* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 312 OF 2003 IN CIVIL APPEAL NO. 22 OF 1998 IN REGULAR CIVIL SUIT NO. 2 OF 1991 A L O N G W I T H SECOND APPEAL NO. 314 OF 2003 IN CIVIL APPEAL NO. 24 OF 1998 IN REGULAR CIVIL SUIT NO. 142 OF 1991 Shri.Govind Gangaram Parekh ........Appellant V/S. Shri. Vasant Balu Rasal ......Respondent ------------ Ms. Pallavi Dabholkdar h/f. Mr. G.S. Godbole, adv.for appellant. Mr. P.R. Arjunwadkar, adv. for respondent. CORAM:- SMT. R.P. SONDURBALDOTA, J. DATED:- 2nd DECEMBER, 2009. P.C. :- 1. This is a common order on the above two appeals. 2. This Second Appeal is preferred by the original defendant in Regular Civil Suit No.2 of 1991 and Regular Civil Suit No. 143 of 1992 filed by the respondent. * 2 * By the judgment and order dated 28th January, 2003 the first Appellate court set aside the judgment and decree of the trial court and decreed the suits. The parties hereinafter will be referred to, by their original nomenclature. 3. The facts of the case stated in brief are as follows :- . One Balu Rasal was the owner of the suit property at Survey No. 25/1 and 24/2 and on his death, the plaintiff alongwith his mother and siblings became entitled to the same. The defendant is the owner of the adjoining land. It is alleged by the plaintiff that the defendant encroached upon the suit properties to the extent of 300 sq.yards and constructed his house thereon, despite objections. The complaints filed by the plaintiff to the police and Municipal Council were futile and the plaintiff was ultimately driven to file a suit for declaratoin that he is the owner of the suit property alongwith his mother and siblings and for removal of encroachment made by the defendant. 4. The defendant resisted the suit claiming that he is the owner of the suit properties by virtue of registered sale-deed dated 16th May, 1984. It was contended by him that by an agreement of sale dated 22nd February, 1980, Balu Rasal father of the plaintiff agreed to sell the suit property to him for the consideration of Rs.8,000/-. On the date of execution of the agreement of sale, the defendant paid Rs.7,000/- as and by way of earnest money. The agreement of sale was signed as a witness by the plaintiff. On 16th May, 1984 Balu executed deed of conveyance in favour of the defendant by accepting the * 3 * balance consideration of Rs.1,000/-. The sale-deed however could not be registered on the same day for want of necessary permission under the Urban Land Ceiling Act and compliance of other conditions. The sale-deed came to be registered only on 24th February, 1988. In view of the claim of transaction of sale in the written statement of the defendants, the plaintiff filed the second suit being Regular Civil Suit No. 143 of 1992 to challenge the agreement of sale, as well as, the sale-deed relied upon by the defendant contending that neither the agreement of sale nor the sale-deed was executed by Balu. The plaintiff also denied that he had signed the agreement and the sale-deed as a witness. It is his specific contention that neither he nor his father Balu, were present at the time when the two documents were claimed to have been executed. 5. The parties led evidence in the matter, in which the plaintiff deposed to state the facts stated in the plaint. The defendant did not produce the sale- deed dated 16th May, 1984 but filed extract of Index to Register and receipt for payment of registration fees issued by the Sub-Registrar. The trial court on appreciation of the evidence held that the suit was barred for non-joinder of the other co-owners of the suit property. It also held that the document of extract of Index to Register, the agreement of sale and the receipt for payment of registration fees establish that the defendant had purchased the suit property from Balu. It observed that since plaintiff being the signatory to the document, could not challenge the same and dismissed the suit by giving a finding that * 4 * the plaintiff is not the owner of the suit property. 6. Being aggrieved by the judgment and decree of the trial court dated 10th December, 1997 the plaintiff preferred the Appeals herein, Regular Civil Appeal No.22 of 1998 and Regular Civil Appeal No.24 of 1998. By the impugned judgment and order, the appeals were allowed and the decision of the trial court was set aside. Both the suits were decreed and it was declared that the sale-deed dated 16th May 1984 allegedly executed by said Balu is a bogus document and the defendant has not acquired any right, title and interest therein. The defendant was also directed to hand over vacant possession of the suit property by removing the construction carried out thereupon within a period of 2 months. 7. Ms.Dabholkar, for the defendant submits that the appellate court erred in not properly appreciating Section 102 of Indian Evidence Act and passed the burden of establishing title of the suit property on the defendant. She also submits that the first appellate court could not have held the defendant responsible for non-production of the sale-deed dated 16th May, 1994. She contends that since both the proceedings were filed by the plaintiff, the entire onus of proving that he is the owner of the suit property and that the sale- deed is a false and bogus document, rested upon the plaintiff. 8. The appeal court has observed that since the defendant claims to have become the owner of the suit property through Balu Rasal, father of the * 5 * plaintiff and since it is not disputed that the plaintiff is the son of Balu Rasal, the initial burden of establishing title over the suit property was discharged upon the plaintiff. As regards the possession, the defendant admits to be in possesion of the suit property and claims to justify the possession on the ground of having become the owner thereof by virtue of the sale-deed dated 16th May, 1984. In these circumstances, the burden shifted upon the defendant to establish that the defendant had purchased the suit property from Balu Rasal. Ms. Dabholkar, submits that since the plaintiff filed the suit to challenge the agreement of sale and the sale-deed, the court ought to have presupposed the existence of these two documents and there was no question of the defendant producing the same before the court. She further submits that in view of filing of the second suit, the responsibility of producing the document before the court was with the plaintiff and not with the defendant. 9. One cannot loose sight of the fact that the second suit arose only out of the defence taken by the defendant in the first suit. This is not a case where the plaintiff had come to the court directly with a case of challenge to the two documents relied upon by the defendant. Further, it has been the specific case of the plaintiff that the two documents have not been signed either by his father or by him. Both have alleged to put their thumb impression on the document. In the light of above facts, it was for the defendant to prove his title to the suit property in order to justify his occupation thereof. Therefore, it * 6 * would not be correct to say that the entire burden of producing the document and proving the same to be false and bogus, rested with the plaintiff. The appellate court has discussed the legal position as regards production of the documents and their proof at paras-8, 9 and 10. It has discussed the provisions of Section 100 to 104, 61, 62, and 65 of the Indian Evidence Act. The relevant portion reads as follows : . “ According to the defendant, he acquired the title to the suit properties under the sale deed dated 16/5/1984 i.e. under a document. A document can be proved either by primary evidence or secondary evidence if allowed to be adduced under the law. Primary evidence is the document itself. Section 61 of the Evidence Act, provides that contents of a document may be proved either by primary or by secondary evidence and vide Section 62 of the Evidence Act it is made clear that the primary evidence is a document itself produced for the inspection of the court. Therefore, basically a document can be proved by producing the same for the inspection of the court and proving its execution by adducing necessary and relevant evidence. The law on the point of secondary evidence is very clear. Section 65 of the Evidence Act provides for the cases in which necessary evidence relating to documents can be given. Therefore, unless the case for adducing secondary evidence is made out a party cannot lead secondary evidence and avoid the liability to bring before the court the primary evidence. Admittedly, in this case the defendant who could be in possession of the original sale-deed has not produced the sale deed for the inspection of the court and has not made out a case for adducing secondary evidence. Therefore, the very * 7 * document which is the crux of the matter is not before the court and therefore the execution of the so-called document could not be proved by the defendant.” 10. This position in law has been correctly enunciated by the appeal court and the law applied to the facts of the present case. There can be no interference with this judgment in view of the correct application of law. There is no substantial question of law arising for consideration of this court. 11. Hence, the Second Appeals are dismissed. [SMT. R.P. SONDURBALDOTA, J]