A party's non-participation in proceedings cannot justify claims of denied rights; secondary evidence may be admissible if a foundation is laid during trial.

JUDGMENT :-

1. The appellant/original defendant impugns the judgment and decree dated 12.11.2021 passed by the Ad-hoc District Judge-2, Aurangabad in Regular Civil Appeal No.189 of 2019 thereby confirming the judgment and decree dated 5.4.2019 passed by the 6th Jt. Civil Judge J.D., Aurangabad in Regular Civil Suit No.514 of 2016.

2. The respondent-plaintiff had approached the Civil Court vide Regular Civil Suit No.514 of 2016, seeking the decree of partition and separate possession against defendant in respect of the agricultural land admeasuring 22R out of S.No.259/3 situated at Harsool, Tq. & District Aurangabad (hereinafter referred to as the ‘suit land’). According to plaintiff, she has jointly purchased the suit land alongwith defendant-husband under the registered sale deed dated 13.4.2012 for valuable consideration of Rs.6,38,000/-. Consequent upon the sale- deed, mutation has been recorded vide M.E. No.17152. The plaintiff contends that she had contributed Rs.4,50,000/- borrowed from her father, towards sale consideration of Rs.6,38,000/-. She claims share of 15.5. Are land out of the suit property. Pertinently, the plaintiff and defendant are husband and wife. After matrimonial discord, they have initiated litigation before the Family Court as well as before the Court of Judicial Magistrate First Class, at Aurangabad. The plaintiff seeks partition of the suit land owing to such dispute.

3. In response to the suit summons, defendant failed to appear before the Trial Court, consequently, on 20.3.2018 an ex-parte order came to be passed against him below exhibit 1. In-spite of such order, although defendant appeared, he failed to make application for setting aside the ex-parte order. In- stead, he chosen to file an application under order 7 Rule 11 (d) seeking rejection of the plaint, alleging non-compliance of Order 4 Rule 1 and Order 6 Rule 15 of Civil Procedure Code. The Trial Court after satisfying compliance of both requirements in plaint, rejected his prayer. Said order attained finality. Trial Court framed the issues considering the averments in the plaint. Plaintiff recorded her oral evidence as well as her father (PW2). She relied upon documentary evidence in form of certified copy of the 7/12 extract. Certified copy of the Registered sale deed No.2739 of 2012 dated 13.4.2012.

4. Trial Court, after considering the evidence on record, partly accepted the case of the plaintiff thereby declaring that the plaintiff and defendant have one half share each in the suit land and upon partition, half share be put into possession of the plaintiff. The separate inquiry under order XX Rule 12 (1) (c) of the Civil Procedure Code for mesne profit has been directed. Aggrieved defendant approached the District court in appeal under section 96 of the Civil Procedure Code. However appellate court affirmed the decree passed by the Trial Court after recording concurrence with the findings on facts of law.

5. By this second appeal filed U/S 100 of CPC, the appellant/defendant raises challenge to the concurrent findings of the fact recorded by two courts. Mr. Kazi, learned advocate appearing for the appellant would submit that the Courts below have erroneously placed reliance on inadmissible document i.e. certified copy of the sale deed dated 13.4.2012. He would submit that the averments in plaint do not disclose that original sale-deed was either not available or it was possessed by defendant. He would submit that non- compliance of section 65 of the Evidence Act is fatal and decree based on such document would not be sustainable. Mr. Kazi, would submit that, the Trial Court failed to grant sufficient opportunity