Bombay High Court
Ramdas Bhatu Chaudhary Since …
Anant Chunilal Kate
on 27 July, 2006
Equivalent citations: 2006 (6) MhLj 571,2007(1) ALLMR313
Bench: S Deshmukh
1. Heard learned Counsel for the respective parties at length.
2. Legal heirs of original defendant are the appellants herein and respondent is the original plaintiff. The parties are referred as to their original status in the suit.
3. The plaintiff has filed Regular Civil Suit No. 209 of 1999 (“RCS”) on 29-7-1999 for possession and injunction. The suit property comprises a piece of land admeasuring 6000 sq.ft. out of S. No. 55/2-B situated at village Deopur, District Dhule (“suit property”)- It is pleaded by the plaintiff that he had purchased the land, jointly with four other persons, on 21-7-1986, out of S. No. 55/2-B totally admeasuring 1 Hectare and 55 Ares, from one Bhanu. The plaintiff and other co-owners subsequently partitioned the suit property, after its development. The suit property reserved for school building and play ground is also part and parcel of said S. No. 55/2-B. After partition between the plaintiff and other co-sharers, the suit property was allotted to the share of the plaintiff and is in his possession. According to the plaintiff, defendant has committed an encroachment and constructed three sheds admeasuring 12×15, 18×20 and 20×10 feet so also started brick kiln in the suit property.
The plaintiff had brought these facts to the notice of the Municipal Council, Dhule, Officers of the Dhule Municipal Council tried to take action against the defendant but in vain. The plaintiff addressed a notice, dated 15-6-1999 through Advocate. Brick kiln started by the defendant in the suit property is also a cause for pollution in the vicinity. With these pleadings, the plaintiff had sought a relief of mandatory injunction by removing the sheds constructed by the defendant and for possession of the suit property. A perpetual injunction was also sought against the defendant from carrying out any construction over the suit property.
4. Original defendant died during pendency of the suit and his legal heirs were brought on record. The legal heirs entered appearance and filed their written statement at Exhibit 29 on 3-5-2001. After denial, it is pleaded in paragraph No. 11 of the written statement that the suit is not properly valued, other co-sharers of S. No. 55/2-B are not joined as parties, sale deed dated 21-7-1986 is referred to by the plaintiff in the suit but it is not clarified as to from whom the suit property is purchased, the possession of the suit property was not handed over to the plaintiff at the time of the sale deed, the brick kiln in the suit property is old and prior to the sale deed of the suit property in favour of the plaintiff and co-sharers and that the land to the tune of 36 Ares out of S. No. 55/2-B was reserved by the State Government. Despite the reservation, sale deed could not have been executed by erstwhile owner in favour of the plaintiff and therefore, according to the defendants, the sale deed is illegal. Partition of the land S. No. 55/2-B inter se between the plaintiff and co-sharer is denied. Reservation of suit property was for school and play ground and that the defendants have not committed any encroachment over the plaintiffs property and that the possession of the suit property to the extent of 6000 sq.ft. was never handed over to the plaintiff.
5. The trial Court considering the pleadings of the parties, framed six issues. Issue No. 1 was in respect of the claim of the plaintiff to have purchased the suit property by registered sale deed dated 21-7-1986. The trial Court has recorded a finding in favour of the plaintiff and in affirmative. Question of possession of the plaintiff regarding suit property was issue No. 2 and finding is in favour of the plaintiff. The claim of the plaintiff that the defendants have committed an encroachment by erecting three sheds was issue No. 3 and finding is in favour of the plaintiff. The plea raised by the defendants regarding non joinder of necessary parties in the written statement was issue No. 4 and finding is in negative and against the defendants. Limitation was issue No. 4-A and finding is in favour of the plaintiff that the suit is not within limitation. The trial Court decreed the suit with directions to defendants to remove the sheds and deliver vacant possession of 6000 sq.fts. of suit land. A decree for perpetual injunction is also passed against the defendants.
6. The defendants were heard in Regular Civil Appeal (RCA) No. 36 of 2003 by the first Appellate Court along with the plaintiff. The first Appellate Court dismissed the appeal, upholding the judgment and decree passed by the trial Court
7. Shri Choudhary, learned Advocate for the defendants urged that the substantial question of law, referred to in ground No. (XIII) is involved in the present appeal, which reads as under:
Both the lower Courts should have taken into consideration that no one would sell the property admeasuring 6000 square feet having a house therein without taking any amount for the same and this fact itself is sufficient to non-suit the plaintiff.
He also submits that the agreement, without consideration is hit by the provisions laid down under Section 25 of the Indian Contract Act, 1872. According to him in the agreement of sale dated 15-10-1984, the suit property i.e. area to the tune of 6000 sq.ft. was clearly excluded. In other words, there was no agreement for sale of said 6000 sq.ft. area and therefore, sale deed including this area is without consideration. The amount of Rs. 2,00,000/- shown to have been consideration in the document of sale is for remaining area of S. No. 5572-B i.e. original Survey Number, which is subject matter of the sale deed dated 21-7-1986.
During the course of his submission, learned Counsel for the appellants referred to agreement of sale which is marked as Article “D”. Since record and proceedings were called for, I am having benefit of looking to the said document.
8. The trial Court has referred to this agreement Article “D” (referred as Article “A”). It has been referred by the trial Court in its judgment in paragraph No. 30. The trial Court has observed, “…said document is photostat copy of the original agreement, which, according to the plaintiff is not traceable. Therefore, according to Shri Borse, we can read Article “A” as secondary evidence….” The trial Court, in pargraph No. 31 of the said judgment, has further observed, “… It has come in the evidence of plaintiff that the said agreement is not traceable. The combine effect of the contention of plaintiff in reply Exhibit 96 as well as in evidence, would show that the original sale agreement is missing. I, therefore, find force in the submission of Mr. B. B. Borse, learned Advocate that since the plaintiff has admitted that there was sale agreement between him and Bhatu Takadu, the photostat copy article-A can be treated as secondary evidence. I, therefore, find no difficulty in reading the same in evidence….”
The trial Court, however, in paragraph No. 32 referred to the sale deed Exhibit 74 and turned down the submissions on behalf of the defendants regarding agreement of sale Article “D”. The first Appellate Court has also referred to this document as Article “A” (when it should have been Article “D”) to be photostat copy. In paragraph No. 7 of the judgment, the first Appellate Court has referred to the notice and reply between the parties and ultimately held that the photostat copy produced by the defendants – Article “A” (Article “D”) is not admissible in evidence.
9. The admissibility of document Article “D”, therefore, is the important question in this appeal. Learned Counsel for the appellants was confronted with a specific query regarding reference of this execution of agreement of sale dated 15-10-1984 in the written statement. The learned Counsel for the appellants submits that such specific pleading is not available in the written statement. I have perused the written statement and I also do not find any such pleading made by the defendants in their written statement. I have perused the notice given by the defendants to the plaintiff under Order XI, Rule 16 of the Code of Civil Procedure. Said notice is filed on record along with list Exhibit 92. Notice is at page 187 of the R and P of the trial Court. From this notice, it appears that the plaintiff was called upon to produce the agreement of sale dated 15-10-1984 executed by deceased Bhatu. In this notice it was alleged by the defendants that the said document is in possession of the plaintiff. This notice was served upon the plaintiff on 17-9-2002.
I have also perused Exhibit 96, reply filed by the plaintiff to notice referred to earlier regarding production of document i.e. agreement of sale dated 15-10-1984. The plaintiff has specifically denied the possession of the said agreement of sale dated 15-10-1984. The plaintiff has, therefore, shown his inability to produce said document in the Court. It is further pleaded by the plaintiff in this reply Exhibit 96 that the sale deed dated 21-7-1986 was in favour of the plaintiff and other co-sharers. Agreement of sale dated 15-10-1984 is a document prior in time to that of the sale deed and therefore, there is no reason for possession of said agreement of sale dated 15-10-1984 with the plaintiff. It was ultimately requested by this reply Exhibit 96 that since the document/agreement of sale dated 15-10-1984 is not in possession of the plaintiff, notice given by defendants was request to be dismissed/rejected.
Thereafter, I have also found application Exhibit 97 filed on behalf of the defendants on 1-10-2002, requesting the Court to exhibit and read the zerox copy of agreement of sale in the evidence, which is filed by the defendants in the suit. The plaintiff has filed say/reply at Exhibit 99/D. It is pleaded by the plaintiff in his reply that the evidence of plaintiff is over and purshis of closure of evidence is also filed on behalf of the plaintiff. After closure of the evidence on behalf of the plaintiff, the defendants have filed an application seeking permission to lead secondary evidence. Defendants were not party to the agreement of sale and/or sale deed and the defendants had not filed said zerox copy of agreement of sale at the time of filing of the written statement or leading evidence, on behalf of the plaintiff. This reply was filed on 21-10-2002 and ultimately, it was requested that the application filed by the defendants seeking permission to lead evidence be rejected.
The trial Court, after considering the application and reply filed by the defendants passed an order that the plaintiff is at liberty to take recourse of law and lead evidence. The application is filed accordingly. This order seems to have been passed by the learned trial Judge on 21-10-2002.
After this, I have also perused the application Exhibit 89 filed on behalf of the defendants on 17-9-2002, and list Exhibit 90 along with which sale zerox/photostat copy of agreement of sale (Article “A” – “D”) is produced in the suit. From the perusal of this document, it appears that it is a photostat copy. Document seems to have been scribed on the stamp paper of Rs. 5/-, purchaser of the said stamp papers seems to be Shri Bhatu Takadu Choudhary. From this document, it does not appear that it was registered with the Sub Registrar.
10. As referred in aforesaid paragraphs of this judgment, document Article “D” is on record. The learned trial Court had given liberty to the defendants to prove said document in accordance with the provisions of the Indian Evidence Act, 1872 (“Evidence Act”)- I have put a specific query to the learned Counsel for the appellants as to whether this document is referred to in the evidence of plaintiff. He is unable to point out from her evidence that she had referred to this agreement of sale. I myself has also examined the evidence of plaintiff, which is in vernacular. However, I could not get reference of this agreement of sale in her evidence. The parties on issue, have to produce primary evidence in the Court. The primary evidence means a document itself and has to be produced in the Court for inspection of the Court. Said provision is laid down under Section 62 of the Evidence Act. Leading secondary evidence is made permissible under certain circumstances. It is provided under Section 63 of the Evidence Act and it 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 is 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;
(5) oral accounts of the contents of a document given by some person who has himself seen.
Now, turning to the facts of the present case and on examination of agreement of sale Article ‘D”, I find that the said document is not compared with the original by any authority and no such endorsement is appearing on such document. It is also not clear that under which mechanical process, this document is procured by the defendants and there is no proof regarding accuracy of the photostat copy in relation to the original copy of the document. It is also not established by the defendants that this document was in possession of the plaintiff and production thereof is denied by the plaintiff. In absence of preparation and endorsement regarding verification of the document. It cannot be said that the defendants have legally established/proved document Article “D”.
The cases in which secondary evidence relating to the documents may be given have been listed under Section 65 of the Evidence Act. Such evidence can be tendered of the existence, condition or contents of a document. If it is established by a party to the suit or proceeding that 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 process of the Court or of any person legally bound to produce it, and when after the notice as mentioned in Section 66, such a person does not produce the said document. Section 65(b), (c), (d), (e), (f) and (g) also details the contingencies, where in secondary evidence can be lead. In the present case I am wary of the fact that the notice was given by defendants to the plaintiff. It is clear from the notice Exhibit 92 given by the defendants to the plaintiff that the plaintiff has denied possession of the said document i.e. agreement of sale dated 15-10-1984. The defendants have not led a foundation in their pleadings i.e. the written statement that the said agreement was executed by deceased Bhatu in favour of the plaintiff on 15-10-1984 and terms and conditions of such agreement agreed between the defendants as well as the plaintiff were embodies in the “Agreement” and said “Agreement” is in possession or power of the plaintiff. In absence of any foundation under the pleadings, in my view, subsequent notice Exhibit 92 given by the defendants looses its importance. However, said notice was spontaneously replied by the plaintiff, denying the possession of such an agreement of sale. In this fact situation, it cannot be said in the present case that the said agreement of sale was in possession of power of the plaintiff. In the present case, said document is set up against the plaintiff. The plaintiff is not accepting existence of such an agreement of sale.
Clause (c) of Section 65 of the Evidence Act refers to the destruction or loss of such original document. This clause also provides that if secondary evidence can be lead if party offering such evidence of its contents cannot produce the document within reasonable time. However, such inability must not be arising from such party’s own default or neglect. In the present case, there is no evidence on oath led on behalf of the defendants regarding such destruction or loss of agreement of sale dated 15-10-1984 and therefore, this photostat copy Article “D” cannot be read and/or is not admissible in evidence. Looking to entire scheme of Section 63 to 66 of the Evidence Act, I am of the opinion that the document marked by Article “D” cannot be treated to be secondary evidence and justifiably has not been accepted by the first Appellate Court.
11. It is apropos to refer to the judgment of the Division Bench of this Court, in support of the view I have taken, in the case of Laxman Ganpati v. Anusayabai . The Division Bench in the said case was considering the proof of photo copy, negative as well as enlarged print and has considered the provisions as laid down under Sections 62 and 65 of the Evidence Act. It is held that it is only when the person who takes a photograph and develops it into a negative himself comes into the box and deposes to both those facts, that a negative becomes admissible in evidence. As far as the enlarged print is concerned, the position is still worse, for no point or enlargement can be admitted in evidence without its negative being produced and proved in the matter.
In the present case, there is no evidence led on behalf of the defendants as to who has obtained said photostat copy, marked Article “D” and as to whether it was compared with the original thereof.
12. So far secondary evidence is concerned, as noted above, absolutely no evidence is laid down on behalf of the defendants, despite the fact that the learned trial Judge had passed an order on 21-11-2002. granting such permission to establish the document in accordance with the rules of evidence. In my opinion, therefore, document Article “D” has been wrongly considered to be admissible by the trial Court, though the trial Court has ultimately passed a decree in favour of the plaintiff accepting the sale deed Exhibit 65.
I have also perused the finding of the first Appellate Court in paragraph No. 7 of the judgment. The first Appellate Court has justifiably refused the acceptance and admissibility of the document Article “D” and proceeded with confirming the judgment and decree passed by the trial Court.
13. In absence of proof of document Article “D”, the submission of learned Counsel for the appellant that there was no agreement for sale of the suit property i.e. land to the tune of 6000 sq.ft. and subsequently, it has been shown in the document Exhibit 74 without consideration, looses its significance in its entirety. Agreement of sale is not on record and not established in accordance with the rules of evidence and therefore, we have to consider only document Exhibit 74 sale deed. This includes and refers the suit property i.e. land to the tune of 6000 sq.ft. out of S. No. 52/2-B and said document passes title and possession of suit property in favour of the plaintiff. Both the Courts below have justifiably recorded a finding in favour of the plaintiff and passed a decree in favour of the plaintiff.
14. Ground No. (XIII) therefore, cannot be accepted to be a ground involving substantial question of law. No other substantial question of law is raised on behalf of the appellants. On examinations of judgment of the first Appellate Court I also do not find any substantial question of law involved in this second appeal.
15. In the result, second appeal stands dismissed in limine. No order as to costs. Appeal dismissed.