*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + S.A.NO.326 OF 2006 % 26.03.2010 # Sri Chalasani Satyanarayana Murty …..Appellant And: $Sri Chalasani Rama Koteswararao and 6 others ……Respondents. !Counsel for the Petitioner : Sri Y.V. Ravi Prasad Counsel for the respondents: -- <Gist : >Head Note: ? Cases referred: nil HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU S.A.NO.326 OF 2006 Date:26.03.2010. Between: Sri Chalasani Satyanarayana Murty …..Appellant And: Sri Chalasani Rama Koteswararao and 6 others …..Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU S.A.NO.326 OF 2006 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 i s 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, Gorakhpur[1] 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. ____________________________________ SAMUDRALA GOVINDARAJULU,J. Date:26.03.2010. Note: L.R. copy to be marked. //B.O// Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.RC. NO.326 OF 2006 Date:26.03.2010. Gk. [1] AIR 1986 Allahabad 149