Gauhati HC holds certified copy of sale deed admissible under Section 65 Evidence Act when original lost by lawyer

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A certified copy of a sale deed is admissible in evidence under Section 65(c) of the Indian Evidence Act when the original is lost due to no fault of the party, the Gauhati High Court recently held [Satyendra Medhi vs. Pramod Medhi].

Section 65 (c) provides that secondary evidence relating to documents may be given when “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”.

Justice Parthivjyoti Saikia said that in order to attract Section 65 (c) of the Indian Evidence Act, the first criteria is that the original document must be destroyed or lost or that the party seeking to produce that document cannot do so for any other reason which does not arise from his own default or negligence.

“The burden heavily lies upon the party concerned to show that the document was destroyed or lost and cannot be produce for some reasons but such reasons must not arise from default or negligence of the party concerned. The burden to prove the loss of a document has to be exercised in the yardstick of “beyond reasonable doubt,” the Court elaborated.

In the instant case, the Court noted that the original sale deed was lost from the custody of the appellant’s lawyer and that the execution of the original sale deed was proved beyond reasonable doubt.

It therefore, set aside the judgment of the Civil Judge, Kamrup, Amingaon who had declined to allow certified copy of the sale deed in evidence.

The Court was hearing an appeal of two lower court orders, which had held that appellant had failed to prove the execution of sale deed in his favour.

The appellant had purchased a plot of land from the respondent’s father, executing a registered sale deed to that effect.

Subsequently, he was allegedly dispossessed of a portion of the property by the respondent.

The appellant, therefore, filed a suit praying for recovery of the same as well as declaration of his rights, title and interest over the plot of land.

The respondent denied the sale deed having ever been executed, saying his father had never sold the land. The respondent claimed that his father had filed a complaint before the Deputy Commissioner against the appellant after learning he had been occupying the land on the basis of the said deed.

The appellant lawyer’s had misplaced the said sale deed, and the trial and appellate courts ruled against the appellant holding that a certified copy of the same is inadmissible.

This led to the appeal before the High Court.

The counsel for the appellant submitted that filing a certified copy of the sale deed falls within Section 65 (c) of the Indian Evidence Act. He pointed out how the same was not lost because of any “default or negligence” of the appellant.

The counsel submitted that the lawyer in question had testified before the courts below and explained that the original sale deed was handed over to him by the appellant and the file containing it was later lost. A witness from the office of the sub-registrar had already proved the execution of the sale deed, it was submitted.

The counsel for the respondents submitted that the fact of loss or disappearance of the sale deed had not been properly explained, and Section 65 of the Indian Evidence Act debars production of a certified copy of the sale deed in such circumstances.

On the point of admissibility of certified copies of documents under Section 65, the Court noted that the the burden lies upon the party concerned to show that the document was destroyed or lost and cannot be produce for some reason which is not due to his fault or negligence.

The Court accepted that the lawyer who lost the deed was cross-examined by the respondent yet his “evidence remained unimpeached on all the points”.

Further, a junior assistant in the office of the sub-registrar had produced a volume book which showed that the father of the present respondent had executed a registered sale deed, numbered and certified, in favour of the appellant.

Taking these into account, the single-Judge said that it is of the opinion that their evidences inspired confidence.

“It is proved beyond all reasonable doubt that the original sale deed executed by the father of the respondent in favor of the present appellant in respect of the entire 3 bighas of land, was lost without the fault or negligence of the appellant. Therefore, the Ext. 1 is admissible in evidence u/s 65 (C) of the Indian Evidence Act. 24. Under the aforesaid premised reason, this Court is of the opinion that the learned first appellate Court committed error by holding that the Exhibit 1 is not admissible in evidence,” the High Court concluded.

It, therefore, allowed the appeal and remanded the proceedings back to the Civil Judge for fresh adjudication on merits.

Advocates P Bhattacharya and RK Barthakur appeared for the appellant. Advocates A Dhar and TC Das were counsel for the respondent.

Read Judgment here:

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