Whether the rejection of the candidatures of the appellants due to non-production of the original certificate at the time of interview by the Bihar Public Service Commission (BPSC) is justified and what relief can be granted to the appellants. Bihar Civil Service (Judicial Branch) (Recruitment), Rules, 1955 – rr.7(b), 9 – Non-production of original certificate at the time of interview – Rejection of candidatures – Impermissible:

[2023] 12 S.C.R. 556 : 2023 INSC 853

SWEETY KUMARI

v.

THE STATE OF BIHAR AND OTHERS

(Civil Appeal No. 6072 of 2023)

SEPTEMBER 22, 2023

[J.K. MAHESHWARI* AND K.V. VISWANATHAN, JJ.]

Issue for consideration: Whether the rejection of the candidatures

of the appellants due to non-production of the original certificate

at the time of interview by the Bihar Public Service Commission

(BPSC) is justified and what relief can be granted to the appellants.

Bihar Civil Service (Judicial Branch) (Recruitment), Rules,

1955 – rr.7(b), 9 – Non-production of original certificate at the

time of interview – Rejection of candidatures – Impermissible:

Held: The language of the rules makes it clear that the production

of the original certificates at the time of interview was not

mandatory but directory – This is apparent from the language

of second note to r.9 which uses the word “may be required to

produce the originals before commission at the time of viva-voce

test” – Further, even going by the advertisement, the certificates

of educational qualification and other required documents on the

date of the submission of the online application form were to be

necessarily possessed but their production was not mandatory –

The factum of eligibility is different from factum of proof thereof – If

a person possesses eligibility before the date of actual selection,

he cannot be denied benefit because its proof is produced later –

In the present case, the proof was available and true photocopies

were on record – Appellants’ candidature could not have been

rejected merely because the original was not produced before

the Commission at the time of interview in particular when such

requirement was not mandatory – Further, the case of appellants is

at par with the case of Aarav Jain and other seven candidates who

were appointed in furtherance of the judgment of this Court dated

23.05.2022 in Aarav Jain v. The Bihar Public Service Commission

and Ors. Civil Appeal No. 4242 of 2022 wherein this Court had

not accepted the plea taken by BPSC that production of original

certificate was mandatory because the candidates possessed

such certificates on the date of submission of the application

* Author

[2023] 12 S.C.R. 557

SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS

form – No reason to deny similar benefits to the two appellants

at par with Aarav Jain and seven other candidates – Thus, they

cannot be discriminated by not granting relief merely because of

non-availability of vacancies in the 30th Bihar Judicial Service

Competitive Examination – Further, in SLP (Civil) No. 16749/2023,

the appellant appeared in 31st Bihar Judicial Service Competitive

Examination, and secured 501 marks, whereas cut off was 499 in

EWS category therefore, the respondents to adjust one vacancy

of EWS for the same examination or from the next examination

and extend similar benefits to the said appellant, in view of the

ratio of Aarav Jain – Impugned judgments set aside – Present

judgment passed in the peculiar facts of the case. [Paras 14, 16-

19, 22, 24, 27-29]

Aarav Jain v. The Bihar Public Service Commission

and Ors. Civil Appeal No. 4242 of 2022; Charles K.

Skaria and Others vs. Dr. C. Mathew and Others (1980)

2 SCC 752:[1980] 3 SCR 71 – relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.6072 of 2023.

From the Judgment and Order dated 03.11.2021 of the High Court of

Judicature at Patna in CWJC No.18038 of 2021.

With

Civil Appeal Nos.6073 and 6074 of 2023.

Radheshyam Sharma, Dibyanshu Pandey, Harish Pandey, Mukesh

Kumar, Madhup Kumar Tiwari, Rajesh Kumar, Brijesh Kumar,

Ms. Neha Rai, Krishna Kumar Singh, Mridul Chakraborty, Tushar

Srivastava, Abhijeet Kumar Pandey, Aditya Singh-1, Raman Kr.

Singh, Advs. for the Appellant.

Azmat Hayat Amanullah, T. G. Shahi, Navin Prakash, Gaurav Agrawal,

Advs. for the Respondents.

The Judgment of the Court was delivered by

J. K. MAHESHWARI, J.

1. Leave granted.

2. In the instant three appeals, the judgments passed by the High Court

of Judicature at Patna (hereinafter referred to as “High Court”) in

Sweety Kumari v. State of Bihar and Others (CWJC No. 18038/2021) 

558 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

dated 03.11.2021; Vikramaditya Mishra v. State of Bihar and Others

(CWJC No. 3707/2020) dated 04.09.2021; and Aditi v. Bihar Public

Service Commission Patna and Others. (CWJC No. 15325/2022)

dated 19.04.2023 are under challenge. By the said judgments, the

High Court upheld the decision of the official Respondents. The

candidature of appellants was rejected by the official respondents

on account of non-furnishing of original character certificates (in

case of Sweety Kumari and Vikramaditya Mishra) and law degree

(in case of Aditi) respectively.

3. The High Court in the first two cases dismissed the writ petitions

relying upon the order passed in the case of a similarly situated

candidate titled as Aarav Jain v. The Bihar Public Service Commission

and Ors. (CWJC No. 24282/2019) decided on 04.05.2021. Whereas

in the third case, the High Court while dealing with the case of the

appellant Aditi and one similarly placed candidate named Ankita,

through a common order found that though the appellant Aditi has

her case on merits at par with Ankita, but due to non-availability of

the vacancy in EWS category the relief as granted to Ankita cannot

be extended to appellant Aditi.

4. The appellants Sweety Kumari, a candidate of Scheduled Caste (SC)

category and Vikramaditya Mishra, unreserved category candidate,

appeared in 30th Bihar Judicial Service Competitive Examination

(hereinafter referred to as “30th Examination”) conducted for selection

of Civil Judge (Junior Division) pursuant to an Advertisement No. 6 of

2018 dated 21.08.2018/23.08.2018. Both the candidates have been

declared successful in the preliminary examination vide the results

declared on 07.01.2019 and main examination vide result declared

on 05.10.2019 after obtaining more marks than the cut-off for their

respective category. Pursuant to this, they were called for interview

vide letter dated 15.12.2019.

5. The candidature of the appellants Sweety Kumari and Vikramaditya

Mishra was rejected on account of not producing the original character

certificates at the time of interview. True photocopies were produced.

However, while declaring the result on 27.11.2019/29.11.2019, the

candidature of the present two appellants as well as of one, Aarav

Jain were rejected by a common communication. 

[2023] 12 S.C.R. 559

SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS

6. On other hand, appellant Aditi applied in the Economically Weaker

Section (EWS) category in furtherance to the 31st Bihar Judicial

Service Competitive Examination (hereinafter referred to as “31st

Examination”). She secured 501 marks, whereas cut-off was 499.

Her candidature was rejected on the ground of not having the law

degree certificate on the date of interview. The candidature of the

similarly situated candidate Ankita was also cancelled on the same

ground. However, on the filing of separate writ petitions which was

disposed of by a common order, Ankita was granted relief by the

High Court due to availability of vacancy in SC category, but Aditi

was denied relief due to non-availability of the vacancy in the EWS

category.

7. In view of the foregoing factual scenario, the questions that fall for

consideration before us are as under:

i) Whether the rejection of the candidatures of the appellants

due to non-production of the original certificate at the time of

interview by the Bihar Public Service Commission (hereinafter

referred to as “BPSC”) is justified?

ii) In the facts and circumstances of the case, what relief can be

granted to the appellants?

8. Undisputed facts of the case succinctly put are that the appellants

Sweety Kumari and Vikramaditya Mishra appeared in 30th Examination

in furtherance to the advertisement No. 6 of 2018 published on

21.08.2018/23.08.2018 by the BPSC to fill up the 349 vacancies.

The said advertisement was issued in furtherance of the Bihar Civil

Service (Judicial Branch) Recruitment Rules, 1955 (hereinafter

referred to as “the Rules”). Appellant Sweety Kumari applied in

SC category while appellant Vikramaditya Mishra applied in the unreserved category. Aarav Jain along with seven other candidates also

applied in the unreserved, SC, EBC and BC categories respectively.

Their candidature had also been rejected on similar grounds. On

challenging the said rejection, the High Court passed a detailed order

in CWJC No. 24282 of 2019 titled as ‘Aarav Jain v. The Bihar Public

Service Commission and others’ and dismissed the said petition by

upholding the rejection by the BPSC. 

560 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

9. By the impugned orders dated 03.11.2021 and 04.09.2021, the writ

petitions filed by Sweety Kumari and Vikramaditya Mishra respectively,

have been rejected relying upon judgment dated 04.05.2021 passed

in the case of Aarav Jain.

10. Aarav Jain and seven others similarly placed candidates filed their

respective petitions before this Court in Civil Appeal No. 4242 of

2022 titled Aarav Jain v. The Bihar Public Service Commission

and Ors. as the leading matter which were decided by a common

judgment dated 23.05.2022. By the said judgment this Court repelled

the contention of BPSC regarding cancellation of the candidature

due to non-submission of the originals at the time of the interview

as their true photocopies were on record and subsequently, the

originals were also submitted before BPSC. This Court was of the

opinion that the plea of non-submission of the originals at the time

of interview is neither related to the qualification nor eligibility and

a verification and vigilance report is anyway obtained by the State

during probation. Therefore, the production of the original was not a

mandatory condition. The stand of the BPSC had materially resulted

in the dis-qualification of candidates who were otherwise in the merit

list. Therefore, in the facts and circumstances of the case, this Court

directed that the rejection of candidature was improper, unjustified

and not warranted.

11. This Court granted relief to the eight candidates in the civil appeal of

Aarav Jain (supra) by adjusting the available five vacancies in the

unreserved category and for the other three candidates belonging to

EBC, SC and BC category, it was directed to the State to either adjust

them against future vacancies which were stated to be available at

that time or the State was permitted to borrow three posts from future

vacancies, one each in respective categories. It was also held that the

power to vary the vacancies of the said advertisement always vests

in the employer under the wisdom and discretion of the State. This

Court gave weight to the fact that all the candidates secured marks

more than the cut-off and, therefore, such meritorious candidates

would only be an asset for the institution helping in disposal of cases.

This Court further directed to allow to all these eight candidates the

benefits of increment and other notional benefits at par to other

selected candidates as per their merits without arrears of salary. 

[2023] 12 S.C.R. 561

SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS

12. In the said appeal, one Jyoti Joshi filed an application for intervention

seeking directions for her appointment in implementation of judgment

dated 09.02.2022 passed in CWJC No. 7751 of 2020 by the High

Court and also sought clarification to the effect that the interim order

dated 23.07.2021 passed in Aarav Jain (supra) has not interfered

with her appointment. This Court dismissed the said intervention

application vide the judgment passed in Aarav Jain (supra) and

denied her the benefit because she was in the waiting list and

not in the merit list. More so, the interim orders dated 23.02.2021,

08.10.2021 and 07.02.2022 passed in Aarav Jain (supra), keeping

the posts vacant, being prior in time, have also not been brought to

the notice of the High Court, before passing of the final order dated

09.02.2022. It is apparent that the civil appeals filed in the case of

Aarav Jain (supra) have been decided in favour of the candidates

and against the employer and the said order was already implemented.

13. We have heard learned counsel for the parties and have perused

the Bihar Civil Service (Judicial Branch) (Recruitment), Rules, 1955

(hereinafter referred to as the ‘Rules’) and the Advertisement No.

6 of 2018. Rule 7(b) of the Rules contemplates that a candidate

must satisfy BPSC that his character is such as to qualify him for

appointment to the service. Rule 9 prescribes that the candidate

should submit evidence as to educational qualifications; certificate

of character from the Heads of the Colleges, where he/she has

studied; the reference of two known persons; certificate of medical

practitioner in prescribed form; and the certificate of the duration of

practice from the respective authorities. The second note to Rule 9

indicates that the certificates and other documents required should

be true copies of the originals and each of them should be certified

by a gazetted officer, specifying that after seeing the original, he

certified the true copy of the same. The candidate may be required

to produce the original before BPSC at the time of viva voce test.

14. In view of this position in the rules it can safely be perceived that

the candidate must be of good character so as to satisfy BPSC in

this regard by submitting true photocopies and upon requirement by

BPSC, the original may be produced at the time of viva voce test.

Therefore, it is clear that the candidate should possess the character 

562 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

certificate and if required, it may be made available at the time of

interview. The said language makes it clear that the production of

the original certificates at the time of interview is not mandatory but

directory. This is apparent from the language of second note to Rule

9 which uses the word “may be required to produce the originals

before commission at the time of viva-voce test”.

15. In furtherance to the Rules, the advertisement No. 6 of 2018 was

issued. Clause 7(ii) of the said advertisement is regarding online

applications which prescribes that for any defects in entry made by

candidate in the course of filling the online application, the commission

shall not be responsible, and correction and change in this regard

shall not be permissible. As per Clause 8(1) of the advertisement, the

documents attached to the online application form may be produced

when the commission demands at the time of the interview or at any

point of time. As per Clause 9, the certificates regarding qualification

is required to be possessed prior to the last date. As per Clause

10, all the certificates and marksheets are required to be submitted

at the time of interview and the commission shall have discretion

to take a decision regarding eligibility of candidates not complying

with the said directions. Clause 11 of the advertisement relates to

the fact that the candidate shall ensure that he has all the required

certificate in original at the time of filling of application form.

16. In view of the various clauses, as referred to hereinabove, even going

by the advertisement, the certificates of educational qualification

and other required documents on the date of the submission of

the online application form must be necessarily possessed but its

production is not mandatory. In clause 3 of the interview letter sent

to the candidates, indeed it was mentioned that they shall be present

with the certificates, mark-sheet and other documents including

character certificate, in original form and its self-attested photocopies

in two numbers. Appellant Sweety Kumari has averred in the writ

petition and the Special Leave Petition that her original character

certificate was submitted in the State Bar Council and the same was

not made available to her within the stipulated deadline despite her

best attempts. On the other hand, appellant Vikramaditya Mishra

has averred that the department of his Law College has sent the 

[2023] 12 S.C.R. 563

SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS

original character certificate to the Controller of Examination, BPSC

by post which was dispatched on 25.11.2019 and delivered to BPSC

on 27.11.2019. Despite, the same, their candidature was rejected

for want of original copies of the character certificate.

17. In the case of Aarav Jain (supra), this Court has not accepted

the plea taken by BPSC that production of original certificate was

mandatory because the candidates possessed such certificates on

the date of submission of the application form. This Court was of

the opinion that once such a condition is not mandatory, then nonproduction of original copies at the time of interview would not be

sufficient to reject the candidature of a candidate who was placed

in the merit.

18. The view taken by this Court is fortified by the analogy drawn in

the case of Charles K. Skaria and Others vs. Dr. C. Mathew and

Others (1980) 2 SCC 752 whereby Justice Krishna Iyer speaking for

the Court held that the factum of eligibility is different from factum of

proof thereof. This Court held that if a person possesses eligibility

before the date of actual selection, he cannot be denied benefit

because its proof is produced later.

19. In the present case, the proof is available and true photocopies were

on record. The appellants’ candidature could not have been rejected

merely because the original was not produced before the Commission

at the time of interview in particular when such requirement was not

mandatory, in view of the manner in which the Rules are couched.

20. Now, coming to the case of appellant Aditi in SLP (Civil) No.

16749/2023, she has passed the final examination but the certificate

of law degree was not issued to her. The High Court in the impugned

order dated 19.04.2023 has relied upon the judgment of Charles K.

Skaria (supra) to support her contention and observed that when the

candidate possesses the required essential qualification on the date

on which it was required, then there cannot be any justification in not

accepting the late arrival of the certificate because of the pandemic.

However, the High Court has declined to grant the relief on the pretext

that she had applied under EWS category for which 23 posts were

earmarked and those posts have already been filled up. The High 

564 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

Court also observed that though she has secured 501 marks which

was 2 marks more than the cut off for the EWS category, but it was

not known as to who may be the last successful candidate in the

EWS category. Also at the time of passing of impugned order those

posts had already been filled. Thus due to non-availability of posts,

the relief was denied.

21. As per the directions issued by this Court vide order dated 14.8.2023,

the Registrar General of the High Court of Judicature at Patna filed

an affidavit after perusing the documents produced before him by the

State of Bihar and the BPSC. In the said affidavit, it is admitted that

the case of the appellants Sweety Kumari and Vikramaditya Mishra

is similar to the case of Aarav Jain (supra). As per the information

furnished by the High Court, appellant Sweety Kumari in SC category

secured 414 marks when the cut-off was 405 marks and the appellant

Vikramaditya who applied under unreserved category secured 543

marks whereas the cut off under the unreserved category was 517.

It is also fairly stated that in the 30th Examination, the total vacancies

were 349 but after issuing of the directions by this Court, the State

appointed 351 candidates deducting one post each of EWS and

SC category from the future vacancies which were to be advertised

under the 32nd Examination.

22. Learned counsel for the appellant Sweety Kumari has fairly stated

before this Court that she got selected in the 31st Examination under

the SC category and joined the service. In view of the discussion

made hereinabove and the affidavit filed by the Registrar General,

it is clear that the case of appellant Sweety Kumari and appellant

Vikramaditya Mishra are at par with the case of Aarav Jain and other

seven candidates who were appointed in furtherance of the judgment

of this Court dated 23.05.2022 in Aarav Jain (supra).

23. Appellants in Aarav Jain (supra) have been appointed by the State

Government extending the number of vacancies advertised in the

30th Examination by borrowing those extra vacancies from the 32nd

Examination. The vacancies notified for the 32nd Examination are

in process of being filled. The case of appellants Sweety Kumari

and Vikramaditya Mishra were dismissed by the High Court relying

upon its earlier judgment dated 04.05.2021 in Aarav Jain v. The 

[2023] 12 S.C.R. 565

SWEETY KUMARI v. THE STATE OF BIHAR AND OTHERS

Bihar Public Service Commission (CWJC No. 24282/2019). The

said judgment dated 04.05.2021 was challenged by Aarav Jain and

seven other candidates by filing special leave petitions. The said

special leave petitions were converted into civil appeals and this

Court vide judgment dated 23.05.2022 set-aside the judgment dated

04.05.2021 of the High Court.

24. Therefore, there cannot be any reason to deny similar benefits to

the present two appellants at par with Aarav Jain and seven other

candidates as ordered by this Court in Aarav Jain (supra). We

are of the considered view that present aforesaid two appellants

(Sweety Kumari, Vikramaditya Mishra) cannot be discriminated by

not granting relief merely because of non-availability of vacancies

in the 30th Examination.

25. Reverting to the case of appellant Aditi, which is related to the

31st Examination, as per the affidavit submitted by the Registrar

General, it is apparent that out of 221 vacancies advertised, only 214

candidates were recommended for appointment and seven vacancies

have been carried forward to the 32nd Examination. Thus, there are

vacancies, which are yet to be filled up for the 32nd Examination.

The process of selection is not yet complete. Learned counsel

appearing on behalf of the State of Bihar and BPSC, in the peculiar

facts of the case, have fairly stated that because of the directions

issued by this Court in the case of Aarav Jain (supra), the other

candidates who secured more marks than the cut-off in the merit of

the respective categories, can be accommodated. However, upon

issuance of directions by this Court, the State Government is ready

to accommodate all the three candidates (namely Sweety Kumari,

Vikramaditya Mishra and Aditi) who have also secured more marks

than cut-off for their respective categories.

26. In view of the discussion made hereinabove, because Sweety

Kumari secured 414 marks though cut off in SC category was 405

and Vikramaditya Mishra secured 543 marks, though cut off was

517 in the unreserved category in the 30th examination and they

were candidates of merit, they be extended the benefit at par with

the Aarav Jain (supra) and others.

566 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

27. The appellant Aditi appeared in 31st Examination, and secured 501

marks, whereas cut off was 499 in EWS category. Therefore, the

respondents are directed to adjust one vacancy of EWS for the same

examination or from the next examination and extend similar benefits

to Aditi, in view of the ratio of Aarav Jain (supra).

28. Accordingly, we set-aside the impugned judgments dated 03.11.2021,

04.09.2021 and 19.04.2023 passed by the High Court. The appellants

Sweety Kumari and Vikramaditya Mishra be accommodated being

successful candidate in the 30th Examination and appellant Aditi be

accommodated being a successful candidate in the 31st Examination.

29. We clarify that this judgment is passed in the peculiar facts of the

case to mitigate the plea of discrimination to candidates who are

before us and who knocked the door of the court well within time. It

is made clear here that similarly situated candidates would not be

entitled to claim the same benefit further, because they have not

come before this Court within a reasonable time.

30. In view of above, the appeals are allowed. Pending application, if

any, stands disposed of. No order as to costs.

Headnotes prepared by: Divya Pandey Result of the case : Appeals allowed.

Land Use Conversion – Land owners and plot holders contended that the ownership of the ‘open space’ and the ‘amenity space’ vest in the landowners/plot holders and as such, order of the High Court needs no interference:

[2023] 12 S.C.R. 545 : 2023 INSC 851

SHIRDI NAGAR PANCHAYAT

v.

KISHOR SHARAD BORAWAKE AND OTHERS

(Civil Appeal No. 6087 of 2023)

SEPTEMBER 22, 2023

[B. R. GAVAI* AND S. V. N. BHATTI, JJ.]

Issue for consideration: The High Court by order dated

04.07.2019 partly allowed the petition filed by the respondents/

landowners challenging the notification dated 18.08.2004, whereby

respondents’/landowners’ land was converted to ‘residential/

commercial zone’ from ‘no development/green zone’, subject to

appellant’s receiving 10% as ‘amenity space’ and 10% as ‘open

space’ of the total land area.

Land Use Conversion – Land owners and plot holders

contended that the ownership of the ‘open space’ and the

‘amenity space’ vest in the landowners/plot holders and as

such, order of the High Court needs no interference:

Held: The High Court was right in holding that insofar as ‘open

space’ is concerned, it was required to be kept as ‘open space’ for

use by the plot holders – However, insofar as the ‘amenity space’

is concerned, the High Court mixed it with the ‘open space’– It

was to be handed over to the Municipal Council as one of the preconditions for converting the land from a ‘No Development Zone’ to a

‘Residential Zone’ – Not only that, but acting on the said Notification,

the landowners entered into more than one agreement with the

Municipal Council, thereby agreeing to hand over the ‘open space’

as well as the ‘amenity space’ to the Municipal Council – In the

instant case, insofar as the compulsory reserved land is concerned,

it pertains to ‘open space’ and there is no need to interfere with the

finding of the High Court in that regard – However, as far as the

‘amenity space’ is concerned, it was on the basis of the conditions

imposed by the State of Maharashtra while converting the land,

which was reserved for a ‘non-residential’ purpose, to a ‘residential’

purpose – The landowners not only accepted the said condition

* Author

546 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

but also acting on the basis of the same entered into more than

one agreement with the Municipal Council transferring the ‘amenity

space’ in favour of the Municipal Council – If a Government gives

the benefit of development of land concerned with permission to

sub-divide the same and uses it for commercial purpose and it,

in turn, requires the landowner to handover part of land free of

cost for public utility purpose, such a clause cannot be held to be

illegal – As such, the High Court has grossly erred in allowing the

writ petitions – Judgment and order dated 04.07.2019 passed by

the High Court set aside. [Paras 20, 21, 22 and 23]

Pt. Chet Ram Vashist (Dead) by LRs. V. Municipal

Corporation of Delhi (1995) 1 SCC 47: [1994] 5 Suppl.

SCR 180; A.P. State Financial Corporation v. GAR Rerolling Mills and another (1994) 2 SCC 647: [1994] 1

SCR 857; R.N. Gosain v. Yashpal Dhir (1992) 4 SCC

683: [1992] 2 Suppl. SCR 257; National Insurance Co.

Ltd. v. Mastan and another (2006) 2 SCC 641: [2005] 5

Suppl. SCR 704; State of Punjab and others v. Dhanjit

Singh Sandhu (2014) 15 SCC 144: [2014] 3 SCR 1121;

Union of India and others v. N. Murugesan and others

(2022) 2 SCC 25; Narayanrao Jagobaji Gowande Public

Trust v. State of Maharashtra and others (2016) 4 SCC

443 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.6087 of 2023.

From the Judgment and Order dated 04.07.2019 of the High Court of

Judicature at Bombay at Aurangabad in WP No.2486 of 2018.

With

Civil Appeal No.6088 of 2023.

Sanjay Kharde, Satyajeet Kharde, Sunil Kumar Verma, Advs. for

the Appellant.

Amol Gavali for M/s S-legal Associates, Hitendra Nath Rath, Ms.

Pradnya Talekar, Shashibhushan P. Adgaonkar, Omkar Jayant

Deshpande, Mrs. Pradnya S Adgaonkar, Rana Sandeep Bussa,

Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Bharat Bagla,

Sourav Singh, Aditya Krishna, Advs. for the Respondents.

[2023] 12 S.C.R. 547

SHIRDI NAGAR PANCHAYAT v.

KISHOR SHARAD BORAWAKE AND OTHERS

The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. Leave granted.

2. The present set of appeals challenge the common judgment and

order passed by the Division Bench of the High Court of Bombay at

Aurangabad, dated 4th July 2019, thereby partly allowing the petition

filed by the respondents/landowners challenging the notification

dated 18th August 2004, whereby respondents’/landowners’ land was

converted to ‘residential/commercial zone’ from ‘no development/

green zone’, subject to appellant’s receiving 10% as ‘amenity space’

and 10% as ‘open space’ of the total land area.

3. The appellant in both appeals is Shirdi Nagar Panchayat (hereinafter

referred to as “the Municipal Council”). Respondent Nos. 1 and 2

in the appeal arising out of SLP (C) No. 19401 of 2019 are the

original landowners (hereinafter referred to as “the landowners”) and

respondents in the appeal arising out of SLP(C) No. 19730 of 2019

are the plot holders/subsequent purchasers (hereinafter referred to

as “the plot holders”).

4. The facts, shorn of unnecessary details, giving rise to the present

appeals are as under:

4.1 On 15th December 1992, a Development Plan for the Municipal

Council was approved. Therein the disputed property

admeasuring 4 Hectares and 12 R (Survey No.-103) was shown

as a “Green Zone”/ “No Development Zone”. On 30th September

2000, a proposal regarding the conversion of land from a ‘No

Development Zone’ to a ‘Residential Zone’ including the disputed

property was published and objections were invited.

4.2 On 18th August 2004, the Government issued a notification

converting some land from ‘No Development Zone’ to

‘Residential Zone’, subject to the Municipal Council receiving

10% compulsory ‘open space’ and 10% as ‘amenity space’

free of charge. Apart from this, the area for the road was also

to be transferred.

4.3 Thereafter, the landowners sought permission from the Town

Planning Authority for the development of the plot, and the same 

548 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

was granted. On 27th March 2006, the landowners executed

an agreement with the Municipal Council, thereby assigning

and giving possession of 4133.25 sq. mtrs. as ‘open space’,

4126.50 sq. mtrs. as ‘amenity space’, and 7560.09 sq. mtrs.

as ‘internal road’ area to the Municipal Council out of the total

land. Further, the landowners gave ‘No Objection’ if the same

was recorded with the revenue department.

4.4 On 12th January 2007, final sanction was granted to the layout

by the Municipal Council. After the final sanction was granted,

another agreement was entered into between the parties dated

18th September 2007. On the same day, the Municipal Council

sanctioned the layout submitted by the landowners subject to

the terms and conditions mentioned therein.

4.5 After execution of the said agreement, the name of the

Municipal Council was entered in the revenue records insofar

as amenity space is concerned. Thereafter, the landowners

divided/converted the sanctioned layout into 65 plots and sold

the same to various plot holders.

4.6 In 2012, when the Municipal Council sought possession of the

property, the landowners filed a civil suit seeking perpetual

injunction along with an application seeking a temporary

injunction against the Municipal Council. The application

seeking temporary injunction was rejected by the trial court.

The same was appealed before the District Court which was

also dismissed vide order dated 14th January 2015. Aggrieved

thereby, the landowners approached the High Court by filing

a writ petition. Vide order dated 17th January 2018, the High

Court granted permission to withdraw the writ petition.

4.7 During the pendency of the said civil suit, the landowners

approached the Sub-Divisional Officer (for short, ‘SDO’)

challenging the mutation entry whereby the Municipal Council

was inducted as owner of the ‘open space’ and ‘amenity space’

in the revenue record. Vide order dated 12th August 2015, the

SDO rejected the appeal filed by the landowners. The said order

was challenged before the Additional Collector, Ahmednagar,

and thereafter before the Divisional Commissioner, Nashik.

Both the authorities rejected the challenge.

[2023] 12 S.C.R. 549

SHIRDI NAGAR PANCHAYAT v.

KISHOR SHARAD BORAWAKE AND OTHERS

4.8 After withdrawal of the writ petition before the High Court, the

landowners amended the suit before the Trial Court thereby

challenging the Government Notification dated 18th August 2004.

4.9 On 23rd January 2018, the Municipal Council passed a resolution

to develop the plot surrendered by the landowners for the

purpose of a swimming pool and indoor game hall.

4.10 The landowners filed a petition being Writ Petition No. 2486 of

2018 challenging the Government Notification dated 18th August

2004. The plot holders also filed a petition being Writ Petition

No. 3805 of 2018 before the High Court after the passing of

the resolution by the Municipal Council.

4.11 Vide the impugned common judgment and order dated 4th July 2019,

the High Court held that the writ petition filed by the landowners,

i.e., Writ Petition No. 2486 of 2018 was not maintainable. However,

it partly allowed the writ petition filed by the plot holders. It quashed

and set aside condition No.2 in the Government Notification dated

18th August 2004 and condition No.14 in the sanctioned order of

layout with respect to ‘open space’ and ‘amenity space’. It further

restricted the Municipal Council from changing the user of the

land of ‘open space’ and ‘amenity space’ except for the beneficial

enjoyment of residential plot holders. It further quashed and set

aside the resolution dated 23rd January 2018 of the Municipal

Council to the extent it resolved to construct an indoor game hall,

multi-purpose meeting hall, and swimming pool on open space/

amenity space.

4.12 Being aggrieved thereby, the present appeals are filed.

5. We have heard Shri Sanjay Kharde, learned counsel for the Municipal

Council, Shri Amol Gavali, learned counsel for the landowners, Ms.

Pradnya Talekar, learned counsel for the plot holders, and Shri

Aaditya Aniruddha Pande, learned counsel for the State.

6. Shri Sanjay Kharde, learned counsel submitted that the Division

Bench of the High Court had grossly erred in allowing the writ petition

filed by the plot holders. He submitted that the plot holders had also

belatedly challenged the Government Notification dated 18th August

2004 by filing a writ petition in the year 2018. It is, therefore, submitted

that the petition of the plot holders was also liable to be dismissed. 

550 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

7. Shri Kharde further submitted that the landowners having taken the

advantage of the Government Notification dated 18th August 2004,

vide which their land was converted from ‘No Development Zone

(Green Zone)’ to ‘Residential Zone (Yellow Zone)’ could not have

made a volte-face and challenged the very same notification. He

further submitted that even the claim of the plot holders was liable

to be rejected. The plot holders purchased the plots on the basis of

the sanctioned layout, which clearly showed that 10% of the land was

reserved for ‘amenity space’, which was to belong to the Municipal

Council. He, therefore, submitted that the High Court had grossly

erred in allowing the writ petition filed by the plot holders.

8. Shri Amol Gavali and Ms. Pradnya Talekar, learned counsel

appearing on behalf of the landowners and plot holders

respectively, on the contrary, submitted that the High Court after

considering the provisions of Sections 22, 33, and 37 of the

Maharashtra Regional and Town Planning Act, 1966 and the

Development Control Regulations (for short “the DCR”) has come

to a considered finding that the ownership of the ‘open space’

and the ‘amenity space’ vest in the landowners/plot holders and

as such, needs no interference. They further submitted that the

High Court has rightly relied on the judgment of this Court in the

case of Pt. Chet Ram Vashist (Dead) by LRs. V. Municipal

Corporation of Delhi1 wherein this Court, while considering the

pari materia provisions, has held that the Municipal Council cannot

impose the condition to surrender a part of the land and transfer it

in its favour free of cost as a condition precedent for sanctioning

layout. They, therefore, submit that the present appeals are liable

to be dismissed.

9. We find that the present appeals deserve to be allowed on more

than one grounds. Insofar as the writ petition filed by the landowners

is concerned, apart from there being a delay of about 14 years in

approaching the High Court, the said writ petition was also liable to

be dismissed in view of the doctrine of election.

1 (1995) 1 SCC 47

[2023] 12 S.C.R. 551

SHIRDI NAGAR PANCHAYAT v.

KISHOR SHARAD BORAWAKE AND OTHERS

10. It has been consistently held by this court in a catena of judgments

that if a party has more than one remedy and if he chooses one

of them, he is estopped from taking recourse to the other remedy.

Reference in this respect could be made to the judgments of this

Court in the cases of A.P. State Financial Corporation v. GAR Rerolling Mills and another2

, R.N. Gosain v. Yashpal Dhir3

, National

Insurance Co. Ltd. v. Mastan and another4

, State of Punjab and

others v. Dhanjit Singh Sandhu5 and recently in the case of Union

of India and others v. N. Murugesan and others6

.

11. The writ petition filed by the landowners was also liable to be dismissed

invoking the principle of approbate and reprobate, which has been

succinctly considered by this Court in the case of N. Murugesan

(supra) after considering the earlier case laws.

12. In the present case, in the Development Plan published on 15th

December 1992, the properties of the landowners were reserved

as “Green Zone”/ “No Development Zone”. Vide Notification dated

18th August 2004, the same was converted from “No Development

Zone” to “Residential Zone”. The said Notification specifically provided

that in addition to reserving 10% space as “open space”, which was

required to be compulsorily reserved in accordance with the DCR,

additional space of 10% was to be reserved for amenities to be

transferred to the Municipal Council free of cost.

13. On the basis of the same, the landowners sought permission from

the Town Planning Authority for the development of the land, and

the same was granted.

14. On the basis of these orders, the landowners executed an agreement

on 27th March 2006, thereby assigning to the Municipal Council an

area of 4133.25 sq. mtrs. as ‘open space’, whereas an area of 4126.50

sq. mtrs. was assigned as an ‘amenity space’. The said agreement

2 (1994) 2 SCC 647

3 (1992) 4 SCC 683

4 (2006) 2 SCC 641

5 (2014) 15 SCC 144

6 (2022) 2 SCC 25

552 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

also provided for an area of 7560.09 sq. mtrs. as an ‘internal road’

area to the Municipal Council out of the total land.

15. On 12th January 2007, a final sanction was granted to the layout by

the Municipal Council. On 18th September 2007, another agreement

was entered into between the parties. On the same date, the Municipal

Council also sanctioned a layout showing the lands reserved for

‘internal road’, ‘open space’, and ‘amenity space’. The landowners

acting on the basis of the said sanction plan converted the layout

into 65 plots and sold the same to various plot holders.

16. It is to be noted that though the landowners had executed documents

giving possession to the Municipal Council, when the Municipal

Council sought physical possession in 2012, the landowners filed

Civil Suit seeking perpetual injunction along with an application

seeking a temporary injunction against the Municipal Council. The

said application for temporary injunction was rejected by the Trial

Court. The appeal thereagainst was rejected vide order dated 14th

January 2015. The same was challenged before the High Court by

filing the writ petition. The writ petition was withdrawn vide order

dated 17th January 2018.

17. Parallelly, the proceedings with regard to the mutation of the Municipal

Council in the revenue records were also in progress. In the said

proceedings, the landowners lost up to the Divisional Commissioner.

In the meantime, the Municipal Council vide order dated 23rd January

2018, passed a resolution to develop the plot, reserved for ‘amenity

space’, for the purpose of a swimming pool and indoor game hall.

18. Only thereafter, the landowners and the plot holders filed writ petitions

before the High Court.

19. It could thus be seen that the landowners had taken advantage of

the Government Notification dated 18th August 2004, vide which

the land, which was reserved for ‘Green Zone (No Development

Zone)’, was converted into ‘Yellow Zone (Development Zone)’/

‘Residential Zone’. It is thus clear that having taken advantage

of the sanctioned plan and on the basis of the same laying down

the layout and only after failing to get the relief in the Civil Suit

and the Revenue proceedings, the landowners approached the 

[2023] 12 S.C.R. 553

SHIRDI NAGAR PANCHAYAT v.

KISHOR SHARAD BORAWAKE AND OTHERS

High Court. The High Court, therefore, rightly found no merit in

the petition of the landowners.

20. Insofar as the plot holders are concerned, they also did not

stand on a better footing. They had purchased the plot knowing

very well that in the sanctioned layout, 10% of space was to be

reserved as ‘open space’ and 10% of the land was to be handed

over to the Municipal Council as ‘amenity space’. They were

very well aware that 10% of the land would be transferred to the

Municipal Council by the landowners free of cost and that the

land would vest in the Municipal Council. Knowing this fully well,

they entered into transactions with the landowners. As such, the

writ petition at their behest also challenging the Notification after

a period of almost 14 years ought to have been dismissed on the

grounds of delay and laches. No doubt that the High Court was

justified in holding that the ownership of the ‘open space’ would

vest in the owners of the plot in view of the relevant DCR. The

High Court was also right in holding that insofar as ‘open space’

is concerned, it was required to be kept as ‘open space’ for use

by the plot holders.

21. However, insofar as the ‘amenity space’ is concerned, the High

Court mixed it with the ‘open space’. It was to be handed over to

the Municipal Council as one of the pre-conditions for converting

the land from a ‘No Development Zone’ to a ‘Residential Zone’.

Not only that, but acting on the said Notification, the landowners

entered into more than one agreement with the Municipal Council,

thereby agreeing to hand over the ‘open space’ as well as the

‘amenity space’ to the Municipal Council. The sanctioned layout

also earmarked the area admeasuring 4143.24 sq. mtrs. as

‘amenity space’.

22. Insofar the reliance by the High Court on the judgment of this

Court in the case of Pt. Chet Ram Vashist (Dead) By LRs

(supra) is concerned, in the said case, this Court was dealing

with the issue of compulsorily reserved land and held that while

sanctioning a plan, a Corporation cannot insist on a condition

that the same should be transferred to it. However, in the present 

554 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

case, insofar as the compulsory reserved land is concerned, it

pertains to ‘open space’ and we do not propose to interfere with

the finding of the High Court in that regard. However, insofar

as the ‘amenity space’ is concerned, it was on the basis of the

conditions imposed by the State of Maharashtra while converting

the land, which was reserved for a ‘non-residential’ purpose, to a

‘residential’ purpose. The landowners not only accepted the said

condition but also acting on the basis of the same entered into

more than one agreement with the Municipal Council transferring

the ‘amenity space’ in favour of the Municipal Council.

23. It can be noticed that this Court in the case of Narayanrao Jagobaji

Gowande Public Trust v. State of Maharashtra and others7

has held that if a Government gives the benefit of development of

land concerned with permission to sub-divide the same and uses

it for commercial purpose and it, in turn, requires the landowner

to handover part of land free of cost for public utility purpose,

such a clause cannot be held to be illegal. As such, we find that

the High Court has grossly erred in allowing the writ petitions.

24. We, therefore, allow the appeals and quash and set aside the

impugned common judgment and order dated 4th July 2019 passed

by the High Court. The writ petition filed by the plot holders also

shall stand dismissed.

25. Learned counsel for the landowners/plot holders had submitted

that in the event this Court was inclined to allow the present

appeals, which we hereby do, they had an alternate prayer. It

was submitted that the land which is reserved for ‘amenity space’

consists of trees which are aged about 100 years or more. They,

therefore, made an offer that if the landowners are permitted to

retain the said land, they are willing to transfer another piece of

land of the same or near about the same area. We find the said

request to be reasonable. We, therefore, permit the landowners/

plot holders to make a representation to the Municipal Council

for providing/transferring another piece of land on the same

7 (2016) 4 SCC 443

[2023] 12 S.C.R. 555

SHIRDI NAGAR PANCHAYAT v.

KISHOR SHARAD BORAWAKE AND OTHERS

road having the same or near about the same area. On such an

application being made, the Municipal Council would consider

the same in accordance with law.

26. We pass the above directions under Article 142 of the Constitution

of India in order to protect the trees that are aged 100 years or

older.

Headnotes prepared by: Ankit Gyan Result of the case : Appeals allowed.

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:

[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

526 [2023] 12 S.C.R.

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 

[2023] 12 S.C.R. 527

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 

528 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

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?”

[2023] 12 S.C.R. 529

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.

SUPREME COURT REPORT: DIGITAL

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 

[2023] 12 S.C.R. 533

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.

SUPREME COURT REPORT: DIGITAL

(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

[2023] 12 S.C.R. 535

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:-

536 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

“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 

[2023] 12 S.C.R. 537

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)

538 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

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 

542 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

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 

544 [2023] 12 S.C.R.

SUPREME COURT REPORT: DIGITAL

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.