CRP/3344/2014 of SRI SASARY KANAKAIAH Vs SMT. KASHANNAGARY SHANTHOSHAMMA on 30 December 2021

ORDER:

l. This civil revision petition is filed by the first revision peririoner/respondent/pla ntiff aggrieved by the order dated 26.06.2014 in lANo.5l of 2014 n OS No.67 of 2008 on the llle of the learned JuniorCivil Judge, Ardole at Jogipet. During pendency of the proceedingsbefore this Cot rt, the revision peritioner/plaintiff died and his legalrepresentatives ,.re brought on record as petitioners 2 to 6.

2. IA No.5' of 2014 was filed by the def'endant, who is therespondent here n under Sections 63 to 65 ofthe lndian llvidence Actseeking to recei' e photostat copy of patta certificate dated 20. i 0. I 982on the ground t lat the original of the said document r,vas misplacedand it could not )e traced by her and that she has got the attested copyof the same by tl e Tahsildar, Pulkal Mandal, Medak District.

3. This appl cation was allowed by the Court beioli, with anobseryation thal the Tahsildar, who has got knowledge about thethings, has attes ed the said document as the original is not traceableand a foundatior L as required u/s.65 (c) of the Indian Evidence Act,1872 is laid, acc rrdingly, the said document dated 20. 10.1982 can beadmitted into e vidence on behalf of the petitioner/def'endant assecondary evider ce. This order is challenged by the plaintifflrevisionpetitioner on the ground that the Court below ought to lrava seen thdf [*']

without proper fbundation such [document ][ought not ][to ][have ][received]in secondary evidence. Though [attested ][copy ][of ][patta ][ceftificate ][dated]20.10. 1982 is [produced, ][it ][cannot satisfv ][the ][ingredients ][of ][Section ][65]of Evidence Act, which require [proper ][auther-rtication ][of ][having ][drawn]by mechanical process. The defendant [has ][failed ][to ][speci8r ][on ][which]date he lost the original certificate [and the ][steps ][taken by her ][including]filing of the police complaint, [if ][any.]

4. Heard learned counsel for the [revision ][petitioners/plaintiffs ][and]the respondent/defendant. Perused [the material placed ][on ][record']

5. The Original Suit was filed for [perpetual ][injunction ][by ][the]plaintiff against the defendant in [respect ]of [suit ][schedule ][property.]The schedule propefty is [plot No.6 ][admeasuring ][East ][to ][West ][- ][I ][1]yards, Norlh to South - 12 yards of Chowtkur [Village, ][Pulkal ][Mandal,]Medak District. [n respect of [the very ][same ][plot, ][it ][appears ][the]respondent/deitndant has made a [claim ][stating ][that ][she ][was ][given]patta ceftiflcate by the revenue authorities on 20. [10.1982 ][and ][that ][she]has applied for penrtission from the Gram [Panchayat, ][Chowtkur ][on]3 I .10.2008 for construction of [RCC buildrng, but ][the Gram ][Panchayat]has failed to intimate to the defendant [either granting ][or lefusing ][the]permission within a period of60 days. Thereafter, [the ][defendant ][has]started construction, [as ]the [permission ][is deemed ][to ][have been granted]after expiry of 60 days time.

6. Be that a; it may, when the plaintiff is claiming suir plot andfiled the suit fi r perpetual injunction, it is for hinr to esrablish hiscase. But, the lef'endant having pleaded that plot bearing No.6 wasallotted to her a rd constructed a house, filed the present application inIA No.5 1 of 2)14 stating that original certificate is lost and thatattested photo c )py of patta certificate dated 20.10.1982 in flle No.C-517563182 is arailable with her and the same mav be received insecondary evide rce.

7. The lean Led counsel for the revision petitioners/plaintiflsquestioning the legality of the order impugned argued that nofoundation is lar C by the defendant for adducing secondarv !'videnceand she has fail:d to prove the existence of the original documentitself and relied, n the principles laid down in the ibllovu.inr: decisions:

i) t. Y rshodo v. K. Shobha Ranit; andii) Jogt rail Singh and another v. Karamjit Singh tnil rtthers2.

8. Per contra the learned counsel for the respondent/def-endant hassubmitted that t re respondent has laid the foundation tbr leadingsecondary evider:e and that she lost the original document. However,the attested copy of patta ceftificate is available with her and she hasmentioned the s: me in her affidavit and that there can never be anabsolute proof of fact that the document had in fact been lost and thatthe statement ma, Le by her in the affidavit itsell is suf ficient proof and ' [(zoor)s ][scc ][z:o]-1120:0) [s ][scc ][rzs]-1120:0) [s ][scc ][rzs]

she is not [expected ][to ][flle ][a ][police complaint ][etc, ][and ][relied on ][the]

tbliowing decisiohs:

i\ Sattammu [anrl ][others ][v. ][Ch. ][Bhikshopali Goutl ][@, Ch']Bhupul Gttud [and ][olhersr; ][and]Bhupul Gttud [and ][olhersr; ][and]

ii) Korloli Jhansi [Runi ][v. ][Valassla ][Venkata ][Ramana ][@ ][Ramana](Died) anrt olhersa.(Died) anrt olhersa.

9. I have [caretully ][perused ][the ][principles ][laid ][in ][the ][above]judgn.rents relied by the leamed [counsel ][for ][the ][revision]petitioner/plainti [ff ][and ][the respondent/defendant']

10. The respondent/defendant [has ][pleaded ][in ][her ][written ][statement]that the suit [plot ][rvas ][allotted ][to ][her, ][vide ][File ][No.c-5/7563182 ][dated]20. 10.1982 and [since ][then she ][is in ][exclusive ][possession ][and]and [that ][she ][has ][also ][applied ][for ][construction ][ofa ][house ][to]enjoyment theGramPanchyaton3l.l0.2008.AstheGramPanchayatfailedtoshe [has ][constructed the house ][in the ][said ][plot ][under]grant penrissiorl, deemedpermissionafter60days..Iheevidenceofplaintiffisconcluded. ['fhe ]evidence [affidavit ][of ][defendant ][is ][filed ][as ][DWl']Along with her [evidence ][affidavit, ][she has ][filed ][this ][document/attested]copy of patta ceftificate [dated ][20.10.1982' ][It ][is ][attested ][by ][the]Tahsi ldrr. Pulkal [\4andal.]

1 1 . Section 65 [(c) ][of ][the ][Evidence ][Act ][provides that the ][secondary]evidence can be [adduced ][relating to ][a ][document when the ][original ][has]

' [2oto ][(i) ][,qt.D ][o:,t]o zore is) ALD 6l (TS)

been destroyed [( ]r lost when the pafty olfering evidence o.'its contentscannot, for any other reason not arising fiont iris orvn de{'ault orneglect, produce it in reasonable tirne.

12. ln Romok isluto Constructions, Karimnagor District r,. SingoreniCollieries Co., ) ltl., ll/orangols, this Courl rvhile dealing \,/ith thesimilar facts hel I that a bare statement made in aUldavit b1' a partywould be suffic :nt proof of fact that the document has been lost ornot traced out a rd that a statement of the person that the documentwas lost and ir spite of best etTorts, he could not trace out thedocument woulc be sutllcient evidence of fact that the document hadbeen lost

13. ln Korloli .'hansi Rani's case (4 supra). this Coufi u hilr: rcll,ingon the above de:ision and also other decisions. held that secondarvevidence can be )ermitted to be led in. In such circutrstances and thatthe merits and [( ]emerits, truth or otherwise and validity of the saiddocument can be gone into at the appropriate stage. In J. Yoshodo andlagmail Singh'ca res (1 & 2 supra) reiied by the learned counsel for therevision petitior ers/plaintiffs. it was held that t'acts llave to beestablished by p imary evidence and secondary evidenc€r is oniy anexception to th: rule fbr which foundational facts have to beestablished to ac, ount forthe existence of the printarr eviderrce.

5 20 ts i I1 eLo al720 ts i I1 eLo al7

14. In the case on hand, the factual foundation is laid by [the]respondent/defendant and she has filed her affidavit stating that theoriginal patta certificate is lost and it is beyond traceable and thatphotocopy ol the saure duly attested by the Tahsildar, Pulkal Mandalis available with her. considering the same, the Court below has givenan opportunity to the respondent/defendar-rt to lead secondary evidenceol the sarne. In such circumstances, in the aforesaid factual situationconsidering the principles laid in the above decisions, I am of [the]opinion that the factLial foundation as required under Section 65 [(c) ]ofthe Evidence Act is laid by the defendant fbr leading secondaryevidence. She has llied the [photo ]copy of [patta ][certificate, ][attested ][by]the Tahsildar, Pulkal Mandal as secondary evidence. [The ]Court [below]has not committed any.jurisdictional error and the order [impugned]does r-rot warrant an-v interference. lt is needless to observe [that ][merely]the adrnission in evidence and marking of the document [does ][not]prove it autornatically unless the same has been proved in accordancewith lau, and it is fbr the respondent/def-endant to prove theauthenticitl' and tr-Lrthfulness or genuineness of said [patta ]certificate,rvhich r.vill havc to be established in the cottrse of trial in accordancew'ith lan'. l herefbre, in my considered opinion that the orderimpugned does noL warrant any interference by this Court.

15. In the result, the Civil Revision Petition is disrnissed,contirnring the impugned order dated 26.06.2014 in IA No.51 of [2014]in OS No.67 of 2008 on the file of the leamed Junior Guil [Judge,]

, ,\VRJCRI'No.li,1'1 of 201.1

Andole at Jogif et. The stay granted, vide CRPMP No.4573 ol 20 l4on 26.09.2014 is vacated. However, considering the t-act that theOriginal Suit is filed in the year 2008 and the evidence of clefendantwas in progress at the time of passing the impugned order, the Courtbelow shall ma .e every er-.,deavour to dispose of the Original Suit,within four mor ths from the date of receipt of a copy of this order.Both the parties to the suit shall cooperate with the Court below fbrexpeditious dis rosal of the Original Suit as directecl. In rhecircurnstances o the case, there shall be no order as to costs.

16. Miscellan:ous applications, if any pending in this revisionpetition shall sta rd closed.

Sd/-I,NAGA LAKSHMIASSISTANT REGISTRAR/,TRUE COPY//!v5SECTION OFFICER

To1.The Junior Civil Judge, [logipet, Andole, Medak ][District]2.One CC to Sri E.Phani [lumar, Advocate (OPUC)]3. One CC to Sri K.Raghu [reer Reddy, ][Advocate (OPUC)]4. Two CD Copies5. One Spare CopyKj l_-trY

HIGH COURT

DATED:3Q11212021

ORDERCRP.No.3344 ol 2014

DISMISSING THE CRP.

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