Point of Law: Suit for declaration – Unregistered document -Secondary Evidence – Admissibility of - Secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first

JUDGMENT :

1. Rule. Rule made returnable forthwith and with the consent of learned Counsel for the parties, heard finally at the stage of admission.

2. Can a document, which in original is not admissible, be permitted to be proved by allowing a party to adduce its secondary evidence?

3. The aforesaid question crops up for consideration in the backdrop of the following facts:-

(a)The respondent No.1 instituted a suit for declaration and perpetual injunction with the averments that the father of Balaji and Sham, respondent nos.2 and 3 - original defendant Nos.3 and 4, had executed a sale- deed in favour of plaintiff's father - Baburao, on a stamp paper of Rs.20/- denomination, which was purchased by defendant No.2 - Shrihari, the petitioner No.2 herein, on 2nd May, 1992 and thereby alienated an area admeasuring 66 x 40 ft, out of land bearing Gat No.219 situated at Mouje Gojwada, Tal. Washi, Dist. Osmanabad [suit property]. The possession of the suit property was delivered under the said sale-deed on the day of its execution. The suit property was mutated in the name of the plaintiff's father vide Mutation Entry No.745. Likewise, the name of the plaintiff's father was included in the assessment list of the village panchayat.

(b) The plaintiff has since been in continuous and peaceful possession of the suit property. On 30th April, 2012, the defendant Nos.1 and 2 - petitioners herein, at the instigation of defendant Nos.3 and 4 caused obstruction to the possession of the plaintiff over the suit property. Hence, the suit for declaration of title and perpetual injunction

(c) The defendants resisted the suit. After the commencement of trial, the plaintiff preferred an application seeking permission to lead secondary evidence [Exh.11]. It was asserted that the original instrument where-under the suit property came to be transferred was tendered in the Office of Talathi for mutating the name of father of the plaintiff. Said instrument is not since forthcoming. Hence, as the original instrument is lost, the plaintiff be permitted to lead a photostat copy thereof by way of secondary evidence.

(d) The defendant Nos.1 and 2 resisted the application. Apart from controverting the allegations of loss of original instrument, it was categorically contended that in the alleged sale-deed, consideration of Rs.11,000/- is shown. However, the said instrument was not registered, as mandated by the provisions contained in Section 17 of the Indian Registration Act, 1908. Since the original document itself could not have been admitted in evidence, there is no question of permitting the plaintiff to lead secondary evidence thereof.

(e) The learned Civil Judge, after hearing the submissions on behalf of the plaintiff and defendant Nos. 1 and 2, was persuaded to allow the application to lead secondary evidence. The learned Judge was of the view that both the conditions, namely, the existence of the original document and its loss were made out and, therefore, to advance cause of justice, it was necessary to allow the plaintiff to lead secondary evidence in the form of photostat copy of the document allegedly executed by the father of defendant Nos.3 and 4 in favour of the father of the plaintiff. Being aggrieved, the defendant Nos. 1 and 2 have invoked the writ jurisdiction of this Court.

4. I have heard Mr.Doke, learned Counsel for the petitioners and Mr.Thombre, learned Counsel for respondent No.1 at some length.

5. Mr. Doke would urge that the learned Civil Judge fell into an error in allowing the respondent No.1- plaintiff to lead secondary evidence of a document, which in original could not have been admitted in evidence. Indisputably, the alleged sale-deed is not registered. Thus, the bar contained in Section 49 (c) of the Indian Evidence Act, 1908 applied with full force and precluded the Court from receiving the unregistered sale-deed as an evidence of any transaction affecting the suit property.

6. Secondly, the instrument was not duly stamped. In view of t