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BDP-SPS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 3241 OF 2021

Shri Sanjay Kumar Ashta

Prorietor of M/s Sarathi Enterprises

…. Petitioner.

V/s

Eviction Officer, Airport Authority

of India & Ors.

….. Respondents.

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Smt. Meena A. Ruparel for the Petitioner.

Mr. Tejas Bhide for Respondent No.2.

Ms. Shoma Maitra a/w Naziya Khan i/b Wadia Ghandy & Co. for

Respondent No.3.

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CORAM: NITIN W. SAMBRE, J.

DATE: AUGUST 04, 2021

P.C.:-

1]

Impugned in the Petition are orders dated 3^rd March, 2020 and

18^th December, 2020 passed by Respondent No.1 – Eviction Officer of

Respondent Nos. 2 and 3, Airport Authority of India and Mumbai

International Airport.

2]

The claim of the Petitioner, a Proprietor of Proprietary Firm is,

land along with construction on CTS No.422 at Village Sahar

admeasuring 511.06 Sq. Mtrs is in possession of the Petitioner vide

1/4

BHARAT

DASHARATH

PANDIT

Digitally signed

by BHARAT

DASHARATH

PANDIT

Date: 2021.08.07

17:56:31 +0530

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agreement of sale dated 8^th December, 1991. It is claimed that since

Respondent No.2 attempted to dispossess, which was resisted by the

Petitioner, eviction proceedings came to be initiated. In the said eviction

proceedings, an application came to be moved by the Petitioner for

marking certain documents as exhibits, which came to be partly allowed.

However, claim of the Petitioner to mark a certified true copy of the

agreement of sale which is not a registered document as exhibit, came to

be rejected in the light of the provisions of Section 17 and 49 of the

Indian Registration Act.

3]

Apart from aforesaid impugned order dated 3^rd March, 2020, vide

another impugned order dated 18^th December, 2020 the application

filed by the Petitioner seeking permission to lead secondary evidence to

prove the documents which are part of affidavit of evidence which were

not marked as exhibits vide order dated 3^rd March, 2020 and for

exhibiting document at Serial No.1 i.e. agreement for sale being an

unregistered document, came to be rejected.

4]

Counsel for the Petitioner Mrs. Meena Ruparel would urge that

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both these orders are not sustainable in law, particularly when Section

49 of the Indian Registration Act permits unregistered agreement of sale

to be read in evidence for collateral purpose. According to her,

exhibiting document does not mean that contents thereof are admitted,

as contents of the document need to be proved by its author. In the

aforesaid backdrop, she would urge that atleast agreement of sale ought

to have been exhibited. So as to substantiate her contention, she has

placed reliance on the judgment of the Supreme Court in the matte of

Sait Tarajee Khimchand and Ors. vs. Yelamarti Satyam Alias Satteyya

reported in AIR 1971 SC 1865 and on the Order of the Supreme Court

in the case of Prakash Sahu vs. Saulal & Ors delivered in Civil Appeal

No.(s) 6772 of 2019 as also on the Order of this Court in the case of

Vijay Dhondu Kadam vs. Union of India dated 9/01/2017 in Civil Writ

Petition No.182 of 2017.

5]

Counsel for Respondents opposed the aforesaid submissions, as

according to them proceedings are at initial stage of recording of

evidence. According to hem, Petitioner has an appropriate remedy at an

appropriate stage.

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6]

Considered submissions.

7]

As far as non-marking of true copy of the unregistered agreement

as exhibit is concerned, it appears that Respondents are not parties to the

said agreement. As such, unless the said document is proved by adducing

appropriate evidence, same cannot be marked as exhibit and admitted in

evidence. Of-course, Petitioner has every right to prove the same and

the Petitioner has sought permission to lead secondary evidence.

However, such permission cannot be granted unless necessary

ingredients of Section 65 of the E