[2023] 12 S.C.R. 525 : 2023 INSC 835
APPAIYA
v.
ANDIMUTHU @ THANGAPANDI & ORS.
(Civil Appeal No. 14630 of 2015)
SEPTEMBER 20, 2023
[B.R. GAVAI AND C.T. RAVIKUMAR, JJ.]
Issue for consideration: Whether the High Court was correct
in holding that owing to the non-production of any document by
appellant evincing as to how the sons’ of the seller obtained the
suit property in a partition Exhibit A1-registered sale deed whereby
the property was sold to the appellant’s vendor, being a registration
copy-secondary evidence, could not be admitted in evidence as
proof of the contents of its original.
Evidence Act, 1872 – s. 65(e), 74, 76, 77 and 79 – Registration
Act, 1908 – s. 57(5) – Admissibility in evidence of certified
copies in property matters – Certified copy of the sale deed
executed in favour of appellant’s vendor-Exhibit A-1, produced
by the appellant, if admissible in evidence for the purpose of
proving the contents of its original document:
Held: Certified copy issued thereunder is not a copy of the
original document, but is a copy of the registration entry which
is itself a copy of the original and is a public document u/s.
74(2) of the Evidence Act and 75(5) thereof, makes it admissible
in evidence for proving the contents of its original – Thus, the
cumulative effect of the provisions of the Evidence Act and s.
57(5) of the Registration Act would make the certified copy of
the sale deed produced as Ext.A1 admissible in evidence for the
purpose of proving the contents of the said original document –
Thus, the finding of the High Court that the certified copy of Ext.
A1 owing to the failure in production of the original and proving
through an independent witness is inadmissible in evidence,
is legally unsustainable – Acceptance of the admissibility of
Ext.A1 found in favour of the appellant by the trial court and
* Author
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SUPREME COURT REPORT: DIGITAL
confirmed by the appellate court was in tune with the provisions
– Once the title of appellant’s vendor acquired under Ext.A1
sale deed is established and purchase of the same property by
the appellant, under Ext.A5 registered sale deed is upheld by
the High Court there was no reason or justification to interfere
with the concurrent judgments of the courts below – Since sale
deed legally establishes the contents of the original sale deed
the same should confer the right over the entire property to
the appellant – Thus, no ground to sustain the reversal of the
concurrent judgments of the courts below by the High Court in
exercise of the power u/s. 100 CPC, as no ground justifying
such exercise exists – Judgment of the High Court is set aside
and that of the appellate court confirming the judgment and
decree of the trial court is restored – Code of Civil Procedure,
1908 – s. 100. [Paras 21, 29, 33 and 34]
Vidhyadhar v. Manikrao & Anr. (1999) 3 SCC 573:[1999]
1 SCR 1168; Yadarao Dajiba Shrawane (D) by LRS
v. Nanilal Harakchand Shah (D) & Ors. (2002) 6 SCC
404; Lankeshwar Malakar v. R. Deka (2006) 13 SCC
570: [2006] 9 Suppl. SCR 895; Santosh Hazari v.
Purushottam Tiwari (2001) 3 SCC 179:[2001] 1 SCR
948; SK. Bhikan v. Mehamoodabee (2017) 5 SCC
127:[2017] 1 SCR 841; R. Nainar Pillai and Anr. v.
Subbiah Pillai 2007 SCC OnLine Mad 457/ (2008) 3
Mad LJ 219 – referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.14630 of 2015.
From the Judgment and Order dated 17.10.2012 of the High Court of
Madras at Madurai in SAMD No.802 of 2004.
S. Mahendran, Adv. for the Appellant.
M. P. Parthiban, T. R. B. Sivakumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
C.T. RAVIKUMAR, J.
1. The captioned appeal by special leave is directed against the judgment
dated 17.10.2012 passed by the Madurai Bench of the Madras High
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APPAIYA v. ANDIMUTHU @ THANGAPANDI & ORS.
Court in Second Appeal (MD) No. 802 of 2004 whereby and whereunder
it reversed the concurrent judgments of the courts below decreeing the
suit with regard to the title and possession of the entire suit property
and confined the plaintiff’s (appellant herein), entitlement to title and
possession to 96 cents purchased under Ext. A5 sale deed. To be
precise, as per the judgment impugned, the judgment dated 03.07.2001
in A.S.No.65/97 of the Sub-Court, Periyankulam confirming the judgment
and decree dated 30.09.1997 in O.S.No.104/96 of the District Munsifcum-Judicial Magistrate, Andipatti, was set aside to the aforesaid
extent. The appellant herein was the plaintiff and the respondent Nos.
1 and 6 were respectively defendant Nos. 3 and 2, in the stated suit.
Respondent Nos. 2 to 5 are the legal representatives of the deceased
first defendant. The subject suit was filed seeking declaration that the
entire suit property belonged to the plaintiff and for a consequential
prayer for permanent injunction against the defendants.
2. The case of the appellant – (plaintiff) in nut-shell, relevant for the purpose
of disposal of the appeal, is as follows :-
On 09.08.1918, Vellaiya Thevar executed a mortgage deed for the loan
availed from Irulappan, the father of appellant’s vendor- Puliyankaladi,
in respect of the suit property having an extent of 2 acres and 61 cents
comprised in Survey No.845/1 of Thimmanayakanur village in Andipatti
Taluk of Madurai District. Default in repayment of loan amount made
Puliyankaladi to file O.S. No.519/1928 against sons of Vellaiya Thevar
viz., Thavasi Thevar, Kuruppa Thevar, Subbaiah Thevar and Sangu
Thevar and it was decreed in favour of Puliyankaladi. In order to satisfy
the decree, they sold the property to Puliyankaladi as per Ext. A1
registered sale deed No.1209/1928 dated 27.08.1928. Puliyankaladi,
thereafter executed a mortgage deed of the suit property in favour of
Veluchamy and Vellamal. On 31.05.1961 he executed another mortgage
deed in favour of Veluchamy and Velammal. The said mortgage deeds
were redeemed by the appellant (plaintiff) on 24.06.1963. Ultimately,
the appellant purchased the suit property from Puliyankaladi and his
family members namely, Irulan, Balakrishnan and Balakrishnan’s minor
children Senthilkumaran and Backialakshmi on 15.07.1963 as per sale
deed No.1759/1963 of SRO, Andipatti. Since then, he has been in its
possession and enjoyment. After mutating it in his name in the revenue
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records he obtained patta and has been paying kist to the government.
The defendants are strangers having lands on the southern and northern
sides of the suit property. They demanded him to sell the property to
them and on being refused they turned inimical to him and started
disturbing his peaceful possession and enjoyment of the suit property.
On 05.06.1994, the defendants along with some others attempted to
trespass into his property, but it was thwarted with the help of co-villagers.
3. The first and the third defendants filed written statement in the suit
mainly refuting the averment that the entire suit property belonged to
Puliyankaladi and contending that it is incorrect and false and therefore,
the plaintiff may be put to strict proof. The further case of the defendants
was that out of the total extent of the property in Survey No.845/1, 75
cents belonged to Thavasi Andi Thevar, Veluthai Ammal and the first
defendant, and son of Thavasi Andi Thevar, Veluthai Ammal and the
first defendant executed a registered mortgage deed on 14.09.1961 in
favour of Pomminayakkanpatti Palaniammal for Rs. 1000/-. Further, as
per sale deed No.2178/1974 of Andipatti Sub-Registry the third defendant
purchased 30 cents in Survey No.845/1 and its well, 1/5th Kamalaivari
channel and ½ of the Kamalaivari channel on the western side and since
then she has been in possession and enjoyment of the said extent. In
short, according to them suit was instituted with an ulterior intention to
grab the entire property comprised the Survey No.845/1.
4. Based on the pleadings the trial court framed the following issues:-
"1. Whether the plaintiff is entitled to permanent injunction?
2. Whether the sale of the plaintiff is a forged one?
3. Whether the mortgage deed dated 14.9.198 is genuine?
4. Whether the sale deed dated 13.9.1974 is genuine?
5. Whether the entire suit property is not under the possession of
the plaintiff?
6. What relief the plaintiff is entitled to?”
5. Thereafter, an additional issue was framed as under:-
“1. Whether the plaintiff is entitled to declaration to the suit property?”
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APPAIYA v. ANDIMUTHU @ THANGAPANDI & ORS.
6. On the side of the appellant/plaintiff, he got himself examined as PW-1
and Exts.A1 to A8 were marked and on the side of the defendants three
witnesses were examined and Exts.B1 to B14 were marked. Exts.C1
to C8 were marked as Court documents. After evaluating the oral and
documentary evidence adduced, the trial Court held that the plaintiff
is entitled to get declaration that the entire suit property belonged to
him and as a consequence, the defendants and their men are to be
restrained from interfering with the peaceful possession and enjoyment
of the plaintiff over the suit property and decreed the suit accordingly.
Evidently, the First Appellate Court in A.S.No.65 of 1997 filed by
the defendants against the judgment and decree of the trial court in
O.S.No.104/1996 did not frame any specific point(s) as enjoined under
Order XLI, Code of Civil Procedure, 1908 (hereinafter, ‘the CPC’), but
observed that the issue to be considered is whether the appeal is to
be allowed as prayed for by the appellants therein/defendants 1 and 3.
Obviously, additional documents were filed by defendants 1 and 3 and
received in evidence as Exts.B15, B16 and B17 by the Lower Appellate
Court. Even after appreciating such additional evidence, it found no
reason to interfere with the judgment and decree of the trial Court and
consequently, dismissed the appeal.
7. The unsuccessful defendants filed second appeal under Section 100 of
the CPC which culminated in the impugned judgment. The High Court
framed three questions as substantial questions of law and after an
elaborate consideration, the High Court held all the substantial questions
of law in favour of the appellants therein viz., defendant Nos. 1 and 3.
As a necessary sequel, the concurrent judgments of the courts below
decreeing the suit with regard to the title and possession were set aside
to the extent mentioned above and the appeal was accordingly allowed.
8. The appellant/plaintiff assails the judgment of the High Court allowing
the Second Appeal as above, on various grounds. The core contention
of the appellant is that findings of facts concurrently recorded by the
Court below are immune from challenge before the High Court in Second
Appeal as the First Appellate Court is the final Court on facts. It is true
that this position is well-settled. At the same time, this position is not
devoid of exceptions. The very decisions relied on by the appellant viz.,
530 [2023] 12 S.C.R.
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Vidhyadhar v. Manikrao & Anr.1
and Yadarao Dajiba Shrawane (D)
by LRS v. Nanilal Harakchand Shah (D) & Ors.2
themselves would
go to show that it is not an inviolable position of law.
9. The relevant paragraphs relied on by the appellants in those decisions
themselves would make it clear that being concurrent findings on
facts is no guarantee for an imprimatur from the High Court as under
certain situations interference under Section 100, CPC after formulating
substantial question (s) of law is permissible.
10. In Vidhyadhar’s case (supra):-
“23. The findings of fact concurrently recorded by the trial court as also
by the lower appellate court could not have been legally upset by the
High Court in a second appeal under Section 100 CPC unless it was
shown that the findings were perverse, being based on no evidence
or that on the evidence on record, no reasonable person could have
come to that conclusion.”
In Yadarao Dajiba Shrawane’s case (supra):-
31. From the discussions in the judgment it is clear that the High Court
has based its findings on the documentary evidence placed on record
and statements made by some witnesses which can be construed
as admissions or conclusions. The position is well settled that when
the judgment of the final court of fact is based on misinterpretation of
documentary evidence or on consideration of inadmissible evidence or
ignoring material evidence the High Court in second appeal is entitled
to interfere with the judgment. The position is also well settled that
admission of parties or their witnesses are relevant pieces of evidence
and should be given due weightage by courts.
11. In the context of the contentions raised by the appellants relying on the
decisions referred (supra) it is only apposite to look into the question,
“what is substantial question of law”.
1 (1999) 3 SCC 573
2 (2002) 6 SCC 404
[2023] 12 S.C.R. 531
APPAIYA v. ANDIMUTHU @ THANGAPANDI & ORS.
12. In the decision in Lankeshwar Malakar v. R. Deka3
, it was held that
in order to be substantial question of law, the test is whether it is of
general public importance or whether it directly or substantially affects
the right of the parties or whether the question is still open i.e., it is not
finally settled by the Supreme Court, Federal Court or Privy Council.
13. In fact, in Santosh Hazari v. Purushottam Tiwari4
while exploring the
meaning of the phrase “substantial question of law” this Court held:
“12. The phrase “substantial question of law”, as occurring in the
amended Section 100 is not defined in the Code. The word substantial,
as qualifying “question of law”, means — of having substance,
essential, real, of sound worth, important or considerable. It is to be
understood as something in contradistinction with — technical, of no
substance or consequence, or academic merely. However, it is clear
that the legislature has chosen not to qualify the scope of “substantial
question of law” by suffixing the words “of general importance” as
has been done in many other provisions such as Section 109 of
the Code or Article 133(1)(a) of the Constitution. The substantial
question of law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general importance.
In Guran Ditta v. T. Ram Ditta [AIR 1928 PC 172 : 55 IA 235] , the
phrase “substantial question of law” as it was employed in the last
clause of the then existing Section 110 CPC (since omitted by the
Amendment Act, 1973) came up for consideration and their Lordships
held that it did not mean a substantial question of general importance
but a substantial question of law which was involved in the case as
between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century
Spg. and Mfg. Co. Ltd. [1962 Supp (3) SCR 549] the Constitution
Bench expressed agreement with the following view taken by a Full
Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony
Veeraju AIR 1951 Mad 969] :
“[W]hen a question of law is fairly arguable, where there is room for
difference of opinion on it or where the Court thought it necessary to
3 (2006) 13 SCC 570
4 (2001) 3 SCC 179
532 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
deal with that question at some length and discuss alternative views,
then the question would be a substantial question of law. On the other
hand, if the question was practically covered by the decision of the
highest court or if the general principles to be applied in determining the
question are well settled and the only question was of applying those
principles to the particular facts of the case it would not be a substantial
question of law.”
and laid down the following test as proper test, for determining whether
a question of law raised in the case is substantial:
“The proper test for determining whether a question of law raised in the
case is substantial would, in our opinion, be whether it is of general public
importance or whether it directly and substantially affects the rights of
the parties and if so whether it is either an open question in the sense
that it is not finally settled by this Court or by the Privy Council or by
the Federal Court or is not free from difficulty or calls for discussion
of alternative views. If the question is settled by the highest court or
the general principles to be applied in determining the question are
well settled and there is a mere question of applying those principles
or that the plea raised is palpably absurd the question would not be a
substantial question of law.
13. In Dy. Commr., Hardoi v. Rama Krishna Narain [AIR 1953 SC 521]
also it was held that a question of law of importance to the parties was
a substantial question of law entitling the appellant to a certificate under
(the then) Section 110 of the Code.
14. A point of law which admits of no two opinions may be a proposition
of law but cannot be a substantial question of law. To be “substantial” a
question of law must be debatable, not previously settled by law of the
land or a binding precedent, and must have a material bearing on the
decision of the case, if answered either way, insofar as the rights of the
parties before it are concerned. To be a question of law “involving in the
case” there must be first a foundation for it laid in the pleadings and the
question should emerge from the sustainable findings of fact arrived at
by court of facts and it must be necessary to decide that question of law
for a just and proper decision of the case. An entirely new point raised
for the first time before the High Court is not a question involved in the
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APPAIYA v. ANDIMUTHU @ THANGAPANDI & ORS.
case unless it goes to the root of the matter. It will, therefore, depend on
the facts and circumstance of each case whether a question of law is a
substantial one and involved in the case, or not; the paramount overall
consideration being the need for striking a judicious balance between
the indispensable obligation to do justice at all stages and impelling
necessity of avoiding prolongation in the life of any lis.”
14. In the decision in SK. Bhikan v. Mehamoodabee5
, this Court held that
when court is called upon to interpret documents and examine their
effect, depending upon the nature of controversy and the issues involved,
it would constitute substantial question (s) of law.
15. Bearing in mind the aforesaid positions with respect to the exercise of
power under Section 100, CPC, we will have to consider whether the
reversal of the concurrent judgments of the Court below by the High
Court as per the impugned judgment invites interference under Article
136 of the Constitution of India.
16. Obviously, the High Court framed three questions of law, as under:-
"1. Whether the courts below are right in law in construing
Ex.A.1 sale deed dated 27.08.1928 in favour of Puliyankaladi, the
predecessor - in - title of the suit property as alleged by the plaintiff/
respondent contrary to the extent and boundaries described in the
said sale deed?
2. Whether the courts below erred in law in presuming that the
appellant/ first defendant has admitted the title of the predecessor
viz., Puliyankaladi in view of Exs.A.2, A.3, A.4 and other deeds.
3. Whether the courts below have erred in law in casting the burden
of proof on the appellants / defendants to prove that the plaintiff is
not entitled to the entirety of the suit property in a suit for declaration
of title by the plaintiff?”
17. As noted above, the High Court answered all of them in favour of the
defendants and consequently reversed the concurrent judgments to the
extent noted above. A scanning of the impugned judgment would reveal
the main reasons for such reversal as under:-
5 (2017) 5 SCC 127
534 [2023] 12 S.C.R.
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(i) Exhibit A1, sale deed dated 27.08.1928 (produced as Annexure
P1 in this appeal) was executed in favour of Puliyankaladi by the
sons of Vellaiya Thevar. However, no document was produced by
the plaintiff/the appellants herein, evincing as to how they obtained
it under partition so as to have right to alienate it.
(ii) Exhibit A1 would not attract the presumption of genuineness
provided under Sections 90 and the presumptive proof of ownership
under 110 of the Evidence Act, 1872 for the reason that it is only
a registration copy of the registered sale deed dated 27.08.1928
and its genuineness is disputed.Furthermore, in the light of the
decision in R. Nainar Pillai and Anr. v. Subbiah Pillai6
to admit such
a document in evidence and to presume it as genuine it requires
corroboration by an independent witness.
(iii) Exhibits A2, A3 & A4 would not estop under Section 110 of the
Evidence Act the appellants therein from disputing the title of the
respondent therein - plaintiff as what was dealt with under Exhibit
A1 is different from what were dealt with under Exhibits A2 to A4.
(iv) The Courts below did not place reliance on Exhibit B1, certified
copy of the sale deed dated 02.07.1977 executed by the appellant’s
father and Perumal Nayakkar (mother of the plaintiff) in favour of
Pommi Nayakkar to an extent of 52 cents from the suit property
which comprised in Survey No.845/1 in Thimmarasanaickanur
village, Andipatti Taluk, Madurai District.
(v) Vellaiya Thevar was entitled to only 96 cents and therefore in terms
of Exhibit A5, the plaintiff (the appellant) is entitled only to 96 cents.
(vi) Both sides have produced kist rasid, chitta and patta.
18. In the light of the reasons that persuaded the High Court to reverse the
concurrent judgments, as mentioned above, their sustainability is to be
looked into with respect to the positions of law as noted hereinbefore,
with respect to the scope of exercise of power under Section 100, CPC
and with reference to the relevant provisions under the Evidence Act
as also other relevant enactments.
6 2007 SCC OnLine Mad 457/ (2008) 3 Mad LJ 219
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APPAIYA v. ANDIMUTHU @ THANGAPANDI & ORS.
19. We will consider whether the High Court was legally correct in holding
that owing to the non-production of any document by the plaintiff (the
appellant) evincing as to how the sons of Vellaiya Thevar obtained the
suit property in a partition Exhibit A1, being a registration copy (secondary
evidence), could not be admitted in evidence as proof of the contents
of its original. At the outset, it is to be stated that while holding thus
the High Court has failed to consider the relevant provisions under the
Evidence Act and also the Registration Act, 1908 appropriately. If the
relevant provisions under the said enactments were properly applied
to the facts of the case, the High Court would not have placed reliance
on R. Nainar Pillai’s case (supra) to hold that since Exhibit A1 being
a registration copy, the presumption of due execution of the original
under Section 90 of the Evidence Act, particularly in the absence of
independent witness would not be available. We say so because proper
consideration of the provisions under Sections 61, 63, 65, 74, 76, 77
and Section 79 of the Evidence Act would have definitely brought out
that it was absolutely unessential to consider the applicability of Section
90 as also Section 110 of the Evidence Act. Needless to say, that in
such circumstances there would not have been any necessity to seek
proof through an independent witness, as well.
20. At the outset, it is very much relevant to note that the finding of fact by
the trial Court that Exts. A1 to A5 are all registered with Sub-Registrar’s
office was not disturbed, rather, agreed by the First Appellate Court. As
a matter of fact, the High Court also did not reverse the said findings
on facts. Indisputably, the appellant has produced the registered copy
of (Exhibit A1) sale deed No. 1209/1928 dated 27.08.1928 executed
by sons of Vellaiya Thevar in favour of Puliyankaladi. Section 61 of
the Evidence Act provides that the contents of documents may be
proved either by primary or secondary evidence. Section 63 which
is an inclusive definition of secondary evidence provides under subsection (1) thereof that, “certified copies given under the provisions
hereinafter contained” constitute secondary evidence. Certainly,
cases falling under Section 65 form exception to the mandate under
Section 64 that documents must be proved by primary evidence.
Section 65 provides that secondary evidence relating to documents
may be given of the existence, condition or contents of a document
in the various cases given thereunder. Section 65, in so far as, it is
relevant for the purpose of this case reads thus:-
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“65. Cases in which secondary evidence relating to documents may be
given.––Secondary evidence may be given of the existence, condition,
or contents of a document in the following cases: ––
(a)..
(b)..
(c)..
(d)..
(e) when the original is a public document within the meaning of section
74;
…………………………………………………
In case (e) or (f), a certified copy of the document, but no other kind of
secondary evidence, is admissible.”
(Underline supplied)
21. Section 74 deals with documents which are public documents. Subsection (2) thereof makes public records kept [in any State] of private
documents within the purview of “public document” under Section 74.
Going by Section 76, certified copies of public documents shall be given,
on demand, by the public officer having the custody of public document,
together with a certificate written at the foot of such copy that it is a true
copy of such document or part thereof, as the case may be, and such
certificate shall be dated and subscribed by such officer with his name
and his official title. Such copies so certified shall be called certified
copies in terms of Section 76.
22. It is to be noted that in the case on hand, a certified copy of Exhibit
A1 sale deed dated 27.08.1928 was produced by the appellant. As
noted earlier, the Courts below found that it is registered with the
Sub-Registrar’s Office. The contention of respondent(s) is that it is
only a certified copy and not the original document. In the light of the
aforementioned provisions under the Evidence Act there can be no
doubt with respect to the permissibility for the production of such a
certified copy as secondary evidence in law, in regard to the existence,
condition or contents of a document. As per Section 77 of the Evidence
Act such certified copies may be produced in proof of the contents of
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APPAIYA v. ANDIMUTHU @ THANGAPANDI & ORS.
the public document concerned. Section 79 deals with presumption as
to genuineness of certified copies. Section 77 and 79 of the Evidence
Act reads thus:-
“77. Proof of documents by production of certified copies. –– Such
certified copies may be produced in proof of the contents of the public
documents or parts of the public documents of which they purport to
be copies.
79. Presumption as to genuineness of certified copies. – The Court shall
presume [to be genuine] every document purporting to be a certificate,
certified copy or other document, which is by Law declared to be
admissible as evidence of any particular fact, and which purports to be
duly certified by any officer [of the Central Government or of a State
Government, or by any officer [in the State of Jammu and Kashmir] who
is duly authorized thereto by the Central Government]:
Provided that such document is substantially in the form and purports
to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such
document purports to be signed or certified, held, when he signed it,
the official character which he claims in such paper.”
23. In view of the provision under Section 79 of the Evidence Act, Section
57 (5) of the Registration Act assumes relevance in the context of the
case and it reads thus:
“57. Registering officers to allow inspection of certain books and indexes,
and to give certified copies of entries.—
(1)..
(2)..
(3)..
(4)..
(5) All copies given under this section shall be signed and sealed by the
registering officer, and shall be admissible for the purpose of proving
the contents of the original documents.”
(Underline supplied)
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24. Now, we will have to consider the cumulative effect of the aforementioned
provisions as relates the certified copy of the sale deed No.1209/1928
dated 27.08.1928 (Annexure P1) produced by the appellant-plaintiff.
25. While considering the said question it is very relevant to refer to point
Nos. 8 and 9 raised on behalf of the defendant No.3 viz., respondent
in this appeal. They read thus:-
“8. Exhibit A1 is an ancient document in terms of Section 90 of the
Evidence Act and the presumption is limited to Extent that it was executed.
9. The execution of document not in dispute and there is no need to
raise presumption u/s 90.”
26. Point Nos.8 and 9 as stated above raised by the defendant in this appeal
would reveal that he did not dispute the execution of Ext.A1 sale deed
No.1209/1928 dated 27.08.1928. A bare perusal of Ext.A1 would reveal
that the subject property involved in the transaction effected thereunder
is the property in Survey No.845/1, having an extent of 2 acres and
61 cents situated at Thimmarasanaickanur village in Madurai District.
Therefore, the question is whether the appellant/plaintiff has proved the
contents of Ext.A1 in terms of the Evidence Act.
27. The relevant aspects which are to be borne in mind while considering
the aforesaid question are that indisputably Ext.A1 is a registered copy
of the sale deed No.1209/1928 dated 27.08.1928 of SRO Andipatti and
its execution is not in dispute. It was marked through PW-1. Evidently,
contentions, rather objections were raised on behalf of the respondent
as to its admissibility in evidence and as per the impugned judgment the
objections were upheld by the High Court to certain extent on manifold
reasons. It was contended before the High Court and upheld by the High
Court that Ext.A1 is only a registration copy of sale deed No. 1209/1928
dated 27.08.1928 of SRO Andipatti, and its original title deed in the
name of Puliyankaladi was not marked as an evidence. Further the High
Court held that Puliyankaladi obtained the property as per Ext.A1 sale
deed from sons of Vellaiya Thevar namely, Thavasi Thevar, Kuruppa
Thevar, Subbaiah Thevar and Sangu Thevar but no document evincing
partition conferring exclusive title on them to alienate the property was
produced. Certain other reasons based on the provisions of Section 90
and 110 of the Evidence Act, were also assailed for not acting upon the
registration copy of Ext.A1.
[2023] 12 S.C.R. 539
APPAIYA v. ANDIMUTHU @ THANGAPANDI & ORS.
28. In the aforesaid context it is relevant to note that the sons of Vellaiya
Thevar, named above, sold the property having an extent of 2 acres
and 61 cents comprised in Survey No. 845/1 of Thimmarasanayakanur
Village to Puliyankaladi in the circumstances specifically mentioned
thereunder, as per registered sale deed No. 1209/ 1928 dated 27.08.1928.
It is nobody’s case that the siblings of Vellaiya Thevar challenged Ext.
A1 in any court of law till 15.07.1963, the day on which Puliyankuladi
as per Ext.A5 sale deed No.1759/1963 of SRO Andipatti sold it to
appellant/plaintiff. Add to it, its execution is not in dispute, as noted
earlier. Evidently, what was sold under Ext. A5 registered sale deed by
Puliyankaladi to the appellant/plaintiff is the same property comprised
in Survey No.845/1 of Thimmanayakanur village of Madurai District
having an extent of 2 acres and 61 cents as disclosed under the said
sale deed. In short, what is discernible from the materials on record is
that both Exts.A1 and A5 sale deeds were not subjected to any kind
of challenge till today. At any rate, no document revealing successful
challenge against those registered documents are brought on record
by the respondent- defendant.
29. Having regard to all the aforesaid circumstances and in the light of
the various provisions of the Evidence Act mentioned hereinbefore
we will firstly consider the question whether the appellant/plaintiff
had succeeded in proving the contents of Ext.A1. Going by Section
65(e) when the original of a document is a public document within the
meaning of Section 74, secondary evidence relating its original viz., as
to its existence, condition or contents may be given by producing its
certified copy. Ext.A1, indisputably is the certified copy of sale deed
No. 1209/1928 dated 27.08.1928 of SRO Andipatti. In terms of Section
74(2) of the Evidence Act, its original falls within the definition of public
document and there is no case that it is not certified in the manner
provided under the Evidence Act. As noticed hereinbefore, the sole
objection is that what was produced as Ext.A1 is only a certified copy
of the sale deed and its original was not produced in evidence. The
hollowness and unsustainability of the said objection would be revealed
on application of the relevant provisions under the Evidence Act and
the Registration Act, 1908. It is in this regard that Section 77 and 79 of
the Evidence Act, as extracted earlier, assume relevance. Section 77
provides for the production of certified copy of a public document as
540 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
secondary evidence in proof of contents of its original. Section 79 is
the provision for presumption as to the genuineness of certified copies
provided the existence of a law declaring certified copy of a document
of such nature to be admissible as evidence. When that be the position
under the aforesaid provisions, taking note of the fact that the document
in question is a registered sale deed, falling within the definition of a
public document, the question is whether there exists any law declaring
such certified copy of a document as admissible in evidence for the
purpose of proving the contents of its original document. Sub-section
(5) of Section 57 of the Registration Act is the relevant provision that
provides that certified copy given under Section 57 of the Registration
Act shall be admissible for the purpose of proving the contents of its
original document. In this context it is to be noted that certified copy
issued thereunder is not a copy of the original document, but is a copy
of the registration entry which is itself a copy of the original and is a
public document under Section 74(2) of the Evidence Act and Sub-section
(5) thereof, makes it admissible in evidence for proving the contents
of its original. There is no case that foundation for letting in secondary
evidence was not laid and as noted earlier, both the trial Court and the
First Appellate Court found it admissible in evidence. Thus, the cumulative
effect of the aforementioned sections of the Evidence Act and Section
57(5) of the Registration Act would make the certified copy of the sale
deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti, produced as
Ext.A1 admissible in evidence for the purpose of proving the contents
of the said original document. When this be the position in the light of
the specific provisions referred hereinbefore under the Evidence Act and
the Registration Act, we have no hesitation to hold that the finding of
the High Court that the certified copy of Ext.A1 owing to the failure in
production of the original and proving through an independent witness
is inadmissible in evidence, is legally unsustainable. In the other words,
the acceptance of the admissibility of Ext.A1 found in favour of the
appellant/plaintiff by the trial Court and confirmed by the First Appellate
Court was perfectly in tune with the provisions referred hereinbefore and
the High Court had committed an error in reversing the finding regarding
the admissibility of Ext.A1.
30. When the execution of Ext.A1 was not disputed by the respondent (in
fact in the circumstances it was indisputable) and when the contents
[2023] 12 S.C.R. 541
APPAIYA v. ANDIMUTHU @ THANGAPANDI & ORS.
of the original sale deed bearing No. 1209/1928 dated 27.08.1928 of
SRO Andipatti was proved by production of the certified copy there
was absolutely no reason to look for the application of Section 90
or 110 of the Evidence Act, in the instant case. For the purpose of
proving the admissibility and evidentiary value of Ext.A1 or Ext.A5 in
the circumstances involved in the instant case, there was absolutely
no requirement to look into Section 90 or Section 110 of the Evidence
Act. In this context it is relevant to note that once the title of plaintiff’s
vendor Puliyankaladi acquired under Ext.A1 sale deed is established
and purchase of the same property by the plaintiff, of course his father
on his behalf, under Ext.A5 registered sale deed is upheld by the High
Court there was no reason or justification to interfere with the concurrent
judgments of the Courts below. Before dealing with this question further,
in the fitness of things we will refer to another aspect. A bare perusal
of the impugned judgment of the High Court would reveal that virtually,
the High Court also, in troth, agreed with the admissibility of Exts.A1
and A5. The High Court held that 96 cents were purchased under Ext.
A5 by the appellant/plaintiff. In paragraph 14 of the impugned judgment
the High Court held:-
“However, even though the first appellant property/plaintiff has prayed
for declaration to the entire suit property as admitted by the appellant/
defendant that the title of the plaintiff Puliyankaladi purchased the property
from Velaiya Thevar and his property is only entitled to 96 cents and
as said the first respondent/ plaintiff has titled over the 96 cents as per
sale deed Ex.A.5 and not grant that and accordingly, he is entitled to
the title as well as the possession.”
31. If Ext.A1 was not taken as a certified copy admissible for proving
the contents of its original and accordingly, taken the contents of its
original as proved where is the question of accepting Ext.A1 sale deed
creating title to Puliyankaladi to sell the property covered thereunder
to the plaintiff under Ext.A5 sale deed, as held in paragraph 14 of the
impugned judgement. In this context it is also relevant to note that
except Ext.A1 sale deed there is no other proven document conferring
title to Puliyankaladi to effect transfer of property having an extent of 2
acres and 61 cents comprised in Survey No. 845/1 of Thimmanayakanur
village in Madurai District. In short, the very action on the part of the High
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Court in declaring that the appellant herein/the plaintiff got title over 96
cents as per Ext.A5 sale deed and therefore, he is entitled to the title as
well as possession over the said extent, in the aforesaid circumstances
amounts to confirmation of the admissibility and evidentiary value of
Exts.A1 and A5 as held by the Courts below.
32. Now a perusal of the impugned judgment would reveal that the High
Court held that the Ext.A1 would not cover the entire extent of 2 acres
and 61 cents comprised in Survey No.845/1 of Thimmanayakanur village
in Andipatti Taluk of Madurai District. We are at a loss to understand
as to how the High Court came to such a conclusion when Ext.A1 in
unambiguous terms describes the property transacted thereunder as
land comprised in Survey No. 845/1 of Thimmanayakanur village having
an extent of 2 acres and 61 cents. A perusal of Ext.A1 would also reveal
that it specifies the boundaries within which the said extent of property
lies. The recital in Ext.A1 that describing the property as property in
Survey no. 845/1 having an extent of 2 acres and 61 cents along with
3/5th share of well and other plants standing in its four boundaries
would not and could not be taken as something which would reduce
the actual extent of the property under transaction i.e., 2 acres and 61
cents comprised within the boundaries mentioned thereunder. In this
context, it is also to be noted that Puliyankaladi, who purchased the
aforesaid extent of the property under Ext.A1 sale deed, had sold the
very same property to appellant/plaintiff as per Ext.A5 sale deed No.
No.1759/1963 dated 15.07.1963 going by the description thereunder.
As stated earlier, going by Ext.A5 the extent of the property transacted
thereunder also having an extent of 2 acres and 61 cents comprised
in Survey No.845/1 of Thimmanayakanur village. Hence, once Ext.A5
was held as valid and in existence there can be no reason to confine
the title passed thereunder to 96 cents when based on Exts.A1 and
A5 courts below held that the appellant/plaintiff is entitled to title and
possession over the entire extent. The discussion and conclusions as
above would take us to the next question whether the High Court, on
re-appreciation of evidence, was legally and factually correct in reducing
the extent to which the appellant/plaintiff is entitled to, by virtue of Ext.
A5 sale deed. In view of the admissibility of Exts.A1 and A5 the courts
below were right in casting the onus of proof on the defendants as
indisputably, the appellant/plaintiff had discharged his burden of proof.
[2023] 12 S.C.R. 543
APPAIYA v. ANDIMUTHU @ THANGAPANDI & ORS.
The High Court came to the conclusion that the oral and documentary
evidence on the part of the defendants were not properly appreciated
by the courts below and it resulted in the grant of decree in favour of
the appellant/plaintiff in respect of the entire extent of the suit property.
33. A scanning of the concurrent judgments of the courts below would reveal
that the High Court has again committed an error as the courts below
had given sound reasons for not accepting the evidence on the part of
the defendants. Taking note of the fact that Ext.A5 was registered on
15.07.1963 the courts below considered the question(s) relating their
evidentiary value and whether they could outweigh the evidence on the
part of the appellant/plaintiff, in extenso. When once Ext.A1 is found as
genuine and as one legally admissible for the purpose of proving the
contents of the original sale deed No.1209/1928 of SRO, Andipatti and
one transferring the title to the extent covered thereunder to Puliyankaladi
who is the vendor of the appellant/plaintiff, in the absence of any proven
document conferring a better title to the respondent/defendant, as held
by the courts below, there was no reason to reverse the concurrent
findings of the courts below. On analysing the evidence on the part of
the respondent/defendant the trial Court found that defendant(s) did
not produce any document proving that the defendant had any right
over the suit property prior to the mortgage of the property effected by
Puliyankaladi in the year 1959 under Ext.B2. The trial Court, therefore,
rightly held that the oral and documentary evidence of the appellant/
plaintiff clearly established that till 1959 the suit property belonged to
Puliyankaladi and thereafter, the appellant/plaintiff purchased the property
from Puliyankaladi as per Ext.A5, in the circumstances mentioned
thereunder. Since Ext.A5 legally establishes the contents of the original
sale deed No.1209/1928 of SRO, Andipatti the same should confer the
right over the entire property covered by Exts.A1 and A5 to the appellant/
plaintiff . In fact, this alone was declared by the trial Court and the order
of injunction was nothing but a natural sequel to such declaration. The
First Appellate Court confirmed the judgment and decree granted by
the trial Court. On a careful and anxious consideration of the impugned
judgment we find no ground to sustain the reversal of the concurrent
judgments of the courts below by the High Court in exercise of the
power under Section 100 CPC, as no ground justifying such exercise
exists in the instant case. The upshot of the discussion is that the High
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Cout in exercise of the power under Section 100 CPC, ought not have
interfered with the findings of the trial Court judgment and decree of the
trial Court which were confirmed by the First Appellate Court. Accordingly,
the impugned judgment of the High Court invites interference.
34. In the result the appeal stands allowed. The judgment of the High Court in
S.A.(M.D.) No. 802 of 2004 dated 17.10.2012 is accordingly set aside and
the judgment of the Sub-Court, Periyankulam in A.S.No.65/97 confirming
the judgment and decree dated 30.09.1997 in OS No.104/1996 of the
District Munsif-cum-Judicial Magistrate Court, Andipatti is restored.
35. The Appeal is allowed as above. In the circumstances of the case, there
will be no order as to cost.
Headnotes prepared by : Nidhi Jain Result of the case : Appeal allowed.
