Dismissed

Sri Sasary Kanakaiah v. Smt. Kashannagary Shanthoshamma

Telangana HC30 Dec 2021CRP/3344/2014

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a civil revision petition challenging the admissibility of an attested photocopy of a patta certificate as secondary evidence. The Court held that the respondent laid sufficient factual foundation under Section 65(c) of the Evidence Act by filing an affidavit stating the original was lost and submitting an attested copy, stating that a bare affidavit statement

What did the court decide?

The Civil Revision Petition is dismissed. The stay granted via CRPMP No. 4573 is vacated. The Court below to dispose of the original suit within four months.

Sri Sasary Kanakaiah Vs Smt. Kashannagary… — Civil Procedure and Limitation | Telangana HC (2021)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE THIRTIETH DAY OF DECEN4BER TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY

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CIVIL REVISION PETITION NO: 3344 OF 2014

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Petition under Anicle 227 of Constitution of lndia, aggrieved by the Order and decree dated 26106114 in lA No.51 of 2014 in OS No.67/2008 on the fite of the Court of the Junior Civil Judge, Andole, at Jogipet.

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Between:

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Sri Dasary Kanakaiah, S/o Ushaiah (died per LRs) Occ: Agriculture Rl/o Choutakur Village, Pulkal Mandal, District Medak.

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Dasari Shayamma, W/o.late Dasari Kanakaiah,

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Dasari Manikyam, S/o.late Dasari Kanakaiah,

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Dasari Suwarna, W/o.Yadaiah, D/o.late Dasari Kanakaiah

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Dasari Balamani, W/o.Lingaiah, D/o.late Dasari Kanakaiah

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Talari Soundarya, W/o.Ramulu, D/o.late Dasari Kanakaiah (All are Rl/o.Chowtakur Village, Pulkal l\rlandal, Sangareddy District) (Petitioners 2 to 6 are brought on record as LRs of the deceased sole petitioner as per Court Order dated 2011212021 in lA No.1 of 2018)

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.,.PETITIONERS/RESPONDENT/ PLAINTIFF

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AND

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Smt. Kashannagary shanthoshamma, W/o Late Chennaiah Occ: Agricullure

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R/o.Chowtakur Village, Pulkal l,4andal District Medak.

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...RESPONDENT/PETITION ERS/DEFENDANT

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CRPMP. NO: 4573 OF 2014

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Petition under Section^'1 51 of CPC praylng that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to grant stay of all further proceedings in OS NO. 6712008 on the file of the Junior Civil Judge, Andole at Jogipet, Medak District including marking of the impugned document being attested photo copy of proceedings, patta certificate to respondent on 20-10-1982 vide proc. NO. C-5/7563/82, allegedly issued by the Tahsildar, Andole, through DWl,

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For the Petitioners : SRI E.PHANI KUMAR, Advocate

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For the Respondent : SRI K.RAGHUVEER REDDY, Advocate

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The Court made the following: ORDER

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THE HON'BI E SRI JUSTICE A. VENKATESHWARA REDDY CRP I,{o.3344 of 2011

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ORDER:

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l. This civil revision petition is filed by the first revision peririoner /respondent/pla ntiff aggrieved by the order dated 26.06.2014 in lA No.5l of 2014 n OS No.67 of 2008 on the llle of the learned Junior Civil Judge, Ardole at Jogipet. During pendency of the proceedings before this Cot rt, the revision peritioner/plaintiff died and his legal representatives ,.re brought on record as petitioners 2 to 6.

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IA No.5' of 2014 was filed by the def'endant, who is the respondent here n under Sections 63 to 65 ofthe lndian llvidence Act seeking to recei' e photostat copy of patta certificate dated 20. i 0. I 982 on the ground t lat the original of the said document r,vas misplaced and it could not )e traced by her and that she has got the attested copy of the same by tl e Tahsildar, Pulkal Mandal, Medak District.

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This appl cation was allowed by the Court beioli, with an obseryation thal the Tahsildar, who has got knowledge about the things, has attes ed the said document as the original is not traceable and a foundatior L as required u/s.65 (c) of the Indian Evidence Act, 1872 is laid, acc rrdingly, the said document dated 20. 10.1982 can be admitted into e vidence on behalf of the petitioner/def'endant as secondary evider ce. This order is challenged by the plaintifflrevision petitioner on the ground that the Court below ought to lrava seen thdf^*'

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Page 2 of 7

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AVRJ CRP No.3344 of20l4

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without proper fbundation such^{documentought not to have received} in secondary evidence. Though^{attestedcopyof pattaceftificatedated} 20.10. 1982 is^{produced,it cannot satisfvthe ingredientsof Section65} of Evidence Act, which require^{properauther-rticationof having drawn} by mechanical process. The defendant^{hasfailed to speci8ron which} date he lost the original certificate^{and the stepstaken by her including} filing of the police complaint,^{if any.}

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Heard learned counsel for the^{revisionpetitioners/plaintiffs and} the respondent/defendant. Perused^{the material placedon record'}

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The Original Suit was filed for^{perpetual injunctionby the} plaintiff against the defendant in^respect of^{suit schedule property.} The schedule propefty is^{plot No.6 admeasuringEast to West - I 1} yards, Norlh to South - 12 yards of Chowtkur^{Village,PulkalMandal,} Medak District. [n respect of^{the very same plot, it appearsthe} respondent/deitndant has made a^{claimstating that she was given} patta ceftiflcate by the revenue authorities on 20.^{10.1982 and that she} has applied for penrtission from the Gram^{Panchayat,Chowtkuron} 3 I .10.2008 for construction of^{RCC buildrng, but the GramPanchayat} has failed to intimate to the defendant^{either grantingor lefusing the} permission within a period of60 days. Thereafter,^{the defendanthas} started construction,^as the^{permissionis deemedto have been granted} after expiry of 60 days time.

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Page 3 of 7

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,\VRJ CRI' No.l-1.11 of l0l-l

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Be that a; it may, when the plaintiff is claiming suir plot and filed the suit fi r perpetual injunction, it is for hinr to esrablish his case. But, the lef'endant having pleaded that plot bearing No.6 was allotted to her a rd constructed a house, filed the present application in IA No.5 1 of 2)14 stating that original certificate is lost and that attested photo c )py of patta certificate dated 20.10.1982 in flle No.C517563182 is arailable with her and the same mav be received in secondary evide rce.

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The lean Led counsel for the revision petitioners/plaintifls questioning the legality of the order impugned argued that no foundation is lar C by the defendant for adducing secondarv !'vidence and she has fail:d to prove the existence of the original document itself and relied, n the principles laid down in the ibllovu.inr: decisions:

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i) t. Y rshodo v. K. Shobha Ranit; and ii) Jogt rail Singh and another v. Karamjit Singh tnil rtthers2.

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Per contra the learned counsel for the respondent/def-endant has submitted that t re respondent has laid the foundation tbr leading secondary evider:e and that she lost the original document. However, the attested copy of patta ceftificate is available with her and she has mentioned the s: me in her affidavit and that there can never be an absolute proof of fact that the document had in fact been lost and that the statement ma, Le by her in the affidavit itsell is suf ficient proof and

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'^{(zoor)s scc z:o}

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-1120:0)^{s sccrzs}

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Page 4 of 7

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AVRJ CRI' No.3344 of2014

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she is not^{expectedto flle a police complaint etc,and relied on the} tbliowing decisiohs:

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i\ Sattammu^{anrl others v. Ch. Bhikshopali Goutl@, Ch'} Bhupul Gttud^{andolhersr;and}

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ii) Korloli Jhansi^{Runi v. ValasslaVenkataRamana @ Ramana} (Died) anrt olhersa.

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I have^{caretullyperused the principleslaid in the above} judgn.rents relied by the leamed^{counsel for the revision} petitioner/plainti^{ff and the respondent/defendant'}

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The respondent/defendant^{haspleadedin her written statement} that the suit^{plot rvas allottedto her, vide File No.c-5/7563182dated} 20. 10.1982 and^{since then she is in exclusivepossessionand} enjoyment and^{that shehas also applied for construction ofa house to} theGramPanchyaton3l.l0.2008.AstheGramPanchayatfailedto grant penrissiorl, she^{has constructed the house in the said plot under} deemedpermissionafter60days..Iheevidenceofplaintiffis concluded.^'fhe evidence^{affidavit of defendantis filed as DWl'} Along with her^{evidence affidavit,she has filed this document/attested} copy of patta ceftificate^{dated20.10.1982' It is attested by the} Tahsi ldrr. Pulkal^\4andal.

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1 1 . Section 65^{(c) of the EvidenceAct provides that the secondary} evidence can be^{adducedrelating to a document when the originalhas}

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'^{2oto (i) ,qt.D o:,t} o zore is) ALD 6l (TS)

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Page 5 of 7

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,AV RJ CIi P No.3.-:.1.1 of 201-l

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been destroyed⁽ r lost when the pafty olfering evidence o.'its contents cannot, for any other reason not arising fiont iris orvn de{'ault or neglect, produce it in reasonable tirne.

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ln Romok isluto Constructions, Karimnagor District r,. Singoreni Collieries Co., ) ltl., ll/orangols, this Courl rvhile dealing ,/ith the similar facts hel I that a bare statement made in aUldavit b1' a party would be suffic :nt proof of fact that the document has been lost or not traced out a rd that a statement of the person that the document was lost and ir spite of best etTorts, he could not trace out the document woulc be sutllcient evidence of fact that the document had been lost

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ln Korloli .'hansi Rani's case (4 supra). this Coufi u hilr: rcll,ing on the above de:ision and also other decisions. held that secondarv evidence can be )ermitted to be led in. In such circutrstances and that the merits and⁽ emerits, truth or otherwise and validity of the said document can be gone into at the appropriate stage. In J. Yoshodo and lagmail Singh'ca res (1 & 2 supra) reiied by the learned counsel for the revision petitior ers/plaintiffs. it was held that t'acts llave to be established by p imary evidence and secondary evidenc€r is oniy an exception to th: rule fbr which foundational facts have to be established to ac, ount forthe existence of the printarr eviderrce.

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5 20 ts i I1 eLo al7

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Page 6 of 7

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AVRJ CRP No.3344 of20l4

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In the case on hand, the factual foundation is laid by^the respondent/defendant and she has filed her affidavit stating that the original patta certificate is lost and it is beyond traceable and that photocopy ol the saure duly attested by the Tahsildar, Pulkal Mandal is available with her. considering the same, the Court below has given an opportunity to the respondent/defendar-rt to lead secondary evidence ol the sarne. In such circumstances, in the aforesaid factual situation considering the principles laid in the above decisions, I am of^the opinion that the factLial foundation as required under Section 65^(c) of the Evidence Act is laid by the defendant fbr leading secondary evidence. She has llied the^photo copy of^{patta certificate,attestedby} the Tahsildar, Pulkal Mandal as secondary evidence.^The Court^below has not committed any.jurisdictional error and the order^impugned does r-rot warrant an-v interference. lt is needless to observe^{that merely} the adrnission in evidence and marking of the document^{does not} prove it autornatically unless the same has been proved in accordance with lau, and it is fbr the respondent/def-endant to prove the authenticitl' and tr-Lrthfulness or genuineness of said^patta certificate, rvhich r.vill havc to be established in the cottrse of trial in accordance w'ith lan'. l herefbre, in my considered opinion that the order impugned does noL warrant any interference by this Court.

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In the result, the Civil Revision Petition is disrnissed, contirnring the impugned order dated 26.06.2014 in IA No.51 of²⁰¹⁴ in OS No.67 of 2008 on the file of the leamed Junior Guil^Judge,

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Page 7 of 7

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, ,\VRJ CRI'No.li,1'1 of 201.1

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Andole at Jogif et. The stay granted, vide CRPMP No.4573 ol 20 l4 on 26.09.2014 is vacated. However, considering the t-act that the Original Suit is filed in the year 2008 and the evidence of clefendant was in progress at the time of passing the impugned order, the Court below shall ma .e every er-.,deavour to dispose of the Original Suit, within four mor ths from the date of receipt of a copy of this order. Both the parties to the suit shall cooperate with the Court below fbr expeditious dis rosal of the Original Suit as directecl. In rhe circurnstances o the case, there shall be no order as to costs.

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Miscellan:ous applications, if any pending in this revision petition shall sta rd closed.

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Sd/-I,NAGA LAKSHMI ASSISTANT REGISTRAR ,TRUE COPY// !v5/ SECTION OFFICER

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The Junior Civil Judge,^{logipet, Andole, Medak District} 2. One CC to Sri E.Phani^{lumar, Advocate (OPUC)} 3. One CC to Sri K.Raghu^{reer Reddy,Advocate (OPUC)} 4. Two CD Copies 5. One Spare Copy Kj l_ -tr Y

HIGH COURT

DATED:3Q11212021

ORDER

CRP.No.3344 ol 2014

6ffi<br>01FEB 2fi22

DISMISSING THE CRP.