IMPORTANT POINT
The necessity of producing primary evidence to substantiate claims of title in property disputes, as outlined in the Indian Evidence Act, particularly Sections 61, 63, and 65.

ORDER :

Birendra Kumar, J.

1. The plaintiff’s suit has been decreed by a consolidated judgment and decree dated 21.12.2018 passed in Civil original Suit No. 57/2005 and Civil Original Suit No. 239/2005 (56/2005).

2. Case of the plaintiffs is that the suit property was of Damayanti Devi, who had purchased the same through registered sale deed and the plaintiffs purchased it from Damayanti Devi.

Whereas case of the defendants is that infact, sale in favour of Damayanti Devi was not an absolute sale, rather it was a mortgage transaction (conditional sale).

3. The original sale deed in favour of Damayanti Devi is with the plaintiffs which they have admitted before this Court, but they have not produced the same before the trial Court.

4. During the course of hearing, it surfaced that sale deed in favour of Damayanti Devi was executed by Ishwar Chand and his two sons Prem Chand and Suresh Kumar vide registered sale deed dated 1.7.1971.

5. In the aforesaid situation, examination and perusal of the contents of registered sale deed dated 1.7.1971 was necessary. The original sale deed was never brought on record rather photocopy of the same was brought on the record and signature of the executant on photocopy was identified by defendant’s witness no. 3-Anand Kanwar.

6. Section 61 of the Indian Evidence Act says that the contents of documents may be proved either by primary or by secondary evidence. Section 63 describes the nature of secondary evidence and Section 65 says the circumstances in which secondary evidence may be laid.

7. It is not disputed that the original sale deed is with the plaintiffs. Nothing has surfaced as to what prevented the plaintiffs to bring the said original document on record rather a photocopy of the same which is not a secondary evidence.

8. Since vital question involved is whether the sale deed in favour of Damayanti Devi dated 1.7.1971 was really a transaction of absolute sale, if the answer goes in affirmative, the claim of plaintiffs to have title may become an arguable case. If the document dated 01.07.1971 reveals that the same was a mortgage transaction, Damayanti Devi could not have transferred the title in favour of the plaintiffs. For the purpose, that whether or not she had title, original of the document is required to be proved according to law. The Court below has not considered the aforesaid lapse during trial proceedings.

It was duty of the plaintiff to prove his title as well as title of his vendor by primary evidence. Secondary evidence as described in Section 63 of the Indian Evidence Act could have been brought only if the circumstance mentioned permit secondary evidence under Section 65 of the Indian Evidence Act.

9. Moreover, a civil dispute is decided on preponderance of probability. The appellants have come with a case that the transfer deed in favour of Damayanti Devi was infact a mortgage transaction and not a sale transaction. This assertion could have been looked into only on examination of the documents itself because contents of the document cannot be rebutted by oral evidence.

10. For the aforesaid reasons, the impugned judgment and decree is set aside and the matter is remitted back to the trial Court to take the primary evidence of the sale transaction dated 1.7.1971 on record and pass fresh judgment according to law.

11. The order was passed in presence of the parties. The parties would appear before the trial Judge on 27.5.2024.