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2000(5) Supreme 486
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
V.N. Khare & S.N. Variava, JJ.
Marwari Kumhar & Ors. -Appellants
versus
Bhagwanpuri Guru Ganeshpuri & Anr. -Respondents
Civil Appeal No. 2937 of 1989
Decided on 10-8-2000
Counsel for the Parties :
For the Appellants : K.B. Sinha, Sr. Advocate, Ms. Kawaljit Kochar, S.K. Jain, J.D. Jain, Advocates.
For the Respondents : S.K. Gambhir, Sr. Advocate, T.N. Singh, B.M. Sharma, Anil K. Sharma and Avinash Sinha, Advocates.
Under sub-clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of sub-clause (f). Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi Aisha and others v. The Bihar Subai Sunni Majlis Avaqaf and others, reported in AIR 1969 Supreme Court 253. (Para 10)
In this case there is the additional factor that the factum of there being such a judgment was not denied. The Respondents did not contend that the copy which had been produced was not the correct copy. All that the 1st Respondent had pleaded was that the earlier judgment was not binding on him. The Respondents were parties to the earlier proceedings. The 1st Respondent was properly represented by his mother the 2nd Respondent. The earlier suit had been hotly contested. The earlier judgment was, therefore, binding on both the Respondents. It was not denied that on 7th May 1948 the then High Court of Dewas confirmed the decree of the trial court. A certified copy of that decree had also been marked in evidence. Both the Courts also ignored the fact that the Respondents were not claiming that the copy which was produced was not the correct copy. The Respondents were merely claiming that the earlier judgment did not bind them. It is also important to note that both the Courts have not disbelieved the case of the Appellant/Plaintiff that the original copy was no longer available in the records of the Court and the certified copy which had been obtained by the Appellants had been lost. Both the Appellate Courts only relied upon sub-clause (f) of Section 65 of the Evidence Act and held that as the judgment was a public document, it could be proved only by a certified copy of the judgment and no other kind of secondary evidence was admissible. Having held that the earlier judgment could not be looked into both the Courts then cast a strict burden on the Appellants to again prove their title and held that the Appellants had not proved their title. Both the Courts have then held that Ganeshpuri and the Respondents were in possession for long and that they had acquired title by adverse possession. It is pertinent to note that neither the first Appellate Court nor the second Appellate Court have held that Respondents have been able to prove adverse possession by virtue of their possession since 7th May, 1948. In our view, both the Courts below have erred in law and on facts in coming to this conclusion. Both the Courts below have adopted an entirely erroneous approach. (Paras 7, 8 and 11)
(ii) Limitation Act, 1963-Adverse possession-Claim in defence to suit for possession-Earlier decree that defendants were in possession merely as Pujaris-No proof as to date, time and manner in which possession as Pujari got converted into open, hostile and adverse-Claim for adverse possession untenable. (Para 11)
(iii) Code of Civil Procedure, 1908-Section 11-Res judicata-Suit for possession-Earlier decree for title from competent Court-Defence that decree not binding on defendants-Untenable-Finding of Court in earlier judgment and decree binding on defendants-Defendants precluded from denying title of plaintiff-Defence barred by principles of res-judicata. (Para 11)
JUDGMENT
S.N. Variava, J.-This Appeal is against the judgment dated 3rd October, 1985 by which the Second Appeal filed by the Appellant (herein) has bean dismissed.
2. Briefly stated the facts are as follows :
The Appellants are representing Marwari Kumhar Community of Dewas. The suit was filed in a representative capacity. The Marwari Kumhar Community were holding religious functions in the temple and were using the Dharamshala situated on the suit property. They had engaged one Ganeshpuri, who acted as a Pujari. The said Ganeshpuri died on 11th of February, 1945. The son of Ganeshpuri (who is Respondent No. 1 herein) and the wife of Ganeshpuri (who is Respondent No. 2 herein) started claiming ownership to the property. Therefore, the Community filed a representative suit, sometime in December 1945, for a declaration of their title. They also claimed in that suit that they were entitled to keep on performing their religious functions and to use the Dharamshala as they always have been doing. At that time 1st Respondent was a minor. He was therefore represented by his guardian i.e. his mother. The 2nd Respondent had also been sued in her individual capacity. In that suit the Respondents took up the contention that the suit property was owned by Ganeshpuri. They claimed that the Community had no right title or interest in the suit property. The suit came to be decreed in favour of the Community. It was specifically held that Ganeshpuri and the Respondents were mere Pujaris. Against this decree the Respondents filed an Appeal. That Appeal was allowed. The Community filed a Second Appeal before the then High Court of Dewas. That Second Appeal was allowed on 7th May 1948. The decree of the trial Court was restored by the High Court.
3. It would appear that sometime thereafter the Respondents again started asserting their title. Therefore the present suit, for, possession of the property, was filed on 7th of December, 1960. In this suit it had been claimed that the 1st Respondent had executed a Nokarnama on 31st October 1948. The Appellant/Plaintiffs had lost all their papers. They therefore relied upon an ordinary copy of the judgment in the earlier suit and a certified copy of the decree in that suit. The Nokarnama was also lost and only oral evidence was led about it. The Respondent/Defendants again claimed that Ganeshpuri was the owner of the suit property. They claimed title to the suit property as his heirs. They claimed that they and their predecessor i.e. Ganeshpuri were in open, adverse and hostile possession since long and that in any event they had acquired title by adverse possession. They claimed that a suit for possession was barred by provisions of Order 2 Rule 2 Civil Procedure Code in as much as in the earlier suit relief for possession should have been and was not claimed. They also claimed that the suit was barred by limitation.
4. The trial Court accepted Plaintiff/Appellants case and decreed the suit on 20th of September 1968. The trial Court relied upon the judgment in the earlier proceedings and held that the title in the property vested in the Community. It was noted that it was already held that the Respondents and Ganeshpuri were on the suit property only as Pujaris. The trial court accepted the oral evidence and held that it was proved that a Nokarnama was executed. It was held that the earlier judgment was binding on the Respondents and that this suit was not barred by Order 2 Rule 2 C.P.C. It was held that the suit was within time and that the Respondents had not been able to prove adverse possession.
5. The 1st and the 2nd Respondents filed two separate Appeals. Both these Appeals were allowed by a common judgment dated 1st November, 1974. The Appellate Court held that the earlier judgment being a public document only a certified copy could have been tendered in evidence. The Appellate Court held that the earlier judgment could not be held to have been proved as only an ordinary copy had been tendered in
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