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PETITIONER: DR. GURMUKH RAM MADAN

       Vs.

RESPONDENT: BHAGWAN DAS MADAN

DATE OF JUDGMENT:       31/08/1998

BENCH: A.S. ANAND, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Rajendra Babu, J.      The plaintiff  in a  suit is  in appeal  before us.  He filed a  suit on July 4, 1970 claiming half share in a house of which he is in joint possession and sought for partition. The defendants  in the suit resisted the claim and contended that the  plaintiff had  no right,  title or interest in the said house  and the same belongs to him exclusively of which he is in possession as owner. The trial court found that the evidence  tendered   by  the   appellant  is   inconsistent, unnatural and  does not  inspire confidence.  The  case  put forth by  him is  that the  defendant had  obtained from the office of  the Sub-Registrar  the original  deed  dated  3rd November, 1963.  However, execution of the said deed had not been established  and it was also no clear from the material on record  that the  consent of  the  defendant  in  respect thereof had  been obtained.  There was  no evidence  to show that the  appellant had made any contribution either towards the purchase  of the said site or in the construction of the house thereof.  The said  suit was  dismissed. On appeal the High Court  examined the  question whether the appellant has any interest  to the extent of half share or any other share in the property in dispute. The case set up by the appellant in the High Court was that the defendant had made a transfer of half  share in the house in favour of the plaintiff as is borne out from a registered instrument Ex. A. 6.      The High Court noticed that the plot in which the house is situated  was acquired  on 1st  November, 1960  measuring about 1650  sq. ft.  Having purchased  the lease hold rights from Sadhu  Ram for  a consideration  of Rs.4,950/- of which Rs. 200/-   was  paid as  earnest money  and the balance was paid at  the time  of registration, the said deed is said to have been  executed on  1st November,  1960.  The  defendant contended that  subsequent to the purchase of the said suit, he put  up construction at his expense exclusively. He is in possession of  the property  and has  been paying  municipal taxes and  realizing amounts  from the tenants in occupation over a portion of the house while in the other portion he is in occupation.  The courts  below were  satisfied as  to the exact explanation  given by  the defendant  that there  were

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enough resources  with him  to purchase the property and put up construction  thereon. thus  burden lay very heavily upon the appellant-plaintiff  to prove  his case  Mela  Ram,  the father had  died in  the year  1965. He  contended that even during his  life time,  there was  a partition among the six brothers in  or about  the year  1962 and  that the property dispute was  also included in the partition and the sale was in writing though unregistered. Subsequently, he put forth a case that  no writing  had been  made  in  this  regard.  At another stage,  the appellant-plaintiff contended that there was no joint family at all. Yet another kind of case was put forth by the appellant that there was joint purchaser of the land along with the respondent and the contribution had been raised by  the respondent  as a  co-owner. A  perusal of the plaint would  disclose that  there is  no reference  to  the source of  acquisition of  property in  dispute not  does it mention about  the purchases  of the  land  over  which  the construction stands  and much  less the  appellant-plaintiff having contributed  any amount over towards the purchases of the site  or towards  raising  the  construction.  Even  all notices  that  had  been  issued  prior  to  the  suit  were significantly silent on this aspect of the matter. Thus, the claim made  by the  appellant was  hopelessly lacking in the necessary particulars  as to  the manner  in which  he could support the same. The pleadings in this state of affairs and the evidence  tendered by  him was characterised by the High Court as thoroughly unreliable. He has taken different kinds of stands  and has done several somersaults in the course of his deposition  by contradictory stands taken by him. In the evidence tendered  by him,  he has stated that he along with the defendant  purchased the  land for  rupees five thousand and both  of them  contributed in  equal shares  and of  the construction of  the house  a sum  of Rs.  16,400/- had been spent and  that he  paid a  sum of  Rs.8,200/-. That was the evidence tendered  by him  in the  Examination-in-Chief.  In cross-examination he stated curiously that the land had been purchased by  his father and changed that stance to that his brother may  have purchased  it or  their  father  may  have purchased the  land in  the name of both. But he was firm on the  question   that  he  and  his  brother  respondent  had contributed  equally   towards  the  construction.  He  also maintained  that   his  father   was  also   party  to   the construction and  had invested  money. Later on, he took the stand that  he had given some amount in cash and some amount was remitted  by him  out of  the Savings Bank account. On a totality of  the analysis  of the  evidence, the  High Court came to  the  conclusion  that  the  appellant  stood  self- condemned. One of the D.Ws Sadanand, appellant’s brother who is not  concerned with  this litigation in the course of his evidence stated that the defendant had exclusively purchased defendant had exclusively purchased out of his own resources and he  had constructed  the house  of his  own expense  for which he purchased material from time to time. The defendant produced  vouchers   in  support  of  having  purchased  the construction material.      In Ex.  6 dated  3rd November, 1962 it was noticed that it was  a certified  copy of  the registered deed. The trial court did  not admit this document in evidence on the ground that absence  of the  original document  had not  been  duly accounted  for   and  relied  upon  certain  decisions.  The appellant  contended   that  original   document  dated  3rd November, 1962 had been withdrawn by the respondent from the office of the sub-Registrar concerned and evidence on record does  not   bear  it   out.  In   the  ordinary   course  of probabilities, the  original document  should have  been  in

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custody of  the  appellant  in  whose  favour  it  had  been executed. He  did not  take it  back from  the office of the Sub-Registrar and  no effort  was made to make available the records from  the Sub-registrar’s  office in  this regard. A letter is  said to have been written by the appellant and in reply thereto  he received  a communication  from  the  Gyan Chand Mehta stating that the document had been taken away by the respondent  on November  19, 1962. It is not clear as to how Gyan Chand Mehta could send a letter of this nature when he was  not an  employee of  the office of the Sub-Registrar and therefore  the trial  court did not accept this piece of evidence. the  appellant, however,  admitted that he did not enquire from  the office  of the Sub-Registrar as to how the respondent was  allowed to take away the original even after receiving the  letter from the said Gyan Chand Mehta who was only a petition writer.      Strong reliance  had been  placed in the trial court as well as  in the  High Court on Section 65(f) of the Evidence Act.  Section   65(f)  states  that  secondary  evidence  is permissible when  the original  is a  document  of  which  a certified copy  is permitted  by the  Evidence Act or by any other law  in force  in India,  to be given in evidence. All that it  means is  that  secondary  evidence  is  admissible notwithstanding the  existence of  the original when it is a document of  which a  certified  copy  is  permitted  to  be produced by  the Act  or any  other  law.  The  document  in question is not a public document and the document could not have been let in evidence except after explanation as to the non-availability of  the original  in an appropriate manner. Therefore, the  view taken  by the High Court in this regard that  section  65(f)  was  not  attracted  to  the  case  is justified. The  High Court  found  on  an  analysis  of  the material on  record that the greater probability is that the said document  was taken  away from  the office  of the sub- Registrar  by   the  appellant   himself  inasmuch   as  the respondent was not a willing party to it. The respondent had not admitted  either in  the pleadings or course of evidence of having  executed the document dated November 3, 1962. The appellant himself  had let  in similar evidence in the shape of a  letter which  he admittedly  wrote to Sadanand who was examined as a witness by the respondent mentioning about the transaction in  question and  that document  was produced in original by  D.W. Sadanand.  When it  was confronted  to the appellant he  admitted that  he had  written the said letter and that letter was marked as Ex. A. 28. The contents of the letter may be adverted to:-      " I  am to  inform that in spite of      your advice to dear Bhagwan half of      the ownership  of Bardwar house has      been transferred  to me. But I have      to advice  to you that for God sake      do  not   say  any  thing  to  dear      Bhagwan because  he  has  not  done      this of  is own  accord. but  under      unknown  mysterious   circumstances      which   I    shall   explain    you      personally when I meet."      Commenting on  this letter,  the Court observed that it disclosed that  the transaction  under Ex.  A.  6.  had  not proceeded from  the respondent  of his  own accord and there were instead  certain mysterious circumstances which brought about the same. However, what those mysterious circumstances are has  not been  explained by the appellant. The matter is thus left  in vagueness.  The evidence  of D.W. Sadanand was critically examined  by the  High Court. It was noticed that

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the appellant  had admitted  to him "abhi Jhagara nahin hai. Unhoney us  asal dastawas  ko far  diya the". D. W. Sadanand does not claim to have seen the document personally or being torn out, but this was the representation made to him by the appellant himself.  Sadanand in  fact stated  that he saw he original in  the appellant’s  custody which  was held  to be corroborative of  what had been pleaded by the respondent in the course  of written  statement  and  evidence.  The  High Court, though  the document  had not been admitted. examined the same and found that it had recited that the plot of land had been  purchased by  him along  with his  brother and the house was  raised by  them together and at the relevant time he did  not execute  any deed, but he was doing the same now and acknowledged payment of Rs. 2,500/- having been received earlier. when  the evidence  on record  is overwhelming  and ultimately indicated  that there  was no  occasion  for  the respondent to  have stated  on 3rd  November, 1962  that the appellant had  from  the  inception  been  co-owner  of  the property. The  recitals therein as to having been paid a sum of Rs.  2,500/- could  not be  true as the case put forth by the appellant is that he had contributed Rs. 8,200/- earlier and he  would not  have paid a further sum of Rs. 8,200/- at the time  of the  execution of the document. Thus, there was intrinsic material  to demonstrate  that the recitals in the document could  not have  been true. On that basis, the High Court rejected the case put forth on behalf of the appellant on the basis of this document.      The contentions  put forth  before us  are identical to those which are urged in the trial court and the High Court. There is  no material to show that the property was joint or the family  possessed joint  funds. There  was no nucleus to augment or  add by way of accretion to the same. There is no material to show that the appellant had contributed any sums of money  in the  purchase of  the house or any contribution thereof. Evidence  on record  out weight the proof sought to be placed  by the  appellant in  this regard.  Firstly,  the title deed stood in the name of respondent alone. Respondent placed material  before the  Court that he had purchased the building  material   at  different   stages  to   raise  the construction. He  was in possession of the house exclusively right from the date of the construction. The appellant if he had given any money to the respondent could have placed some evidence on  record in support of the same. There is nothing forthcoming either in the shape of a documentary evidence or oral evidence  except his  own self-serving statements which are self-contradictory. Assertions and acclamations will not produce  a   strong  case.  The  tearful  arguments  of  the appellant had  not appealed  to us  in the absence of even a titer of  evidence. The  trial court and the High Court have thoroughly examined  the pleadings,  the  evidence-oral  and documentary in  a critical  manner and  have adverted to all the circumstance pointed out by the appellant in arriving at their conclusion.  The case put forth by the appellant as to whether the property was joint family property or whether he had contributed  any funds  towards purchase of the plot are principally in the region of appreciation of evidence and do not call  for any  interference of this Court in exercise of jurisdiction under  Article 136  of the  Constitution . Even otherwise, the  concurrent findings  of the  trial court and the High Court are unexceptionable.      Hence,   this   appeal   stands   dismissed.   However, considering the circumstances of the case, there shall be no order as to costs.

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