2002 Supreme(Kar) 151

Karnataka High Court
State of Karnataka - Appellant
Versus
Muniraju - Respondent
Decided On : 02-25-02

Headnote:Whether xerox copy of a document relied upon by a party is admissible in evidence?

       XEROX COPIES OF DOCUMENTS: RELIABILITY - Land grant - document as to - land assigned to a society - for collective cultivation of its members - whether amounts to grant made individually? Proof of - Hiduvali Certificate issued by the Liquidator of the society - Xerox copy of - produced - no competent person was examined to prove its contents - whether admissible?

       [V. Gopala Gowda, J.] -The Court below placed heavy reliance on a document which is the Hiduvali Certificate said to have been issued by the Liquidator of the Society, who was not conferred with the right or power in respect of the suit schedule properties to transfer or grant the land in favour of the plaintiffs. The contention of the plaintiffs in this regard is wholly untenable in law. The Courts below should have adopted a pragmatic approach in dealing with the Government property keeping in view the provisions of Order 27, Rules 2 and 8-B of the CPC. The Apex Court in the judgment of Periyar and Pareekanni Rubbers Limited Vs. State of Kerala (AIR 1990 SC 2192), after interpreting the above said provisions of the CPC, at para 9 of the said judgment, has held that any concession made by the Government Pleader in the trial cannot bind the Government as it is obviously always unsafe to rely on the wrong or erroneous concession made by the Counsel appearing for the State unless it is in writing on instructions from the responsible person, otherwise it would cause undue and heavy burden on the public exchequer. Therefore, the Courts below should not have placed reliance upon the said document having regard to the defence taken by the defendants in their written statements wherein it has been specifically stated that the land in question was not granted by the Government to the plaintiffs. On the other hand, it has been specifically stated that the land in question was assigned in favour of the Co-operative Society to distribute the same to its members by giving permissive possession, for their cultivation as a measure of their upliftment and to rehabilitate them. In the absence of grant orders passed and Saguvali Certificates issued in favour of the plaintiffs in respect of the suit schedule property by the defendants in accordance with law, and having regard to the admitted facts by them that the lands in question was given by the Co-operative society for grant of the Government land in their favour under the provisions of the KLR Act and the Land Grant Rules. The said document is not the original. It is a Xerox copy which is the secondary evidence placed on record by marking the same. It is not produced and marked as required under the provisions of the Indian Evidence Act. The document in question is not a substantive piece of evidence and it is inadmissible in evidence under the provisions of the Indian Evidence Act. There is no foundation laid before the Courts below by the plaintiffs for adducing secondary evidence to prove the contents of the same by examining competent person as their witness in the original suits.

       Cases Referred: (1995) 6 SCC 523; 1995 Supp (3) SCC 119; 1996 (1) Kar.L.J. 495; AIR 1963 SC 1547; AIR 1979 SC 1250; AIR 1969 SC 78; AIR 1975 SC 2238; AIR 1995 SC 1715; AIR 1983 Kant 153; 1982 (1) Kar.L.J. 61; (1996) 1 SCC 104; AIR 1999 SC 3381; AIR 1964 SC 538; 2000 (2) Kar.L.J. Sh. N. 32; 1995 (6) Kar.L.J. 31; AIR 1958 SC 886; AIR 1996 SC 330; ILR 1995 Kar 1555; AIR 1943 PC 66; AIR 1977 Kant 204; AIR 1936 Bom. 62; AIR 1936 PC 193; AIR 1980 MP 32; AIR 2000 SC 3009; AIR 1992 SC 1604; AIR 1996 SC 3111; AIR 1980 SC 1754

       Followed: AIR 1983 Kant. 237; AIR 1997 SC 381; AIR 1995 SC 73; AIR 2000 SC 1485; AIR 1984 SC 930; AIR 1971 SC 996; JT 1996 (9) SC 632; ILR 2000 Kar. 2681; ILR 2000 Kar. 2681; (2000) 5 SCC 652; 1996 (7) Kar.L.J. 853 (SC); AIR 1996 SC 98; AIR 1974 SC 856; AIR 1990 SC 2192; AIR 1993 SC 396; AIR 1954 SC 606; AIR 1989 SC 1269; AIR 1994 SC 591; AIR 1971 SC 1865; AIR 1966 SC 1652; AIR 1978 SC 1329; AIR 2001 SC 965; 1996 SAR (Civil) 852; 2001 SAR (Civil) 82; AIR 1997 SC 1906; AIR 1996 SC 1960.

       Interpretation of a document whether substantial question of law?

       CIVIL PROCEDURE CODE, 1908 - Section 100 -Interpretation of a document whether substantial question of law? Yes. Concurrent findings of courts below can be interfered with in second appeal.

       [V. Gopala Gowda, J.] -Apart from the reasons recorded supra in the judgment, regarding the admissibility of the said document, there is no grant of land made either by the Society or by the Government in favour of the plaintiffs. Therefore, the Courts below have seriously committed an error in law by placing reliance upon the aforesaid document and considering the same as substantive piece of evidence in favour of the plaintiffs and recording the finding that the land was granted in their favour by the Society. It is a well-established principle of law that construction of document is a substantial question of law as held by the Apex Court.

       Cases Referred: (1995) 6 SCC 523; 1995 Supp (3) SCC 119; 1996 (1) Kar. L.J 495; AIR 1963 SC 1547; AIR 1979 SC 1250; AIR 1969 SC 78; AIR 1975 SC 2238; AIR 1995 SC 1715; AIR 1983 Kant 153; 1982 (1) Kar.L.J 61; (1996) 1 SCC 104; AIR 1999 SC 3381; AIR 1964 SC 538; 2000 (2) Kar.L.J Sh. N. 32; 1995 (6) Kar.L.J 31; AIR 1958 SC 886; AIR 1996 SC 330; ILR 1995 Kar 1555; AIR 1943 PC 66; AIR 1977 Kant 204; AIR 1936 Bom. 62; AIR 1936 PC 193; AIR 1980 MP 32; AIR 2000 SC 3009; AIR 1992 SC 1604; AIR 1996 SC 3111; AIR 1980 SC 1754.

       Followed: AIR 1983 Kant. 237; AIR 1997 SC 381; AIR 1995 SC 73; AIR 2000 SC 1485; AIR 1984 SC 930; AIR 1971 SC 996; JT 1996 (9) SC 632; ILR 2000 Kar. 2681; ILR 2000 Kar. 2681; (2000) 5 SCC 652; 1996 (7) Kar. L.J 853 (SC); AIR 1996 SC 98; AIR 1974 SC 856; AIR 1990 SC 2192; AIR 1993 SC 396; AIR 1954 SC 606; AIR 1989 SC 1269; AIR 1994 SC 591; AIR 1971 SC 1865; AIR 1966 SC 1652; AIR 1978 SC 1329; AIR 2001 SC 965; 1996 SAR (Civil) 852; 2001 SAR (Civil) 82; AIR 1997 SC 1906; AIR 1996 SC 1960.

       Proof of land grant

       (INDIAN) EVIDENCE ACT, 1872-

       Sections 63, 65 & 66 -Photo copy of grant certificate produced -certificate contended to be fraudulent -whether can be accepted as secondary evidence without laying the basic foundation for production of such a document as secondary evidence? No.

       [V. Gopala Gowda, J.] -The document is the Hiduvali Certificate said to have been issued by the Liquidator of the Society, who was not conferred with the right or power in respect of the suit schedule properties to transfer or grant the land in facture of the plaintiffs. The contention of the plaintiffs in this regard is wholly untenable in law. The Courts below should have adopted a pragmatic approach in dealing with the Government property keeping in view the provisions of Order 27, Rules 2 and 8-B of the CPC. The Apex Court in the judgment of Periyar and Pareekanni Rubbers Limited Vs. State of Kerala (AIR 1990 SC 2192), after interpreting the above said provisions of the CPC, at para 9 of the said judgment, has held that any concession made by the Government Pleader in the trial cannot bind the Government as it is obviously always unsafe to rely on the wrong or erroneous concession made by the Counsel appearing for the State unless it is in writing on instructions from the responsible person, otherwise it would cause undue and heavy burden on the public exchequer. Therefore, the Courts below should not have placed reliance upon the said document having regard to the defence taken by the defendants in their written statements wherein it has been specifically stated that the land in question was not granted by the Government to the plaintiffs. On the other hand, it has been specifically stated that the land in question was assigned in favour of the Co-operative Society to distribute the same to its members by giving permissive possession, for their cultivation as a measure of their upliftment and to rehabilitate them. In the absence of grant orders passed and Saguvali Certificates issued in favour of the plaintiffs in respect of the suit schedule property by the defendants in accordance with law, and having regard to the admitted facts by them that the lands in question was given by the Co-operative society for grant of the Government land in their favour under the provisions of the KLR Act and the Land Grant Rules. The document at EX. P.58 is not the original. It is a Xerox copy which is the secondary evidence placed on record by marking the same through D.W. 1. It is not produced and marked as required under the provisions of the Indian Evidence Act. Ex.P. 58 is not a substantive piece of evidence and it is inadmissible in evidence under the provisions of the Indian Evidence Act. There is no foundation laid before the Courts below by the plaintiffs for adducing secondary evidence to prove the contents of the same by examining competent person as their witness in the original suits.

       Cases Referred: (1995) 6 SCC 523; 1995 Supp (3) SCC 119; 1996 (1) Kar.L.J. 495; AIR 1963 SC 1547; AIR 1979 SC 1250; AIR 1969 SC 78; AIR 1975 SC 2238; AIR 1995 SC 1715; AIR 1983 Kant 153; 1982 (1) Kar.L.J. 61; (1996) 1 SCC 104; AIR 1999 SC 3381; AIR 1964 SC 538; 2000 (2) Kar.L.J. Sh. N. 32; 1995 (6) Kar.L.J. 31; AIR 1958 SC 886; AIR 1996 SC 330; ILR 1995 Kar 1555; AIR 1943 PC 66; AIR 1977 Kant 204; AIR 1936 Bom. 62; AIR 1936 PC 193; AIR 1980 MP 32; AIR 2000 SC 3009; AIR 1992 SC 1604; AIR 1996 SC 3111; AIR 1980 SC 1754

       Followed: AIR 1983 Kant. 237; AIR 1997 SC 381; AIR 1995 SC 73; AIR 2000 SC 1485; AIR 1984 SC 930; AIR 1971 SC 996; JT 1996 (9) SC 632; ILR 2000 Kar. 2681; ILR 2000 Kar. 2681; (2000) 5 SCC 652; 1996 (7) Kar.L.J. 853 (SC); AIR 1996 SC 98; AIR 1974 SC 856; AIR 1990 SC 2192; AIR 1993 SC 396; AIR 1954 SC 606; AIR 1989 SC 1269; AIR 1994 SC 591; AIR 1971 SC 1865; AIR 1966 SC 1652; AIR 1978 SC 1329; AIR 2001 SC 965; 1996 SAR (Civil) 852; 2001 SAR (Civil) 82; AIR 1997 SC 1906; AIR 1996 SC 1960.

       Proof of land

        KARNATAKA LAND REFORMS APPELLATE AUTHORITY RULES

       Section 91 & 67 -Land grant -Co-operative society -land assigned to -members of, for cultivation -possession -only permissive -absence of proof as to grant by competent authority -such individuals cannot plead that the land has individually been granted -individuals cannot claim adverse possession just because entries are made in revenue records.

       [V. Gopala Gowda, J.] - The Co-operative Society has neither power to grant the lands in question nor it is the owner of the property to transfer the same in favour of the plaintiffs as contemplated under the provisions of the Transfer of Property Act. Therefore, it can only give permissive possession of the lands in favour of its members for cultivation with a view to rehabilitate themselves. Ether under the provisions of the Transfer of Property Act or any other law without compliance with the requirements of the Indian Registration Act of 1908, the properties could not have been transferred in the name of the plaintiffs by the Society. The land in question was assigned by the Government in favour of the Society for the limited purpose of giving permissive possession in favour of its members who belong to SC/ST community for joint cultivation. It is neither pleaded by the plaintiffs in the plaints nor the material evidence is placed on record before the Courts below to prove their contentions that the Co-operative Society had the authority in law either to transfer the lands in question in favour of these plaintiffs or it had the power to grant the same in their favour in accordance with law. In the absence of the same, and the material evidence placed on record would clearly show that they have not been in adverse possession of the suit schedule lands as claimed by them. At paragraph 25 of the impugned judgment of the Trial Court and at paragraph 23 of the judgment of first Appellate Court findings are erroneously recorded holding that the grant of schedule lands in favour of the plaintiffs is an admitted fact which is factually incorrect. Therefore, the said findings in the impugned judgments are not only erroneous in law for the reason that there is no admission made by the defendants either in the written statement or in the evidence of D.W. 1. On the other hand, the Courts below have failed to give a positive finding on the issue on the basis of the material and substantive evidence on record. Therefore, the Court has to hold that the findings recorded by the Courts below are on the basis of surmises, conjectures and assumptions by the Courts below without any legal foundation and basis. The findings of the Courts below in this regard are bad in law and the same are vitiated and therefore the impugned judgements are liable to be set aside.

       Cases Referred: (1995) 6 SCC 523; 1995 Supp (3) SCC 119; 1996 (1) Kar.L.J 495; AIR 1963 SC 1547; AIR 1979 SC 1250; AIR 1969 SC 78; AIR 1975 SC 2238; AIR 1995 SC 1715; AIR 1983 Kant 153; 1982 (1) Kar.L.J 61; (1996) 1 SCC 104; AIR 1999 SC 3381; AIR 1964 SC 538; 2000 (2) Kar.L.J Sh. N. 32; 1995 (6) Kar.L.J 31; AIR 1958 SC 886; AIR 1996 SC 330; ILR 1995 Kar 1555; AIR 1943 PC 66; AIR 1977 Kant 204; AIR 1936 Bom. 62; AIR 1936 PC 193; AIR 1980 MP 32; AIR 2000 SC 3009; AIR 1992 SC 1604; AIR 1996 SC 3111; AIR 1980 SC 1754.

       Followed: AIR 1983 Kant. 237; AIR 1997 SC 381; AIR 1995 SC 73; AIR 2000 SC 1485; AIR 1984 SC 930; AIR 1971 SC 996; JT 1996 (9) SC 632; ILR 2000 Kar. 2681; ILR 2000 Kar. 2681; (2000) 5 SCC 652; 1996 (7) Kar.L.J 853 (SC); AIR 1996 SC 98; AIR 1974 SC 856; AIR 1990 SC 2192; AIR 1993 SC 396; AIR 1954 SC 606; AIR 1989 SC 1269; AIR 1994 SC 591; AIR 1971 SC 1865; AIR 1966 SC 1652; AIR 1978 SC 1329; AIR 2001 SC 965; 1996 SAR (Civil) 852; 2001 SAR (Civil) 82; AIR 1997 SC 1906; AIR 1996 SC 1960.

       CIVIL PROCEDURE CODE, 1908 - Maintainability of suit

       Section 9 and Karnataka Land Revenue Act, 1964 -Sections 49, 63 & 67 -Land assigned to society -order of resumption -suit against -alternative remedy of appeal to Appellate Tribunal -not exhausted suit - not maintainable.

       [V. Gopala Gowda, J.] - Unless the plaintiff first proves that prior to the institution of the suit he had exhausted the remedy of appeal a provided in law for the time being in force, within the period of limitation prescribed in the statute, it is not possible in law for the plaintiff to institute the original suit challenging the orders referred to above passed by the second defendant. Against the orders dated 10-2-1993 and 16-5-1995 of the second defendant, the plaintiff had a right of statutory appeal to the Karnataka Appellate Tribunal under Section 49-C of the KLR Act, 1964. Undisputedly, the statutory appeal was not presented by the plaintiff before the KAT within the period prescribed under the provisions of Section 51 of the KLR Act against those orders. The plaintiff had the right to urge all the grounds in the appeal, including the ground that the 2nd defendant passed the orders dated 10-2-1993 and 16-5-1995 against the plaintiff without complying with the mandatory provisions of the Act, Rules and in compliance with the principle of natural justice in respect of the land in question. In view of the clear bar under Section 63 of the KLR Act suit filed by the plaintiff was not maintainable.

       Cases Referred: (1995) 6 SCC 523; 1995 Supp (3) SCC 119; 1996 (1) Kar. L.J 495; AIR 1963 SC 1547; AIR 1979 SC 1250; AIR 1969 SC 78; AIR 1975 SC 2238; AIR 1995 SC 1715; AIR 1983 Kant 153; 1982 (1) Kar. LJ. 61; (1996) 1 SCC 104; AIR 1999 SC 3381; AIR 1964 SC 538; 2000 (2) Kar.L.J Sh. N. 32; 1995 (6) Kar.L.J 31; AIR 1958 SC 886; AIR 1996 SC 330; ILR 1995 Kar 1555; AIR 1943 PC 66; AIR 1977 Kant 204; AIR 1936 Bom. 62; AIR 1936 PC 193; AIR 1980 MP 32; AIR 2000 SC 3009; AIR 1992 SC 1604; AIR 1996 SC 3111; AIR 1980 SC 1754

       Followed:

       AIR 1983 Kant. 237; AIR 1997 SC 381; AIR 1995 SC 73; AIR 2000 SC 1485; AIR 1984 SC 930; AIR 1971 SC 996; JT 1996 (9) SC 632; ILR 2000 Kar. 2681; ILR 2000 Kar. 2681; (2000) 5 SCC 652; 1996 (7) Kar.L.J 853 (SC); AIR 1996 SC 98; AIR 1974 SC 856; AIR 1990 SC 2192; AIR 1993 SC 396; AIR 1954 SC 606; AIR 1989 SC 1269; AIR 1994 SC 591; AIR 1971 SC 1865; AIR 1966 SC 1652; AIR 1978 SC 1329; AIR 2001 SC 965; 1996 SAR (Civil) 852; 2001 SAR (Civil) 82; AIR 1997 SC 1906; AIR 1996 SC 1960.

       CIVIL PROCEDURE CODE, 1908 - examined the effect of sending of notice under certificate of posting and held at paragraphs 11 and 12 that the certificate of posting produced to show that notice was sent to the tenant by the landlord merely evidence the fact of posting of the postal article but the landlord merely evidence the fact of posting of the postal article but the same does not amount to evidence of delivery or left at the addressee, even though the address given on the postal article is found to be correct.