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2012 Supreme(UK) 69
UTTARAKHAND HIGH COURT
B.S. Verma
Writ Petition (M/S) No. 630 of 2001
RADHEY SHYAM SAXENA (DECEASED) – Petitioner
Versus
SUB DIVISIONAL MAGISTRATE/COLLECTOR
1st CLASS, KICHCHA & ORS. – Respondents
Decided on : 28.02.2012
For the Petitioner: Mr. Rajendra Dobhal, Sr. Adv. with Mr. Lokendra Dobhal, Adv.
For the Respondent Nos. 1 to 3: Mr. Sushil Vashisth, Brief Holder
For the Respondent Nos. 4/1 to: Mr. Sharad Sharma, Sr. Adv., with Mr. Bhuwan Bhatt,
4/6 & 5/1 to 5/3 Advs.
Headnote:Civil Procedure Code, 1908, Sec. 100, Indian Evidence Act, 1872, Sec. 63 and U.P. Zamindari Abolition and Land Reforms Act, 1950, Sec. 209 — Respondents-defendants filed Photostat copy of the alleged agreement of sale and that the same cannot be classified as document — The document in generic sense means the original document — Sec. 61 of the Evidence Act prescribes that the contents of a document may be proved either by primary evidence or by secondary evidence — According to Section 62 thereof primary evidence means the document itself produced for the inspection of the Court — Expl. 2 to Sec. 60 provides that copies of a common original are not primary evidence — Thus the alleged photocopy cannot be a primary evidence — Also, that it was not open to the learned second appellate Court to reverse the findings of fact recorded by the trial Court as well as first appellate Court on appraisal of evidence merely on appraisal of photocopy of the agreement for sale, which is neither a certified copy nor had been compared with the original — Thus, findings recorded by the learned second appellate Court, totally perverse and not tenable in the eye of law — Second appellate Court has also committed jurisdictional error in upsetting the findings of fact in second appeal — Writ petition allowed. (Paras 9, 11, 15, 16)
nhokuh izfØ;k lafgrk] 1908] /kkjk 100] Hkkjrh; lk{; vf/kfu;e] 1872] /kkjk 63 vkSj mÙkj izns’k tehankjh mUewyu vkSj Hkwfe lq/kkj vf/kfu;e] 1950] /kkjk 209 & mÙkjnkrkvksa@cpko i{k us fcØh ds dfFkr le>kSrs dh QksVks dkWih nk;j dh ftls ,d nLrkost ds :i esa oxhZÑr ugha dj ldrs gSa & nLrkost lkekU; vFkks± esa ewy nLrkost gS & /kkjk 61 lk{; vf/kfu;e dk izko/kku gS fd fdlh Hkh nKrkost dh lkexzh dks izkFkfed ;k ek/;fed lcwr }kjk lkfcr fd;k tk ldrk gS & /kkjk 62 ds vuqlkj izkFkfed lcwr ls [kqn nLrkost dks U;k;ky; ds fujh{k.k ds fy, mRiknu djus dk eryc gS & expl. 2 /kkjk 60 iznku djrh gS ,d vke ewy izfr;ka izkFkfed lcwr ugha & bl izdkj dfFkr QksVksdkih ,d izkFkfed lcwr ugha gks ldrh gS & blds vykok] fd ;g ekU; ugha nwljh vihyh; U;k;ky; ds fy, fd og ijh{k.k U;k;ky; vkSj izFke vihyh; U;k;ky; }kjk ntZ fu”d”kZ dks fjolZ djs & dsoy ,d QksVksdkih ds ewY;kadu ij tks fd u ,d izekf.kr izfrfyfi gS vkSj u gh le>kSrs ds ewy ls mldh rqyuk dh xbZ gS & bl izdkj nwljh vihy dksVZ dk fu”d”kZ iwjh rjg ls foÑr vkSj rdZlaxr ugha & f}rh; vihyh; U;k;ky; esa dkuwuh {ks=kf/kdkj dh =qfV dh f}rh; vihy esa rF;ksa ds fu”d”kZ dh vilsfVax ls & fjV ;kfpdk dh vuqefrA ¼izLrj 9] 11] 15] 16½
By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the judgment and order dated 30.7.1990 passed by the second appellate Court, i.e. Board of Revenue U.P. at Allahabad, whereby the appeal preferred by defendant no. 1- Bishambhar Dayal (deceased respondent no. 4 herein) has been allowed and suit of the plaintiff-Radheshyarn Saxena (deceased petitioner herein) was dismissed.
2. During the pendency of the writ petition, the plaintiff-petitioner Radhe Shyam Saxena and the defendant-respondents no. 4 and 5 (Bishambhar Dayal and Dhanpat Rai) have died, therefore, they have been substituted by their legal heirs in the writ petition.
3. Briefly stated, the facts giving rise to the present writ petition are that the petitioner-plaintiff Radheshyam filed a suit for possession under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act (for short the Z.A. & L.R.Act) against the defendant-respondent nos. 4 and 5 Bishambhar Dayal and Dhanpat Rai as well as State of Uttar Pradesh. The plaintiff filed the suit alleging therein that the plaintiff is the Bhumidhar of the land in suit comprising of plot no. 245, area 4 bigha, 8 biswa situated in village Kichha, Pargana Rudrapur, district Nainital and he entered into an agreement for sale with defendants Bishambhar Dayal and Dhanpat Rai on 28.8.1972, but the defendants did not honour the terms and conditions of the agreement and failed to get the sale deed executed and in the year 1976, the defendants attempted to take forcible possession of the land in suit, which led an apprehension of breach of peace. It is also alleged in the plaint that the defendants nos. 1 and 2 by interpolation added the words handed over possesslon in the document for agreement for sale and also in collusion with the revenue staff managed entries of possession in the Khasara. It is also alleged in the plaint that Subhash Chandra, son of the plaintiff, lodged a complaint and the proceedings under Section 145 Cr.P.C. were drawn by the Sub Divisional Magistrate concerned, which were decided on 27.11.1978 in favour of the defendants. The plaintiff filed a revision against the order passed by the Magistrate concerned, which was ultimately allowed by the Additional Session Judge, Nainital, who by order dated 7.8.1979 set aside the order of the Sub Divisional Magistrate with a direction to put the plaintiff in possession but the defendant nos. 1 and 2 assailed the order of the Additional Sessions Judge before the Allahabad High Court in Criminal Revision No. 1508 of 1979, which was allowed on 20.5.1981 and the order passed by the S.D.M. was upheld. Aggrieved, the plaintiff-petitioner filed Special Leave Petition (Crl.) No. 2482/81 before the Apex Court. The Apex Court passed the order dated 27.11.1981 to the following effect-
“Mr. R.K. Jain mentioned this matter today requesting for corrections of the order made on 16.11.1981. The court directed that the order of 16.11.1981 should be read as under:
“Special leave petition is rejected since it is directed against an order passed in a proceedmg under s. 145 Cr.P.C. and it is always open to the father of the petitioner to file a suit in order to establish titles and recover possession of property. If the father of the petitioner files such suit within three months from today the trial court will dispose it of within 6 months from the date of filing the suit.”
4. Thereafter the revenue suit under Section 209 of the Z.A.& L.R.Act was filed by the plaintiff-petitioner. The suit was contested by the respondent-defendants by filing written statement. The learned Assistant Collector framed necessary issued in the suit. Both the parties have adduced oral as well as documentary evidence. The learned Assistant Collector after hearing both the parties and considering the evidence led by the parties decreed the suit by judgment and decree dated 20-2-1984. Aggrieved by the said judgment and decree, the defendan
