2023INSC835

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 14630 of 2015

(@ SLP (C) No.10013 of 2015)

Appaiya …. Appellant(s)
Versus
Andimuthu@ Thangapandi & Ors. …Respondent(s)

JUDGMENT

C.T. RAVIKUMAR, J.

1. The captioned appeal by special leave is directed

against the judgment dated 17.10.2012 passed by the

Madurai Bench of the Madras High Court in Second

Appeal (MD) No. 802 of 2004 whereby and whereunder

it reversed the concurrent judgments of the courts below

decreeing the suit with regard to the title and possession

of the entire suit property and confined the plaintiff’s

(appellant herein), entitlement to title and possession to

Signature Not Verified

96 cents purchased under Ext. A5 sale deed. To be
Digitally signed by
Vijay Kumar
Date: 2023.09.20
16:32:24 IST
Reason:
precise, as per the judgment impugned, the judgment

Civil Appeal No. 14630 of 2015 Page 1 of 41

dated 03.07.2001 in A.S.No.65/97 of the Sub-Court,

Periyankulam confirming the judgment and decree

dated 30.09.1997 in O.S.No.104/96 of the District Munsif-

cum-Judicial Magistrate, Andipatti, was set aside to the

aforesaid extent. The appellant herein was the plaintiff

and the respondent Nos. 1 and 6 were respectively

defendant Nos. 3 and 2, in the stated suit. Respondent

Nos. 2 to 5 are the legal representatives of the deceased

first defendant. The subject suit was filed seeking

declaration that the entire suit property belonged to the

plaintiff and for a consequential prayer for permanent

injunction against the defendants.

2. The case of the appellant – (plaintiff) in nut-shell,

relevant for the purpose of disposal of the appeal, is as

follows :-

On 09.08.1918, Vellaiya Thevar executed a

mortgage deed for the loan availed from Irulappan, the

father of appellant’s vendor- Puliyankaladi, in respect of

the suit property having an extent of 2 acres and 61 cents

Civil Appeal No. 14630 of 2015 Page 2 of 41

comprised in Survey No.845/1 of Thimmanayakanur

village in Andipatti Taluk of Madurai District. Default in

repayment of loan amount made Puliyankaladi to file

O.S. No.519/1928 against sons of Vellaiya Thevar viz.,

Thavasi Thevar, Kuruppa Thevar, Subbaiah Thevar and

Sangu Thevar and it was decreed in favour of

Puliyankaladi. In order to satisfy the decree, they sold

the property to Puliyankaladi as per Ext. A1 registered

sale deed No.1209/1928 dated 27.08.1928.

Puliyankaladi, thereafter executed a mortgage deed of

the suit property in favour of Veluchamy and Vellamal.

On 31.05.1961 he executed another mortgage deed in

favour of Veluchamy and Velammal. The said mortgage

deeds were redeemed by the appellant (plaintiff) on

24.06.1963. Ultimately, the appellant purchased the suit

property from Puliyankaladi and his family members

namely, Irulan, Balakrishnan and Balakrishnan’s minor

children Senthilkumaran and Backialakshmi on

15.07.1963 as per sale deed No.1759/1963 of SRO,

Civil Appeal No. 14630 of 2015 Page 3 of 41

Andipatti. Since then, he has been in its possession and

enjoyment. After mutating it in his name in the revenue

records he obtained patta and has been paying kist to the

government. The defendants are strangers having lands

on the southern and northern sides of the suit property.

They demanded him to sell the property to them and on

being refused they turned inimical to him and started

disturbing his peaceful possession and enjoyment of the

suit property. On 05.06.1994, the defendants along with

some others attempted to trespass into his property, but

it was thwarted with the help of co-villagers.

3. The first and the third defendants filed written

statement in the suit mainly refuting the averment that

the entire suit property belonged to Puliyankaladi and

contending that it is incorrect and false and therefore,

the plaintiff may be put to strict proof. The further case

of the defendants was that out of the total extent of the

property in Survey No.845/1, 75 cents belonged to

Thavasi Andi Thevar, Veluthai Ammal and the first

Civil Appeal No. 14630 of 2015 Page 4 of 41

defendant, and son of Thavasi Andi Thevar, Veluthai

Ammal and the first defendant executed a registered

mortgage deed on 14.09.1961 in favour of

Pomminayakkanpatti Palaniammal for Rs. 1000/-.

Further, as per sale deed No.2178/1974 of Andipatti Sub-

Registry the third defendant purchased 30 cents in

Survey No.845/1 and its well, 1/5th Kamalaivari channel

and ½ of the Kamalaivari channel on the western side

and since then she has been in possession and

enjoyment of the said extent. In short, according to them

suit was instituted with an ulterior intention to grab the

entire property comprised the Survey No.845/1.

4. Based on the pleadings the trial court framed the

following issues:-

“1. Whether the plaintiff is entitled to permanent

injunction?
2. Whether the sale of the plaintiff is a forged one?
3. Whether the mortgage deed dated 14.9.198 is
genuine?
4. Whether the sale deed dated 13.9.1974 is
genuine?

Civil Appeal No. 14630 of 2015 Page 5 of 41

 5. Whether the entire suit property is not under the
possession of the plaintiff?
6. What relief the plaintiff is entitled to?”

5. Thereafter, an additional issue was framed as

under:-

“1. Whether the plaintiff is entitled to declaration to

the suit property?”

6. On the side of the appellant/plaintiff, he got himself

examined as PW-1 and Exts.A1 to A8 were marked and

on the side of the defendants three witnesses were

examined and Exts.B1 to B14 were marked. Exts.C1 to

C8 were marked as Court documents. After evaluating

the oral and documentary evidence adduced, the trial

Court held that the plaintiff is entitled to get declaration

that the entire suit property belonged to him and as a

consequence, the defendants and their men are to be

restrained from interfering with the peaceful possession

and enjoyment of the plaintiff over the suit property and

decreed the suit accordingly. Evidently, the First

Appellate Court in A.S.No.65 of 1997 filed by the

Civil Appeal No. 14630 of 2015 Page 6 of 41

defendants against the judgment and decree of the trial

court in O.S.No.104/1996 did not frame any specific

point(s) as enjoined under Order XLI, Code of Civil

Procedure, 1908 (hereinafter, ‘the CPC’), but observed

that the issue to be considered is whether the appeal is

to be allowed as prayed for by the appellants

therein/defendants 1 and 3. Obviously, additional

documents were filed by defendants 1 and 3 and

received in evidence as Exts.B15, B16 and B17 by the

Lower Appellate Court. Even after appreciating such

additional evidence, it found no reason to interfere with

the judgment and decree of the trial Court and

consequently, dismissed the appeal.

7. The unsuccessful defendants filed second appeal

under Section 100 of the CPC which culminated in the

impugned judgment. The High Court framed three

questions as substantial questions of law and after an

elaborate consideration, the High Court held all the

substantial questions of law in favour of the appellants

Civil Appeal No. 14630 of 2015 Page 7 of 41

therein viz., defendant Nos. 1 and 3. As a necessary

sequel, the concurrent judgments of the courts below

decreeing the suit with regard to the title and possession

were set aside to the extent mentioned above and the

appeal was accordingly allowed.

8. The appellant/plaintiff assails the judgment of the

High Court allowing the Second Appeal as above, on

various grounds. The core contention of the appellant is

that findings of facts concurrently recorded by the Court

below are immune from challenge before the High Court

in Second Appeal as the First Appellate Court is the final

Court on facts. It is true that this position is well-settled.

At the same time, this position is not devoid of

exceptions. The very decisions relied on by the

appellant viz., Vidhyadhar v. Manikrao & Anr.1 and

Yadarao Dajiba Shrawane (D) by LRS v. Nanilal

Harakchand Shah (D) & Ors.2 themselves would go to

show that it is not an inviolable position of law.

1
(1999) 3 SCC 573
2
(2002) 6 SCC 404

Civil Appeal No. 14630 of 2015 Page 8 of 41

9. The relevant paragraphs relied on by the

appellants in those decisions themselves would make it

clear that being concurrent findings on facts is no

guarantee for an imprimatur from the High Court as

under certain situations interference under Section 100,

CPC after formulating substantial question (s) of law is

permissible.

10. In Vidhyadhar’s case (supra):-

“23. The findings of fact concurrently recorded by

the trial court as also by the lower appellate court
could not have been legally upset by the High Court
in a second appeal under Section 100 CPC unless it
was shown that the findings were perverse, being
based on no evidence or that on the evidence on
record, no reasonable person could have come to
that conclusion.”

In Yadarao Dajiba Shrawane’s case

(supra):-

31. From the discussions in the judgment it is clear

that the High Court has based its findings on the
documentary evidence placed on record and
statements made by some witnesses which can be

Civil Appeal No. 14630 of 2015 Page 9 of 41

 construed as admissions or conclusions. The
position is well settled that when the judgment of the
final court of fact is based on misinterpretation of
documentary evidence or on consideration of
inadmissible evidence or ignoring material
evidence the High Court in second appeal is entitled
to interfere with the judgment. The position is also
well settled that admission of parties or their
witnesses are relevant pieces of evidence and
should be given due weightage by courts.

11. In the context of the contentions raised by the

appellants relying on the decisions referred (supra) it is

only apposite to look into the question, “what is

substantial question of law”.

12. In the decision in Lankeshwar Malakar v. R.

Deka3, it was held that in order to be substantial question

of law, the test is whether it is of general public

importance or whether it directly or substantially affects

the right of the parties or whether the question is still

open i.e., it is not finally settled by the Supreme Court,

Federal Court or Privy Council.

3
(2006) 13 SCC 570

Civil Appeal No. 14630 of 2015 Page 10 of 41

13. In fact, in Santosh Hazari v. Purushottam Tiwari4

while exploring the meaning of the phrase “substantial

question of law” this Court held:

“12. The phrase “substantial question of law”, as

occurring in the amended Section 100 is not defined
in the Code. The word substantial, as qualifying
“question of law”, means — of having substance,
essential, real, of sound worth, important or
considerable. It is to be understood as something in
contradistinction with — technical, of no substance
or consequence, or academic merely. However, it is
clear that the legislature has chosen not to qualify
the scope of “substantial question of law” by
suffixing the words “of general importance” as has
been done in many other provisions such as Section
109 of the Code or Article 133(1)(a) of the
Constitution. The substantial question of law on
which a second appeal shall be heard need not
necessarily be a substantial question of law of
general importance. In Guran Ditta v. T. Ram
Ditta [AIR 1928 PC 172 : 55 IA 235] , the phrase
“substantial question of law” as it was employed in
the last clause of the then existing Section 110 CPC
(since omitted by the Amendment Act, 1973) came
up for consideration and their Lordships held that it

4
(2001) 3 SCC 179

Civil Appeal No. 14630 of 2015 Page 11 of 41

 did not mean a substantial question of general
importance but a substantial question of law which
was involved in the case as between the parties.
In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg.
and Mfg. Co. Ltd. [1962 Supp (3) SCR 549] the
Constitution Bench expressed agreement with the
following view taken by a Full Bench of the Madras
High Court in Rimmalapudi Subba Rao v. Noony
Veeraju AIR 1951 Mad 969] :
“[W]hen a question of law is fairly arguable, where
there is room for difference of opinion on it or where
the Court thought it necessary to deal with that
question at some length and discuss alternative
views, then the question would be a substantial
question of law. On the other hand, if the question
was practically covered by the decision of the
highest court or if the general principles to be
applied in determining the question are well settled
and the only question was of applying those
principles to the particular facts of the case it would
not be a substantial question of law.”
and laid down the following test as proper test, for
determining whether a question of law raised in the
case is substantial:
“The proper test for determining whether a
question of law raised in the case is substantial
would, in our opinion, be whether it is of general
public importance or whether it directly and

Civil Appeal No. 14630 of 2015 Page 12 of 41

 substantially affects the rights of the parties and if so
whether it is either an open question in the sense
that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free
from difficulty or calls for discussion of alternative
views. If the question is settled by the highest court
or the general principles to be applied in
determining the question are well settled and there
is a mere question of applying those principles or
that the plea raised is palpably absurd the question
would not be a substantial question of law.
13. In Dy. Commr., Hardoi v. Rama Krishna
Narain [AIR 1953 SC 521] also it was held that a
question of law of importance to the parties was a
substantial question of law entitling the appellant to
a certificate under (the then) Section 110 of the
Code.
14. A point of law which admits of no two opinions
may be a proposition of law but cannot be a
substantial question of law. To be “substantial” a
question of law must be debatable, not previously
settled by law of the land or a binding precedent,
and must have a material bearing on the decision of
the case, if answered either way, insofar as the
rights of the parties before it are concerned. To be
a question of law “involving in the case” there must
be first a foundation for it laid in the pleadings and
the question should emerge from the sustainable

Civil Appeal No. 14630 of 2015 Page 13 of 41

 findings of fact arrived at by court of facts and it must
be necessary to decide that question of law for a just
and proper decision of the case. An entirely new
point raised for the first time before the High Court
is not a question involved in the case unless it goes
to the root of the matter. It will, therefore, depend
on the facts and circumstance of each case whether
a question of law is a substantial one and involved in
the case, or not; the paramount overall
consideration being the need for striking a judicious
balance between the indispensable obligation to do
justice at all stages and impelling necessity of
avoiding prolongation in the life of any lis.”

14. In the decision in SK. Bhikan v. Mehamoodabee5,

this Court held that when court is called upon to interpret

documents and examine their effect, depending upon

the nature of controversy and the issues involved, it

would constitute substantial question (s) of law.

15. Bearing in mind the aforesaid positions with

respect to the exercise of power under Section 100, CPC,

we will have to consider whether the reversal of the

5
(2017) 5 SCC 127

Civil Appeal No. 14630 of 2015 Page 14 of 41

concurrent judgments of the Court below by the High

Court as per the impugned judgment invites

interference under Article 136 of the Constitution of

India.

16. Obviously, the High Court framed three questions

of law, as under:-

“1. Whether the courts below are right in law in

construing
Ex.A.1 sale deed dated 27.08.1928 in favour of
Puliyankaladi, the predecessor - in - title of the suit
property as alleged by the plaintiff/ respondent
contrary to the extent and boundaries described in
the said sale deed?
2. Whether the courts below erred in law in
presuming that the appellant/ first defendant has
admitted the title of the predecessor viz.,
Puliyankaladi in view of Exs.A.2, A.3, A.4 and other
deeds.
3. Whether the courts below have erred in law in
casting the
burden of proof on the appellants / defendants to
prove that
the plaintiff is not entitled to the entirety of the suit
property
in a suit for declaration of title by the plaintiff?”

Civil Appeal No. 14630 of 2015 Page 15 of 41

17. As noted above, the High Court answered all of

them in favour of the defendants and consequently

reversed the concurrent judgments to the extent noted

above. A scanning of the impugned judgment would

reveal the main reasons for such reversal as under:-

(i) Exhibit A1, sale deed dated 27.08.1928 (produced

as Annexure P1 in this appeal) was executed in

favour of Puliyankaladi by the sons of Vellaiya

Thevar. However, no document was produced by

the plaintiff/the appellants herein, evincing as to

how they obtained it under partition so as to have

right to alienate it.

(ii) Exhibit A1 would not attract the presumption of

genuineness provided under Sections 90 and the

presumptive proof of ownership under 110 of the

Evidence Act, 1872 for the reason that it is only a

registration copy of the registered sale deed

dated 27.08.1928 and its genuineness is disputed.

Furthermore, in the light of the decision in R.

Civil Appeal No. 14630 of 2015 Page 16 of 41

 Nainar Pillai and Anr. v. Subbiah Pillai6 to admit

such a document in evidence and to presume it as

genuine it requires corroboration by an

independent witness.

(iii) Exhibits A2, A3 & A4 would not estop under

Section 110 of the Evidence Act the appellants

therein from disputing the title of the respondent

therein - plaintiff as what was dealt with under

Exhibit A1 is different from what were dealt with

under Exhibits A2 to A4.

(iv) The Courts below did not place reliance on

Exhibit B1, certified copy of the sale deed dated

02.07.1977 executed by the appellant’s father and

Perumal Nayakkar (mother of the plaintiff) in

favour of Pommi Nayakkar to an extent of 52 cents

from the suit property which comprised in Survey

No.845/1 in Thimmarasanaickanur village,

Andipatti Taluk, Madurai District.

6
2007 SCC OnLine Mad 457/ (2008) 3 Mad LJ 219

Civil Appeal No. 14630 of 2015 Page 17 of 41

 (v) Vellaiya Thevar was entitled to only 96 cents and

therefore in terms of Exhibit A5, the plaintiff (the

appellant) is entitled only to 96 cents.

(vi) Both sides have produced kist rasid, chitta and

patta.

18. In the light of the reasons that persuaded the High

Court to reverse the concurrent judgments, as

mentioned above, their sustainability is to be looked into

with respect to the positions of law as noted

hereinbefore, with respect to the scope of exercise of

power under Section 100, CPC and with reference to the

relevant provisions under the Evidence Act as also other

relevant enactments.

19. We will consider whether the High Court was

legally correct in holding that owing to the non-

production of any document by the plaintiff (the

appellant) evincing as to how the sons of Vellaiya Thevar

obtained the suit property in a partition Exhibit A1, being

a registration copy (secondary evidence), could not be

Civil Appeal No. 14630 of 2015 Page 18 of 41

admitted in evidence as proof of the contents of its

original. At the outset, it is to be stated that while holding

thus the High Court has failed to consider the relevant

provisions under the Evidence Act and also the

Registration Act, 1908 appropriately. If the relevant

provisions under the said enactments were properly

applied to the facts of the case, the High Court would not

have placed reliance on R. Nainar Pillai’s case (supra)

to hold that since Exhibit A1 being a registration copy,

the presumption of due execution of the original under

Section 90 of the Evidence Act, particularly in the

absence of independent witness would not be available.

We say so because proper consideration of the

provisions under Sections 61, 63, 65, 74, 76, 77 and

Section 79 of the Evidence Act would have definitely

brought out that it was absolutely unessential to consider

the applicability of Section 90 as also Section 110 of the

Evidence Act. Needless to say, that in such

Civil Appeal No. 14630 of 2015 Page 19 of 41

circumstances there would not have been any necessity

to seek proof through an independent witness, as well.

20. At the outset, it is very much relevant to note that

the finding of fact by the trial Court that Exts. A1 to A5 are

all registered with Sub-Registrar’s office was not

disturbed, rather, agreed by the First Appellate Court.

As a matter of fact, the High Court also did not reverse

the said findings on facts. Indisputably, the appellant has

produced the registered copy of (Exhibit A1) sale deed

No. 1209/1928 dated 27.08.1928 executed by sons of

Vellaiya Thevar in favour of Puliyankaladi. Section 61 of

the Evidence Act provides that the contents of

documents may be proved either by primary or

secondary evidence. Section 63 which is an inclusive

definition of secondary evidence provides under sub-

section (1) thereof that, “certified copies given under the

provisions hereinafter contained” constitute secondary

evidence. Certainly, cases falling under Section 65 form

exception to the mandate under Section 64 that

Civil Appeal No. 14630 of 2015 Page 20 of 41

documents must be proved by primary evidence.

Section 65 provides that secondary evidence relating to

documents may be given of the existence, condition or

contents of a document in the various cases given

thereunder. Section 65, in so far as, it is relevant for the

purpose of this case reads thus:-

“65. Cases in which secondary evidence

relating to documents may be given.––
Secondary evidence may be given of the
existence, condition, or contents of a document
in the following cases: ––
(a)..
(b)..
(c)..
(d)..
(e) when the original is a public document
within the meaning of section 74;

…………………………………………………
In case (e) or (f), a certified copy of the
document, but no other kind of secondary
evidence, is admissible.”
(Underline supplied)

Civil Appeal No. 14630 of 2015 Page 21 of 41

21. Section 74 deals with documents which are public

documents. Sub-section (2) thereof makes public

records kept [in any State] of private documents within

the purview of “public document” under Section 74.

Going by Section 76, certified copies of public

documents shall be given, on demand, by the public

officer having the custody of public document , together

with a certificate written at the foot of such copy that it is

a true copy of such document or part thereof, as the case

may be, and such certificate shall be dated and

subscribed by such officer with his name and his official

title. Such copies so certified shall be called certified

copies in terms of Section 76.

22. It is to be noted that in the case on hand, a certified

copy of Exhibit A1 sale deed dated 27.08.1928 was

produced by the appellant. As noted earlier, the Courts

below found that it is registered with the Sub-Registrar’s

Office. The contention of respondent(s) is that it is only

a certified copy and not the original document. In the

Civil Appeal No. 14630 of 2015 Page 22 of 41

light of the aforementioned provisions under the

Evidence Act there can be no doubt with respect to the

permissibility for the production of such a certified copy

as secondary evidence in law, in regard to the existence,

condition or contents of a document. As per Section 77

of the Evidence Act such certified copies may be

produced in proof of the contents of the public document

concerned. Section 79 deals with presumption as to

genuineness of certified copies. Section 77 and 79 of the

Evidence Act reads thus:-

“77. Proof of documents by production of

certified copies. –– Such certified copies may
be produced in proof of the contents of the
public documents or parts of the public
documents of which they purport to be copies.
79. Presumption as to genuineness of certified
copies. – The Court shall presume [to be
genuine] every document purporting to be a
certificate, certified copy or other document,
which is by Law declared to be admissible as
evidence of any particular fact, and which
purports to be duly certified by any officer [of

Civil Appeal No. 14630 of 2015 Page 23 of 41

 the Central Government or of a State
Government, or by any officer [in the State of
Jammu and Kashmir] who is duly authorized
thereto by the Central Government]:
Provided that such document is substantially in
the form and purports to be executed in the
manner directed by law in that behalf.
The Court shall also presume that any officer
by whom any such document purports to be
signed or certified, held, when he signed it, the
official character which he claims in such
paper.”

23. In view of the provision under Section 79 of the

Evidence Act, Section 57 (5) of the Registration Act

assumes relevance in the context of the case and it reads

thus:

“57. Registering officers to allow inspection of

certain books and indexes, and to give
certified copies of entries.—
(1)..
(2)..
(3)..
(4)..

Civil Appeal No. 14630 of 2015 Page 24 of 41

 (5) All copies given under this section shall be
signed and sealed by the registering officer,
and shall be admissible for the purpose of
proving the contents of the original
documents.”
(Underline supplied)

24. Now, we will have to consider the cumulative

effect of the aforementioned provisions as relates the

certified copy of the sale deed No.1209/1928 dated

27.08.1928 (Annexure P1) produced by the appellant-

plaintiff.

25. While considering the said question it is very

relevant to refer to point Nos. 8 and 9 raised on behalf of

the defendant No.3 viz., respondent in this appeal. They

read thus:-

“8. Exhibit A1 is an ancient document in terms of

Section 90 of the Evidence Act and the presumption
is limited to Extent that it was executed.
9. The execution of document not in dispute and
there is no need to raise presumption u/s 90.”

Civil Appeal No. 14630 of 2015 Page 25 of 41

26. Point Nos.8 and 9 as stated above raised by the

defendant in this appeal would reveal that he did not

dispute the execution of Ext.A1 sale deed No.1209/1928

dated 27.08.1928. A bare perusal of Ext.A1 would reveal

that the subject property involved in the transaction

effected thereunder is the property in Survey No.845/1,

having an extent of 2 acres and 61 cents situated at

Thimmarasanaickanur village in Madurai District.

Therefore, the question is whether the appellant/plaintiff

has proved the contents of Ext.A1 in terms of the

Evidence Act.

27. The relevant aspects which are to be borne in mind

while considering the aforesaid question are that

indisputably Ext.A1 is a registered copy of the sale deed

No.1209/1928 dated 27.08.1928 of SRO Andipatti and its

execution is not in dispute. It was marked through PW-

1. Evidently, contentions, rather objections were raised

on behalf of the respondent as to its admissibility in

evidence and as per the impugned judgment the

Civil Appeal No. 14630 of 2015 Page 26 of 41

objections were upheld by the High Court to certain

extent on manifold reasons. It was contended before the

High Court and upheld by the High Court that Ext.A1 is

only a registration copy of sale deed No. 1209/1928

dated 27.08.1928 of SRO Andipatti, and its original title

deed in the name of Puliyankaladi was not marked as an

evidence. Further the High Court held that Puliyankaladi

obtained the property as per Ext.A1 sale deed from sons

of Vellaiya Thevar namely, Thavasi Thevar, Kuruppa

Thevar, Subbaiah Thevar and Sangu Thevar but no

document evincing partition conferring exclusive title on

them to alienate the property was produced. Certain

other reasons based on the provisions of Section 90 and

110 of the Evidence Act, were also assailed for not acting

upon the registration copy of Ext.A1.

28. In the aforesaid context it is relevant to note that the

sons of Vellaiya Thevar, named above, sold the property

having an extent of 2 acres and 61 cents comprised in

Survey No. 845/1 of Thimmarasanayakanur Village to

Civil Appeal No. 14630 of 2015 Page 27 of 41

Puliyankaladi in the circumstances specifically

mentioned thereunder, as per registered sale deed No.

1209/ 1928 dated 27.08.1928. It is nobody’s case that the

siblings of Vellaiya Thevar challenged Ext.A1 in any

court of law till 15.07.1963, the day on which

Puliyankuladi as per Ext.A5 sale deed No.1759/1963 of

SRO Andipatti sold it to appellant/plaintiff. Add to it, its

execution is not in dispute, as noted earlier. Evidently,

what was sold under Ext. A5 registered sale deed by

Puliyankaladi to the appellant/plaintiff is the same

property comprised in Survey No.845/1 of

Thimmanayakanur village of Madurai District having an

extent of 2 acres and 61 cents as disclosed under the said

sale deed. In short, what is discernible from the

materials on record is that both Exts.A1 and A5 sale

deeds were not subjected to any kind of challenge till

today. At any rate, no document revealing successful

challenge against those registered documents are

brought on record by the respondent- defendant.

Civil Appeal No. 14630 of 2015 Page 28 of 41

29. Having regard to all the aforesaid circumstances

and in the light of the various provisions of the Evidence

Act mentioned hereinbefore we will firstly consider the

question whether the appellant/plaintiff had succeeded

in proving the contents of Ext.A1. Going by Section 65(e)

when the original of a document is a public document

within the meaning of Section 74, secondary evidence

relating its original viz., as to its existence, condition or

contents may be given by producing its certified copy.

Ext.A1, indisputably is the certified copy of sale deed

No. 1209/1928 dated 27.08.1928 of SRO Andipatti. In

terms of Section 74(2) of the Evidence Act, its original

falls within the definition of public document and there is

no case that it is not certified in the manner provided

under the Evidence Act. As noticed hereinbefore, the

sole objection is that what was produced as Ext.A1 is only

a certified copy of the sale deed and its original was not

produced in evidence. The hollowness and

unsustainability of the said objection would be revealed

Civil Appeal No. 14630 of 2015 Page 29 of 41

on application of the relevant provisions under the

Evidence Act and the Registration Act, 1908. It is in this

regard that Section 77 and 79 of the Evidence Act, as

extracted earlier, assume relevance. Section 77

provides for the production of certified copy of a public

document as secondary evidence in proof of contents of

its original. Section 79 is the provision for presumption

as to the genuineness of certified copies provided the

existence of a law declaring certified copy of a

document of such nature to be admissible as evidence.

When that be the position under the aforesaid

provisions, taking note of the fact that the document in

question is a registered sale deed, falling within the

definition of a public document, the question is whether

there exists any law declaring such certified copy of a

document as admissible in evidence for the purpose of

proving the contents of its original document. Sub-

section (5) of Section 57 of the Registration Act is the

relevant provision that provides that certified copy given

Civil Appeal No. 14630 of 2015 Page 30 of 41

under Section 57 of the Registration Act shall be

admissible for the purpose of proving the contents of its

original document. In this context it is to be noted that

certified copy issued thereunder is not a copy of the

original document, but is a copy of the registration entry

which is itself a copy of the original and is a public

document under Section 74(2) of the Evidence Act and

Sub-section (5) thereof, makes it admissible in evidence

for proving the contents of its original. There is no case

that foundation for letting in secondary evidence was not

laid and as noted earlier, both the trial Court and the First

Appellate Court found it admissible in evidence. Thus,

the cumulative effect of the aforementioned sections of

the Evidence Act and Section 57(5) of the Registration

Act would make the certified copy of the sale deed No.

1209/1928 dated 27.08.1928 of SRO Andipatti, produced

as Ext.A1 admissible in evidence for the purpose of

proving the contents of the said original document.

When this be the position in the light of the specific

Civil Appeal No. 14630 of 2015 Page 31 of 41

provisions referred hereinbefore under the Evidence

Act and the Registration Act, we have no hesitation to

hold that the finding of the High Court that the certified

copy of Ext.A1 owing to the failure in production of the

original and proving through an independent witness is

inadmissible in evidence, is legally unsustainable. In the

other words, the acceptance of the admissibility of

Ext.A1 found in favour of the appellant/plaintiff by the

trial Court and confirmed by the First Appellate Court

was perfectly in tune with the provisions referred

hereinbefore and the High Court had committed an error

in reversing the finding regarding the admissibility of

Ext.A1.

30. When the execution of Ext.A1 was not disputed by

the respondent (in fact in the circumstances it was

indisputable) and when the contents of the original sale

deed bearing No. 1209/1928 dated 27.08.1928 of SRO

Andipatti was proved by production of the certified copy

there was absolutely no reason to look for the application

Civil Appeal No. 14630 of 2015 Page 32 of 41

of Section 90 or 110 of the Evidence Act, in the instant

case. For the purpose of proving the admissibility and

evidentiary value of Ext.A1 or Ext.A5 in the

circumstances involved in the instant case, there was

absolutely no requirement to look into Section 90 or

Section 110 of the Evidence Act. In this context it is

relevant to note that once the title of plaintiff’s vendor

Puliyankaladi acquired under Ext.A1 sale deed is

established and purchase of the same property by the

plaintiff, of course his father on his behalf, under Ext.A5

registered sale deed is upheld by the High Court there

was no reason or justification to interfere with the

concurrent judgments of the Courts below. Before

dealing with this question further, in the fitness of things

we will refer to another aspect. A bare perusal of the

impugned judgment of the High Court would reveal that

virtually, the High Court also, in troth, agreed with the

admissibility of Exts.A1 and A5. The High Court held that

96 cents were purchased under Ext.A5 by the

Civil Appeal No. 14630 of 2015 Page 33 of 41

appellant/plaintiff. In paragraph 14 of the impugned

judgment the High Court held:-

“However, even though the first appellant

property/plaintiff has prayed for declaration to the
entire suit property as admitted by the appellant/
defendant that the title of the plaintiff Puliyankaladi
purchased the property from Velaiya Thevar and his
property is only entitled to 96 cents and as said the
first respondent/ plaintiff has titled over the 96 cents
as per sale deed Ex.A.5 and not grant that and
accordingly, he is entitled to the title as well as the
possession.”

31. If Ext.A1 was not taken as a certified copy

admissible for proving the contents of its original and

accordingly, taken the contents of its original as proved

where is the question of accepting Ext.A1 sale deed

creating title to Puliyankaladi to sell the property

covered thereunder to the plaintiff under Ext.A5 sale

deed, as held in paragraph 14 of the impugned

judgement. In this context it is also relevant to note that

except Ext.A1 sale deed there is no other proven

document conferring title to Puliyankaladi to effect

Civil Appeal No. 14630 of 2015 Page 34 of 41

transfer of property having an extent of 2 acres and 61

cents comprised in Survey No. 845/1 of

Thimmanayakanur village in Madurai District. In short,

the very action on the part of the High Court in declaring

that the appellant herein/the plaintiff got title over 96

cents as per Ext.A5 sale deed and therefore, he is

entitled to the title as well as possession over the said

extent, in the aforesaid circumstances amounts to

confirmation of the admissibility and evidentiary value of

Exts.A1 and A5 as held by the Courts below.

32. Now a perusal of the impugned judgment would

reveal that the High Court held that the Ext.A1 would not

cover the entire extent of 2 acres and 61 cents comprised

in Survey No.845/1 of Thimmanayakanur village in

Andipatti Taluk of Madurai District. We are at a loss to

understand as to how the High Court came to such a

conclusion when Ext.A1 in unambiguous terms

describes the property transacted thereunder as land

comprised in Survey No. 845/1 of Thimmanayakanur

Civil Appeal No. 14630 of 2015 Page 35 of 41

village having an extent of 2 acres and 61 cents. A

perusal of Ext.A1 would also reveal that it specifies the

boundaries within which the said extent of property lies.

The recital in Ext.A1 that describing the property as

property in Survey no. 845/1 having an extent of 2 acres

and 61 cents along with 3/5th share of well and other

plants standing in its four boundaries would not and

could not be taken as something which would reduce the

actual extent of the property under transaction i.e., 2

acres and 61 cents comprised within the boundaries

mentioned thereunder. In this context, it is also to be

noted that Puliyankaladi, who purchased the aforesaid

extent of the property under Ext.A1 sale deed, had sold

the very same property to appellant/plaintiff as per

Ext.A5 sale deed No. No.1759/1963 dated 15.07.1963

going by the description thereunder. As stated earlier,

going by Ext.A5 the extent of the property transacted

thereunder also having an extent of 2 acres and 61 cents

comprised in Survey No.845/1 of Thimmanayakanur

Civil Appeal No. 14630 of 2015 Page 36 of 41

village. Hence, once Ext.A5 was held as valid and in

existence there can be no reason to confine the title

passed thereunder to 96 cents when based on Exts.A1

and A5 courts below held that the appellant/plaintiff is

entitled to title and possession over the entire extent.

The discussion and conclusions as above would take us

to the next question whether the High Court, on re-

appreciation of evidence, was legally and factually

correct in reducing the extent to which the

appellant/plaintiff is entitled to, by virtue of Ext.A5 sale

deed. In view of the admissibility of Exts.A1 and A5 the

courts below were right in casting the onus of proof on

the defendants as indisputably, the appellant/plaintiff

had discharged his burden of proof. The High Court

came to the conclusion that the oral and documentary

evidence on the part of the defendants were not properly

appreciated by the courts below and it resulted in the

grant of decree in favour of the appellant/plaintiff in

respect of the entire extent of the suit property.

Civil Appeal No. 14630 of 2015 Page 37 of 41

33. A scanning of the concurrent judgments of the

courts below would reveal that the High Court has again

committed an error as the courts below had given sound

reasons for not accepting the evidence on the part of the

defendants. Taking note of the fact that Ext.A5 was

registered on 15.07.1963 the courts below considered

the question(s) relating their evidentiary value and

whether they could outweigh the evidence on the part of

the appellant/plaintiff, in extenso. When once Ext.A1 is

found as genuine and as one legally admissible for the

purpose of proving the contents of the original sale deed

No.1209/1928 of SRO, Andipatti and one transferring the

title to the extent covered thereunder to Puliyankaladi

who is the vendor of the appellant/plaintiff, in the

absence of any proven document conferring a better title

to the respondent/defendant, as held by the courts

below, there was no reason to reverse the concurrent

findings of the courts below. On analysing the evidence

on the part of the respondent/defendant the trial Court

Civil Appeal No. 14630 of 2015 Page 38 of 41

found that defendant(s) did not produce any document

proving that the defendant had any right over the suit

property prior to the mortgage of the property effected

by Puliyankaladi in the year 1959 under Ext.B2. The trial

Court, therefore, rightly held that the oral and

documentary evidence of the appellant/plaintiff clearly

established that till 1959 the suit property belonged to

Puliyankaladi and thereafter, the appellant/plaintiff

purchased the property from Puliyankaladi as per

Ext.A5, in the circumstances mentioned thereunder.

Since Ext.A5 legally establishes the contents of the

original sale deed No.1209/1928 of SRO, Andipatti the

same should confer the right over the entire property

covered by Exts.A1 and A5 to the appellant/plaintiff . In

fact, this alone was declared by the trial Court and the

order of injunction was nothing but a natural sequel to

such declaration. The First Appellate Court confirmed

the judgment and decree granted by the trial Court. On

a careful and anxious consideration of the impugned

Civil Appeal No. 14630 of 2015 Page 39 of 41

judgment we find no ground to sustain the reversal of the

concurrent judgments of the courts below by the High

Court in exercise of the power under Section 100 CPC,

as no ground justifying such exercise exists in the instant

case. The upshot of the discussion is that the High Cout

in exercise of the power under Section 100 CPC, ought

not have interfered with the findings of the trial Court

judgment and decree of the trial Court which were

confirmed by the First Appellate Court. Accordingly, the

impugned judgment of the High Court invites

interference.

34. In the result the appeal stands allowed. The

judgment of the High Court in S.A.(M.D.) No. 802 of 2004

dated 17.10.2012 is accordingly set aside and the

judgment of the Sub-Court, Periyankulam in

A.S.No.65/97 confirming the judgment and decree dated

30.09.1997 in OS No.104/1996 of the District Munsif-cum-

Judicial Magistrate Court, Andipatti is restored.

Civil Appeal No. 14630 of 2015 Page 40 of 41

35. The Appeal is allowed as above. In the

circumstances of the case, there will be no order as to

cost.

……………………, J.
(B.R. Gavai)

……………………, J.
(C.T. Ravikumar)

New Delhi;
September 20, 2023

Civil Appeal No. 14630 of 2015 Page 41 of 41