R.S.A.No. 2942 of 1985 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2942 of 1985 Date of decision: 2.12.2011 Mohan Singh through LRs. ......Appellants Versus Malkiat Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.M.L.Sarin, Sr. Advocate with Mr.Kabir Sarin, Advocate, for the appellants. Mr. Malkiat Singh, Advocate for respondent. **** SABINA, J. Plaintiff had filed a suit for possession of plot No.15 situated in residential area of Nurmahal, Mohalla Sohlan, bounded as under:- “North :- Plot No.14 at present in possession of Bhola Ram, South:-Hindu property at present in possession of Muni Lal, East:- Rasta (street) R.S.A.No. 2942 of 1985 2 West:- Plot No.6 at present in the possession of Bakshi Tailor Master.” The case of the plaintiff, in brief, was that he was owner of the house in dispute which had been purchased by him on 20.12.1963. The plaintiff was in possession of the said property from the date of its purchase. However, the defendant had taken forcible possession of the suit land. In the year 1981, the defendant had filed a suit for permanent injunction against the plaintiff qua the suit property. The said suit was decreed by the Court vide judgment/ decree dated 27.3.1982 and the present plaintiff was restrained from dispossessing the present defendant from the suit property except in due course of law. Hence, the suit was filed by the plaintiff. The defendant, in his written statement, took up preliminary objection No. 'B' as under:- “That the site plan attached with the plaint is incorrect and also as mentioned in the head note of the plaint showing the description particularly when the plots number etc. is incorrect and the correct site plan shall be produced. It is submitted in this context that the alleged sale certificate does not confirm any title as alleged dated 20.12.1963 and is a false, fictitious documents as the said property was not put to any compensation or was not the evacuee property. Even if it is established that some sale certificate was issued on 20.7.1963, it is submitted in this context that the plaintiff has not taken the possession within 12 years prior to the institution of the suit, R.S.A.No. 2942 of 1985 3 therefore, he has lost the right to take possession within the prescribed period of limitation as provided under Section 27 of the Limitation Act. Moreover, the defendant has become owner by adverse possession as the possession of the defendant was open, hostile and adverse to the title to that of the plaintiff.” On merits, the contentions in the plaint were denied. It was averred that the defendant was in possession of the suit property for the last 30 years and had become owner by way of adverse possession. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is the owner of the house in dispute by way of purchase as alleged in para No.1 of the plaintiff, if so, its effect? OPP. 2. Whether the plaintiff has got no locus standi to file the present suit ? OPD 3. Whether the defendant has become owner of the house in dispute by way of adverse possession? OPD 4.Whether the suit has not been properly valued for the purposes of court fee and jurisdiction ? OPD 5. Relief.” The parties led their evidence in support of their case. The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 17.12.1983. In appeal the learned Appellate Court decreed the suit of the plaintiff vide judgment and decree dated R.S.A.No. 2942 of 1985 4 3.10.1985. Hence, the present appeal by the defendant. Learned senior counsel for the appellant has submitted that the plaintiff had failed to prove his case. Ex.P-1, the alleged sale certificate, could not be read in evidence as the original sale certificate had not been produced on record nor there was any explanation for not producing the original on record. The first appellate Court without reversing the findings of the trial Court had erred in allowing the appeal. As per PW-3, the alleged auction, in which the plaintiff had been sold the suit property, had been set aside. As per Rule 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, the allotment could be cancelled by the managing officer or managing corporation. In support of his arguments, learned senior counsel has placed reliance on Dr.Gurmukh Ram Madan vs. Bhagwan Das Madan JT 1998 (6) SC 169, wherein, in para Nos. 4 and 5, it was held as under:- “4. Strong reliance had been placed in the trial court as well as in the High Court on Section 65(f) of the Evidence Act. Section 65(f) states that secondary evidence is permissible when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India, to be given in evidence. All that it means is that secondary evidence is admissible notwithstanding the existence of the original when it is a document of which a certified copy is permitted to be produced by the Act or any other law. The document in question is not a public document and the document R.S.A.No. 2942 of 1985 5 could not have been let in evidence except after explanation as to the non-availability of the original in an appropriate manner. Therefore, the view taken by the High Court in this regard that section 65(f) was not attracted to the case is justified. The High Court found on an analysis of the material on record that the greater probability is that the said document was taken away from the office of the sub- Registrar by the appellant himself inasmuch as the respondent was not a willing party to it. The respondent had not admitted either in the pleadings or course of evidence of having executed the document dated November 3, 1962. The appellant himself had let in similar evidence in the shape of a letter which he admittedly wrote to Sadanand who was examined as a witness by the respondent mentioning about the transaction in question and that document was produced in original by D.W. Sadanand. When it was confronted to the appellant he admitted that he had written the said letter and that letter was marked as Ex. A. 28. The contents of the letter may be adverted to:- " I am to inform that in spite of your advice to dear Bhagwan half of the ownership of Bardwar house has been transferred to me. But I have to advice to you that for God sake do not say any thing to dear Bhagwan because he has not done this of his own accord, but under unknown R.S.A.No. 2942 of 1985 6 mysterious circumstances which I shall explain you personally when I meet." 5. Commenting on this letter, the Court observed that it disclosed that the transaction under Ex. A. 6. had not proceeded from the respondent of his own accord and there were instead certain mysterious circumstances which brought about the same. However, what those mysterious circumstances are has not been explained by the appellant. The matter is thus left in vagueness. The evidence of D.W. Sadanand was critically examined by the High Court. It was noticed that the appellant had admitted to him "abhi Jhagara nahin hai. Unhoney us asal dastawas ko far diya the". D. W. Sadanand does not claim to have seen the document personally or being torn out, but this was the representation made to him by the appellant himself. Sadanand in fact stated that he saw the original in the appellant's custody which was held to be corroborative of what had been pleaded by the respondent in the course of written statement and evidence. The High Court, though the document had not been admitted. Examined the same and found that it had recited that the plot of land had been purchased by him along with his brother and the house was raised by them together and at the relevant time he did not execute any deed, but he was doing the same now and acknowledged payment of ` 2,500/- having been received R.S.A.No. 2942 of 1985 7 earlier. when the evidence on record is overwhelming and ultimately indicated that there was no occasion for the respondent to have stated on 3rd November, 1962 that the appellant had from the inception been co- owner of the property. The recitals therein as to having been paid a sum of ` 2,500/-could not be true as the case put forth by the appellant is that he had contributed ` 8,200/- earlier and hewould not have paid a further sum of ` 8,200/- at the time of the execution of the document. Thus, there was intrinsic material to demonstrate that the recitals in the document could not have been true. On that basis, the High Court rejected the case put forth on behalf of the appellant on the basis of this document.” Learned senior counsel has also placed reliance on H.Siddiqui (dead) by LRs. vs. A.Ramalingam (2011) 4 SCC 240, wherein, in para No. 12, it was held as under:- “The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so R.S.A.No. 2942 of 1985 8 as to bring it within one or other of the cases provided for in the section. The secondary evidence must be by authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide: Roman Catholic Mission v. State of Madras, State of Rajasthan v. Khemraj, LIC v. Ram Pal Singh Bisen and M. Chandra v. M. Thangamuthu.” Learned counsel for the respondent, on the other hand, has submitted that the appellant himself had taken up the plea in his written statement that he had become owner of the property by way of adverse possession and had, thus, admitted the factum of ownership of the plaintiff qua the suit property. Ex.P-1, sale certificate, had been issued by the competent authority. After hearing learned counsel for the parties and going through the record available on the fire carefully, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, the appellant had earlier filed a civil suit bearing No. 371 of 1981 seeking relief of permanent injunction qua the suit property claiming himself to be in possession. A perusal R.S.A.No. 2942 of 1985 9 of Ex.D-2 reveals that the said suit filed by defendant Mohan Singh was decreed. Thereafter, plaintiff filed the present suit seeking possession of the suit property. Ex.P-1 is the sale certificate issued by the Assistant Settlement Officer (Accounts)-cum-Managing Officer (Headquarters) Rehabilitation Department, Jalandhar. As per the said certificate, the property in question had been sold to the plaintiff in an auction held on 20.12.1963. The said certificate is duly signed by the competent authority. Ex.P-2 is the site plan qua the suit property. The appellant had failed to rebut the said document and establish his ownership qua the suit property. PW-3 Gian Chand, in his cross-examination, deposed that it was correct that one letter in the name of Malkiat Singh son of Sudhoo was available on record qua which he had got property No.15 in auction for ` 325/-. The said auction was later rejected. It appears that the said witness was talking about some auction which had taken place prior to 20.12.1963 because a perusal of Ex.P-1 reveals that in an auction held on 20.12.1963, the plaintiff had got in auction, the plot No.15, Mohalla Sohlan, Nurmahal for ` 650/-. Moreover, the said letter, vide which the auction was set aside, is not proved on record. There is no quarrel with the proposition of law laid down vide the judgments relied upon by the learned senior counsel for the appellant but the same fail to advance the case of the appellant as these are based on different facts. In the present case, the plaintiff had pleaded in his plaint that he was owner of the suit property on the basis of sale certificate, Ex.P-1. The said certificate has been duly issued by the competent authority. The appellant, in his written R.S.A.No. 2942 of 1985 10 statement, averred that he had become owner of the suit property by way of adverse possession as his possession was open, hostile and adverse to the title of the plaintiff. The appellant had, thus, admitted the ownership of the plaintiff qua the suit property but had failed to establish that he had become owner of the same by way of adverse possession. The first appellate Court has given the sound reasons while allowing the appeal filed by the plaintiff. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE December 02, 2011 anita