SEC.65 and sec. 74 OF EVIDENCE ACT- secondary evidence, unless a party proves existence of conditions set out in clauses of [a] to [g] pf sec.65 , secondary evidence of a particular document cannot be allowed to be admitted.- true copies of no.3 adangal and 10[1] account and field measurement book issued by village administrative officer produce by plaintiff in support the case , held private copies and true copies issued by V.R.O. cannot be taken even though not opposed by other side. unless certified copies issued by competent authority .SEC.65 - cases in which secondary evidence relating to documents may be given -regarding the existence, condition, or contents of a document in the following cases;- [a] . when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, not subject to, the process of the court, or of any person legally bound to produced it, and when after the notice mentioned in sec.66 , such person does not produce it ;[b] when the existence , condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; [c] when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; [d] when the original is of such a nature as not to be easily movable; [e] when the original is a public document within the meaning of sec.74 ; [f] when the original is a document of a which a certified copy is permitted by this act, or by any other law in force in India to be given in evidence; [g] when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved is the general result of the whole collections; in cases [a],[c],[d] any secondary evidence of the contents of the document is admissible.; in case of [b], the written admission is admissible; in case [e] or [f] a certified copy of the document but no other kind of secondary evidence is admissible.; in case [g] evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.- 2010 [5] ALT 512.
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
Second Appeal No.326 of 2006
26-03-2010
Sri Chalasani Satyanarayana Murty
Sri Chalasani Rama Koteswararao and 6 others
Counsel for the Petitioner : Sri Y.V. Ravi Prasad
Counsel for the respondents: --
:ORDER:
1. The plaintiff is the appellant. He was successful in the trial court in
O.S.No.450 of 1996 of the Principal Junior Civil Judge, Eluru. He was
unsuccessful in the lower appellate court in Appeal Suit No.153 of 2001 of the
II Additional District Judge, West Godavari, Eluru. He filed the suit for
rectification of boundaries mentioned in the sale deed dated 20.05.1977 executed
by him in favour of the 1st defendant (registration extract of which is marked
as Ex.A-1) and for permanent injunction restraining the defendants from
interfering with his right of passage in ABCDEF of the plaint plan.
2. Subject matter of dispute in the suit is Ac.0.13 cents of land in
R.S.No.272/8 of Pinakadimi village. According to the plaintiff, the said land
was demarcated as passage for men, cattle and carts intended for benefit of
owners of entire land in R.S.No.272/3 to 7 and it has been in existence from
times immemorial. It is shown as ABCDEF in the plaint plan. It is alleged by
the plaintiff that while executing registered sale deed dated 20.05.1977 (Ex.A-
1) in respect of Ac.0.45 cents in R.S.No.272/4 in favour of the 1st defendant by
the plaintiff, mutual mistake crept in by not mentioning the said passage on
Eastern side of the land sold there under. It is stated that in February, 1995,
the defendants caused obstruction for using the passage of the plaintiff
illegally.
3. After death of the 1st defendant during pendency of the suit, the
defendants 3 to 7 were impleaded as his legal representatives. They remained
exparte in the trial court. The 2nd defendant was the only contestant. The 2nd
defendant and his brother purchased 1350 sq. yards out of Ac.0.45 cents in
R.S.No.272/4 from the 1st defendant under Ex.B-4 registered sale deed dated
12.02.1996 which was preceded by an agreement for sale. While, denying claim of
the plaintiff in ABCDEF and mistake in mentioning Eastern boundary in Ex.A-1
sale deed, the 2nd defendant contends that the suit for rectification is barred
by limitation. According to the 2nd defendant, the passage never extended
beyond his site and the plaintiff has been exercising his right of passage over
panchayat road lying towards East of the defendants' site.
4. The only point of law raised by the appellant's counsel before this Court
during the course of arguments is whether true copies of revenue records
issued by Village Administrative Officer (VAO) can be relied upon as evidence
under the Indian Evidence Act. In this case, the trial court relied upon Exs.A-
2, A-3 and A-5 true copies of No.3 Adangal, No.10(1) Account and Field
Measurement Book Plan issued by V.A.O., of Pinakadimi village. The lower
appellate court took the view that no reliance can be placed on such true copies
issued by V.A.O., in the absence of summoning of original documents.
5. As per Section 61 of the Evidence Act, (in short, the Act) contents of the
documents may be proved either by primary or by secondary evidence. As per
Section 62 of the Act, primary evidence means the document itself produced for
inspection of the court. Section 63 of the Act gives list of secondary
evidence. As per Section 63(1) of the Act, certified copies given under the
provisions contained in the Act, are secondary evidence. Further, Section 63(3)
of the Act says that copies made from or compared with the original, are also
pieces of secondary evidence. Section 64 of the Act prescribes that documents
must be proved by primary evidence except in accordance with other provisions of
the Act. Section 65 of the Act gives list of contingencies in which secondary
evidence relating to documents challenged. Unless a party proves existence of
conditions set out in Clauses (a) to (g) of Section 65 of the Act, secondary
evidence cannot be allowed. It is only in case of existence of conditions
mentioned in Clause (e) and (f) of Section 65 of the Act, certified copy of a
document is admissible. Clauses (e) and (f) of Section 65 of the Act read as
follows:
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by
this Act, or by any other law in force in India, to be given in evidence;
Since originals of Exs.A-2, A-3 and A-5 are public documents within the meaning
of Section 74 of the Act, certified copies thereof are admissible as secondary
evidence under Section 65 of the Act. A Village Officer like V.A.O., is neither
custodian of those original documents nor is a person who is authorised by law
to give copies thereof. The question of admitting true copies or private copies
of public documents in evidence during trial is not provided by the Evidence
Act. In the case on hand, the plaintiff did not examine V.A.O., who has issued
the said private copies or true copies. It is not as if those private copies or
true copies were made from or compared with the original. In case, they were
made copies from or compared with the originals, then the party who produces the
same in court has to make out existence of any of the conditions prescribed
under Section 65 of the Act for receipt of such secondary evidence. When the
original documents are available for coping the same or for comparing the same
with true copies or private copies, the question of receiving those private
copies or true copies of revenue records as secondary evidence will never arise.
It follows that in case any party wishes to rely upon any revenue records or
village records, then such party has to produce certified copies of those
documents issued by the competent authority whose office is in possession of
original records thereof. No true copy or private copy of any public document
is admissible as secondary evidence. Thus, the lower appellate court rightly
did not place any reliance on Exs.A-2, A-3 and A-5 which are private copies or
true copies of revenue records issued by V.A.O., because they are inadmissible
in law.
6. It is contended by the appellant's counsel that the respondents/defendants
did not object for marking of those documents. When the documents are legally
inadmissible under the provisions of the Evidence Act, the question of waiver or
estoppel or acquiescence against law will not arise and will not cure the defect
regarding inadmissibility. This is not a case of taking objection regarding
admission of a document under Section 35 of the Indian Stamp Act. This is also
not a case where a document is defective for want of compulsory registration
under the Indian Registration Act, in which case such document can be looked
into for collateral purposes. When a document is per se inadmissible in
evidence under the provisions of the Indian Evidence Act, it is inadmissible for
all purposes and the defect cannot be get over on the ground of the adversary
not raising any objection for marking the same at the earliest point of time
during trial.
7. Irrespective of admissibility or otherwise of Exs.A-2, A-3 and A-5,
the lower appellate court negatived claim of the plaintiff on several other
factual aspects. According to the plaintiff, ABCDEF passage is intended to
serve as such for owners of entire land in R.S.No.272/3 to 7 and not exclusively
to the plaintiff who is owner of R.S.No.272/4. The suit was not filed by the
plaintiff claiming passage in a representative capacity representing owners of
lands in R.S.No.272/3 to 7. The plaintiff also did not examine any of other
owners of lands in R.S.No.272/3 to 7 in support of his contention and existence
of the disputed passage. Further, from the Commissioner's report, the lower
appellate court noticed that there is an alternative passage through Tank Bund
Road to reach his land. The plaintiff placed reliance on Ex.A-6 registration
extract of partition deed dated 21.04.1932 entered into by the plaintiff's
ancestors. On the other hand, the 2nd defendant filed registration extract of
partition deed as Ex.B-3 dated 02.02.1952 between the plaintiff and his brother.
The latter partition deed Ex.B-3 does not show existence of passage as Eastern
boundary for the land in R.S.No.272/4. Therefore, the lower appellate court
did not attach any importance to earlier partition deed covered by Ex.A-6.
8. Further, the plaintiff as P.W.1 categorically admitted in his cross-
examination that he himself gave instructions to the Document Writer for
drafting the sale deed covered by Ex.A-1 and that after drafting the same, the
sale deed was read over to them and then only they signed and registered the
sale deed. Thus, the plaintiff has executed original of Ex.A-1 sale deed with
his eyes wide open and with knowledge of contents of the sale deed particularly
the Eastern boundary, and therefore, it does not lie in the plaintiff's mouth to
contend that there was mutual mistake in mentioning Eastern boundary for the
property sold under that sale deed.
9. The suit was filed in the original court on 17.09.1996 for rectification
of registered sale deed dated 20.05.1977 in so far as Eastern boundary of
R.S.No.272/4 is concerned. The suit was filed more than 22 years of execution
of Ex.A-1 sale deed. The 2nd defendant took objection for that relief on the
ground that it is barred by limitation. As per Article 113 of the Schedule to
the Limitation Act, 1963, for a suit for which no period of limitation is
prescribed in the schedule, period of limitation is three years and time begins
to run when the right to sue accrued. In this case, right to sue accrued to the
plaintiff on the date of execution of Ex.A-1 sale deed i.e., on 20.05.1977. As
pointed out earlier, the plaintiff executed the sale deed with knowledge of
contents thereof. Further, as per evidence of the plaintiff as P.W.1, the land
was measured while delivering possession of the same after execution of the sale
deed. Inspite of it, the plaintiff kept quiet for all these twenty two years.
Hence, I find that the prayer for rectification of Eastern boundary in Ex.A-1
sale deed is barred by limitation.
10. Further, the lower appellate court placing reliance on Ramsuchit v. I
Additional District Judge, Gorakhpur1 wherein it was held that where rights have
accrued in favour of a third person who has acted in good faith and has paid
valuable consideration, rectification may be refused. Thus, viewed from any
angle, the plaintiff is not entitled for any relief claimed in the suit. Having
regard to the above circumstances, this Court finds that the lower appellate
court rightly negatived claim of the plaintiff/appellant herein and there are no
merits in this appeal either on facts or in law.
11. In the result, the Second Appeal is dismissed. No costs.
?1 AIR 1986 Allahabad 149
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
Second Appeal No.326 of 2006
26-03-2010
Sri Chalasani Satyanarayana Murty
Sri Chalasani Rama Koteswararao and 6 others
Counsel for the Petitioner : Sri Y.V. Ravi Prasad
Counsel for the respondents: --
:ORDER:
1. The plaintiff is the appellant. He was successful in the trial court in
O.S.No.450 of 1996 of the Principal Junior Civil Judge, Eluru. He was
unsuccessful in the lower appellate court in Appeal Suit No.153 of 2001 of the
II Additional District Judge, West Godavari, Eluru. He filed the suit for
rectification of boundaries mentioned in the sale deed dated 20.05.1977 executed
by him in favour of the 1st defendant (registration extract of which is marked
as Ex.A-1) and for permanent injunction restraining the defendants from
interfering with his right of passage in ABCDEF of the plaint plan.
2. Subject matter of dispute in the suit is Ac.0.13 cents of land in
R.S.No.272/8 of Pinakadimi village. According to the plaintiff, the said land
was demarcated as passage for men, cattle and carts intended for benefit of
owners of entire land in R.S.No.272/3 to 7 and it has been in existence from
times immemorial. It is shown as ABCDEF in the plaint plan. It is alleged by
the plaintiff that while executing registered sale deed dated 20.05.1977 (Ex.A-
1) in respect of Ac.0.45 cents in R.S.No.272/4 in favour of the 1st defendant by
the plaintiff, mutual mistake crept in by not mentioning the said passage on
Eastern side of the land sold there under. It is stated that in February, 1995,
the defendants caused obstruction for using the passage of the plaintiff
illegally.
3. After death of the 1st defendant during pendency of the suit, the
defendants 3 to 7 were impleaded as his legal representatives. They remained
exparte in the trial court. The 2nd defendant was the only contestant. The 2nd
defendant and his brother purchased 1350 sq. yards out of Ac.0.45 cents in
R.S.No.272/4 from the 1st defendant under Ex.B-4 registered sale deed dated
12.02.1996 which was preceded by an agreement for sale. While, denying claim of
the plaintiff in ABCDEF and mistake in mentioning Eastern boundary in Ex.A-1
sale deed, the 2nd defendant contends that the suit for rectification is barred
by limitation. According to the 2nd defendant, the passage never extended
beyond his site and the plaintiff has been exercising his right of passage over
panchayat road lying towards East of the defendants' site.
4. The only point of law raised by the appellant's counsel before this Court
during the course of arguments is whether true copies of revenue records
issued by Village Administrative Officer (VAO) can be relied upon as evidence
under the Indian Evidence Act. In this case, the trial court relied upon Exs.A-
2, A-3 and A-5 true copies of No.3 Adangal, No.10(1) Account and Field
Measurement Book Plan issued by V.A.O., of Pinakadimi village. The lower
appellate court took the view that no reliance can be placed on such true copies
issued by V.A.O., in the absence of summoning of original documents.
5. As per Section 61 of the Evidence Act, (in short, the Act) contents of the
documents may be proved either by primary or by secondary evidence. As per
Section 62 of the Act, primary evidence means the document itself produced for
inspection of the court. Section 63 of the Act gives list of secondary
evidence. As per Section 63(1) of the Act, certified copies given under the
provisions contained in the Act, are secondary evidence. Further, Section 63(3)
of the Act says that copies made from or compared with the original, are also
pieces of secondary evidence. Section 64 of the Act prescribes that documents
must be proved by primary evidence except in accordance with other provisions of
the Act. Section 65 of the Act gives list of contingencies in which secondary
evidence relating to documents challenged. Unless a party proves existence of
conditions set out in Clauses (a) to (g) of Section 65 of the Act, secondary
evidence cannot be allowed. It is only in case of existence of conditions
mentioned in Clause (e) and (f) of Section 65 of the Act, certified copy of a
document is admissible. Clauses (e) and (f) of Section 65 of the Act read as
follows:
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by
this Act, or by any other law in force in India, to be given in evidence;
Since originals of Exs.A-2, A-3 and A-5 are public documents within the meaning
of Section 74 of the Act, certified copies thereof are admissible as secondary
evidence under Section 65 of the Act. A Village Officer like V.A.O., is neither
custodian of those original documents nor is a person who is authorised by law
to give copies thereof. The question of admitting true copies or private copies
of public documents in evidence during trial is not provided by the Evidence
Act. In the case on hand, the plaintiff did not examine V.A.O., who has issued
the said private copies or true copies. It is not as if those private copies or
true copies were made from or compared with the original. In case, they were
made copies from or compared with the originals, then the party who produces the
same in court has to make out existence of any of the conditions prescribed
under Section 65 of the Act for receipt of such secondary evidence. When the
original documents are available for coping the same or for comparing the same
with true copies or private copies, the question of receiving those private
copies or true copies of revenue records as secondary evidence will never arise.
It follows that in case any party wishes to rely upon any revenue records or
village records, then such party has to produce certified copies of those
documents issued by the competent authority whose office is in possession of
original records thereof. No true copy or private copy of any public document
is admissible as secondary evidence. Thus, the lower appellate court rightly
did not place any reliance on Exs.A-2, A-3 and A-5 which are private copies or
true copies of revenue records issued by V.A.O., because they are inadmissible
in law.
6. It is contended by the appellant's counsel that the respondents/defendants
did not object for marking of those documents. When the documents are legally
inadmissible under the provisions of the Evidence Act, the question of waiver or
estoppel or acquiescence against law will not arise and will not cure the defect
regarding inadmissibility. This is not a case of taking objection regarding
admission of a document under Section 35 of the Indian Stamp Act. This is also
not a case where a document is defective for want of compulsory registration
under the Indian Registration Act, in which case such document can be looked
into for collateral purposes. When a document is per se inadmissible in
evidence under the provisions of the Indian Evidence Act, it is inadmissible for
all purposes and the defect cannot be get over on the ground of the adversary
not raising any objection for marking the same at the earliest point of time
during trial.
7. Irrespective of admissibility or otherwise of Exs.A-2, A-3 and A-5,
the lower appellate court negatived claim of the plaintiff on several other
factual aspects. According to the plaintiff, ABCDEF passage is intended to
serve as such for owners of entire land in R.S.No.272/3 to 7 and not exclusively
to the plaintiff who is owner of R.S.No.272/4. The suit was not filed by the
plaintiff claiming passage in a representative capacity representing owners of
lands in R.S.No.272/3 to 7. The plaintiff also did not examine any of other
owners of lands in R.S.No.272/3 to 7 in support of his contention and existence
of the disputed passage. Further, from the Commissioner's report, the lower
appellate court noticed that there is an alternative passage through Tank Bund
Road to reach his land. The plaintiff placed reliance on Ex.A-6 registration
extract of partition deed dated 21.04.1932 entered into by the plaintiff's
ancestors. On the other hand, the 2nd defendant filed registration extract of
partition deed as Ex.B-3 dated 02.02.1952 between the plaintiff and his brother.
The latter partition deed Ex.B-3 does not show existence of passage as Eastern
boundary for the land in R.S.No.272/4. Therefore, the lower appellate court
did not attach any importance to earlier partition deed covered by Ex.A-6.
8. Further, the plaintiff as P.W.1 categorically admitted in his cross-
examination that he himself gave instructions to the Document Writer for
drafting the sale deed covered by Ex.A-1 and that after drafting the same, the
sale deed was read over to them and then only they signed and registered the
sale deed. Thus, the plaintiff has executed original of Ex.A-1 sale deed with
his eyes wide open and with knowledge of contents of the sale deed particularly
the Eastern boundary, and therefore, it does not lie in the plaintiff's mouth to
contend that there was mutual mistake in mentioning Eastern boundary for the
property sold under that sale deed.
9. The suit was filed in the original court on 17.09.1996 for rectification
of registered sale deed dated 20.05.1977 in so far as Eastern boundary of
R.S.No.272/4 is concerned. The suit was filed more than 22 years of execution
of Ex.A-1 sale deed. The 2nd defendant took objection for that relief on the
ground that it is barred by limitation. As per Article 113 of the Schedule to
the Limitation Act, 1963, for a suit for which no period of limitation is
prescribed in the schedule, period of limitation is three years and time begins
to run when the right to sue accrued. In this case, right to sue accrued to the
plaintiff on the date of execution of Ex.A-1 sale deed i.e., on 20.05.1977. As
pointed out earlier, the plaintiff executed the sale deed with knowledge of
contents thereof. Further, as per evidence of the plaintiff as P.W.1, the land
was measured while delivering possession of the same after execution of the sale
deed. Inspite of it, the plaintiff kept quiet for all these twenty two years.
Hence, I find that the prayer for rectification of Eastern boundary in Ex.A-1
sale deed is barred by limitation.
10. Further, the lower appellate court placing reliance on Ramsuchit v. I
Additional District Judge, Gorakhpur1 wherein it was held that where rights have
accrued in favour of a third person who has acted in good faith and has paid
valuable consideration, rectification may be refused. Thus, viewed from any
angle, the plaintiff is not entitled for any relief claimed in the suit. Having
regard to the above circumstances, this Court finds that the lower appellate
court rightly negatived claim of the plaintiff/appellant herein and there are no
merits in this appeal either on facts or in law.
11. In the result, the Second Appeal is dismissed. No costs.
?1 AIR 1986 Allahabad 149
