THE HON'BLE MR JUSTICE L.NARASIMHA REDDY
Civil Revision Petition No.122 of 2012
13.09.2012
Dangu @ Kadamenda Yellaiah and others
Ch.Sridhar Reddy and another.
Counsel for petitioners : Sri V.Hari Haran
Counsel for Respondents :
<GIST:
>HEAD NOTE:
?Cases referred
ORDER:
The petitioners filed O.S.No.152 of 2004 in the Court of Senior Civil
Judge, Karimnagar, against the respondents, for the relief of declaration of
title and perpetual injunction, in respect of the suit schedule property. They
placed reliance upon an unregistered sale deed, dated 08.06.1959, said to have
been executed by one Mr.Gulam Rasool. The trial of the suit commenced. The
petitioners intended to file a Photostat copy of the unregistered deed, dated
08.06.1959. According to them, the original of that document was presented for
impounding before the Revenue Divisional Officer, Kadapa, (RDO), and after the
document was impounded, it was lost in the year 2000. It was pleaded that the
Office of the RDO, kept a Photostat copy of the original and on an application
filed by them, he issued a certified copy of the document available with him.
The same was sought to be filed as secondary evidence by filing I.A.No.255 of
2009, under Section 63 of the Indian Evidence Act, 1872 (for short 'the Act').
The application was opposed by the respondents. They have pleaded that there
is nothing on record to disclose that the RDO impounded the original document,
and at any rate, even the original cannot be received in evidence, since it was
not registered. The trial Court dismissed the I.A., through order, dated
18.07.2011. Hence, this revision petition.
Sri V. Hari Haran, learned counsel for the petitioners, submits that the
certified copy of the unregistered document, dated 08.06.1959, fits into the
definition 'secondary evidence', under sub-section (2) of Section 63 of the Act.
He contends that when the original document was presented before the RDO for
impounding, he kept a Xerox copy thereof, for the purpose of record and since
the original was lost by the petitioners, a certified copy of the copy,
available with the RDO was furnished. He further submits that the view taken by
the trial Court that even the original of the unregistered document cannot be
received, cannot be countenanced, since even the unregistered document can be
taken on record for collateral purposes.
The petitioners intended to adduce secondary evidence, of an unregistered
sale deed, dated 08.06.1959. It is a certified copy of a copy of an
unregistered sale deed. Two aspects assume significance, in this regard. The
first is whether the said document, even if filed in original would have been
admissible in evidence? (had it been available). The second is whether the
document presented by the petitioners can be treated as secondary evidence?
The suit is filed for the relief of declaration of title and perpetual
injunction. The document sought to be filed is an unregistered sale deed. It
is not in dispute that a sale deed in respect of immovable property is required
to be registered, under the Transfer of Property Act, 1882. Section 49 of the
Registration Act deals with the effect of non-registration of documents, which
are required to be registered. It mandates that such unregistered document
cannot be received in evidence. Its proviso carved out an exception to the
effect that such documents can be received in evidence, for collateral purposes.
The purpose can be said to be collateral, when it is other than the one,
which the document purports to deal with. If the document is an unregistered
sale deed, any purpose other than the one which relates to establishment of
title to the property can be treated as collateral. In a suit for declaration
of title, to an item of immovable property, an unregistered sale deed, in
relation thereto, cannot be received in evidence, even for collateral purposes.
The party, who intends to rely upon it, cannot plead that he would use it only
for other purposes.
The second aspect is as to whether the document sought to be relied upon
by the petitioners would fit into sub-section (2) of Section 63 of the Act. The
provision reads:
"Secondary evidence - Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves
ensure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has
himself seen it."
From a perusal of this, it is evident that a copy of a copy, which is
mechanically reproduced from the original, can also be received as secondary
evidence. However, there must be an authenticity or certification of the first
copy from the original. It is only when there is no dispute about the copy
generated from the original document, that a further copy generated from such
undisputed copy, can be treated as secondary evidence. In the instant case, the
petitioners state that the original of the document was presented before the RDO
for impounding, and that the same was returned to them. There was no occasion
much less necessity for the RDO to certify any copy on comparison with the
original. If the copy said to have been retained by him, does not fit into the
secondary evidence, another copy generated from it cannot be treated as
secondary evidence. The trial Court has taken the correct view.
Hence, the C.R.P. is dismissed.
The miscellaneous petition filed in this writ petition shall also stand
disposed of.
There shall be no order as to costs.
____________________
L.NARASIMHA REDDY, J.
Dated:13.09.2012
