IMPORTANT POINT
The court established that secondary evidence is inadmissible without a foundational explanation for the absence of primary evidence, emphasizing strict adherence to evidentiary rules.

JUDGMENT :

MALASRI NANDI, J.

Heard Mr. J. Ahmed, learned counsel for the appellant. Also heard Ms. R. Choudhury, learned counsel for the respondents.

2. The appellant has preferred this second appeal u/s 100 of CPC, challenging the judgment and decree passed by the learned Civil Judge, Barpeta in Title Appeal No.08/2014 dated 16.05.2017, affirming the impugned judgment and decree passed by the learned Munsiff No.1, Barpeta in Title Suit No.325/2010 dated 13.12.2013.

3. The appeal was admitted on the following substantial question of law-

a) Whether the learned trial courts below erred in law in interpreting section 76 of the Indian Evidence Act by holding that the certified copy of the sale is inadmissible in evidence.

b) Whether the learned lower appellate court erred in law in not formulating points for determination as provided under Order XLI Rule 31 of the Code of Civil Procedure.

4. The appellant being plaintiff filed a title suit vide no. T.S. 325/2010 before the learned Court of Munsiff No.1, Barpeta stating that the plaintiff purchased 3 Bighas 2 Kathas 10 Lechas of land covered by Dag No.257, Periodic Patta No.40 vide Registered Sale Deed No.57/1996 dated 05.01.1996 from Siraj Ali @ Siraj Mia, son of late Hasimuddin of village – Sonapur (Kadang).

5. However, for some personal reason, the plaintiff did not mutate the said land in his favour but he was possessing and enjoying the said land without any disturbance from any corner. After the death of Siraj Mia, his heirs i.e. the defendants in Title Suit No.325/2010, illegally obtained mutation of the entire lands of Siraj Mia including the suit land purchased by the plaintiff/appellant by misleading the Revenue Authority.

6. On being informed, the plaintiff/appellant filed a petition before the concerned Circle Officer to register a case under Section 145 Cr.PC. Subsequently, the defendants started to create problem in peaceful possession of the suit land occupied by the plaintiff. Particularly, on 30.11.2010, the defendants threatened to dispossess the plaintiff from the suit land. Through the Title Suit vide No.325/2010, the plaintiff has prayed to pass decree declaring the right, title, interest and confirmation of possession of the plaintiff over the suit land.

7. The defendants/respondents contested the suit by filing a written statement. It was contended that the defendants are in exclusive possession of the suit land since 11.04.1975. It was pleaded that Siraj Ali @ Siraj Mia never sold any land to the plaintiff/appellant and never executed any sale deed in respect of the suit land and that is why, during lifetime of Siraj Mia, the plaintiff/appellant never tried to get his name mutated in the Revenue Records.

8. Though the defendants filed counter claim seeking dismissal of the suit and decree for declaration of their right, title and interest and confirmation of possession over the suit property as legal heirs of Siraj Mia but during trial at the stage of the evidence of the plaintiff side, they remained absent without any step and even did not cross-examine the witness of the plaintiff side. As such, the counter claim was dismissed and cross-examination of the plaintiff side was treated as declined. Hence, only the suit filed by the plaintiff was proceeded further. The plaintiff filed their written statement against the counter claim reiterating the same facts as stated in the plaint and prayed for dismissal of the counter claim.

9. The learned trial court dismissed the case of the plaintiff on the ground that as per provision of Section 65 of the Evidence Act, the certified copy of the Sale Deed No.57/1996 cannot be received as evidence of title of the plaintiff in respect of his claim of purchasing the suit land.

10. As per judgment of the trial court which reads as follows -

“The plaintiff’s claim over the suit land is based on registered sale deed no.57/1196 dated 05.01.1996, which is a certified copy of the sale deed and marked as Exhibit 1, which is a secondary