2001 (2) TMI 1043 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the suit agreement of reconveyance dated 7-11-1969 is true.
2. Whether the plaintiff is entitled to a decree for reconveyance.
3. Whether the suit is in time.
4. Whether the appellant is entitled to the relief of specific performance.

Detailed Analysis:

Issue 1: Whether the suit agreement of reconveyance dated 7-11-1969 is true.
The trial court found that the plaintiff failed to prove the agreement dated 7-11-1969. The plaintiff relied on Ex.A30, a certified copy of the alleged reconveyance agreement, and Ex.A32, a photocopy of the reconveyance agreement. The original document was not produced in court. The plaintiff claimed that the original agreement was in the custody of the defendant's brother-in-law. The trial court admitted Ex.A30 as secondary evidence. The single judge found sufficient evidence to support the reconveyance agreement, based on the testimonies of PW1, PW2, and PW3. However, the appellate court disagreed, stating that a photocopy of a copy cannot be admitted as secondary evidence under Section 63 of the Evidence Act unless it is compared with the original. The court cited the Full Bench decision in Land Acquisition Officer v. N. Venkata Rao, which held that copies of copies are not secondary evidence unless compared with the original. The court concluded that Ex.A30 was not admissible as secondary evidence.

Issue 2: Whether the plaintiff is entitled to a decree for reconveyance.
The trial court decided against the plaintiff, and the suit was dismissed. The single judge, however, held that the reconveyance agreement was true and enforceable, directing the appellant to deposit Rs. 55,000 and the respondent to execute the sale deed reconveying the property. The appellate court, upon reviewing the admissibility of Ex.A30, found that since the document was not admissible, the decree based on it could not stand. Therefore, the plaintiff was not entitled to a decree for reconveyance.

Issue 3: Whether the suit is in time.
The single judge agreed with the plaintiff that the suit was in time. However, the appellate court did not delve deeply into this issue, as the primary focus was on the admissibility of the reconveyance agreement. Since the document itself was found inadmissible, the question of timeliness became moot.

Issue 4: Whether the appellant is entitled to the relief of specific performance.
The single judge had set aside the judgment of the lower court and directed specific performance based on the reconveyance agreement. The appellate court, however, found that the reconveyance agreement was not admissible in evidence. Consequently, the relief of specific performance could not be granted.

Conclusion:
The appellate court allowed the appeal, setting aside the judgment of the single judge. The court held that the reconveyance agreement was not admissible as secondary evidence, and therefore, the decree based on it could not be sustained. The sale deed was considered a valid sale deed, not a mortgage deed, as there was no valid reconveyance agreement. The appeal was allowed, and the judgment of the single judge was set aside with no order as to costs.