9911796707
TMI Blog2001 (2) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced a loan of ₹ 2,000/- and ₹ 3,000/- and obtained sale deeds executed by the plaintiffs husband in favour of the brother of Hassan Bin Mubarak for the plot of land at Somjiguda with the specific understanding of reconveyance of said plot on repayment of loan of ₹ 5,000/-. Similarly, on the same day i.e., 29-8-1969 he advanced a further sum of ₹ 2,000/- on a pronote and also a sum of ₹ 3,000/- and got sale deed executed in favour of Bashir Bin Mubarak in respect of plot of land at Kaladera with specific understanding of reconveyance on repayment of the said loan. The aggregate loan advanced was ₹ 10,000/- through different persons and sale deeds were executed as security for the loans. On 20th August, 1969 a sum of ₹ 8,000/- was advanced by Hassan Bin Mubarak, husband of the defendant and title deeds of house No.22-8-389-1 and 2 of Purani Haveli were taken. On 20-9-1969 a further sum of ₹ 12,000/- was advanced and a sale deed of the house was obtained. Accordingly an agreement of reconveyance of the said house was executed on the same day i.e., 22-9-1969. Possession of the house was not conveyed. There was no mutation effected i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Registrar. Plaintiff delivered all the documents pertaining to the suit property along with the non-encumbrance certificate on the date of sale. After the sale the plaintiff remained in possession of the suit house as a tenant and executed a rental deed in favour of the defendant. The agreement of reconveyance relied upon by the plaintiff was false and fabricated document. There was no need of reconveyance of the suit house and the plaintiff was not entitled to file the suit. It is further stated in the written statement that the plaintiff cannot claim the relief of specific performance of reconveyance deed until she offered to pay the alleged amount of ₹ 12,000/- in the Court. Suit was not properly valued and the Court fee was not paid correctly. The plaintiff had not complied with any of the terms of reconveyance deed dated 7-11-1969. She had also failed to pay ₹ 55,000/- as alleged on or before 22-9-1972. The plaintiff even if the agreement was proved ought to have claimed the reconveyance within three years from the period of the claim. The plaintiffs suit was barred by law. 3. On the pleadings of the parties, following issues were framed by the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed and marked. In the pleadings it was stated that the brother-in-law of the respondent got the original agreement of re-conveyance from their custody. The original had not been filed in OS No.689 of 1972. In fact Ex.A30 was the copy of a copy. The trial Court admitted and treated Ex.A30 as secondary evidence. The learned single Judge found that there was voluminous evidence to support the same. PW1 had stated that, at the time of its execution PW2 and one Shafiuddin were present and signed it as witnesses. The learned single Judge found that the evidence of the plaintiff and PW2 and the attest or of the original i.e., PW3 who had identified his signature in the photocopy was sufficient to prove the document. The learned Counsel for the appellant however submits that photocopy of a copy cannot be admitted even as secondary evidence. He supports his contention by referring to Section 63 of the Evidence Act. Section 63 of the Evidence Act lays down : 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 in themselves e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, we hold firstly that if 'secondary evidence' is allowed to be marked for one party without objection at the trial, no objection can be permitted to be raised by the opposite party at any later stage in the same Court or in appeal that conditions from adducing secondary evidence have not been made out initially. Secondly, we hold that though ordinarily copies of copies are not to be treated as 'secondary evidence' unless such copies are again compared with the original, the said principle does not apply to certified copies granted by the Sub-Registrar under the Registration Act. These certified copies are, under law, to be treated as secondary evidence and once they have acquired such a status, the marking of such documents at the trial without objection result in such documents and their contents being evidence in the case. No objection can be raised in the same suit or proceeding or in appeal later by the opposite party that before marking the certified copies, the necessary conditions for adducing secondary evidence have not initially been established. We hold accordingly on point No.2. According to this judgment, though copies of copies are not to be tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following cases: (a) When the original is shown or appears to be in the 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, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. (b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) 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. As is seen above, this illustration merely says that when the original is shown or appears to be in the 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 the process of the Court or of any person legally bound to produce it and when after the notice mentioned in Section 66 does not produce it. So, in order to get the benefit under Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted clause (c) of Section 65 and the failure to produce it after notice attracted clause (a). Clause (f) of Section 65 was also applicable . This shows that the observations made were in altogether a different context and non-admissibilty of copy of the copy which is prescribed under Section 63 of the Evidence Act was not a question before the Supreme Court. The copy that was held to be admissible was a copy which had been compared with the original and the question before the. Supreme Court was, whether clause (a) in Section 65 is controlled by clause (f) or they are independent of each other. Therefore, this judgment cannot come to the rescue of the respondent. 6. Another judgment relied by the learned Counsel for the respondent is of Punjab and Haryana High Court in Bihrilal v. Ram Piari, 2000(2) CCC 278 (P H). The learned single Judge of Punjab and Haryana High Court relied on two judgments which have not been produced before this Court being Mukhtir Singh v. Bant Singh, (1991-1) 99 PLR 15, and Smt. Raj Kumari v. Shri Lal Chand, (1994-1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. Even otherwise, we are not going into the total evidence and are considering a pure legal question as to whether a particular document was admissible in evidence or not? The learned single Judge has relied on lot of evidence to show that Ex.A32 was executed between the parties. We are not going into that question at all because in view of the judgments cited hereinabove we find that the document itself was not admissible in evidence and the decree is based on the said document. The decree is for execution of an agreement which is held by us not admissible in evidence. 8. The question whether the sale deed was in fact a sale deed or a mortgage deed needs no answer in view of the fact that there is no reconveyance deed. Admittedly the so called reconveyance deed was allegedly executed after a long time after the sale deed was executed. The judgments relied upon by the learned Counsel for the respondent and which were relied upon by the learned single Judge arc not at all applicable to the facts of the present case. In those cases reconveyance deeds were not in dispute and as a matter of fact reconveyance deeds were executed on the date of sale deed itself. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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