Case Note & Summary
The case involved a suit for permanent injunction filed by the plaintiff against the defendants to restrain interference with his possession of suit property measuring 74 cents in S.No.216/4A. The plaintiff claimed that the property originally belonged to his grandfather, Periyamaya Thevar, and after a partition in 1987 between the plaintiff and his brother, the suit property was allotted to his share under a registered partition deed dated 12.01.1987. He asserted continuous possession thereafter, supported by patta, adangal, chitta, kist receipts, and certificates from the Village Administrative Officer. The defendants resisted the suit, contending that the property was purchased by their ancestors in 1920 and that they had been in possession; they denied the plaintiff’s possession and alleged that the plaintiff had fraudulently obtained patta. The trial court, after considering oral and documentary evidence, decreed the suit on 31.01.2011, finding that the plaintiff had established possession. On appeal by the defendants, the III Additional Sub Court, Madurai, reversed the decree on 30.09.2011, dismissing the suit, leading to the present second appeal by the plaintiff. The High Court formulated the substantial question of law as to whether the lower appellate court was right in rejecting the plaintiff’s claim for injunction despite accepting his continuous possession and enjoyment. The appellant argued that he had proved possession from 1987 through documentary evidence and that the defendants’ reliance on a certified copy of a 1920 sale deed (Ex.B2) was inadmissible as secondary evidence under Section 65 of the Indian Evidence Act, 1872, because no foundation was laid for its production. The High Court examined the evidence and found that the first appellate court had erroneously reversed the trial court’s decree by failing to properly appreciate the plaintiff’s possession evidence and by relying on Ex.B2 without the required foundational proof. Applying the principles laid down by the Supreme Court in Vijay v. Union of India and Tharammel Peethambaram v. Ushakrishnan, the court held that secondary evidence cannot be admitted without establishing the existence and non-production of the original. Consequently, the second appeal was allowed, the judgment of the first appellate court was set aside, and the trial court’s decree granting permanent injunction was restored, with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Scope of Interference with Findings of Fact - Code of Civil Procedure, 1908, Section 100 - The first appellate court reversed the trial court's decree despite accepting the plaintiff's continuous possession; the High Court in second appeal found that the first appellate court erred in appreciation of evidence and misapplication of law, thereby allowing the appeal and restoring the trial court's decree - Held, where the lower appellate court has misread evidence and relied on inadmissible documents, the High Court can interfere under Section 100 CPC. (Paras 7, 11) B) Evidence Law - Secondary Evidence - Admissibility of Certified Copy - Indian Evidence Act, 1872, Sections 64, 65 - The defendants produced a certified copy of a 1920 sale deed but failed to explain non-production of the original or lay foundational facts for secondary evidence; relying on Supreme Court rulings, the High Court held that mere admission of a document as an exhibit does not dispense with proof of its contents, and without foundational evidence, secondary evidence is inadmissible; the lower appellate court's reliance on Ex.B2 was thus erroneous. (Paras 8-9, 11)
Issue of Consideration
Whether the Lower Appellate Court is right in rejecting the claim of the appellant/plaintiff for permanent injunction, that too, after accepting the continuous possession and enjoyment of the suit property by the plaintiff?
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the first appellate court, and restored the trial court’s decree granting permanent injunction in favor of the plaintiff. No order as to costs.
Law Points
- Legal points not extracted
- In a suit for permanent injunction
- the plaintiff must prove possession as on the date of the suit
- the appellate court cannot reverse the trial court's decree on mere conjectures
- secondary evidence requires foundational proof under Section 65 of the Indian Evidence Act
- a certified copy of a document is not per se admissible unless the conditions of Section 65 are satisfied.
