Holding

An ordinary copy of a public document is admissible as secondary evidence under Section 65(c) when the original is lost, and the earlier judgment is binding on the respondents, who failed to prove adverse possession; therefore the trial court decree is restored.

Summary

The Marwari Kumhar community, which used a dharamshala for religious functions, sued the heirs of a former pujaris (the respondents) for a declaration of title to the property in 1945. The trial court and later the High Court affirmed the community's title, holding the respondents were merely pujaris. After the decree became final in 1948, the respondents again claimed ownership and the community filed a suit for possession in 1960, relying on an ordinary copy of the earlier judgment and oral evidence of a lost Nokarnama. The trial court upheld the community's title, but the appellate courts reversed, holding that the ordinary copy of the public judgment was inadmissible and that the respondents had acquired title by adverse possession. The Supreme Court held that under Section 65(c) of the Evidence Act an ordinary copy of a public document is admissible as secondary evidence when the original is lost, that the earlier judgment was binding on the respondents under res judicata, and that the respondents failed to prove any adverse possession after May 7, 1948. Consequently, the appellate judgments were set aside and the trial court decree was restored.

Issues considered

Whether an ordinary copy of a public document (earlier judgment) is admissible as secondary evidence under Section 65(c) of the Evidence Act when the original is lost or destroyed.
Whether the earlier judgment is binding on the respondents under the doctrine of res judicata.
Whether the respondents can claim title by adverse possession after the decree became final.
Whether the suit for possession is barred by Order 2 Rule 2 of the CPC.

Legislation cited

Code of Civil Procedure, 1908s. Order 2 Rule 2
Indian Evidence Act, 1872s. 65(c), s. 65(f), s. 66, s. 74

Subjects

secondary evidencepublic documentEvidence Actres judicataadverse possessiondeclaration suitpossession suitCivil Procedure Codelimitationreligious trust

Judgment

A MARWARI KUMHAR AND ORS.
v.
BHAGWANPURI GURU GANESHPURI AND ANR.

AUGUST 10, 2000

B rv.N. KHARE AND S.N. VARIAVA, JJ.]

Evidence Act, (872-Section 65(c), (f)-Secondary evidence-In case of
public documents which is lost or destroyed-Whether admissible in evi-
dence-Held, Yes.
c Civil Procedure Code, 1908-Suit for declaration-Between appellants
and respondents becoming .final-Subsequent suit for possession by appel-
lants-Respondents claiming title by adverse possession-No pleading that
title became adverse after the decree in declaration suit-Suit decreed by trial
Court-Appeal allowed by Appellate Court-Second appeal by appellant dis-
D missed-Whether respondents can claim adverse possession-Held, no.

The Appellants, belonging to the Marwari Kumhar Community were
holding religious functions in a temple and were using the Dharamshala
situated on the suit property. They had engaged one 'G' who acted as a
Pujari for the temple. After the death of 'G' his wife and son, the respond·
E ents herein, started claiming ownership to the property. The Community,
therefore, filed a representative suit, in December 1945, for a declaration
of their title against the respondents. 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. The respondents
F contended that the suit property was owned by 'G' and that the Commu-
nity had no right, title or interest in the suit property. The suit was decreed
in favour of the Community. It was specifically held that 'G' and the
respondents were mere Pujaris. Against the decree the respondents filed
an Appeal. That Appeal was allowed. The Community then filed a Second
Appeal. The Second Appeal was allowed in 1948. The decree .of the trial
G
court was. restored by the High Court and it became final.

Since the respondents again started asserting their title, a second
suit, for possession of the property, was filed in December, 1960. In this"suit
the appellants claimed that the 1st respondent had executed a Nokarnama
H on 31st October 1948, that they had lost all their papers. In the suit the
368
MARWARI KUMHAR v. BHAGWANPURI GURU GANESHPURI 369
Appellants relied upon an ordinary copy of the judgment in the earlier suit A
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/defenda1 its again
claimed title as legal heirs of deceased 'G'. The respondents also claimed
that they and their predecessor i.e., G were in open, adverse and hostile
possession since long and that in any event they had acquired title by
B
adverse possession.

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 their predecessor
were on the suit property only as Pujaris. The trial court accepted the oral C
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.
D
The appeals filed by the respondents were allowed by a common
Judgment. The Appellate Court held that the earlier judgment being a
public document only a C'ertified copy could have been tendered in evi•
dence. 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 E
evidence, the Appellate Court held thatthe Community had failed to prove
its title and that the Nokarnama was not proved. The Appellate Court held
that the Respondents had been able to prove that 'G' and the respondents
had been in possession for a long period of time and that they perfected
title liy adverse possession, the Appellate Court dismissed the suit.
F
The Appellants filed a second Appeal which was dismissed. It was
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, that the
appellants had failed to prove their title to tile suit property; that tile
Nokarnama was not proved and that the respondents have acquired title G
by adverse possession.

Disposing of the appeal, the Court

HELD : 1. Under sub-clause (c) of Section 65 of the Evidence Act,
where the original has been lost or desti:oyed, then secondary evidence of H
370 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A 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 second-
ary evidence can be given even of a public document. Thus the ordinary
copy of the earlier judgment was admissible in evidence and had been
B
correctly marked as an exhibit by the trial Court. [375-C; D-G]

Mst. Bibi Aisha and Ors. v. The Bihar Subai Sunni Maj/is Avaqaf and
Ors., AIR (1969) Supreme Court 253, relied on.

2. The respondents were parties to the earlier proceedings. The 1st
c 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. [370-A; 375-H]

3. In the earlier judgment it had clearly been held that the title to the
D property vested in the appellants. It was held that 'G' and the respondents
were merely Pujaris. That judgment attained finality in May, 1948, when
in the Second Appeal the decree was confirmed. Thus upto 7th of May,
1948, the respondents were in possession merely as Pujaris. Their claim to
title, through 'G' had been negatived by a competent Court. That finding
was binding on the respondents. Both the first Appellate Court and the
E
Second Appellate Court failed to appreciate that on principles of res-
judicata respondents were precluded from denying Appellants' title to the
suit property. They were precluded from claiming that they had acquired
title by adverse possession through G. Both the Courts failed to appreciate
that it was for the respondents to allege and show that after 7th May 1948
F their possession became adverse. In the pleadings the claim to adverse
possession is based on the claim that 'G' was in possession as owner. It is
nowhere pleaded that after 7th May, 1948 the possession became adverse.
In the evidence of the respondents, nowhere was it claimed that after 1948
the respondents or any of them had perfected title by adverse possession.
G [376-A-D]

4. Both the Appellate Courts below fell in error in holding that the
appellants had failed to prove title and that the respondents had estab·
lished title by adverse possession. On the contrary the decree in the earlier
suit established the title of the appellants and showed that the respondents
H were in possession merely as Pujaris. In the absence of any proof as to the
MARWARI KUMHAR v. BHAGWANPURI GURU GANESHPURl [S.N. VAR!AVA, J.] 371
date, time and the manner in which possession as a Pujari got converted A
into open, hostile and adverse the claim for adverse possession could not be
upheld. Both the Appell~te Courts below have seriously erred, both in law
and on facts, in dismissing the suit of the appellants. [376-E-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2937of1989.
B
From the Judgment and Order dated 3.10.85 of the Madhya Pradesh
High Court in S.A. No. 722 of 1974.

K.B. Sinha, Ms. Kawaljit Kochar, S.K. Jain and J.D. Jain for the Appel-
lants.

S.K. Gambhir, T.N. Singh, B.M. Sharma, Anil K. Sharma and Avinash
c
Sinha for the Respondents.

The Judgment of the Court was delivered by

S.N. VARIAVA, J. This Appeal is against the Judgment dated 3rd Oc-
tober, 1985 by which the Second Appeal filed by the Appellant (herein) has
D
been dismissed.

Briefly stated the facts are as follows :

The appellants are representing Marwari Kurnhar Community of Dewas.
The suit was filed in a representative capacity. The Marwari Kurnhar Commu- E
nity were holding religious functions in the temple and were using the
Dhararnshala situated on the suit property. They had engaged one Ganeshpuri,
who acted as a Pujari. The said Gar..eshpuri died on 11th of February, 1945.
The son of Ganeshpuri (who is Respondent No. I herein) and the wife of
Ganesnpuri (who is Respondent No. 2 herein) started claiming ownership to F
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 Dhararnshala as they always have been doing. At that time !st 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 G
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. H
372 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A 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,
B 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
c 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
D Rule 2 Ci vii Procedure Code in as much as in the earlier suit relief for
possession should have been and was not claimed. 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
E
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
F 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
G a certified copy could have beeirtendered 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
H had been able to prove that Ganeshpuri and the Respondents had been in
MARWARI KUMHAR v. BHAGWANPURI GURU GANESHPURI [S.N. VARIAVA, J.] 373
possession for a long period of time and that they. perfected title by adverse A
possession. The Appellate Court, therefore, dismissed the suit.
..
The Appellants filed 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 B
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 c
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
D
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 E
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
F
relied upon sub-clause (f) 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 G
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 Respond-
ents have been able to prove adverse possession by virtue of their possession
since 7th May, 1948. H
374 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 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.

Section 65 of the Evidence Act reads as follows :

B "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 -
c
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

D
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
E 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;

F (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;

G (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
H fact to be provided is the general result.of the whole collection.
MARWARI KUMHAR v. BHAGWANPURI GURU GANESHPURI [S.N. VARIAVA, J.] 375
In cases (a), (c) and (d), any secondary evidence of the contents A
of the document is admissible.

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

In case (e) or (t), certified copy of the document, but no other kind
of secondary evidence, is admissible. B

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 C
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 D
even of a public document. This is the law as has been laid down by this Court
in Mst. Bibi Aisha and Others v. The Bihar Subai 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 E
produced in evidence. The question was whether an ordinary copy was admis-
sible 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- F
sible. It was held that clauses (a) and (c) were independent of clause (f) and
even an ordinary copy would, therefore, be admissible. As stated above the
cas" 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
G
exhibit by the trial court.

In 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. H
376 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A The Respondents were parties to the earlier proceedings. The !st 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
B
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-
c 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
D is based on the claim that Ganeshpuri was in possession as owner. It is nowhere
p1eaded 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 any 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 title and that the
E 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
F 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 !st 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
G September, 1968 is restored. The Appeal stands disposed of accordingly. There
will be no order as to costs.

V.M. Appeal disposed of.