Appeal No 323 of 1965
Appeal by special leave from the judgment and decree dated February 16 1961 of the Patna High Court in Appeal from Original Decree No 500 of 1955
SC Agarwal KNK Nair Anil Kumar Gupta and SP Singh for the appellants
418 Sarjoo Prasad and UP Singh for respondent No 1
The Judgment of the Court was delivered by Bachawat J
The Bihar Subai Sunni Majlis e Awaqaf a body corporate established under the Bihar Wakfs Act 1947 instituted a suit or setting aside a registered mokarrari lease deed dated November 18 1949 executed by defendant No 4 Sheikh Gholam Bari in favour of defendants 1 to 3 and for restoration of possession of the properties covered by the document viz the houses and shops being holdings Nos 27 and 28 formerly known as holdings Nos 22 and 23 in Ward No 8 at Mohalla Muradpore PS Pirbahore in the city of Patna Baakipur
The plaintiff s case is that the properties were dedicated by way of waqf by a waqfnama dated August 20 1827 executed by Mst
Bibi Mannu Khanam Jan The successive Mutawallis under this deed were Sheikh Azmatullah Sheikh Ataullah Sheikh Habibur Rahman Bibi Zaibunnissa and Sheikh Gholam Bari
The Trial Court decreed the suit and this decree was confirmed by the High Court
Both the courts concurrently found that Mst
Bibi Mannu Khanam Jan dedicated the properties by way of waqf by a deed dated August 20 1827
The correctness of this finding is challenged in this appeal
In Mohalla Muradpore in the city of Patna Baakipur there is an ancient mosque known as the mosque of Mst
Bibi Mannu Khanam Jan It is not disputed now that Mst
Bibi Mannu Khanam Jan established this mosque
There are shops rooms katra and other structures to the east west and the south of the mosque
To the east of the mosque are the disputed holdings Nos 27 and 28
On September 25 1948 Gholam Bari filed before the Waqf Board a return in Form No 1 under Rules 6 and 11 of the Bihar Waqfs Act 1948
In this return he stated that the properties were given in waqf to the mosque by Mst
Bibi Mannu Khanaman under the deed of waqf dated August 20 1827
With this return he filed an English translation of the wakf deed
The translation was attested by him
PW 5 Mehdi Hasan the Nazir of the Waqf Board proved that Gholam Bari also filed the original waqf nama together with its copy in Persian
The copy bore the following endorsement signed by Gholam Bari The copy corresponds to the original  The original waqfnama was returned to Gholam Bari and the copy was retained in the office of the Waqf Board
At the trial Gholam Bari did not produce the original deed
Accordingly the copy of the deed and its translation were exhibited
The Trial Court and in the High Court Misra J accepted the testimony of Mehdi Hasan and held that the copy of the original waqfnama was admissible in evidence
We agree with this finding
Tarkeshwarnath J ruled that the copy was not admissible mainly on the ground that paragraph 7 of the plaint stated that the deed of waqf was in the plaintiff s custody
We agree with Misra J that the averment in the plaint should be regarded as a general statement referring to the true copy which was left in the plaintiff s office
Under sec
65a of the Evidence Act secondary evidence may be given of the existence or contents of a document 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 and when after the notice mentioned in sec
66 such person does not produce it
Where the case falls under section 65a any secondary evidence of the contents of the document is admissible
In the present case the conditions of section 65a were satisfied
The plain copy of the waqf was therefore admissible
On behalf of the appellant it was argued that el
f of section 65 was applicable and that as the certified copy of the deed dated August 20 1827 was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence
There is no substance in this contention
If the case falls under clause a any secondary evidence of the document is admissible though the case may also fall under clause f
Clause a is not controlled by clause f
In the case of A Collision Between The Ava1 a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade
The loss of the document attracted cl
c of sec
65 and the failure to produce it after notice attracted cl
a Cl
f of sec
65 was also applicable
Wilson J ruled that a certified copy need not be produced and any secondary evidence was admissible
We agree with this decision
Wilson J said By section 65 in cases under cls
a and c any secondary evidence is admissible in cases under cls
e and f only a certified copy
The present case falls under cl
a or c and also under f
In such a case which rule applies  I think the words In cases a c and d any secondary evidence is admissible  are too clear and too strong to be controlled by anything that follows and that therefore in this case any secondary evidence might be received
 The existence of the deed of waqf dated August 20 1827 is proved by numerous admissions made by Gholam Bari and his predecessors in title
The existence of the deed was admitted in a petition filed by Bibi Zaibunnisa before the District Judge Patna on January 13 1928 in the return filed before the plaintiff by Gholam Bari on September 25 1948 in the petition dated February 15 1949 and a statement dated March 21 1949 filed by him before the President of the Bihar Subai Sunni Majlis e Awaqaf
1 ILR 420 Other documents and admissions also clearly show that the disputed holdings are waqf properties
The copy of the waqf deed shows that Bibi Mannu Khanam Jan appeared before the Darulquazaya Azimabad for admitting the execution and making a declaration and the Quazi signed the deed and put the seal of the Registry office on 21st Rabiul Awal
1233 AH
The year 1233 is evidently a mistake for 1243
The deed was executed on 19th Muharram 1243 AH corresponding to 20th August 1827
No copy of this deed is now found in the records of the registration office
It appears that the document was presented for registration under Regulation XXXIX of 1793
Under that Regulation the Quaz is were required to keep copies of all deeds and other papers which they might draw up or attest to keep a list of such papers and to deliver the list and papers to their successors
The Regulation made no provision for the maintenance of a proper register book
The disputed waqf deed was registered in 1827
At this distance of time no copy of the deed is traceable in the registration office
But from other unimpeachable evidence it is satisfactorily established that Mst
Bibi Mannu Khanam Jan executed the waqf deed dated August 20 1827 and that the disputed holdings are waqf properties
In this view of the matter it is not disputed that the courts below rightly decreed the suit
VPS Appeal dismissed


Summary:
The 1st respondent waqf filed a suit against the appellants and the 3rd respondent for setting aside a lease deed executed by the 3rd respondent in favour of the appellants on the ground that the properties covered by the lease deed were waqf properties dedicated by a deed of waqf of the year 1827
The existence of the deed of waqf was proved by numerous admissions by the 3rd respondent and others who were its mutawallis
The 3rd respondent had produced the original deed along with the return filed by him before the Waqf Board under rr 6 and 11 made under the Bihar Waqfs Act 1948 and stated that the properties in dispute were waqf properties
He also produced a plain copy in Persian and an English translation of the original deed of waqf
He attested the English translation and made an endorsement on the Persian copy that it corresponded to the original
The original after comparison
was returned to him and the copy and translation were retained in the office of Waqf Board
At the triaL the 3rd respondent did not produce the original even though a notice was issued to him for its production
No copy of the deed was traceable in the registration office
The first respondent therefore relied upon the copy and the translation in the office of the Waqf Board
The high Court decreed the suit and the High Court confirmed the decree
In the appeal to this Court on the question whether the copy was admissible in evidence to show that the disputed properties were waqf properties HELD The case fell under section 65a of the Evidence Act and so the copy was admissible since any secondary evidence of the existence and contents of the original document was admissible
Though the case may also fall under section 65f it is not necessary to produce a certified copy of the deed as el
a is not controlled by cl
The copy as well as other unimpeachable evidence established that the disputed properties were waqf properties
419 D E 420 D In the matter of a collision between the Ava  and the Brenhilda Cal
568 approved