Karnataka High Court
Shamsundar vs Mohd. Ismaile And Ors on 6 June, 2025
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WP No. 203387 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
WRIT PETITION NO.203387 OF 2023 (GM-CPC)
BETWEEN:
SHAMSUNDAR
S/O SHANTRAJ REDSON,
AGE: 54 YEARS,
OCC: MEDICAL PRACTITIONER (RMP),
R/O: LADLAPUR CROSS, TALUK CHITTAPUR
DISTRICT: KALABURAGI.
...PETITIONER
(BY SRI. GANESH NAIK, ADVOCATE)
AND:
1. MOHD. ISMILE
Digitally signed by
S/O MOHD. HUSSAIN KATGAR,
BASALINGAPPA
SHIVARAJ
AGE: 75 YEARS,
DHUTTARGAON OCC: AGRICULTURE,
Location: HIGH
COURT OF R/O: AMBEDKAR CHOWK,
KARNATAKA
GOWLI BABA WADI(JN),
TQ: CHITTAPUR,
DIST: KALABURAGI - 585 211.
2. SMT. MAREMMA
W/O. SHANTRAJ REDSON,
SINCE DECEASED THROUGH HER LRS;
2(A) SUNIL KUMAR
S/O SHANTRAJ REDSON,
AGE: MAJOR,
OCC: AGRICULTURE
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2(B). SUNDAR RAJ
S/O SHANTRAJ REDSON,
AGE: MAJOR,
OCC: AGRICULTURE,
2(C). SUDHEER KUMAR
S/O SHANTRAJ REDSON,
AGE: MAJOR,
OCC: AGRICULTURE,
2(D). ANIL KUMAR
S/O SHANTRAJ REDSON,
AGE: MAJOR,
OCC: AGRICULTURE,
2(E). SHAMSUNDAR
S/O SHANTRAJ REDSON,
AGE: MAJOR,
OCC: AGRICULTURE,
2(F). ELIZABETH
D/O SHANTRAJ REDSON,
AGE: MAJOR,
OCC: AGRICULTURE,
2(G). ZAVIER
S/O SHANTRAJ REDSON,
AGE: MAJOR,
OCC: AGRICULTURE
ALL OF R/O NALWAR STATION,
TALUK: CHITTAPUR,
DISTRICT: KALABURAGI -585 211.
2(H). SHIBA
W/O LATE VIJAYKUMAR,
AGE: 54 YEARS,
OCC: HOUSEHOLD,
2(I). PRIYANKA
D/O LATE VIJAYKUMAR,
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HC-KAR
AGE: 34 YEARS,
OCC: HOUSEHOLD,
2(J) VISHAL
S/O LATE VIJAYKUMAR,
AGE: 32 YEARS,
OCC: AGRICULTURE,
2(K). VIKAS
S/O LATE VIJAYKUMAR,
AGE: 30 YEARS,
OCC: HOUSEHOLD,
2(L). CHRISTINA
D/O LATE VIJAYKUMAR,
AGE: 28 YEARS,
OCC: HOUSEHOLD
R/O NALWAR STATION,
TALUK: CHITTAPUR,
DISTRICT: KALABURAGI - 585 211.
...RESPONDENTS
(BY SRI B. C. JAKA, ADVOCATE FOR R1;
NOTICE TO R-2(A) TO R2(L) SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO, ALLOW THE
WRIT PETITION QUASH THE ORDER PASSED BY THE SENIOR
CIVIL JUDGE AND JMFC AT CHITTAPUR ON IA NO.14 IN OS
40/2017 AS PER ANNEXURE-F AND ALLOW IA NO.14 AS
PRAYED FOR IN THE TRIAL COURT PERMITTING THE
PETITIONER TO LEAD SECONDARY EVIDENCE TO PRODUCE
THE UN-REGISTRIES SALE DEED.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE Mrs JUSTICE K S HEMALEKHA
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WP No. 203387 of 2023
HC-KAR
ORAL ORDER
(PER: HON'BLE Mrs JUSTICE K S HEMALEKHA) The defendant No.1 has assailed the order dated 31- 10-2023 on I.A. No.14 in OS No.40/2017 passed by the Senior Civil Judge and JMFC at Chittapur, whereby the application filed under Section 65(c) of the Indian Evidence Act, 1872, ('Act' for short) read with Section 151 of CPC, seeking permission to lead secondary evidence by producing a photocopy of an unregistered sale deed/agreement of sale dated 18.02.1975 was dismissed.
2. The plaintiff instituted suit seeking declaration that he is the absolute owner and in possession of land Sy.No.35, measuring 09 acres 05 guntas to the northern side out of total 18 acres 10 guntas situated at village Bapunagar, Taluka Chittapur (for short, 'the suit property'). It is contended that the defendants without any lawful right, title or interest and without the knowledge or consent of the plaintiff, have entered their -5- NC: 2025:KHC-K:2923 WP No. 203387 of 2023 HC-KAR names in the revenue records pertaining to the suit property.
3. The defendants filed written statement contending that the plaintiff's father having inherited the suit property upon the death of Abdul Rehaman, sold the same to defendant Nos.1 and 2 for the family necessity. They claim that the sale was effected under the unregistered sale deed/agreement of sale dated 18.02.1975 pursuant to which they have been in lawful and peaceful possession of the suit property as absolute owners. They also claim that they have perfected their title by way of adverse possession.
4. Defendant No.1 filed I.A.No.14 invoking Section 65(c) of the Act read with Section 151 of CPC, seeking leave to lead secondary evidence by producing a photocopy of the unregistered sale deed/agreement of sale dated 18.02.1975. In the affidavit it was contended that the original document, which was in the possession of the -6- NC: 2025:KHC-K:2923 WP No. 203387 of 2023 HC-KAR defendants had been handed over to the previous counsel for the purpose of filing and reference. Subsequently, being dissatisfied with the services of the said counsel, the defendants obtained "No Objection Certificate" and engaged a new counsel.
5. Upon requesting for return of the original documents, the previous counsel informed that the documents, being in Urdu, had been given for translation. However, the person to whom it was handed over for translation was unable to recollect its whereabouts. Despite several efforts and visits to the previous counsel, the documents could not be traced, the loss of original came to the defendants' knowledge in the month of June, 2023, prompting the present application for permission to lead secondary evidence.
6. The said application was contested by the plaintiff, who filed objections, contending that the documents sought to be produced, being an unregistered sale deed/agreement of sale is inadmissible in evidence -7- NC: 2025:KHC-K:2923 WP No. 203387 of 2023 HC-KAR and therefore, secondary evidence in respect of the same cannot be permitted.
7. Upon hearing both side and considering the contentions, the trial Court dismissed I.A.No.14, holding that the requirements under Section 65(c) of the Act had not been satisfied, and the secondary evidence in respect of the said unregistered documents is not permissible in law.
8. Heard the learned counsel appearing for the parties and perused the material on record.
9. Learned counsel appearing for the petitioner submits that it is a well settled principle of law that when a party seeks to lead secondary evidence, the Court is duty bound to examine the probative value of the documents sought to be produced, along with its contents and thereafter decide the question of admissibility under the parameters laid down in Section 65(c) of the Act. It is contended that the trial Court has erroneously rejected the -8- NC: 2025:KHC-K:2923 WP No. 203387 of 2023 HC-KAR petitioner's application by holding that the defence of the petitioner is inconsistent, which is an observation made without proper application of mind. It is submitted that only issue before the Court at that stage was whether the petitioner could be permitted to lead secondary evidence by producing the photocopy of the unregistered sale deed/agreement of sale dated 18.02.1975. It is further contended that the petitioner/defendant No.1 has duly satisfied the requirements of Section 65(c) of the Act and explained the circumstances under which the original document was lost, and that despite diligent efforts, the same could not be traced and therefore the trial Court ought to have permitted the petitioner/defendant No.1 to lead secondary evidence.
10. It is further argued that the petitioner has taken a plea of adverse possession in his written statement by way of counterclaim, and the said document is sought to be marked in evidence for a collateral purpose, namely, to establish the nature and character of -9- NC: 2025:KHC-K:2923 WP No. 203387 of 2023 HC-KAR his possession over the suit property and the rejection of the application is unsustainable in law and warrants interference.
11. Per contra, the counsel appearing for the respondent-plaintiff vehemently opposed the contentions raised by the petitioner and justifies the order passed by the trial Court. It is contended that the document sought to be produced is an unregistered sale deed/agreement of sale which is inadmissible in evidence under the provisions of the Registration Act, 1908. The application filed under Section 65(c) of the Act does not meet the legal requirements, as the secondary evidence cannot be admitted unless the original is shown to be lost, destroyed, or otherwise unavailable for a reason not attributable to the applicant's own negligence. It is submitted that the attempt to introduce the photocopy of an unregistered document is only to create confusion and mislead the Court. Further, the trial Court has rightly rejected the application as the secondary evidence
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NC: 2025:KHC-K:2923 WP No. 203387 of 2023 HC-KAR sought to be introduced is neither legally permissible nor factually justified and that there is no interference called for with the order impugned.
12. This Court has carefully considered the contentions urged by the learned counsel appearing for the parties and perused the material on record including the impugned order.
13. The unregistered sale deed/ agreement of sale in question pertains to the alleged transfer of an immovable property. Under Sections 17 and 49 of the Registration Act, 1908, such a document cannot be admitted to prove title, even if produced as secondary evidence. The perusal of the application does not convincingly demonstrate that the document is intended solely for a collateral purpose, or to lay the required foundation for secondary evidence under Section 65(c) of the Act. The defendant No.1 has not produced any document or evidence to substantiate the claim that the original document was lost without the petitioner's fault,
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NC: 2025:KHC-K:2923 WP No. 203387 of 2023 HC-KAR mere assertion would not satisfy the legal standard set out under Section 65(c) of the Act.
14. The petitioner/defendant No.1 has set up two inconsistent claims, one that he is the absolute owner of the suit property by way of unregistered sale deed/agreement of sale dated 18.02.1975 and also claims adverse possession, which are mutually contradictory casting serious doubt on the credibility of the necessity of production of the said document. Perusal of the impugned order this finds no illegality or infirmity in the order passed by the trial Court. The trial Court has rightly appreciated the law and facts in rejecting the application and the impugned order does not warrant any interference.
15. Accordingly, this Court pass the following -
ORDER
(i) The writ petition is hereby
dismissed.
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(ii) The order passed by the trial Court on I.A.No.14 stands confirmed.
__________ Sd/-__________ JUSTICE K S HEMALEKHA AT List No.: 1 Sl No.: 10 CT:NI