Secondary evidence, such as photocopies with due attestation by a Notary Public, is admissible in evidence under Section 63(2) and (3) of the Evidence Act, 1872, and a tenant in possession for a number of years has the right to surrender the tenancy rights.

1. Suit for possession filed by Banarsi Dass was decreed by the trial Court. However, on appeal the decree was set aside. Hence Banarsi Dass is in second appeal. Banarsi Dass plaintiff claimed to be a tenant in the house in dispute for the last forty to forty-five years, since the time of his father. He was residing in Calcutta. However, his wife and children continued staying in the house at Bhiwani. Some time back he took his wife to Calcutta where she died. During his absence Maman Chand defendant forcibly and illegally took possession of the house about 15 days prior to the filing of the suit which was filed on 18/02/1982. Defendant Maman Chand contested the suit and admitted that the plaintiff was residing in Calcutta and doing business there. However, he was not residing in the house in dispute. He himself claimed to be a tenant of the house in dispute having taken on rent from its owner Smt. Gita Devi with effect from 5/06/1981 on a monthly rent of Rs. 15.00. As per his knowledge Har Saroop, brother of the plaintiff, was in possession of the house in dispute and had surrendered the same for a consideration of Rs. 15,000.00. On the pleadings of the parties the trial Court framed as many as 11 issues. On issues Nos. 1 to 3 it was held that the plaintiff was tenant of the house in dispute and he was illegally dispossessed by the defendant, who was thus in unauthorised occupation of the same. It is not necessary to mention to the findings on other issues as the same are not under challenge in this appeal. The trial Court decreed the suit on 20/05/1985. The learned lower appellate Court reversed the judgment and decree of the trial Court and dismissed the suit on 12/03/1986.

2. Learned counsel for the appellant has argued that the lower appellate Court wrongly considered documents Exhibit D.2 to Exhibit D.4 as admissible in evidence. These documents are copies of the copies as is shown from the endorsement made thereon by the Notary. Since the defendant did not lead any evidence of existence of the original, the secondary evidence could not be led. After giving due consideration to the arguments aforesaid and considering the evidence produced, I find no merit in this contention. These three documents bear the endorsement of Notary as under :-

"Attested the true photo copy of the original documents." Learned counsel for the appellant wanted the aforesaid endorsement to be read as:

"Attested the photo copy of the document" which is not correct. The judgment of this Court in Hira V/s. Smt. Gurbachan Kaur, (1988) 94 PLR 173, was pressed into service by counsel for the appellant in support of his contention that copy of the copy would be inadmissible in evidence, more so, when the person who had made the copy had not been produced. That was a case where plea of forgery was taken and original was not produced at the initial stage and subsequently secondary evidence was sought to be produced which was declined. The ratio of the decision aforesaid cannot be applied to the facts of the case in hand. The Notary has given the certificate of attestation on these three documents as reproduced above. He was competent to record such certificate as provided under S. 8 of the Notaries Public Act, extract of which is as under :-

"8. Function of notaries :- (1) A notary may do all or any of the following acts by virtue of his office, namely :- (a) Verify, authenticate, certify or attest the execution of any instrument;"

The words "verify", "authenticate", "certify" or "attest the execution" of any instrument are not synonymus words as provided under S. 8 referred to above. These are separate acts to be performed by the Notary in respect of instruments. Execution of instruments can be attested by the Notary. At the same time the Notary can also verify the instrument or show it to be authenticated or certify its correctness. What is done in the present case is that he had certified that the photo-copy was true copy of the original. Thus,