1983 Supreme(Bom) 245

Bombay High Court
JOSHI
Shiolalsing Gannusing Rajput - Appellant
Versus
Shankar Motiram Nale - Respondent
Decided On : 09/02/1983

A certified copy of a registered document is not admissible in evidence to prove the execution of the original document, unless the execution of the original document is proved by other evidence.

Headnote:

LAND DISPUTE - ADMISSIBILITY OF SECONDARY EVIDENCE - PRESUMPTION UNDER SECTION 90 OF THE EVIDENCE ACT - INTERPRETATION OF SECTION 65 OF THE EVIDENCE ACT - PROOF OF EXECUTION OF REGISTERED DOCUMENTS - ADVERSE POSSESSION - BOMBAY TENANCY AND AGRICULTURAL LANDS (VIDARBHA REGION) ACT, 1958.

Fact of the Case:

The appellant-plaintiff claimed to have purchased the suit land Survey No. 59/1, Area 3 acres 12 gunthas, land revenue Rs. 8/- of village Nimbhari from Onkar Sakharam Patil, his brothers and certain other persons under a registered sale deed Ex. 33 dated 2-1-1961. The respondent, who was cultivating the adjoining pot-hissa Survey No. 59/1-A, 3 acres 8 gunthas area, encroached upon 33 gunthas land from the plaintiff's field Survey No. 59/1. The appellant-plaintiff got the land measured on 24-5-1965 and the measurement revealed that the respondent had encroached upon 33 gunthas land from Survey No. 59/1 shown in the map Ex. 30 by red colour. Therefore the plaintiff instituted the suit on 25-11-1965 claiming possession of the encroached land.

Finding of the Court:

The Courts below dismissed the plaintiff's suit finding that the appellant-plaintiff had failed to prove his title to the allegedly encroached suit land and this dismissal of the appellant's suit was confirmed by the lower appellate Court.

Issues: 1. Whether the appellant-plaintiff had proved his title to the allegedly encroached suit land? 2. Whether the respondent had acquired ownership rights in the suit land by adverse possession?

Ratio Decidendi: 1. The original sale deed dated 23-4-1936 said to have been executed by the members of Patil family in favour of Gulabsa could not be produced on record and an attempt was made to establish that it was not traceable and, therefore, it was tried to establish the fact of sale by proof by way of secondary evidence under S.65 of the Evidence Act. 2. The evidence of Rajulal, the attesting witness to the original sale deed, was of a dubious nature and did not establish the execution of the sale deed. 3. The presumption under Section 90 of the Evidence Act is not available to certified copies of documents, and therefore, the certified copy of the sale deed produced in the trial Court was not admissible in evidence. 4. The respondent had failed to prove the execution of the original sale deed dated 23-4-1936 in favour of Gulabsa by way of secondary evidence. 5. The appellant-plaintiff had properly established his purchase of 3 acres 12 gunthas land of Survey No. 59/1 under the sale deed Exhibit 33 dated 2-1-1961 in his favour. 6. The respondent had encroached upon the appellant's land to the extent of 32 gunthas, over which 32 gunthas, the appellant had clearly proved his title via the registered sale deed Exhibit 33 dated 2-1-1961. 7. No question of adverse possession by the respondent could arise, because prior to 1-4-1961 the respondent was admittedly in possession as a tenant and could not prescribe a title to the land by adverse possession, and even granting that the respondent became owner of his land under the provisions of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 on 1-4-1961, the suit was filed merely four years thereafter in 1965 and no question of acquisition of title by adverse possession by the respondent during those four years could arise.

Final Decision: The second appeal was allowed. The decrees of both the Courts below dismissing the suit were set aside and instead it was ordered that the plaintiff's suit for possession of 32 gunthas area, as shown in the copy of the map Ext.30, from out of Survey No. 59/1, area 3 acres 12 gunthas, shall stand decreed with costs throughout. The appellant-plaintiff was also entitled to an enquiry under the provisions of Order XX Rule 12 (1), Civil P. C. for mesne profits in respect of the suit land from the date of suit till date of actual delivery of possession.