 15, the witness has corroborated the testimony of PW-2, to the extent that plaintiff is residing within plot no 501, whereas the case of the plaintiff is that, he is residing in suit plot, which is plot no 502.
24. The plaintiffs have miserably failed to state the ground as to why he led secondary evidence to prove his case. Plaintiffs by means of oral evidence through PWI and PW2 has also tried to lead evidence beyond the pleadings as well as the documents adduced by them, inasmuch as, both of these two witnesses during their chief have stated that Ram Prasad Ram and Fagu Ram both obtained the settlement jointly in their favour, whereas the case of plaintiffs is that the land was settled solely in the name of Ram Prasad Ram. Also both of these two witnesses have deposed that the entire land been allocated to Ram Prasad Ram in the amicable partition, was transferred by him in favour of his daughter Kunwar Kalia Devi."
38. The learned Trial Court further held that the suit has been instituted by the plaintiffs with regard to declaration of their right, title, interest and possession over the suit property and the defendants had not made any counter-claim and declaration of right, title, interest and possession of the defendants over the suit property or any other land could not be decided and the same was also not warranted and ultimately the learned Trial Court dismissed the suit by citing numerous reasons which have been discussed in short above. Findings of first appellate court (appeal filed by the plaintiffs)
39. The learned first appellate court did not frame any point for determination and simply observed that the only point required to be considered in this case was regarding rights of the plaintiffs-appellants as no counter-claim was filed by the defendants.17
( 2025:JHHC:12235 )
40. The arguments of the plaintiffs were recorded in Paragraph 11 and 12 of the first appellate court's judgment. The learned first appellate court reversed the findings in connection with land involved in Exhibit-4 without discussing the numerous reasons cited by the learned trial court to reject the secondary evidence, Exhibit-4. The learned first appellate court observed that Exhibit-4 is a document of the year 1969 and Ram Prasad Ram was not alive during trial and was not available to prove or controvert his signature. The learned first appellate court referred the certified copy (Exhibit-4) as document being 30 years old and observed that if the original would have been produced, it would have been marked so. The learned first appellate court also referred to the judgment of the Hon'ble Supreme Court reported in 2001 (3) Jhr. CR. 16 (SC) and observed that the Hon'ble Supreme Court has held that the certified copies of the registered sale- deed is admissible in evidence even if it is not proved by calling witnesses and Section 79 of the Indian Evidence Act stated that the certified copy shall be presumed to be genuine which is the admissible in evidence. It was held by the learned first appellate court that the plaintiffs were under duty to produce best evidence but it was not mandatory on their part to produce the original. The Exhibit-4 was certified copy of the deed of partition from the office of registrar to be true copy. With respect to Exhibit-4, the partition deed by which 56 decimals of land were claimed to have been allocated to Fagu Ram, the father of the original defendants, and with respect to the rent receipts, Exhibit- 1, 1/1 and ½, the findings have been recorded in Paragraph 13 and 16 of the first appellate court's judgement in favour of the plaintiffs, which are quoted as under: -
"13. The Ex-4 is a document of the year 1969. Ram Prasad Ram was not alive during trial and was not available to prove on controvert his signature. The documents being 30 years old would have been marked so if the original would have been produced. The plaintiff- appellants has cited 2001 (3) Jhr CR 16 (SC) wherein the Hon'ble Apex Court has held that certified copy of registered sale deed is admissible in evidence even if it is not proved by calling witness. Section 79 of Evidence Act states that certified copy shall be presumed to be genuine which is admissible as evidence. The plaintiffs- appellants were under duty to produce best evidences but it was not 18 ( 2025:JHHC:12235 ) mandatory on their part to produce the original. The Ext. 4 has been certified from the office of registrar to be true copy. The plea defendants-respondents that the deed of partition was manufactured has to be examined. The plaintiffs-appellants has filed Ex-1, Ex-1/1 and Ex-1/2 which are rent receipts for 56 decimals of land running in the name of Fagu Dusadh @ Fagu Ram and has been proved by PW- 4 Krishna Tiwary, PW-5 Devnarayan Shukla and PW-7 Kokileshwar Prasad. On the other hand, the defendants-respondents have pleaded in para 11 of the written report that rent receipts is being issued in the name of defendant nos. 2 and 1. But no rent receipts or any other deed or relevant document has been filed their behalf. The only two documents filed on behalf of the defendants-respondents are the order dated 29.11.1999 passed by Executive Magistrate, Nagaruntari and order sheet of revisional court. Copy of the judgment passed by the revisional court has also not been filed. Section 145 Cr. PC is intended to consider land, water and boundary disputes which may lead to apprehension of breach of peace and in such proceeding an executive magistrate, if possible, can declare possession of a party as on the date of dispute or may consider dispossession within two months prior to said dispute. Under this provision the declaration of possession is temporary in nature and is not based on any right or title of the parties. The documents filed by the defendants-respondents has very week in evidentiary value. Ex 1 Ex-1/1 and Ex-1/2 corroborates the claim of the plaintiffs-appellants with regard to 56 decimals of land obtained by Fagu Ram @ Fagu Dusadh in amicable partition dated 07.06.1969 (Ex-4). The learned lower court has taken hyper technical view to discard Ex-4 and the consideration regarding partition being not equitable is also unwarranted. In cases of natural love and affection it is immaterial that a person gives a bigger chunk or valuable portion to his near and dear. The defendants-respondents has pleaded that the defendant no.1 has received 19 decimals of land through Sada-Patta. No such document has been filed on behalf of the defendants and the property also cannot be transferred through Sada- Patta. However, there is no counter claim and therefore the only point required to be considered in this case is regarding rights of the plaintiffs-appellants. The learned lower court has also wrongly considered wrongly considered Section 46 of CNT Act as the case of the plaintiffs-appellants is that Ram Prasad Ram was the elder brother and Karta of the family and therefore his name was recorded in the settlement. It is the case of the plaintiffs- appellants that Ex-4 reflects family settlement and it is only partition not transferring the land by sale or gift. In view of the above facts and circumstances I am of the considered view that Ex-4 has evidentiary value which is well proved and corroborated 56 decimals of land has validly come in the right, title of Fagu Ram and the same has devolved upon the plaintiffs- appellants.19
( 2025:JHHC:12235 )
16. The plaintiffs-appellants has been able to prove their right, title over 56 decimals of land as mentioned in Ex-1, Ex-1/1 and Ex-1/2. Ex-A shows that the plaintiffs-appellants were not in possession over the same. The respondents-defendants are directed to hand over this 56 decimals of land to the plaintiffs-appellants failing which the plaintiffs-appellants shall be entitled to recover the same through process of law."
41. So far as the remaining claim of the plaintiffs with respect to other portions of the suit property is concerned, the claim was rejected by the learned first appellate court also vide Paragraph 14 and 15 by holding that defendant no.2 was the daughter and heir of Ram Prasad Ram and hence her property could not devolve upon Fagu Ram, the father of the original plaintiffs and further the claim over 16 decimals of land on the basis of exhibit -2 was also rejected by citing reasons .
42. This Court finds that the learned first appellate court neither framed any point for determination, nor has referred to many of the findings and discussions of the learned trial court with respect to admissibility of certified copy of partition deed -Exhibit-4 in evidence and rent the contents of the receipts Exhibit- 1, 1/1 and 1/2 while reversing the findings with respect to the property of 56 decimals of land under partition deed- Exhibit-4 and rent receipts Exhibit- 1, 1/1 and 1/ 2 and decreeing the suit to the extent it relates to the property allocated to Fagu Ram [the father of the plaintiffs], under Exhibit-4 to the extent of 56 decimals of land. This Court also finds that the learned first appellate court has not taken into consideration the contradictions in the pleadings which have been discussed and recorded by the learned trial court. The one line pointed out by the learned counsel for the respondents from internal page 8 of the first appellate court's judgement, that is 'however, there is no counter claim and therefore, the only point required to be considered in this case regarding rights of the plaintiffs-appellants' cannot be termed as point of determination required to be framed by the first appellate court in view of the fact that the same is completely vague and too broad to be terms as points for determination. The points of determination are required to be framed with due application of mind touching upon real controversy and matter of dispute between the parties. The core issue with regard to property 20 ( 2025:JHHC:12235 ) covered by Exhibit-4 was its admissibility in evidence being the certified copy of deed of partition whose original was not produced, reasons for non-production, i.e. loss of document, was rejected by the learned trial court and execution of exhibit -4 was also in dispute from the side of the defendants.
43. In the judgement passed by the Hon'ble Supreme Court, reported in 2023 SCC OnLine SC 1183 Appaiya -vs- Andimuthu @ Thangapandi and Others (supra) relied upon by the learned counsel for the respondents, the execution of the registered sale deeds (Exhibit- A1 and A5) was not in dispute as recorded in Paragraph 28 of the aforesaid judgement. In the aforesaid context in Paragraph 29 of the said judgement, it was considered as to whether the appellant/plaintiff had succeeded in proving the contents of Ext.A1 and observed that going by Section 65(e) when the original of a document is a public document within the meaning of Section 74, secondary evidence relating its original viz., as to its existence, condition or contents may be given by producing its certified copy. It was held that in terms of Section 74(2) of the Evidence Act, its original falls within the definition of public document and the sole objection was that what was produced as Ext.A1 was only a certified copy of the sale deed and its original was not produced in evidence. The Hon'ble Supreme Court considered Sections 77 and 79 of the evidence Act and observed that Section 77 provides for the production of certified copy of a public document as secondary evidence in proof of contents of its original and Section 79 is the provision for presumption as to the genuineness of certified copies provided the existence of a law declaring certified copy of a document of such nature to be admissible as evidence. It was also observed that there was no case that foundation for letting in secondary evidence was not laid. Paragraph- 28 and 29 of the aforesaid judgement are quoted as under for ready reference: -
"28. In the aforesaid context it is relevant to note that the sons of Vellaiya Thevar, named above, sold the property having an extent of 2 acres and 61 cents comprised in Survey No. 845/1 of Thimmarasanayakanur Village to Puliyankaladi in the circumstances specifically mentioned thereunder, as per registered sale deed No. 1209/1928 dated 27.08.1928. It is nobody's case that the siblings of Vellaiya Thevar challenged Ext.A1 in any court of law till 15.07.1963, 21 ( 2025:JHHC:12235 ) the day on which Puliyankuladi as per Ext.A5 sale deed No. 1759/1963 of SRO Andipatti sold it to appellant/plaintiff. Add to it, its execution is not in dispute, as noted earlier. Evidently, what was sold under Ext. A5 registered sale deed by Puliyankaladi to the appellant/plaintiff is the same property comprised in Survey No. 845/1 of Thimmanayakanur village of Madurai District having an extent of 2 acres and 61 cents as disclosed under the said sale deed. In short, what is discernible from the materials on record is that both Exts.A1 and A5 sale deeds were not subjected to any kind of challenge till today. At any rate, no document revealing successful challenge against those registered documents are brought on record by the respondent-defendant.
29. Having regard to all the aforesaid circumstances and in the light of the various provisions of the Evidence Act mentioned hereinbefore we will firstly consider the question whether the appellant/plaintiff had succeeded in proving the contents of Ext.A1. Going by Section 65(e) when the original of a document is a public document within the meaning of Section 74, secondary evidence relating its original viz., as to its existence, condition or contents may be given by producing its certified copy. Ext.A1, indisputably is the certified copy of sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti. In terms of Section 74(2) of the Evidence Act, its original falls within the definition of public document and there is no case that it is not certified in the manner provided under the Evidence Act. As noticed hereinbefore, the sole objection is that what was produced as Ext.A1 is only a certified copy of the sale deed and its original was not produced in evidence. The hollowness and unsustainability of the said objection would be revealed on application of the relevant provisions under the Evidence Act and the Registration Act, 1908. It is in this regard that Section 77 and 79 of the Evidence Act, as extracted earlier, assume relevance. Section 77 provides for the production of certified copy of a public document as secondary evidence in proof of contents of its original. Section 79 is the provision for presumption as to the genuineness of certified copies provided the existence of a law declaring certified copy of a document of such nature to be admissible as evidence. When that be the position under the aforesaid provisions, taking note of the fact that the document in question is a registered sale deed, falling within the definition of a public document, the question is whether there exists any law declaring such certified copy of a document as admissible in evidence for the purpose of proving the contents of its original document. Subsection (5) of Section 57 of the Registration Act is the relevant provision that provides that certified copy given under Section 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document. In this context it is to be noted that certified copy issued thereunder is not a copy of the original document, but is a copy of the registration entry which is itself a copy of the original and is a public document under Section 74(2) of the Evidence Act and Sub-section (5) thereof, makes it admissible in evidence for proving the contents of its original. There is no case that foundation for letting in secondary evidence was not laid and as noted earlier, both the trial Court and the First Appellate Court found it admissible in evidence. Thus, the cumulative effect of the aforementioned sections of the Evidence Act and Section 57(5) of the 22 ( 2025:JHHC:12235 ) Registration Act would make the certified copy of the sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti, produced as Ext.A1 admissible in evidence for the purpose of proving the contents of the said original document. When this be the position in the light of the specific provisions referred hereinbefore under the Evidence Act and the Registration Act, we have no hesitation to hold that the finding of the High Court that the certified copy of Ext.A1 owing to the failure in production of the original and proving through an independent witness is inadmissible in evidence, is legally unsustainable. In the other words, the acceptance of the admissibility of Ext.A1 found in favour of the appellant/plaintiff by the trial Court and confirmed by the First Appellate Court was perfectly in tune with the provisions referred hereinbefore and the High Court had committed an error in reversing the finding regarding the admissibility of Ext.A1."
(emphasis supplied)
44. In the present case, the execution of the partition deed (Exhibit-
4) is itself in dispute and as recorded in the judgement passed by the learned trial court, the foundation for letting in secondary evidence was not proved by the plaintiff. The learned trial court has recorded after considering the materials on record that what was produced in the proceedings under Section 145 Cr.P.C. was only a certified copy of the partition deed which was the same certified copy filed as Exhibit-4 in the present suit and considering other materials on record rejected the plea raised by the plaintiffs that the original was produced in the proceedings under Section 145 of CrPC. but was lost from the said proceedings. The learned trial court held that the foundation for adducing secondary evidence by filing certified copy of Exhibit-4 was not laid. The aforesaid judgement passed in the case of Appaiya -vs- Andimuthu @ Thangapandi (supra) does not help the respondents in any manner what so ever as in the said case execution of the registered sale deed was not in dispute and the only objection was that the exhibit was the certified copy and it was not in dispute that the foundation for letting in secondary evidence was laid.
45. This Court finds that the learned trial court has recorded a clear finding that the foundation for adducing secondary evidence was not laid, but the learned first appellate court took Exhibit-4 as a public document and was also of the view that it was more than 30 years old and proceeded to decide the case ignoring the findings of the learned trial court with regards to the admissibility of the certified copy -
23( 2025:JHHC:12235 ) Exhibit-4 as secondary evidence even when the execution of partition deed was disputed by the defendants.
46. In the judgement passed by the Hon'ble Supreme Court reported in Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, it has been held that presumption under Section 90 of Evidence Act regarding 30 years old document is not applicable to certified copy even if it is 30 years old and in the facts of the said case, it was held that presumption under Section 90 was not available to the defendants as it was the specific case of the plaintiffs that the deed was forged and fabricated. Paragraph- 15, 16, 17 and 18 of the said judgement is quoted as under:-
"15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.
16. So far as applicability of presumption arising from Section 90 of the Evidence Act, 1872 in respect of copy of the old document is concerned, the earliest decision of the Indian Court was made in 1880 in Khetter Chunder Mookerjee v. Khetter Paul Sreeterutno1. Later on, in the decisions of various High Courts the presumption under Section 90 was also made applicable to the certified copy. The Privy Council, upon review of the authorities, however, did not accept the decision rendered in Khetter1 and other decisions of the High Court, where the presumption was attached also to copies, as correct. It was indicated that in view of the clear language of Section 90 the production of the particular document would be necessary for applying the statutory presumption under Section 90. If the document produced was a copy admitted under Section 65 as secondary evidence and it was produced from proper custody and was over thirty years old, then the signature authenticating the copy might be presumed to be genuine; but production of the copy was not sufficient to justify the presumption of due 24 ( 2025:JHHC:12235 ) execution of the original under Section 90. In this connection, reference may be made to the decisions in Seethayya v. Subramanya Somayajulu2 and Basant Singh v. Brij Raj Saran Singh3. In view of these Privy Council decisions, disproving the applicability of presumption under Section 90 to the copy or the certified copy of an old document, in the subsequent decisions of the High Courts, it has been consistently held by different High Courts that production of a copy or a certified copy does not raise the presumption under Section 90.
17. The position since the aforesaid Privy Council decisions being followed by later decisions of different High Courts, is that presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old; but if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act, 1872 by proof of loss or destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine.
18. In the facts of this case, the presumption under Section 90 was not available on the certified copy produced by the defendants and, in our view, the High Court is justified in refusing to give such presumption in favour of the defendants. We may also indicate that it is the discretion of the court to refuse to give such presumption in favour of a party, if otherwise, there is occasion to doubt due execution of the document in question. The plaintiffs' definite case was that the deed of sale in favour of Holiram was a forged and fabricated document. In the aforesaid facts, there was a requirement to produce the original copy so that the question of due execution by Plaintiff 1 could have been contested by the parties."
47. In the present case, the execution of Exhibit-4, the partition deed, was disputed by the defendants, still the original was not produced by the plaintiffs explaining that same has been lost, which plea was rejected by the learned trial court and not considered by the learned first appellate court while reversing the findings. No arguments have been advanced by the learned counsel for the defendants with regard to correctness of the finding of the learned trial court rejecting the plea of loss of original partition deed. As discussed above, the learned trial court has considered the materials on record and has cited reasons while rejecting the plea of loss of original partition deed whose certified copy 25 ( 2025:JHHC:12235 ) was Exhibit-4 and consequently rejected the admissibility of Exhibit-4 as secondary evidence. This court is also of the considered view that Exhibit-4 being a certified copy was not admissible in evidence being secondary evidence, even when its execution was disputed by the defendants, in absence of satisfying the court that the original was lost and thereby laying down the foundation to adduce secondary evidence under Section 65 of the Evidence Act. The Exhibit-4 being a certified copy could not have been relied upon by the first appellate court even by referring to Section 90 of the Evidence Act stating it to be 30 years old document once its execution was itself disputed in the light of the aforesaid judgement passed in Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357(supra).
48. In view of the aforesaid findings, the 1st and 2nd substantial questions of law are answered in favour of the appellants and against the respondents as follows: -
The Findings of the learned first appellate court on Ext 4, a true copy of the partition deed and as a consequence thereof reversing the judgment and decree of the trial court partly and thereby decreeing the suit in part even without meeting the reasonings of the learned trial court, is legally and factually not sustainable in law.
The learned first appellate court has applied incorrect principle of law and was not justified in relying upon the Exhibit-4, a true copy of the partition deed and also has further misconstrued the admissibility of the said document as taking secondary evidence in the absence of foundational facts to adduce secondary evidence under Section 65 of the Indian Evidence Act and more particularly when execution of partition deed was denied by the defendants.
49. With respect to 4th substantial question of law, the only argument advanced by the learned counsel for the appellants is that the learned Trial Court had given specific finding that the plaintiffs were trying to plead their case beyond pleadings, but this aspect of the matter has not 26 ( 2025:JHHC:12235 ) been considered by the learned first Appellate Court, rather the learned 1st Appellate Court has given the findings beyond pleadings. However, this court finds that the learned trial court has recorded in paragraph 24 of the judgement that the oral evidences of P.W-1 and P.W.-2 produced by the plaintiffs were beyond pleadings. Such findings have been recorded in Paragraph-24 of the trial court's judgment as follows: -
"24. The plaintiffs have miserably failed to state the ground as to why he lead secondary evidence to prove his case. Plaintiffs by means of oral evidence through PWI and PW2 has also tried to lead evidence beyond the pleadings as well as the documents adduced by them, inasmuch as, both of these two witness during their chief has stated that Ram Prasad Ram and Fagu Ram both obtained the settlement jointly in their favour, whereas the case of plaintiffs is that the land was settled solely in the name of Ram Prasad Ram. Also both of these two witness has deposed that the entire land been allocated to Ram Prasad Ram in the amicable partition, was transferred by him in favour of his daughter Kunwar Kalia Devi."
50. This Court finds that in fact the judgement of the learned 1st appellate court has completely ignored the pleadings of the plaintiffs that the original deed of partition was lost, read with the pleadings of the defendants challenging the execution of partition deed and also challenging the loss of original partition deed, and has wrongly relied upon section 90 of the Evidence Act in order to grant relief to the plaintiffs with respect to 56 decimal of land said to have been allocated to the father of the plaintiffs vide partition deed[exhibit-4].
51. Accordingly, the 4th substantial question of law is answered as follows: -
The learned first appellate court was not justified in giving the findings ignoring the pleading of the respective parties with respect to partition deed merely by referring to Section 90 of the Evidence Act and it is held that the findings of the learned first appellate court with regard to claim of the plaintiffs to the extent of 56 decimals is based on conjectures and surmises and accordingly, cannot be sustained in the eye of law.27
( 2025:JHHC:12235 )
52. This Court finds that the learned trial court had rejected the Exhibit-4 as inadmissible and the rent receipts Exhibit-1, 1/1 and 1/ 2 were also rejected by observing that particulars of the property were not properly mentioned in the rent receipts. The learned first appellate court found the Exhibit-4 admissible and referred to rent receipts exhibit-1, 1/1 and 1/ 2 to come to a conclusion that allocation of 56 decimals of land to Fagu Ram [father of the original plaintiffs] in the partition deed was substantiated by the rent receipts. Having found as aforesaid that Exhibit-4 was not admissible in absence of the foundational facts under Section 65 of the Indian Evidence Act to enable the plaintiffs to adduce secondary evidence [when execution of deed of partition was also disputed by the defendants], the rent receipts Exhibit-1, 1/1 and 1/ 2 being not documents of title, cannot be relied to prove title as claimed by the plaintiffs.
53. Accordingly, the 3rd substantial question of law is answered as follows: -
The learned first appellate court has misdirected himself by relying upon Exhibits- 1, 1/1 & 1/2 the rent receipts in holding that plaintiffs have right, title over 0.56 acres out of suit land.
54. However, the learned first appellate court has given concurrent findings with regard to 0.16 acres of land with which this Court is not concerned in view of the fact that no substantial question of law has been framed with regard to Exhibit-2 and the plaintiffs have not filed any second appeal. Similar is the position with respect to the claim of devolution of 25 decimals of land allocated to Ram Prasad Ram upon the original plaintiffs [the sons of Fagu Ram] which has also been rejected by the learned first appellate court and in connection with which neither any substantial question of law has been framed, nor any second appeal has been filed by the plaintiffs.
55. Having decided all the four substantial questions of law in favour of the appellants, the Judgment dated 12.07.2017 (Decree sealed and signed on 24.07.2017) passed by the learned Principal District Judge, Garhwa in Civil Appeal No. 09 of 2016 is set aside to the extent it has 28 ( 2025:JHHC:12235 ) interfered with the judgment passed by the learned trial court. Accordingly, this second appeal is allowed.
56. Pending I.A., if any, is closed.
57. Let this judgment be communicated to the court concerned through FAX.
(Anubha Rawat Choudhary, J.) Binit/Kunal/AFR 29