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CASE NO.:

Appeal (civil) 2937 of 1989

PETITIONER:

MARWARI KUMHAR AND ORS.

RESPONDENT:

BHAGWANPURI GURU GANESHPURI AND ANR.

DATE OF JUDGMENT: 10/08/2000

BENCH:

V.N. KHARE & S.N. VARIAVA

JUDGMENT:

JUDGMENT

2000 Supp(2) SCR 368

The Judgment of the Court was delivered by

S.N. VARIAVA, J. This Appeal is against the Judgment dated 3rd October,

1985 by which the Second Appeal filed by the Appellant (herein) has been

dismissed.

Briefly stated the facts are as follows :

The appellants are representing Marwari Kumhar Community of Dewas. The suit

was filed in a representative capacity. The Marwari Kumhar Community were

holding religious functions in the temple and were using the Dharamshala

situated on the suit property. They had engaged one Ganeshpuri, who acted

as a Pujari. The said Ganeshpuri died on 11th of February, 1945. The son of

Ganeshpuri (who is Respondent No. 1 herein) and the wife of Ganesnpuri (who

is Respondent No. 2 herein) started claiming ownership to the property.

Therefore the Community filed a representative suit, sometime in December

1945, for a declaration of their title. They also claimed in that suit that

they were entitled to keep on performing their religious functions and to

use the Dharamshala as they always have been doing. At that time 1st

Respond-ent was a minor. He was therefore represented by his guardian i.e.

his mother. The 2nd Respondent had also been sued in her individual

capacity. In that suit the Respondents took up the contention that the suit

property was owned by Ganeshpuri. They claimed that the Community had no

right, title or interest in the suit property. The suit came to be decreed

in favour of the Community. It was specifically held that Ganeshpuri and

the Respondents were mere Pujaris. Against this decree the Respondents

filed an Appeal. That Appeal was allowed. The Community filed a Second

Appeal before the then High Court of Dewas. That Second Appeal was allowed

on 7th May 1948. The decree of the trial court was restored by the High

Court.

It would appear that sometime thereafter the Respondents again started

asserting their title. Therefore the present suit, for possession of the

property, was filed on 7th of December, 1960. In this suit it had been

claimed that the 1st Respondent had executed a Nokarnama on 31st October

1948. The Appellant/Plaintiffs had lost all their papers. They, therefore,

relied upon an ordinary copy of the Judgment in the earlier suit and a

certified copy of the decree in that suit. The Nokarnama was also lost and

only oral evidence was led about it. The Respondent-Defendants again

claimed that Ganeshpuri was the owner of the suit property. They claimed

title to the suit property as his heirs. They claimed that they and their

predecessor i.e. Ganeshpuri were in open, adverse and hostile possession

since long and that in any event they had acquired title by adverse

possession. They claimed that a suit for possession was barred by

provisions of Order 2 Rule 2 Civil Procedure Code in as much as in the

earlier suit relief for possession should have been and was not claimed.

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They also claimed that the suit was barred by limitation.

The trial court accepted Plaintiff/Appellants case and decreed the suit on

20th of September 1968. The trial court relied upon the judgment in the

earlier proceedings and held that the title in the property vested in the

Community. It was noted that it was already held that the Respondents and

Ganeshpuri were on the suit property only as Pujaris. The trial court

accepted the oral evidence and held that it was proved that a Nokarnama was

executed. It was held that the earlier judgment was binding on the

Respondents and that this suit was not barred by Order 2 Rule 2 C.P.C. It

was held that the suit was within time and that the Respondents had not

been able to prove adverse possession.

The 1st and the 2nd Respondents filed two separate Appeals. Both these

Appeals were allowed by a common judgment dated 1st November, 1974. The

Appellate Court held that the earlier Judgment being a public document only

a certified copy could have been tendered in evidence. The Appellate Court

held that the earlier judgment could not be held to have been proved as

only an ordinary copy had been tendered in evidence. The Appellate Court

held that the Community had failed to prove its title. The Appellate Court

held that the Nokarnama was not proved. The Appellate Court held that the

Respondents had been able to prove that Ganeshpuri and the Respondents had

been in possession for a long period of time and that they perfected title

by adverse possession. The Appellate Court, therefore, dismissed the suit.

The Appellants tiled a Second Appeal which has been dismissed by the

impugned judgment. In the impugned judgment it had been held that an

ordinary copy of the earlier judgment could not have been admitted in

evidence and that the same could not be looked into. It was held that the

Appellants had failed to prove their title to the suit property. It has

been held that the Nokarnama was not proved. It is held that the

Respondents have acquired titled by adverse possession.

It is to be seen that the first and the second Appellate Courts have

proceeded on the footing that the earlier judgment between the parties was

not proved and could not be looked into. They have so held on the ground

that an ordinary copy of the judgment was inadmissible in evidence. Both

the Courts declined to take note of what had been finally decided, after

contest, by Courts of competent jurisdiction. In so doing both the Courts

ignored that fact that the Respondents had not denied that earlier there

was a suit filed by the Appellants against them and that in that suit

ultimately the title of the Appellants was affirmed. It was not denied that

on 7th May, 1948 the then High Court of Dewas confirmed the decree of the

trial court. A certified copy of that decree had also been marked in

evidence. Both the Courts also ignored the fact that the Respondents were

not claiming that the copy which was produced was not the correct copy. The

Respondents were merely claiming that the earlier judgment did not bind

them. It is also important to note that both the Courts have not

disbelieved the case of the Appellant/Plaintiff that the original copy was

no longer available in the records of the Court and the certified copy

which had been obtained by the Appellants had been lost. Both the Appellate

Courts only relied upon sub-clause (I) of Section 65 of the Evidence Act

and held that as the judgment was a public document, it could be proved

only by a certified copy of the judgment and no other kind of secondary

evidence was admissible. Having held that the earlier judgment could not be

looked into both the Courts then cast a strict burden on the Appellants to

again prove their title and held that the Appellants had not proved their

title. Both the Courts have then held that Ganeshpuri and the Respondents

were in possession for long and that they had acquired title by adverse

possession. It is pertinent to note that neither the first Appellate Court

nor the second Appellate Court have held that Respondents have been able to

prove adverse possession by virtue of their possession since 7th May, 1948.

In our view, both the Courts below have erred in law and on facts in coming

to this conclusion. Both the Courts below have adopted an entirely

erroneous approach for the reasons set out hereafter.

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Section 65 of the Evidence Act reads as follows :

"65. Cases in which secondary evidences relating to documents may be given.

- Secondary evidence may be given of the existence, condition or contents

of a documents in the following cases. -

(a) When the original is shown or appears to be in the possession or power

- of the person against whom the document is sought to be proved, or of any

person out of reach of, or not subject to, the process of the Court, or of

any person legally bound to produce it,

and when, after the notice mentioned in section 66, such person does not

produce it;

(b) When the existence, condition or contents of the original have been

proved to be admitted in writing by the person against whom it is proved or

by his representative in interest;

(c) When the original has been destroyed or lost, or when the party

offering evidence of its contents cannot, for any other reason not arising

from his own default or neglect, produce it in reasonable time;

(d) When the original is of such a nature as not to be easily movable;

(e) When the original is a public document within the meaning of section

74;

(f) When the original is a document of which a certified copy is permitted

by this Act, or by any other law in force in (India), to be given in

evidence;

(g) When the originals consist of numerous accounts or other documents

which cannot conveniently be examined in Court, and the fact to be provided

is the general result of the whole collection. In cases (a), (c) and (d),

any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (I), certified copy of the document, but no other kind of

secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the

documents by any person who has examined them, and who is skilled in the

examination of such documents."

Thus it is to be seen that under sub-clause (c) of Section 65, where the

original has been lost or destroyed, then secondary evidence of the

contents of the document is admissible. Sub-clause (c) is independent of

sub-clause (f)-Secondary evidence can be led, even of a public document, if

the conditions as laid down under sub-clause (c) are fulfilled. Thus if the

original of the public document has been lost or destroyed then the

secondary evidence can be given even of a public document. This is the law

as has been laid down by this Court in Mst. Bibi A is ha and Others v. The

Bihar Suhai Sunni Majlis Avaqaf and Others, reported in AIR (1969) Supreme

Court 253. In this case a suit had been filed for setting aside a

registered mokarrari lease deed and for restoration of possession of

properties. The suit had been filed on behalf of a Waqf. The Original Waqf

Deed was lost and an ordinary copy of the Waqf Deed was produced in

evidence. The question was whether an ordinary copy was admissible in

evidence and whether or not secondary evidence could be led of a public

document. The Court held that under section 65 clauses (a) and (c)

secondary evidence was admissible. It is held that a case may fall both

under clauses (a) or (c) and (f) in which case secondary evidence would be

admis-sible. It was held that clauses (a) and (c) were independent of

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clause (f) and even an ordinary copy would, therefore, be admissible. As

stated above the case that the original was no longer available in Court

records and the certified copy was lost has not been disbelieved. Thus the

ordinary copy of the earlier judgment was admissible in evidence and had

been correctly marked as an exhibit by the trial court.

[n this case there is the additional factor that the factum of there being

such a judgment was not denied. The Respondents did not contend that the

copy which had been produced was not the correct copy. All that the 1st

Respondent had pleaded was that the earlier judgment was not binding on

him. The Respondents were parties to the earlier proceedings. The 1st

Respondent was properly represented by his mother the 2nd Respondent. The

earlier suit had been hotly contested. The earlier judgment was, therefore,

binding on both the Respondents. In the earlier judgment it had clearly

been held that the title to the property vested in the Appellants. It was

held that Ganeshpuri and the Respondents were merely Pujaris. That judgment

attained finality on 7th of May, 1948, when in the Second Appeal the decree

was confirmed. Thus up to 7th of May, 1948, the Respondents were in

possession merely as Pujaris. Their claim to title, through Ganeshpuri, had

been negatived by a competent court. That finding was binding on the

Respondents. Both the first Appellate Court and the second Appellate Court

failed to appreciate that on principles of res-judicata Respondents were

precluded from denying Appellant's title to the suit property. They were

precluded from claiming that they had acquired title by adverse possession

through Ganeshpuri. Both the Courts failed to appreciate that it was for

the Respondents to allege and show that after 7th May, 1948 their

possession became adverse. In the pleadings the claim to adverse possession

is based on the claim that Ganeshpuri was in possession as owner. It is

nowhere pleaded that after 7th May, 1948 the possession became adverse. We

have also read the evidence of the Respondents. Nowhere has it been claimed

that after 1948 the Respondents or anv of them had perfected title by

adverse possession. The trial Court correctly appreciated this fact. Both

the Appellate Courts below fell in error in holding that the Appellants had

failed to prove litle and that the Respondents had established title by

adverse possession. On the contrary the decree in the earlier suit

established the title of the Appellants and showed that the Respondents

were in possession merely as Pujaris. In the absence of any proof as to the

date, time and the manner in which possession as a Pujari got converted

into open, hostile and adverse the claim for adverse possession could not

be upheld. In our view both the Appellate Courts below have seriously

erred, both in law and on facts, in dismissing the suit of the Appellants.

Under the circumstances the judgments of the First Appellate Court dated

1st November, 1974 and the impugned judgment dated 3rd October, 1985

require to be and are hereby set aside. The decree of the trial court dated

20th September, 1968 is restored. The Appeal stands disposed of

accordingly. There will be no order as to costs.