1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 438/2007 Smt. Jaishree Avinash Banait and another ..vs.. Chandrabhushan Purushottam Banait and others ----------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order ----------------------------------------------------------------------------------------------------------- CORAM:- R. V. MORE, J. DATED :- 16 th January, 2008. 1. Heard Mr. Sundaram, learned counsel for the petitioners, Mr. De, learned counsel for respondent No. 1, Mr. Marpakwar, learned counsel for respondent Nos. 7 and 8 and Mr. Mishra, Assistant Solicitor General of India for respondent No. 9. None appears for the other respondents, though served. 2. The present petition is directed against the order dated 20.10.2004 passed by President, Nagpur Improvement Trust, Nagpur below Exh.-148 and subsequent order dated 28.11.2006 passed below Exh.-246 in Land Acquisition Case No. 69/1973. By order dated 20.10.2004, respondent No. 1 is permitted to adduce 2 secondary evidence in respect of the partition deed between himself and his brother Prakashchandra and by order dated 28.11.2006, the petitioners' application for recalling the order dated 20.10.2004 is rejected. 3. Mr. Sundaram, learned counsel for the petitioners invited my attention to the application at Exh.-148, which is at page No. 30 of the petition and submitted that it was the case of respondent No. 1 that he was never in possession of the original copy of the partition deed. Mr. Sundaram, further invited my attention to page No. 27 (Annexure 'B') which is examination-in-chief of respondent No. 1 in Land Acquisition Case No. 69/1973. Para 3 of the examination-in-chief shows that the original partition deed was in the custody of respondent No. 1. In view of the above facts, Mr. Sundaram contended that the case of respondent No. 1 that the original is not in his possession is not true and, therefore, under Section 65(a) of the Indian Evidence Act, 1872 respondent No. 1 could not have been permitted to adduce the secondary evidence in respect of partition deed. 3 4. Per contra, Mr. De, learned counsel for respondent No. 1 invited my attention to the the provisions of Section 51-A of the Land Acquisition Act, 1894 under which the certified copy of the document registered under the Registration Act, 1908 is admissible, and pointed out that since the above said partition deed is a registered deed, the impugned order cannot be faulted with especially in view of the provisions of Section 65 (f) of the Indian Evidence Act. 5. Mr. Sundaram, in answer to Mr. De's above said statement relied upon the decision of the Hon'ble Supreme Court in Cement Corporation of India Ltd etc. etc ..vs.. Purya and others etc. etc.; AIR 2004 SC 4830 and Pattammal and others ..vs.. Union of India and another; AIR 2006 SC 291 in order to point out that it is the discretion of the Court to exhibit certified copy of the registered document under Section 51-A of the Land Acquisition Act, 1894. 4 6. It is true that the case made out by respondent No. 1 in order to enable him to produce secondary evidence was that the original partition deed is not in his possession. It is also true that this contention is contrary to statement made by him in the examination-in-chief which was recorded on 10.09.1980. However, in my opinion, since the partition deed is executed in the year 1959, and the same is registered under the Registration Act, 1908, respondent No. 1 could have persuaded the Court to accept the secondary evidence of the partition deed under the provisions of Section 65(f) of the Indian Evidence Act, 1872. Under Sub Clause (f) of Section 65, the secondary evidence can be allowed when the original is a document of which the certified copy is permitted by the Indian Evidence Act or by any other law in force in India to be given in evidence. Under Section 51-A of the Land Acquisition Act, 1894, the Certified Copy of the document registered under the Registration Act 1908, can be produced as evidence of the transaction recorded in the said document. 5 7. In view of the provisions of Section 51-A of the Land Acquisition Act, 1894 coupled with the provisions of 65(f) of the Indian Evidence Act, I am of the considered opinion that respondent No. 1 is entitled to adduce secondary evidence in respect of the partition deed. Merely because respondent No. 1 made out case under Section 65(a) of the Indian Evidence Act, in my opinion he cannot be denied permission to adduce secondary evidence when his case is covered under Section 65(f) of the Indian Evidence Act. 8. In view of the discussion made above, I am not inclined to interfere in the impugned order though the same was passed relying upon the provisions of Section 65 (a) especially when respondent No. 1 is entitled to adduce the secondary evidence under Section 65 (f) of the provisions of Indian Evidence Act. 9. So far as the reliance placed by Mr. Sundaram, learned counsel for the petitioner on Cement Corporation of India Ltd etc. etc ..vs.. Purya and others etc. etc.; and Pattammal and others ..vs.. Union of India and another (supra) is concerned, 6 there is no dispute about the preposition laid down by the Hon'ble Apex Court. The Hon'ble Apex Court held that the provisions of Section 51-A of the Land Acquisition Act makes exception to the general rule and it is discretion of the Court to exhibit/accept certified copies of the document as evidence of the transaction recorded in the said document. However, in my opinion case of respondent No.1 falls under Section 65(f) of the Evidence Act and, therefore, this judgment of the Hon'ble Apex Court cannot be relied upon by Mr. Sundaram to substantiate his contention. 10. In view of above, I find no substance in the writ petition. The same is, therefore, dismissed with no order as to costs. JUDGE kahale