JUDGMENT
R.C. Chavan, J.
1. Being aggrieved by the dismissal of his suit by the learned Vth Civil Judge, (Junior Division) and subsequently his first appeal as well by the learned District Judge, Buldhana, the plaintiff has preferred this appeal.
2. It was the plaintiff case that he was the owner in possession of the site shown by letters A, B, C and D in the plaint map. The defendant had started keeping thresher machine in one corner of the suit site and had also constructed steps at point shown by letter E in the plaint map. The plaintiff insisted that the defendant should stop use of the suit property, but the defendant did not pay any heed. Therefore, the plaintiff filed the suit for declaration of his ownership, perpetual injunction to restrain the defendant from using the site and mandatory injunction to direct the defendant to remove the steps.
3. The respondent defendant resisted claim contending that the suit site does not belong to the plaintiff and that in fact, the site was owned by him since time of his forefathers. He therefore, branded the plaintiffs as an attempt to grab property, and therefore, sought dismissal of the suit.
4. Upon considering the evidence tendered before him the learned 4th Civil Judge (J.D.), Buldhana dismissed the suit. Plaintiffs appeal to the District Judge, Buldhana also met with the same fate. Both the Courts held that the plaintiff had failed to prove his title to the property. Aggrieved thereby the plaintiff has preferred this appeal. It was admitted on the following substantial questions of law.
Whether the appellant was entitled to rely on certified copy of the sale-deed Exhibit 37 and lead secondary evidence with reference to Sections 63 and 65(c) of the Evidence Act.
5. I have heard Advocate Shri Deshpande for the appellant. There is no dispute that the secondary evidence can be permitted to be given in case it is not possible to tender primary evidence in the Court. Certified copies of documents given under provision of Evidence Act are secondary evidence in terms of Section 63 Clause 1 of the Evidence Act. Section 65 Clause (c) enables secondary evidence to be given “when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.
6. In this case, the plaintiff had not produced the documents of his title whereby he claimed to be owner of suit property. It was the plaintiffs case that the suit property was originally owned by one Krishnarao Pandurang Lokhande who sold it to his uncle Mahadappa Gurappa Jatkar under registered sale deed dated 26th February, 1936. The suit property came to the share of plaintiffs father in a partition between Mahadappa and plaintiff s father. After the death of his father property came to the plaintiff. In face of denial of title by the defendant, it was imperative for the plaintiff to place before the Court registered sale deed dated 23rd February, 1936 under which he came to own the property. If the original was not traceable, the secondary evidence in the form of certified copy of the registered sale-deed could have been entertained. In fact, the certified copy of the sale-deed has been produced at Exhibit 37. Both the Courts below, however, refused to look into the document.
7. The plaintiff had first argued before the Courts below that the document is admissible in view of presumption under Section 90 of the Evidence Act, being 30 years old documents coming from the proper custody. This was rightly rejected by the Courts below observing that the presumption applied to original documents not to copies thereof.
8. The learned Counsel for the appellant submitted that the Courts below were not justified in refusing to see the certified copy of sale-deed Exhibit 37, when the plaintiff had tendered evidence that the original was lost. The evidence of the plaintiff shows at Exhibit 29 that the plaintiff had stated before the Court that he was not in a position to say whether the original sale deed was with him or not. He was then recalled and was examined at Exhibit 36 presumably at his own request. He stated that original sale deed was lost and he was producing certified copy at Exhibit 37. In cross-examination he admitted that the original sale-deed was in custody of his uncle Mahadappa Gurappa Jatkar who had expired. He admitted that he searched for the original after the evidence was over.
9. The plaintiff had also examined his cousin, son of Mahadappa Gurappa Jatkar as his witness No. 2. This witness Basappa (P.W.2), in cross-examination stated that he could not tell when his father had purchased suit property. He claimed to have seen document about partition in the father’s documents, but stated that he could not say whether the plaintiff received the property in oral or written partition. However, he did not say anything about search of the sale deed in favour of his father. The learned Trial Judge and the first Appellate Court therefore, held that since the plaintiff had failed to prove that the original was lost or destroyed, he cannot be permitted to tender secondary evidence.
10. The learned Counsel for the appellant submitted that this approach of the Courts below was too technical and the Courts below had shoved off an important piece of evidence having high probative value being the certified copy of registered sale-deed issued from the Office of Registrar, on technical grounds. He submitted that the certified copy ought to have been allowed to be tendered by the Courts. For this purpose, he relied on decision of Privy council in M. Ihtisham Ali v. Jamuna Prasad reported at AIR 1922 Privy Council 56 : 48 Indian Appeal 365. In that case, plaintiff had stated that original sale deed was lost and they had offered as secondary evidence, certified copy issued by the Registrar. The plaintiff had examined Ewaz Ali Khan for the purpose of proving the loss. He stated that he had seen the sale-deed among his father’s papers; he searched for it but could not find it. They had also examined another witness who stated that he searched for the document but he could not find it. The defendant had insisted that the sale deed had not been kept by vendees but had been handed over back to Ehsan Ali Khan because the transaction had become abortive. Ehsan Ali Khan had subsequently dealt with property as if it had not been sold. In these circumstances the trial Court accepted the evidence that the sale-deed was lost and allowed certified copy to be tendered as secondary evidence. The plaintiff had also produced two witnesses who swore that they had seen the deed being singed and Rs. 200 paid in terms of the deed. Thus, it is not that the plaintiff merely tendered the copy of sale-deed as secondary evidence. He has laid the foundation for acceptance of secondary evidence by tendering sufficient evidence of loss of sale deed, and had examined witnesses who had seen the original being signed. Such is not the present case.
11. The learned Counsel for the appellant next relied on the decision of Calcutta High Court in Ravindra v. Santosh reported at . The question was about admission of a certified copy of Trust-Deed executed on 2nd July, 1946. In order to prove the copy, the pleader who had drafted the original Trust-deed was examined and stated that he collected original trust deed from the office of Assurance Registrar and handed over to Provabati Biswas. One Ravindra Nath Das the trustees, had given evidence about loss of the original. He stated that he had personally gone to the persons in whose custody the original was supposed to be and that the persons concerned told him that they had lost the original. In this context, the Court observed that it was important to bear in mind the nature of the document, nature of evidence about search, the nature of evidence about enquiries made and nature of evidence about the loss of the original, in order to admit secondary evidence in proof of a document. The Court observed that it was nobody’s case that another deed or document had been executed on 2nd July, 1946 and that in view of presumption of regularity under Section 114(e) of the Evidence Act, the certified copy issued by the Registrar of Assurance was correct copy of the deed. The decision of Calcutta High Court would itself show what the party is required to do before, it could tender a copy as secondary evidence. The appellant has not done even a fraction of what was expected.
12. The learned Counsel for the appellant next relied on the decision in Anjanabai v. Jaswantibai reported in 1993 Mh.L.J. 523. In that case relying on the decision of , the Court held that certified copy of the sale deed was never challenged by the plaintiff whose suit was based on the very same document and no objection was raised in tendering the document in evidence. Therefore, certified copy was good enough to prove the transfer. Needless to repeat, the facts in present case are altogether different. Here, the defendant had specifically challenged the plaintiff’s title. The plaintiff was required to tender document of his title before the Court. The plaintiff was initially not clear as to whether he had document with him or not, and then subsequently came with a case that the document was lost. Since, the document ought to have been normally in the custody of Mahadappa, the plaintiff should have tendered evidence of search being made with Mahadappa’s family. Though Mahadappa’s son was examined by the plaintiff, he did not say anything about the search for the document or the fact of its loss. Therefore, when the plaintiff had clearly failed to prove the loss of original, there would be no question of plaintiff being permitted to tender secondary evidence in the form of certified copy.
13. Therefore, since there is absolutely no error in the conclusion drawn by the learned District Judge as well as 4th Civil Judge (Jr. Dn.), Buldhana, it has to be held that the appellant was not entitled to rely on the certified copy of the sale deed having failed to lay foundation for receipt of secondary evidence. Consequently, the appeal fails, and is dismissed.