Judicial Analysis Court Copy Headnote Facts Arguments Court observation

PATNA HIGH COURT
Dr. Anshuman, J.
Suresh Kumar Shukla and Ors. – Appellants
versus
Uma Devi and Ors. – Respondents
Second Appeal No.331 of 1987
Decided on 6.01.2026

Counsel for the Parties:
For the Appellants:Mr. Shashi Shekhar Dvivedi, Sr. Advocate Mr. Ashutosh Kumar Pandey, Mr. Parth Gaurav, Mr. Swayamparaph, Ms. Shalini, Advocates.
For the Respondents: None

IMPORTANT POINTS
(1) Secondary evidence – Certified copy of a sale deed could be produced as secondary evidence of public document and could be produced in proof of contents of public document or part of public document which it purports to be a copy.
(2) Title suit – Khatiyan entry does not confer title upon any person – Any person claiming by virtue of a Khatiyan entry, must prove his title independently – In order to decide relationship of one person to another, applicability of Sections 50 and 60 of Evidence Act is required.

Headnote:
(A) Indian Evidence Act, 1872 – Section 65(e), 65(f) – Secondary evidence – Certified copy of sale deed could be produced as secondary evidence of public document and could be produced in proof of contents of public document or part of public document which it purports to be a copy – Certified copy is admissible in evidence both under Sections 65(e) and 65(f) of Evidence Act – If a sale deed is registered, certified copy can be obtained since it pertains to a public record kept by State, or a private document maintained as a public document. (Para 20)
(B) Civil Procedure Code, 1908 – Order XLI Rule 31 – Indian Evidence Act, 1872 – Sections 65(e) and 74] read with Sections 50 and 60 – Title suit – Second appeal by plaintiffs/respondents – Document in present case [Certified Copy obtained from records of BDO/Revenue Office] case is not a registered document – It is merely a certified copy of application in which other documents have been annexed and appellant seeks to derive benefit from it – It has not been established on record under which provision or law said application is required to be registered in records – Present certified copy of application does not come within purview of public document under Section 74 of Evidence Act – Since it does not come within purview of public document, question of applicability of Section 65(e) of Evidence Act shall not arise – Khatiyan entry does not confer title upon any person – Any person claiming by virtue of a Khatiyan entry, must prove his title independently – In order to decide relationship of one person to another, applicability of Sections 50 and 60 of Evidence Act is required and on this point Appellate Court has failed to consider and not discussed in his judgment as to why finding of Trial Court has been discarded by Appellate Court – Judgment and decree passed and prepared by First Appellate Court in Title Appeal hereby set aside and findings given by Trial Court hereby affirmed – Second appeal hereby decreed ex parte. (Paras 22, 23, 24, 36 and 37)
Result: Appeal allowed.

JUDGMENT (ORAL)

The present appeal has been filed by the appellants against the judgment and decree dated 09.07.1987 and 22.07.1987 passed and prepared respectively in Title Appeal No.33 of 1975 by Mr. P.L. Kaungari, 5th Addl. District Judge, Siwan, reversing and setting aside the judgment dated 11.08.1975 and decree dated 28.08.1975 passed and prepared respectively by Mr. Prem Narain Shukla, First Munsif, Siwan, in Title Suit No. 2 of 1966.

2. The original appellant No. 1 to 7 were the plaintiffs of the title suit in which respondent No. 1 to 6 of present appeal were defendants and after decree of the title suit No. 2 of 1966 in favour of the original plaintiffs, original respondent Nos. 1 to 3 preferred Title Appeal No. 33 of 1975 in which the original appellants of memo of second appeal were respondents first set and original defendant Nos. 4 to 6 were respondent second set. The said appeal was allowed. Thereafter, the original plaintiffs-respondents first set had preferred the present second appeal which was numbered as Second Appeal No. 331 of 1987. But with the span of time, parties died and at their place, heirs and legal representatives of the respective parties were substituted at the place respective appellants and respondents whose name are shown in the present judgment.

3. Initially, the present appeal was admitted vide order dated 01.05.1989, in which one substantial question of law was framed, but subsequently, vide order No. 24 dated 24.09.2024, three more substantial questions of law have been framed. Those substantial questions of law are as follows:—

“(i) Whether in view of the fact that the original return was called for from the office of the Circle Officer and was admittedly not produced, the appellant could lead secondary evidence to prove the certified copy of the said return in terms of section 65(e) of the Evidence Act ?

(ii) Whether Khatian entry is a document of title and/or such recorded person has to prove his title independently?

(iii) Whether the Appellate Court Judgment not being in accordance with Order XLI Rule 31 of the Code of Civil Procedure, 1908 and passed without independent on consideration of the entire material on record, is unsustainable in law?

(iv) Whether daughtership of Halimani (heirs of present respondent), having been categorically denied by the plaintiff (present appellant), heavily onus lie on the defendants (respondents) to prove it according to Section 50 and 60 of the Evidence Act, which they have failed to do it?”

4. It is made clear that vide order No. 25 dated 28.01.2025, due to non-appearance of the respondents or their counsel, the present appeal has been fixed ‘For Hearing’ ex parte against the respondents in the light of the provisions made in Order XLI Rule 17(2) of the Code of Civil Procedure, 1908, and subsequently, after hearing ex parte, the present appeal has been fixed for judgment.

5. Prior to deciding the substantial questions of law, it is necessary to place the case of the parties in brief.

Plaintiffs’ Case

6. The Plaintiffs’ case is that the ancestors of them were the Maliks of Tauzi No. 1342 before Revisional Survey. Ancestor of the Plaintiffs came in its possession over C.S. Plot No. 491 as Malik of village Matook Chapra, C.S. Plot No. 491 and 492 belonging to Bhajan Mishra and Mangal Shukla were of this Tauzi. These two plots were recorded in the Revisional survey as one plot no. 837 of Khata No. 96. Since Bhajan Mishra and Mangal Shukla died issueless before R.S. ancestor of the Plaintiffs came in its possession over C.S. Plot No. 491 and 492 as malik and began to cultivate them, after amalgamating the same. These two plots were recorded in R.S. as R.S. Plot No. 837 and R.S. Plot No. 838 also belonged to Mangal shukla but after the death of Mangal Shukla, Malik Achuta Nand Shukla came in its possession and later on this Achutanand Shukla settled it to Mukha Kamkar who is having his Nad, Khunta and Palani etc. over it and C.S. Plot No. 491 and