Point of Law: Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence.

JUDGMENT :

Heard Ms. P. Bhattacharya, the learned counsel appearing for the appellant as well as Mr. A. Dhar, the learned counsel representing the respondent.

2. This is a regular second appeal, whereby the judgment dated 30.05.2015, passed by the learned Civil Judge Kamrup, Amingaon, in Title Appeal No. 62/2014, arising out of the judgment dated 21.05.2013, passed by the learned Munsif No. 2, Kamrup, Guwahati, in Title Suit No. 292/2004 is put to challenge.

3. In the year 1978, the present appellant purchased a plot of land measuring 3 bighas from the father of the present respondent. A Registered sale deed was executed to that effect. The appellant also mutated himself in the land records. Infact the appellant has given one portion of land to his brother Sri Robin Medhi.

4. On 04.07.1996, the respondent illegally dispossess the appellant of one bigha of land, out of the total land of three bighas.

5. Therefore, the appellant filed a suit before the Court of Munsif No. 2, which was registered as Title Suit No. 292/2004, praying for recovery of possession as well as for declaration of his right, title and interest over the said plot of land.

6. The respondent while filing the written statement, denied the fact, that his deceased father had ever sold the three bighas of land to the appellant. The respondent claimed that till his death in the month of April/2004, his deceased father late Bholaram Medhi, was in occupation of the land. The appellant further pleaded that in the year 1976, his father came to know that the appellant has been claiming title over the land on the basis of a sale deed which he never executed in favour of appellant. According to the respondent, on 17.04.1996, his father had filed a complaint before the Deputy Commissioner, against the appellant on that issue.

7. The learned Munsiff finally held that the appellant failed to prove his title over the land and dismissed the suit.

8. The appellant filed the appeal before the learned Civil Judge at Amingaon, Guwahati and the learned first appellant Court dismissed the appeal.

9. This second appeal was admitted for hearing upon the following two substantial question of law:

1. Whether the learned first appellate Court committed error of law in holding Ext. 1 inadmissible in evidence although the same was brought into record without objection?

2. Whether the learned courts below committed error in not declaring the title of the plaintiff over the suit land on the fact of Ext 1?

10. In this case the original sale deed purported to have been executed by the father of the respondent in favour of the appellant was lost from the custody of the Lawyer of the appellant. The concerned Lawyer pasted notice, in the notice board of the Court but the original sale deed was not found. The said Lawyer informed the trial Court at the time of adducing the evidence of the appellant. A certified copy of the sale deed (Ext.1) was exhibited as evidence. The learned first appellate Court agreed with the decision of the trial Court on the ground that the Exhibit 1 i.e. the certified copy of the original sale deed is not admissible in evidence, because of the provision of law laid down in section 65 of the evidence Act.

11. The learned counsel Ms. Bhattacharya, has submitted that the act of filing the certified copy of the sale deed by the appellant, falls within section 65 (c) of the Indian Evidence Act. According to Ms. Bhattacharya, the sale deed was not lost because of any default or negligence of the appellant. It was lost from the custody of his Lawyer. The learned counsel has further submitted that the said Lawyer has testified before the Court below, whereby he has explained that the original sale deed was handed over to him by the appellant and the file containing the sale deed was lost somewhere. The learned counsel Ms. Bhattacharya has submitted that the witness from the office of the sub-registrar has already proved the execution of the sale deed.

12. Per contra, the learned counsel Mr.