Sunday, 21 June 2015

Whether secondary evidence is admissible even though one party has not given notice to produce document to other party?



In   this   behalf,   it   would   be   appropriate   to   quote 
following portion from Vishwanath Vithoba. ..vs.. Genu Kisan &  
ors.; cited by Mr. Purohit,  learned counsel for the appellants. 
“3.
.....Mr.   Sukhthankar   has   urged   that   these  
copies   of   the   sale­deeds   are   not   admissible   in  
evidence. The plaintiff has stated in his evidence that  
the original sale­deeds are not in his possession but  
they   are   in   the   possession   of   defendant   1.   The  
plaintiff   did   not,   however,   give   any   notice   to  
defendant 1 asking him to produce the original sale­
deeds. 
Mr.   Sukhthankar   has,   therefore,   urged  
that   the   certified   copies   are   not   admissible   in  

required by Clause (a) of Section 65, Evidence Act.  
The   proviso   to   Section   66,   however,   enables   the  
evidence as no notice was given to defendant 1 as  
Court to dispense with such notice in any case, in  
which the Court so thinks fit. In 'Surendra Krishna  
v. Mirza Mahamed Syed All', 1936 PC 15 (AIR V23)  
(A) Their Lordships observed: 
"The only purpose of a notice under Ss.  
65   and   66,   Evidence   Act,   is   to   give   the   party   an  

opportunity by producing the original document to  
secure, if he pleases, the best evidence of Its contents,  
The   difference   between   a   certified   copy   and   the  
original for the purposes of the present case is not  
very   obvious   but   secondary   evidence   is   admissible  
when   the   party   offering   evidence   of   its   contents  
cannot   for   any   reason   not   arising   from   his   own  
default or neglect produce the original document in  
reasonable time; and under Section 66 the court has  
absolute power, when it thinks fit, to dispense with  
a notice under these sections". 



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Second Appeal No.554/2003

 Madanlal Virbhanji Madan,


...V E R S U S...
Ramrao Mahadeorao Gomase,
Citation;AIR 2015(NOC)654 Bom
Dated;30-7-2014

Being   aggrieved   by   judgment   and   decree   dated 
28.11.2003 passed by 3rd  Ad hoc Addl. District Judge, Wardha in 
Reg.   C.   A.   No.   149/1996,   decreeing   the   civil   suit   filed   by 

respondent/plaintiff­Ramrao   by   reversing   the   judgment   decree 
dated 19.09.1996 passed by 2nd Jt. Civil Judge Jr. Dn. Wardha, in 
Reg. C. S. No. 406/1988, the present second appeal was filed by 
the appellants/defendant.
FACTS:
The   respondent/plaintiff­Ramrao   filed   a   suit   for 
2.
possession   of   the   suit   premises   denominating   it   as   a   tenanted 
premises leased out by him to the appellants/defendant.  The case 
was that he and his brother Amrutrao had purchased the entire 
suit house by registered sale deed dated 03.12.1952.  There was a 
family partition amongst the two brothers on 05.01.1962 and the 
area   of   the   suit   house   came   to   his   share.   Accordingly,   it   was 
mutated and taxes were being paid to the Gram Panchayat, Anji 
(Mothi), after dividing the house into two parts.   The suit block 
was originally let out to Anji Cooperative  Society for running a 
grain   shop.     The   society   vacated   the   same   on   30.04.1972   and, 
therefore,   the   premises   was   let   out   from   01.10.1972   to   the 
appellants/defendant   by   Bhade   Chitti   dated   17.09.1972.     From 
March­1981, the rent was increased to Rs.100/­ from Rs.50/­ p.m. 
and the original defendant had promised to vacate the premises by 

the   end   of   March­1982   as   per   agreement   of   lease   dated 
15.03.1981 and that the  rent was paid up to 28.02.1986.   The 
appellant/defendant, in the written statement, contended that, in 
fact, the suit premises were purchased by him by sale deed dated 
20.07.1960 from Amrutrao, elder brother of plaintiff­Ramrao.  The 
respondent/plaintiff, however, denied execution of the sale deed 
or execution of Power of Attorney in favour of Amrutrao for the 

said sale and contended that on 04.04.1988, he determined the 
tenancy of the original defendant and thereafter filed the suit for 
possession   along   with   arrears   of   rent.     As   earlier   stated,   the 
defendant   denied   the   ownership   of   the   plaintiff   and   on   the 
contrary, by amending the pleadings exhaustively in the written 
statement, stated that he purchased the suit property from Ramrao 
through   his   Power   of   Attorney­Amrutrao.     The   defendant   also 
denied   the   very   title   of   the   plaintiff   and   his   brother   Amrutrao, 
which   they   claimed   to   have   acquired   by   sale   deed   dated 
03.12.1952.   The   parties   went   on   trial.     Original   defendant 
Virbhan­father   of   the   appellants,   was   very   old   at   the   time   of 
evidence and, therefore, his son­Power of Attorney holder, entered 
the   witness   box.     He   also   examined   witnesses   while   plaintiff 
examined himself and his witnesses.   The trial Court, thereafter, 

framed in all 10 issues and finally dismissed the suit holding that 
the original defendant, in fact, was owner by virtue of the sale 
deed   dated   02.08.1960,   executed   by   Amrutrao   as   Power   of 
Attorney   holder   of   plaintiff­Ramrao.     The   respondent,   being 
aggrieved by the said judgment and decree of dismissal of the suit, 
filed Reg. C. A. No.149/1996 before District Judge, Wardha which 
was decided by the impugned judgment and decree.  Hence, this 
In   support   of   the   appeal,   Mr.   S.   V.   Purohit,   learned 
3.
SUBMISSIONS:

Second Appeal. 
counsel for the appellants, made the following submissions:
(i)
The lower appellate Court committed serious error in 
holding that the appellants were tenant of the respondent­plaintiff, 
which finding is perverse when, in fact, the appellants are owners 
of the suit property.
(ii)
The lower appellate court committed error in rejecting 
the document of sale deed Exh.­86 dated 02.08.1960 in favour of 
the appellants for total consideration of Rs.1,000/­ and the said 
finding is perverse.  The reason for rejection of Exh.­86 was that it 
was a certified copy of the sale deed and that the appellants did 

not   prove   the   fact   of   loss   of   original   document   of   sale   deed. 
Mr.   Purohit   submitted   that   there   is   unchallenged   evidence   on 
record about loss of original sale deed and, therefore, what more 
the   evidence   could   be   brought   on   record,   which   has   not   been 
explained by the lower appellate court.  Document Exh.­86, which 
was   a   certified   copy   of   the   sale   deed,   was   duly   proved   and, 
therefore, the evidence which is irrelevant about identification of 

signature on the Bhade Chitti and rent agreement for proof of sale 
deed was considered is wholly wrong. The lower appellate Court 
committed serious error in giving importance to documents Exh.­
47 and 48 rent agreements which were rightly rejected by the trial 
Judge and at any rate, when title of the appellants by virtue of the 
sale   deed   Exh.­86   was   categorically   proved   by   documentary 
evidence,   subsequent   documents   Exh.­47   and   48,   did   not 
absolutely have any relevance.
(iii)
The lower appellate Court has given cryptic reasons for 
overturning the finding of fact recorded by the trial Judge and, 
therefore, there  is  perversity on  the  part of  the  lower  appellate 
court in reversing the decree passed by the trial Judge.   Counsel 
for the appellants, therefore, submitted that the appeal deserves to 
be allowed.  

Mr. Purohit, learned counsel for the appellants, placed 
reliance on the decision in Vishwanath Vithoba ..vs.. Genu Kisan 
and ors; 1956 Bombay 555.
4.
Per   contra,   Mr.   Saboo,   learned   counsel   for   the 
respondent,   submitted   that   the   finding   of   fact   recorded   by   the 

lower appellate court about inadmissibility of Exh.­86­sale deed is 
legal, correct and proper.  He argued that it was not proved that 
the original document of sale deed was lost by the appellants.  He 
argued that the secondary evidence could not be allowed to be led 
in   the   absence   of   appropriate   and   legal   procedure   namely;   full 
details and proper evidence ought to be given about the alleged 
loss of original document of sale deed.   According to Mr. Saboo, 
the said evidence was not tendered by the appellants, therefore, 
the trial Judge was guilty of overlooking provisions of Sections 65 
and 66 of the Evidence Act and the lower appellate court was fully 
justified  in  reversing   the  decree. Mr.  Saboo, then   continued  his 
argument citing the following decisions to argue that the sale deed 
Exh.­86 was rightly rejected and that was foundation of the case of 
the appellants.

State of Rajasthan & ors. ..vs.. Kemraj & ors.; AIR 2000 SC 
(i)

(ii) Ganpat   Pandurang   Ghongade   &   ors...vs..Nivrutti 
Pandurang Ghongade; 2008 (5) Mh. L. J. 153.
CONSIDERATION:

Nale; AIR 1984 BOM 19.
(iii) Shiolalsingh   Gannusingh   Rajput   ..vs..   Shankar   Motiram 
5.
Upon hearing learned counsel for the rival parties, I 
proceed to frame the following substantial questions of law:
(i)
Whether   certified   copy   of   sale   deed   Exh.­86  
dated   02.08.1960   being   secondary   evidence   was  
proved in accordance with the provisions of Section  
65   of   the   Evidence   Act   and   the   procedure  
thereunder?
Answer: Yes.
(ii) If   the   sale   deed   Exh.­86   stands   proved   in  
accordance with law, whether Bhade Chitti Exh.­47  
and   48   even   if   proved   according   to   law   and  
admissible   in   evidence,   would   be   of   any  
significance?
Answer: No.

This is a case of an unfortunate refugee who was 
6.

residing in Punjab province before partition and which province 
went   to   Pakistan   in   partition.     The   appellants'   father­Virbhan 
during the tumultuous period of partition, wandered in India for 
few years and moved to Panipat, Sonepat, Jalandar in search of 
life and finally in the year 1952 landed at village Kharangana in 

Wardha   District   where   his   relation   Harishchandra   Juneja   was 
residing.  On his advise, Virbhan in the year 1952­53 went to Anji 
(Mothi) for earning livelihood.  He was illiterate and did not know 
Marathi but knew only Punjabi and Urdu languages.   Amrutrao 
and Madhavrao of Anji  were influential persons in that Amrutrao 
was a local board member.  Amrutrao claimed to be the owner of 
the house property and started recovering rent from him. In July­
1960,   Amrutrao   approached   him   and   told   him   that   both   the 
brothers namely; Amrutrao and Ramrao wanted to dispose of the 
suit house and since Virbhan was residing therein and if interested 
he   should   purchase   it.     Since   Virbhan   was   residing   there   and 
running a Kirana shop, he purchased the portion of Amrutrao first 
by sale deed dated 20.07.1960 Exh.82, about which there is no 
dispute.     Amrutrao   then   obtained   a   power   of   attorney   from 

Ramrao­the plaintiff for executing sale deed of the house block of 
Ramrao because Ramrao was serving at Rajnandgaon in Madhya 
Pradesh   and   accordingly   on   02.08.1960   he   sold   the   remaining 
share of Ramrao which is the suit property in the present suit.  The 
sale   deed   was   executed   on   02.08.1960   and   Exh.85   and   thus 
However,   from   perusal   of   the   entire   records, 

7.
Virbhan became the owner of the suit property.  
pleadings,   evidence   and   documents   it   appears   that   the 
appellants/defendants made a goof­up by unnecessarily projecting 
the story that Amrutrao and Ramrao were not having any title to 
the entire property; and besides the story that rent was paid by 
them   to   the   'rightful'   owner   adding   to   the   confusion   about 
tenancy.     In   order   to   overshadow   the   sale   deed   Exh.86,   the 
plaintiff in a smart move, projected Bhade­Chittis Exh. 47 and 48. 
This   was   totally   misdirectional.     Exh.47   and   48   are   documents 
relied upon by the respondent­plaintiff to buttress his claim about 
the appellants being tenants and not the owners.  There is a reply 
notice from the appellants­defendant about the payment of rent to 
the rightful owner.   However, after amendment of pleadings, the 
ownership by virtue of sale deed Exh.­86 dated 02.08.1960 was 

properly projected before the Court.   In my opinion, the duty of 
the court is to be infallible for finding out the truth, even if the 
parties to the suit have created confusion, misdirected themselves 
or   inserted   irrelevant   and   unnecessary   pleadings.     Therefore, 
according to me, the crux of the matter is to find out whether the 
sale   deed   dated   02.08.1960   executed   by   Amrutrao,   acting   as   a 
Power of Attorney of Ramrao in favour of Virbhan, is legal, correct 
and proper and is proved according to law or not.  If the sale deed 
Exh.­86   is   proved   to   be   legal,   correct   and   proper,   the   question 
whether the appellants had the character of tenants subsequently 
or   by   virtue   of   Exh.­47   or   48,   would   be   wholly   irrelevant   and 
redundant.
8.
Thus,   viewing   the   case   from   the   above   angle,   I 
proceed to determine the question framed as above.
9. As to question no. (i):
Sale deed Exh.­86 was rejected by lower appellate 
court for the reasons stated in para 11, which reads thus:
“11. From the above evidence of the respondent, it  
is   clear   that   the   respondent   did   not   state   the  
particulars and circumstances as to when and how  

Indian   Evidence   act,   1872   provides   that   the  
documents   must   be   proved   by   primary   evidence  
the original sale deed was lost.   Section 64 of the  
expert in the case as provided by the Section 65 of  
the Indian Evidence Act, 1872.  It has already been  
pointed  out that the respondent did not prove the  
fact   that   original   sale   deed   was   lost.     In   these  
circumstances, it cannot be said that the respondent  
is  entitled  to  prove   the   certified   copy  of  such  sale  
10.
deed and get it exhibited as Exh.­86.”
As against above, the learned trial Judge recorded 
finding on the said aspect as under:
“17. The   plaintiff   has     contended   that   he   never  
executed   any   power   of   attorney   in   favour   of   his  
brother nor consented him to transfer his 1⁄2 share in  
the suit house.   The deed of power  of   attorney  is  
produced   on   record   by   the   defendant   and   the  
defendant's  witness  has  deposed  that  the  power  of  
attorney   is   executed   by   the   plaintiff   came   in  
possession of the defendant at the time of sale­deed.  
The power of attorney to his brother by the plaintiff  
is   not   exhibited   and   I   have   to   consider   if   this  
document requires to be executed or not.  The point  
is   required   to   be   dealt   with   by   taking   into  
consideration the preponderance of probabilities as  

While considering preponderance of probabilities it 
is to be borne in mind that the defendant is refugee  
the very execution of it is disputed by the plaintiff.  
and had not fully settled as those of natives in the  
year 1960 and could not dare to prepare fabricated  
document   particularly,   prejudicial   to   the   persons  
like plaintiff  and his brother  who had hold in the  
village   and   and   had   influence   over   the   village  
people.   Admittedly, in the year 1960, the plaintiff  

was   serving   at   Rajnandgaon   in   Madhya   Pradesh.  
The Special Power of Attorney is accompanied with  
treasury voucher of Rs.2/­ paid in the sub treasury  
of Rajnandgaon towards attestation fee.  It appears  
that the document of power of attorney required to  
be   attested   by   Judicial   Magistrate.     The   Special  
Power  of  Attorney  bear  seals  of  Rajnandgaon  Sub  
Treasury and Court Stamp Vendor Tayyabali for T.  
Hussain   of   Rajnandgaon.     The   challan   deposit  
receipt Exh.83 is of Rajnandgaon Treasury which his  
also produced by the defendant and his witness has  
deposed that it came to the defendant at the time of 
sale­deed in question. Notably, the power of attorney  
showing execution of it by the plaintiff is attested on  
25.7.1960   by   the   2nd  Class   Judicial   Magistrate,  
Rajnandgaon.     The   fact   that   the   plaintiff   was  
residing at Rajnandgaon and the defendant was not  
in position to fabricate or prepare false document,  
the only probability that remains is of execution of  

favour  of  his brother  Amrutrao.    No allegation  of  
making false document by the plaintiff's brother is  
the   Special   power   of   attorney   by   the   plaintiff   in  
made by the plaintiff.  The document being attested  
by   the   Judicial   Magistrate   and   the   plaintiff   not  
specifically  denying his signature on Special  Power  
of   Attorney   culminates  that  the   plaintiff   and   only  
plaintiff   could   have   executed   the   document.     The  
document is an original document  and attested  by  
the Executive Magistrate by accepting attestation fee  
18.
deserves to be exhibited and I exhibit it as Ex.90.
The circumstances considered in the  
preceding   paragraph   and   the   contents   of   the   sale  
deeds Ex.82 and 86 read along with the contents of  
the   power   of   attorney   Ex.90   are   explicit   to   draw  
inference that the entire suit house was decided to be  
sold to the defendant by the plaintiff and his brother  
for Rs.2,000/­ and vide Ex.82 sale deed of 1⁄2 share  
of   plaintiff's   brother   was   executed   on   20.7.1960.  
Thereafter,  to  complete   the   agreed  transaction   the  
plaintiff   executed   power   of   attorney   Ex.90   dt.  
23.7.1960  in favour  of  his  brother  Amrutrao  and  
accordingly   he   executed   a   sale   deed   Ex.86   on  
2.8.1960 for remaining consideration of Rs.1,000/­. 
The sale deed Ex.86 was argued to be not admissible  
in evidence by the learned counsel of the plaintiff as 
it   is   not   the   original.    However,   the   defendant's  

original   sale   deed   is   lost.    Therefore,   the   certified  
copy   of   the   sale   deed     is   allowed   a   secondary  
witness  has made  it clear  in his evidence  that  the  
evidence.     The   loss   of   original   cannot   be   strictly  
proved   and   the   only   mode   to   establish   loss   is  
assertion on oath by the person having custody or  
control of the document in question.  The sale deed  
being registered long back i.e. more than 30 years  
ago has evidentiary value.  The sale deeds Ex.82 and  
86 and the power of attorney Ex.90 are in harmony  
and in consonance with the the defendant's claim of  
ownership of the suit house.”
11.
I have myself perused the entire evidence as well as 
documents about which the trial Judge and lower appellate court 
have made discussion as above.  Upon perusal of the documents, I 
fully concur with the finding of fact recorded by the learned trial 
Judge as above and I completely disagree with the learned lower 
appellate court in rejecting document of sale deed Exh.­86.  I find 
that the evidence of Madanlal s/o Virbhan (DW1), who was the 
person   in   custody   of   original   sale   deed   dated   02.08.1960, 
categorically stated in his evidence that original sale deed was lost 
and so the certified copy thereof was filed.   This evidence stood 

unchallenged.  If, according to the respondent­plaintiff, no details 
were given as to the date when it was lost and so on so forth; 
there ought to have been proper cross­examination of this witness 
who was custodian of the original document of sale deed.  There 
was absolutely no reason for the lower appellate court in ignoring 
the said evidence and holding that the proof about loss was not 
established.  Section 65 of the Evidence act 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:
...
(b) ...
(a) 
(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;
(d) to (g) ...
In cases (a), (c) and (d), any secondary evidence of  
the contents of the documents is admissible.”
12.
From the perusal of the above provision, it is clear 
that the only requirement of the provision is that the original must 

be shown to have been lost.  In the instant case, there is clear cut 
unchallenged evidence that the original is lost and the evidence 
has   come   from   the   person   who   was   the   custodian   of   the 
document, to which there is no cross­examination at all.   Thus, I 
do not think that any additional evidence on the loss of document 
could   possibly   be   given   that   too   in   the   absence   of   any   cross­
examination   on   that   point   since   it   was   never   the   case   of   the 
respondent   that   the   original   was   still   lying   with   somebody.     I 
the said fact.
wonder what more details or evidence could be brought to prove 
13.
In   this   behalf,   it   would   be   appropriate   to   quote 
following portion from Vishwanath Vithoba. ..vs.. Genu Kisan &  
ors.; cited by Mr. Purohit,  learned counsel for the appellants. 
“3.
.....Mr.   Sukhthankar   has   urged   that   these  
copies   of   the   sale­deeds   are   not   admissible   in  
evidence. The plaintiff has stated in his evidence that  
the original sale­deeds are not in his possession but  
they   are   in   the   possession   of   defendant   1.   The  
plaintiff   did   not,   however,   give   any   notice   to  
defendant 1 asking him to produce the original sale­
deeds. 
Mr.   Sukhthankar   has,   therefore,   urged  
that   the   certified   copies   are   not   admissible   in  

required by Clause (a) of Section 65, Evidence Act.  
The   proviso   to   Section   66,   however,   enables   the  
evidence as no notice was given to defendant 1 as  
Court to dispense with such notice in any case, in  
which the Court so thinks fit. In 'Surendra Krishna  
v. Mirza Mahamed Syed All', 1936 PC 15 (AIR V23)  
(A) Their Lordships observed: 
"The only purpose of a notice under Ss.  
65   and   66,   Evidence   Act,   is   to   give   the   party   an  

opportunity by producing the original document to  
secure, if he pleases, the best evidence of Its contents,  
The   difference   between   a   certified   copy   and   the  
original for the purposes of the present case is not  
very   obvious   but   secondary   evidence   is   admissible  
when   the   party   offering   evidence   of   its   contents  
cannot   for   any   reason   not   arising   from   his   own  
default or neglect produce the original document in  
reasonable time; and under Section 66 the court has  
absolute power, when it thinks fit, to dispense with  
a notice under these sections". 
In   the   present   case   after   the   death   of  
Gyanuji, the next senior member of the family was  
Vithoba.   The   three   sale­deeds   therefore   in   all  
probability went into the possession of Vithoba and  
after his death into the possession of the defendants.  
The plaintiff has stated that the original sale­deeds  
are not with him. He has also stated that they are in  
the possession of defendant 1. There was no cross­

statement on this point. 
Defendant 1 in his evidence did not deny  
examination   of   the   plaintiff   in   regard   to   his  
that the original sale­deeds were in his possession. It  
would  have  been  desirable  If  a question  had  been  
put to him on this point in the cross­examination by  
the plaintiff. But as the record stands, the plaintiff's  
statement   that   the   original   sale­deeds   are   with  
defendant  1 remains  unchallenged.  This  is also  in  

accordance with the probabilities of the case. 
The   certified   copies   of   three   sale­deeds  
Exhs.   75,   76   and   77   were   also   produced   by   the  
plaintiff   along  with  the   plaint.   He  has  specifically  
stated in the plaint that these sale­deeds related to  
the  three  suit  houses.  There  was no denial  of  this  
statement In the defendants' written statement. 
If, therefore, the original sale deeds are  
in the possession of the defendant 1 as deposed to by 
the plaintiff and as the plaintiff's statement that the  
certified copies of the three sale­deeds produced by  
him related to the suit houses has not been denied  
by the defendants, we think this would be a proper  
case in which notice as required under Clause (a) of  
Section 65, Evidence Act, should be dispensed with.  
In that case, the three certified copies, exhs. 75, 76  
find   77   would   be   admissible   under   Clause   (a)   of  
Section 65, Evidence Act. 

not in the possession of the defendants and as they  
are also not in the possession of the plaintiff, they  
On the other hand if the sale­deeds are  
must be deemed to have been lost. In that case, the  
certified copies would be admissible under Clause (c)  
of Section 65. The learned Judge was therefore right  
in admitting these three documents in evidence” 

I think, the facts and the law stated by the Division 
Bench of this Court in the above case are somewhat akin to the 
facts in the instant case.
The   reported   decisions   in   this   behalf   cited   by 
14.
Mr.   Saboo,   have   been   seen   by   me.     In   the   case   of  State   of 

Rajasthan   ..vs..   Khemraj  &   ors. (supra),   the   Supreme   Court 
  
  
permitted   the   appellant   therein   to  file   fresh   application   to   seek 
permission to lead secondary evidence.     In the case of  Ganpat  
Pandurang   Ghongade   &   ors.   ..vs..   Nivrutti   Pandurang  
Ghongade;  (supra),   there   was   no   evidence   at   all   on   record   to 
show   that   the   original   was   not   available.     In   the   case   of 
Shiolalsingh   Gannusing   Rajput..vs..   Shankar   Motiram   Nale;  
AIR   1984   Bom.   19  the   issue   was   totally   different   about   the 
permission arising under section 90 of the evidence Act.  

To sum up, I must hold that the sale deed Exh.­86 
15.

was   duly,   properly   and   legally   proved   and   the   requirement   of 
section 65 of the Evidence Act, proof of loss was also established. 
Section 65 of the Evidence Act does not contemplate any specific 
requirement of filing application for leading secondary evidence. 
But, it is always better to have application with properly affirmed 
pleadings.   To   sum   up,   I   answer   the   question   no.(i)   in   the 
affirmative.
16.As to question no. (ii):
I   have   already   found   that   Bhade   Chitti   or 
agreements of rent Exh.47 and 48 produced and relied upon by 
the respondent/plaintiff even if proved, lose all the relevance and 
all the more so in view of the answer to question no.(i) as above. 
To  repeat,   when   the   appellants   were   successful   in   proving   title 
unto them by virtue of sale deed Exh.­86 dated 02.08.1960 from 
the   respondent­Ramrao,   the   question   of   the   appellant   being 
treated as tenant as per Exh.­47 and 48 or as the case may be does 
not at all arise.  Hence, I answer question no. (ii) accordingly.
17.
In view of above, I pass the following order:

(I)
Second Appeal No. 554/2003 is allowed.
(ii) Impugned   judgment   and   decree   dated  
ORDER
28.11.2003   in   Reg.   C.   A.   No.149/1996  
passed   by   3rd  Ad   hoc   Addl.   District   Judge,  
Wardha is set aside.  
(iii) Judgment and decree dated 19.09.1996  
in Reg. C. S. No. 406/1988 passed by 2nd Jt.  
Civil Judge Jr. Dn. Wardha is restored.
JUDGE

No order as to costs. 


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