SK. ISHAQUE Vs. SK. LIAKAT ALLI AND OTHERS

JUDGEMENT

(1.) This petition challenges the order dated 8.7.2015 passed by the learned Civil Judge (Jr. Divn.), Jajpur in C.S. No.78 of 2012 vide Annexure-1. By the said order, learned trial court marked the certified copy of the registered sale deed bearing no.2315 dated 19.3.1974 as exhibit.

(2.) The petitioner as plaintiff instituted the suit for permanent injunction impleading the opposite parties as defendants. After closure of evidence, the defendants filed an application to mark the certified copy of the registered sale deed no.2315 dated 19.3.1974 as exhibit. It is stated that plot no.1235 is adjacent to plot no.1234. The defendants have specifically pleaded that plot no.1234, area Ac.0.30 dec. is used as Kabarstan. The same is burial ground of the defendants. They came to know that the recital of the sale deed executed by one of the recorded tenants that a part of plot no.1234 is kabarstan. Thereafter they obtained the certified copy of the same. The plaintiff filed objection stating therein that after closure of evidence, no document can be marked as exhibit. Unless the original sale deed is marked, the certified copy of the sale deed cannot be marked as exhibit. The registered sale deed or its certified copy is not a public document. Learned trial court held that the certified copy of the sale deed can be admitted in evidence and marked the same as exhibit.

(3.) Mr. Mishra, learned Senior Advocate for the petitioner submitted that a certified copy is allowed to be produced under Sec.65 of the Evidence Act, the Court should not admit the same on the ground that the certified copy of the original, unless the execution of the original is proved or admitted by the persons against which the same is to be relied on. Secondary evidence of the contents of the document is admissible where the original is lost. In the instant case, the original sale deed was not produced. Thus, the court below committed a manifest illegality in admitting the certified copy as exhibit. He further submitted that though the plaintiff objected to marking of the said document, but his objection was not recorded. The sale deed was executed by one Sk. Salimuddin in favour of Sk. Abdul Rahim. They are not parties to the suit. Neither the vendor nor the vendee has been examined to prove the same. The sale deed is a private document. The rule of evidence requires that a document must be proved by primary evidence; exception being that the secondary may be given of the existing condition, or contents of a document in cases enumerated in Sec.65 of the Evidence Act. He relied on the decisions of this Court in the case of Bhaskar Sahu vs. Anama Swara and others, AIR 1987 ORISSA 138 and Rama Chandra Majhi vs. Hambai Majhi, AIR 1989 ORISSA 27.