BANARSI DASS Vs. MAMAN CHAND

JUDGEMENT

(1.) Suit for possession filed by Banarsi Dass was decreed by the trial Court. However, on appeal the decree was set aside. Hence Banarsi Dass is in second appeal. Banarsi Dass plaintiff claimed to be a tenant in the house in dispute for the last forty to forty-five years, since the time of his father. He was residing in Calcutta. However, his wife and children continued staying in the house at Bhiwani. Some time back he took his wife to Calcutta where she died. During his absence Maman Chand defendant forcibly and illegally took possession of the house about 15 days prior to the filing of the suit which was filed on 18/02/1982. Defendant Maman Chand contested the suit and admitted that the plaintiff was residing in Calcutta and doing business there. However, he was not residing in the house in dispute. He himself claimed to be a tenant of the house in dispute having taken on rent from its owner Smt. Gita Devi with effect from 5/06/1981 on a monthly rent of Rs. 15.00. As per his knowledge Har Saroop, brother of the plaintiff, was in possession of the house in dispute and had surrendered the same for a consideration of Rs. 15,000.00. On the pleadings of the parties the trial Court framed as many as 11 issues. On issues Nos. 1 to 3 it was held that the plaintiff was tenant of the house in dispute and he was illegally dispossessed by the defendant, who was thus in unauthorised occupation of the same. It is not necessary to mention to the findings on other issues as the same are not under challenge in this appeal. The trial Court decreed the suit on 20/05/1985. The learned lower appellate Court reversed the judgment and decree of the trial Court and dismissed the suit on 12/03/1986.

(2.) Learned counsel for the appellant has argued that the lower appellate Court wrongly considered documents Exhibit D.2 to Exhibit D.4 as admissible in evidence. These documents are copies of the copies as is shown from the endorsement made thereon by the Notary. Since the defendant did not lead any evidence of existence of the original, the secondary evidence could not be led. After giving due consideration to the arguments aforesaid and considering the evidence produced, I find no merit in this contention. These three documents bear the endorsement of Notary as under :- "Attested the true photo copy of the original documents." Learned counsel for the appellant wanted the aforesaid endorsement to be read as:

(3.) The question of proof of document is entirely different from its admissibility. Admittedly, original of all these three documents were not produced in this case. Photo copies with due attestation were produced as above. Section 63(2) and (3) of the Evidence Act reads as under :-