w w w . L a w y e r S e r v i c e s . i n



Hari Om Gupta & Another v/s Jyoti Bhatia


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- JYOTI LIMITED [Active] CIN = L36990GJ1943PLC000363

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- JYOTI LIMITED [Active] CIN = U55101JK1964PLC000286

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- JYOTI INDIA PRIVATE LIMITED [Active] CIN = U74899DL1986PTC024784

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- S N BHATIA AND CO PRIVATE LIMITED [Active] CIN = U99999DL1976PTC008293

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U70109DL1986PTC024822

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

Company & Directors' Information:- K. BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U51420MH1960PTC011708

Company & Directors' Information:- OM ; CHIT FUNDS PRIVATE LIMITED [Strike Off] CIN = U99999MH1967PTC013841

Company & Directors' Information:- JYOTI LIMITED [Not available for efiling] CIN = U99999MH1949PLC007439

    S.C.C. Revision No. 142 of 2014

    Decided On, 02 June 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE SARAL SRIVASTAVA

    For the Petitioner: Kiran Kumar Arora, Advocate. For the Respondent: Pradeep Saxena, Ram Pratap Yadav, Advocates.



Judgment Text


1. Heard Sri Kiran Kumar Arora, learned counsel for the revisionists and Sri Ram Pratap Yadav, learned counsel for the respondent.

2. The revision-applicant nos.1 & 2 have assailed the judgement and decree dated 06.02.2014 passed by Additional District Judge, Court No.1, Bareilly in SCC Suit No.7 of 2011 whereby the trial court has decreed the suit of the respondent.

3. The brief facts of the case are that respondent (plaintiff) instituted SCC Suit No.7 of 2011 contending inter alia that she is the owner of a shop and godown constructed over an area of 72.5 square meters situated in Shyamganj, Rile Godown, Bareilly (hereinafter referred to as 'suit property') described at the foot of the plaint. She has let out the suit property to revision-applicant nos.1 & 2 (hereinafter referred to as 'applicants') on a monthly rent of Rs.25,000/- per month including taxes. The applicants have been carrying on business on the suit property in the name and style of M/s Saraswati Sales. The suit property was let out to applicants on 25.11.2008 for two years on the condition that entire rent of the suit property would be paid in advance by the applicants. The period of tenancy expired on 24.11.2010. The applicants were to vacate the suit property on 25.11.2010 after the expiry of the term of the tenancy. It is further averred that the applicants have not paid rent after 24.11.2010 nor they have vacated the suit property. Consequently, the respondent sent a notice by registered post terminating the tenancy which was duly served and delivered on applicants on 24.01.2011. By the said notice, respondent also claimed arrears of rent and mesne profit to the tune of Rs.37,500/- for the period from 25.02.2011 to 07.04.2011.

4. In the aforesaid factual backdrop, the respondent prayed for a decree of eviction, arrears of rent amounting to Rs.1,12,500/- and future mesne profit @ Rs.25,000/- per month.

5. In the written statement filed by the applicants, they averred that the respondent is the co-owner of the suit property since the suit property was purchased by the respondent alongwith Radheshyam Bhatiya and Smt. Prakashi Devi from Smt. Sadhna Devi by registered sale deed dated 05.05.2004. The applicants denied the rent of the suit property to be Rs.25,000/- per month. According to the applicants, rent of the suit property was Rs.2500/- and no rent was due on the date of institution of the suit. It was also pleaded that an agreement to sell was entered into on 25.11.2008 in respect of the suit property with the concurrence of the three co-owners of the suit property and applicants paid Rs.1 lac through cheque as advance. It was also averred that a sum of Rs.13 lac has been paid to the respondent up till 20.10.2010. The applicants are ready and willing to pay the balance sale consideration and purchase the suit property. The owners of the suit property became dishonest and refused to execute the sale deed according to the agreement to sell dated 15.12.2008.

6. The trial court based on the pleadings of the parties framed five issues. The learned counsel for the applicants has assailed the finding of the trial court on issue nos.1, 2 & 3, which reads as under:

“HINDI”

7. On issue no.1, the trial court by placing reliance upon the judgement of Apex Court in the case of M/s India Umbrella Manufacturing Co. & Others Vs. Bhagvandei Agrawal through Legal Representatives & Others AIR 2004 SC 1321 held that the respondent is co-owner and suit is maintainable at the behest of the respondent. The trial court further held that since the photocopy of the agreement to sell was filed and the original was not filed, therefore, it is not admissible in evidence. It also noticed the statement of DW-1 Hari Om Gupta, (applicant no.1) wherein he admitted that the original agreement to sell is in his possession but he did not give any reason for not filing the original copy of the agreement to sell. Consequently, the trial court disbelieved the execution of the agreement to sell.

8. Issue nos.2 & 3 were jointly decided by the trial court and after appreciating the evidence on record, it found the rent of the suit property was Rs.25,000/- per month.

9. Challenging the aforesaid findings learned counsel for the applicants has contended that though applicants were initially inducted as the tenant, after the execution of the agreement to sell dated 15.12.2008, the applicants continued in the possession of the suit property in furtherance of the agreement to sell. Accordingly, he submits that since the preconditions ofSection 53Aof Transfer of Property Act, 1882 (hereinafter referred to as 'T.P. Act') are satisfied, therefore, applicants are entitled to the protection ofSection 53Aof T.P. Act. In support of his aforesaid contention, he has placed reliance upon following judgements:

(i). Dharamaji alias Baban Bajirao Shinde Vs. Jagannath Shankar Jadhav 1994 AIR (Bombay) 254;

(ii). Bobba Suramma Vs. Peddireddi Chandramma 1959 AIR (AP) 568;

(iii). Ekadashi Vs. Ganga 1981 AIR (All) 373.

10. His further submission is that even if applicants did not file the suit for the enforcement of agreement to sell, the relationship of landlord and tenant extinguished on the execution of the agreement to sell, hence, the suit is not maintainable because ofSection 15read with Entry 4 of Second Schedule of Provincial of Small Causes Courts Act, 1887 (hereinafter referred to as 'Act, 1887').

11. He further contends that trial court has erred in disbelieving the agreement to sell on the ground that the photocopy of the same was filed since according to applicants, photocopy of the agreement to sell is secondary evidence, therefore, in the absence of original agreement to sell, the trial court ought to have accepted the photocopy of the agreement to sell. He further contends that agreement to sell, though not registered, can be read in evidence for collateral purposes because of the proviso toSection 49of The Registration Act, 1908 (hereinafter referred to as 'Act, 1908').

12. It is further urged by learned counsel for the applicants that finding of the trial court in respect of rent of the suit property to be Rs.25,000/- per month is illegal and against the record since the amount of Rs.6 lakhs paid through cheques on various dates was towards the advance in respect of the purchase of the suit property, besides Rs.7 lakhs paid in cash towards advance for the purchase of the property, therefore, finding of the trial court that Rs.6 lakhs paid through cheques for the payment of rent of two years @ Rs.25,000/- per month is erroneous and not sustainable in law.

13. Per contra, learned counsel for the respondent contends that the applicants have failed to establish that agreement to sell fulfils all the prerequisites ofSection 53Aof T.P. Act, therefore, the applicants are not entitled to the protection ofSection 53Aof T.P. Act. In support of his contention, he has placed reliance upon the judgement of Apex Court in the case of Vasanthi Vs. Venugupal (Dead) Through Legal Representatives 2017 (4) SCC 723.

14. He further contends that as per the statement of DW-1 Hari Om Gupta (applicant no.1), the original agreement to sell is in his possession and he did not give any reason for not producing the same, therefore, the conditions envisaged inSection 65of the Indian Evidence Act, 1872 (hereinafter referred as 'Act,1872') to lead secondary evidence to prove a document do not exist in the instant case, therefore, the trial court has rightly held that photocopy of original agreement to sell is not admissible in evidence. He further contends that the photocopy of the agreement to sell is not secondary evidence, for this reason also, it cannot be read in evidence. In support of his aforesaid submission, he has placed reliance upon the judgement of Apex Court in the case of Benga Behera and Another Vs. Braja Kishore Nanda and Others (2007) 9 SCC 728.

15. He further urges that if a document is inadmissible in evidence, it cannot be read in evidence even for collateral purposes.

16. I have considered the rival submissions of the parties and perused the record.

17. To appreciate the argument of learned counsel for the applicants that they are entitled to protection underSection 53-Aof the T.P. Act, it would be useful to referSection 53-Aof the T.P. Act which reads as under:

"53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

18. The apex court in the case of Vasanthi (supra) laid down three prerequisites to exist to claim the benefit ofSection 53Aof T.P.Act. Paragraphs 18 & 25 of the said judgement are being extracted herein below:

"18. As would be patent from the above quotes, the protection of a prospective purchaser/transferee of his possession of the property involved, is available subject to the following prerequisites:

(a) There is a contract in writing by the transferor for transfer for consideration of any immovable property signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;

(b) The transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract;

(c) The transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract.

25. This Court inShrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshiby Lrs. and others (2002) 3 SCC 676, while tracing the incorporation ofSection 53Ain theTP Act, vide Act of 1929, acting on the recommendations of the Special Committee on the issue, had ruled that mere expiration of the period of limitation for bringing a suit for specific performance would not debar a person in possession of an immovable property by way of part performance from setting up a plea, as contemplated therein in defence to protect his possession of the property involved. It was however underlined that if the conditions precedent, as enumerated, inSection 53Aof the Act, are complied with, the law of limitation would not come in the way of the said person to avail the benefit of the protection to his possession as extended thereby even though a suit for specific performance of a contract by him had gone barred by limitation. Explicitly therefore, though mere expiry of the period of limitation for a suit for specific performance may not be a bar for a person in possession of an immovable property in part performance of a contract for transfer thereof for consideration to assert the shield ofSection 53Aof T.P. Act, it is nevertheless imperative that to avail the benefit of such protection, all the essential pre-requisites therefor would have to be obligatorily complied with.

19. The Court, now, proceeds to analyze whether the preconditions to claim the benefit of Section 53A of T. P. Act exists in the present case to entitle the applicants for protection of Section 53A of T. P. Act.

20. According to applicants, an agreement to sell was executed between the applicants and respondent on 25.11.2008 in respect of the suit property for the purchase of it for a sale consideration of Rs.23 Lacs, and that the terms and conditions of the agreement to sell are explicit and distinct from which the terms necessary to constitute a transfer can be ascertained.

21. The applicants had filed photocopy of the agreement to sell based on which he asserts to seek the protection ofSection 53Aof T.P.Act. Before proceeding to peruse the terms and conditions of the contract to find out whether it contains the necessary terms to constitute a transfer, the first question to be considered is whether the trial court was justified in disbelieving the photocopy of the agreement to sell as the essential conditions to attract 65 of Act,1872 were lacking. At this stage, it would be apt to refer paragraph 9 of the affidavit of applicant no.1 wherein he has stated about the filing of the photocopy of the agreement to sell dated 15.12.2008. Paragraph 9 of the affidavit is reproduced hereinbelow:

“HINDI”

22. The applicant no.1 in his cross-examination has categorically stated that he has the original agreement to sell, but he has not filed the same and he cannot explain the reason for not filing the original copy of the agreement to sell. The relevant extract of the cross-examination of application no.1 is reproduced hereinbelow:

“HINDI”

23. It is pertinent, at this point, to refer a few provisions of theIndian Evidence Act, 1872.Section 61of the Act, 1872 deals with proof of contents of documents, which states that the contents of a document may be proved either by primary or by secondary evidence.

24.Section 62defines primary evidence. Primary evidence means the document itself produced for the inspection of the Court.

25.Section 63provides for secondary evidence which reads as under:

"63. Secondary evidence.--Secondary evidence means and includes--

(1) Certified copies given under the provisions hereinafter contained1;1;"

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it."

26.Section 65deals with the eventualities in which secondary evidence relating to a document may be given.Section 65is quoted hereinbelow:

"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) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(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) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning ofsection 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1 [India] to be given in evidence2; 1[India] to be given in evidence2;"

(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

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

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."

27. It is trite law that a party must first adduce primary evidence to prove a document and only in eventualities elucidated inSection 65(a) to (g), secondary evidence can be adduced to prove the existence, conditions or contents of a document.

28. The statement of applicant no.1 is crystal clear on the point that the original agreement to sell is in his possession. At this point, it would be relevant to refer the judgement of the Apex Court in the case of Benga Behera and Another (supra) wherein respondent in SLP applied for grant of Letters of Administration based on Will allegedly executed in his favour by one Sarajumani Dasi on or about 15.01.1982, the Apex Court held that a document on which the title rest is required to be proved by primary evidence, and if the original document is lost or destroyed, secondary evidence may be given underSection 65(c) of the Act, 1872 and loss of original document is required to be proved for the admissibility of secondary evidence. Paragraph 31 & 32 of the judgement are being extracted herein below:

"31. A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given underSection 65(c)of the Evidence Act. The said clause ofSection 65provides as under:

"65. (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."

Loss of the original, therefore, was required to be proved.

32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will, beyond all reasonable doubt. His testimony in that behalf remained uncorroborated."

29. In the instant case, the case of the applicants can fall inSection 65(c) of the Act, 1872. It is clear from the reading ofSection 65(c)that secondary evidence of a document is admissible only when the party desirous of proving a document by Secondary evidence proves by cogent evidence that the original document is lost or destroyed or is not in his possession and that he made best effort to procure the production of it but failed. Thus, the party has to account for the non-production of the said document in one of the ways indicated in the said section. This necessarily implies that the party, who wants to give secondary evidence, has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced.

30. Another question which crops up in the light of the submission of the respondent whether photocopy of a document is Secondary evidence, in this regard, it would be relevant to refer to the judgement of the Apex Court in the case of J.Yashoda Vs. K. Shobha Rani (2007) 5 SCC 730 wherein it has been held that photocopy cannot be admitted as secondary evidence. Paragraphs 7 & 9 of the judgement are being extracted herein below:

"7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.

9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it.Section 65deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. UnderSection 64, documents are to be provided by primary evidence.Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.In Ashok Dulichand v. Madahavlal Dube and Another[1975(4) SCC 664], it was inter alia held as follows:

"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) ofSection 65of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned inSection 66such person does not produce it. Clauses (b) to (g) ofSection 65specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) ofSection 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."

31. In the case of Saudul Azeez Vs. District Judge, Gorakhpur and Others 1999 (4) AWC 3213, this Court has held that a photocopy of a document cannot be admitted in evidence. Paragraphs 9 to 12 are being extracted herein below:

"9. In the present case, there is nothing to indicate that the alleged photocopy was prepared from the original or that it was not prepared from a copy of the original, or that it was compared with (he original if prepared from a copy compared with the original. In the absence of any material, it cannot be treated to be a secondary evidence. It is only orally being claimed to be a photocopy without claiming that what was photographed was the original or that it was compared with the original. Admittedly, it is not a certified copy.

10. Now secondary evidence is permitted only in certain circumstances. It cannot come in automatically as in the case of primary evidence. In order to allow secondary evidence, certain tests as provided inSection 65and procedure as provided inSection 66of the Evidence Act are to be satisfied and complied with, as the case may be. Inasmuch asSection 64of the said Act prescribes that documents must be proved by primary evidence. Exception to this rule is permitted only in cases as provided inSection 65read withSection 66of the said Act.

11.Section 65of the Act permits secondary evidence (a) when the original is shown or appears to be in the possession or power of (i) the person against whom the document is sought to be proved, or (ii) any person out of reach of, or not subject to. the process of the Court, or (iii) any person legally bound to produce it. and when after the notice mentioned -inSection 66such persons mentioned in (i), (ii), (iii) does not produce it ; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest ; (c) when the original has been destroyed or lost, or when the parly offering is unable to produce it in reasonable time for reason not arising from his own default or neglect; (d) when the original is such that it is not easily movable; (e) when the original is a public document Within the meaning ofSection 74; (f) when the original is a document of which certified copy is permitted to be given in evidence either byEvidence Actor by any other law in force in India: (g) when the original consists of numerous accounts or other documents which cannot be conveniently examined by the Court, and the fact to be proved is the general result of the whole collection.

12. The present case does not fit in clause (d). (e), (f) and (g). It. however, could come within clause (a), (b) and (c). But as observed earlier. In the facts and circumstances of the case, it does neither fit in clause (a) nor (b) nor (c). The applicant has not made out any case which could come within the scope and ambit of either of the clauses (a), (b) and (c) ofSection 65of the Act. Therefore, the photocopy cannot be relied upon even as a secondary evidence."

32. In the present case, no factual foundation has been laid by the applicants for giving secondary evidence to prove the agreement to sell and the applicant no.1 admits in his cross-examination that he is in possession of the original agreement to sell. Further, there is no averment either in the written statement or in the affidavits of the applicants that the photocopy of the agreement to sell was prepared from the original or compared with the original. Therefore, from the above facts and law laid down in the above-referred cases that photocopy of a document is not the secondary evidence, it is manifest that necessary ingredients ofSection 65(c) of the Act, 1872 are lacking in the present case. Therefore, the view of the trial court that photocopy of the agreement to sell is not admissible in evidence is not erroneous and the agreement to sell cannot be proved by leading Secondary evidence.

33. The judgement relied upon by the counsel for the applicants of this Court in the case of Ekadashi (supra) is distinguishable on the fact since in the said case the benefit ofSection 53-Aof T.P. Act was extended to the defendant, who had preferred the second appeal before this Court, on the ground that all the preconditions for claiming the benefit of 53-A were present.

34. The other judgement relied upon by the counsel for the applicants Bobba Suramma (supra) also reiterates the law that to avail the benefit ofSection 53Aof T.P. Act, essential prerequisites ofSection 53Amust be present and established. In this case, the plea of the appellant seeking protection ofSection 53Aof T.P. Act was rejected by Andhra Pradesh High Court by affirming the judgement of the trial court and appeal court decreeing the suit of plaintiff-respondent for possession against the defendant-appellant, who claimed the possession of the suit property under an agreement to sell. Thus, the said judgement is also of no help to the applicants.

35. The judgement of Dharmaji Alias Baban Bajirao Shinde (supra) has also been rendered in a different factual context. The Bombay High Court also reiterated that if the preconditions ofSection 53Aof T.P. Act are complied with, the transferee cannot be denied the protection ofSection 53Aof T.P. Act on the pretext that document is unregistered. However, it dismissed the appeal since as per the admission of plaintiff-appellant, he was not in the possession of the suit property. So this judgement also does not come in aid to the applicants.

36. Since the photocopy of the agreement to sell cannot be accepted to prove its execution, therefore, the precondition to avail the benefit ofSection 53Aof T.P.Act that there should be a contract in writing by the transferor (respondent in the instant case) in respect of the suit property for consideration from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty is lacking in the present case. Accordingly, it is held that the applicants are not entitled to the protection of Section 53A of the T. P. Act and the suit for eviction of the respondent is maintainable and not barred bySection 15read with Entry 4 of the Second Schedule of Act, 1887.

37. To appreciate the argument of counsel for the applicants that unregistered agreement to sell can be relied on for collateral purposes, it would be necessary to consider ambit of the word 'collateral purposes/collateral transaction' referred in the proviso toSection 49of the Act 1908.Section 49of the Act 1908 is reproduced hereinbelow:

"49. Effect of non-registration of documents required to be registered.--No document required bysection 171[or by any provision of theTransfer of Property Act, 1882 (4 of 1882)], to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

[Provided that an unregistered document affecting immovable property and required by this Act or theTransfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 55, 56 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] State Amendment Uttar Pradesh:

Insection 49,--

(i) in the first paragraph, after the words "or by any provision of theTransfer of Property Act, 1882" insert the words "or of any other law for the time being in force",

(ii) substitute clause (b) as under: "(b) confer any power or create any right or relationship, or",

(iii) in clause (c), after the words "such power", insert the words "or creating such right or relationship",

(iv) in the proviso, omit the words "as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or". [Vide Uttar Pradesh Act 57 of 1976, sec. 34 (w.e.f. 1-1-1977)]."

38. In this regard, it would be apt to refer to the judgement of the Apex Court in the case of K.B. Saha and Sons Private Limited Vs. Development Consultant Limited (2008) 8 SCC 564 wherein Apex Court in paragraph 34 of the judgement has laid down when an unregistered document can be read in evidence for collateral purposes. Paragraph 34 of the said judgement is being extracted hereinbelow:

"34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:

1. A document required to be registered is not admissible into evidence underSection 49of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso toSection 49of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."

39. It would be also relevant to refer paragraph 4 of the judgement of this Court in the case of Ratan Lal and Others Vs. Hari Shanker and Others AIR 1980 (All) 180 which is being extracted hereinbelow:

"4. The second contention was that the partition deed, even if it was not registered, could certainly be looked into for a collateral purpose. This proposition is correct that if a document is compulsorily registerable and has not been registered, it will be admissible in evidence only for a collateral purpose, but the collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguished a right

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to immovable property. If these could not be established by the collateral purpose, then in that event how could the document be used for showing that the property was partitioned or that particular properties were given to the various parties in the partition. If the document was unregistered, then it could not be used for showing that is created, declared, assigned, limited or extinguished a right to immovable property. The term 'collateral purpose' would not permit the party to establish any of these acts from the deed. In my opinion, the contention that it would be used for collateral purpose does not advance the case of the plaintiffs at all. It still falls short in proving that there was a partition between the parties." 40. It is evident from the law laid down in the aforesaid two cases that an unregistered document may be admitted as evidence for the collateral purpose; the collateral purpose has limited scope and does not mean that the unregistered document can be used to create, declare, assign, limit or extinguish a right in the immoveable property. Thus, it can safely be culled out that an unregistered agreement to sell cannot be read in evidence to prove its execution nor its terms can be read in evidence to ascertain that it incorporates all the terms necessary to constitute a transfer to create a right in immovable property and extend the benefit of 53A of the T.P. Actto the applicants. Thus, the applicants are not entitled to the benefit of Proviso toSection 49of the Act, 1908. 41. Further, as it is held that the photocopy of the agreement to sell is not the secondary evidence and is inadmissible in evidence, therefore, in the instant case it cannot be read in evidence even for collateral purpose. 42. Now, coming to the contention of learned counsel for the applicants that the trial court has erred in holding the rent to be Rs.25,000/- per month. The trial court after appreciating the statement of Dw2 Smt. Sushila Devi, Dw3 Pradeep Arya and other evidence on record held that Rs.6 lac paid by the applicants through cheque on different dates was towards rent for two years. The trial court has given elaborate reasons for recording the aforesaid finding. This Court finds that the aforesaid finding is based on the appreciation of evidence on record and no perversity could be pointed out by the counsel for the applicant, hence, the aforesaid finding being the finding of fact is not liable to be upset by this court in the exercise of its revision power underSection 25of the Act,1887. 43. Lastly, It is urged by counsel for the applicants that applicants had paid Rs.13 lacs out of which Rs.7 lac was paid in cash and trial court has not returned any finding as to the payment of Rs.7 lac in cash, therefore, the order of the trial court is not sustainable. It is worth to notice paragraph no. 24 & 25 of the written statement wherein they have stated about payment of Rs.13 lakhs as an advance towards sale consideration in compliance of agreement to sell but no details as to how Rs.13 lakhs has been paid have been given in the written statement. The applicants in their evidence for the first time disclosed that out of Rs.13 lakhs paid in advance, Rs.6 lakhs has been paid through cheques on various dates and Rs.7 lakhs in cash and there is no independent evidence on record to support the testimony of applicants for payment of Rs.7 Lakhs in cash. Therefore, this court does not find any merit in the aforesaid submission of the counsel for the applicant. However, if the applicants desire to recover the amount alleged to have been paid by them, they may, if so advised, take recourse to the remedy available to them in law. 44. Thus, for the reasons given above, the revision lacks merit and is accordingly, dismissed. There shall be no order as to costs.
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