- 1 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 100293 OF 2022 (DEC/INJ) BETWEEN: 1. SRI. BASAPPA S/O PARASAPPA BAILWAD, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 2. SRI. BASAPPA S/O GADIGEPPA BAILWAD, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 3. SRI. SHIVALINGAPPA S/O GADIGEPPA BAILWAD, AGE: 37 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 4. SRI. HANUMANTAPPA S/O RAYAPPA BAILWAD, AGE: 70 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 5. SRI. MARUTI S/O RAYAPPA BAILWAD, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 6. SRI. BHIMAPPA S/O RAYAPPA BAILWAD, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 7. SRI. SHIVAPPA S/O RAYAPPA BAILWAD, AGE: 59 YEARS, OCC: AGRICULTURE, R MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench Date: 2025.09.18 11:16:57 +0530 - 2 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 8. SRI. SHETTEPPA S/O YALLAPPA BAILWAD, AGE: 71 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 9. SRI. GADIGEPPA S/O YALLAPPA BAILWAD, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 10. SRI. RAMAPPA S/O KENCHAPPA BAILWAD, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 11. SRI. HANUMANTAPPA S/O KENCHAPPA BAILWAD, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 12. SRI. NAGAPPA S/O MALLAPPA BAILWAD, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 13. SRI. HANUMANTAPPA S/O MALLAPPA BAILWAD, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. 14. SRI. ARJUN S/O MALLAPPA BAILWAD, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI-591 123. … APPELLANTS (BY SRI. H.M. DHARIGOND, ADVOCATE) AND: 1. MARUTI S/O SHETTEPPA TALWAR, AGE: 57 YEARS, OCC: AGRICULTURE, - 3 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 R/O: GODACHI, TQ: RAMDURG, DIST: BELAGAVI-590 001. 2. MUDAKAPPA S/O SHETTEPPA TALWAR, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: GODACHI, TQ: RAMDURG, DIST: BELAGAVI-590 001. 3. DYAMAPPA S/O SHETTEPPA TALWAR, AGE: 71 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI, TQ: SAUNDATTI, DIST: BELAGAVI-590 001. 4. FAKIRAPPA S/O SHETTEPPA TALWAR, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI, TQ: SAUNDATTI, DIST: BELAGAVI-590 001. 5. AVVANNA S/O SHETTEPPA TALWAR, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: BHANDARAHALLI, TQ: SAUNDATTI, DIST: BELAGAVI-590 001. … RESPONDENTS (BY SRI. SRIPRASAD J. JOSHI, ADVOCATE FOR R1 TO R3; SRI. SADIQ N. GOODWALA, ADVOCATE FOR R4 AND R5) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CIVIL PROCECURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 31.03.2022 PASSED IN O.S.NO.80/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, SAUNDATTI, AT SAUNDATTI, AND DECREE THE SUIT OF THE PLAINTIFFS BY ALLOWING THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) 1. This appeal is filed by the plaintiffs challenging the judgment and decree dated 31.03.2022 passed in O.S.No.80/2017 on the file of the Principal Senior Civil Judge, Saundatti, whereby the suit for declaration and permanent injunction was dismissed. 2. For the sake of convenience, the parties are referred to as per their ranks before the Trial Court. 3. It is the case of plaintiffs that the land bearing R.S.No.21, Block No.36, situated in Teredkoppa village, measuring 13 acres 7 guntas, originally belonged to Talawar family. The grandfathers of defendants, namely Shettappa and Dyamappa, sons of Ayyappa Talawar have sold the agricultural land measuring 07 acres 07 guntas in favour of great-grandfather of plaintiffs No.1 to 3 and grandfather of plaintiffs No.4 to 14 by name Hanumappa S/o Shivalingappa Bailwad and through its registered sale - 5 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 deed on 21.06.1911 and possession was handed over at the time of the sale. Subsequent sale to the grandfather of the plaintiff, upon the time of grandfather the plaintiffs are in possession over the suit scheduled property. 4. Despite long-standing possession, the plaintiffs' names were not entered in the revenue records and they approached the Assistant Commissioner, who initially ordered effect of mutation of entries in favour of the both plaintiffs and defendants. However, ultimately, only the name of defendants’ were entered. The plaintiffs challenged this before this Court, which remanded the matter to the Assistant Commissioner. The Assistant Commissioner, while disposing of the matter had observed the plaintiffs seek remedies before the competent Civil Court. Consequently, the plaintiffs filed the present suit seeking declaration of title and permanent injunction. 5. Defendant No.1 filed a written statement denying the case of the plaintiffs. It is submitted that the property originally belonged to Bhimappa Shettappa - 6 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 Talwar and Shettappa Demappa Talwar and was part of a consolidation scheme. He denied the sale deed dated 21.06.1911 and claimed that the plaintiffs are not in possession over the suit property. The defendants contended that they are the rightful owners and prayed for dismissal of the suit. 6. Based on the pleading, the Trial Court framed the following issues: ISSUES i) Whether the plaintiffs prove that they are absolute owners in possession of suit schedule property as on the date of filing of the suit? ii) Whether the plaintiffs prove the alleged interference of the defendants? iii) Whether the suit of the plaintiff is barred by law of limitation? iv) Whether the plaintiffs are entitled to the relief sought? v) What order or decree? 7. On behalf of plaintiffs, plaintiff No.7 was examined as PW-1 and got marked the documents as - 7 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 Exs.P1 to P16. On behalf of defendants, defendant No.1 was examined as DW-1 and documents were got marked as Exs.D1 to D6. 8. The Trial Court dismissed the suit on the reason that the suit was barred by limitation and the plaintiffs were not in possession of the suit property. It was held that the plaintiffs failed to prove they were the owners of the suit property. The Trial Court observed in its judgment that originally the land bearing R.S.No.21 was totally measuring 20 acres 11 guntas. Thereafter, the said land was subdivided into Sy.No.21/1 and Sy.No.21/2. Out of total extent, 07 acres 07 guntas were assigned to one Nijappa Bevoor and the remaining 13 acres 04 guntas were in the possession of the defendants. Therefore, the Trial Court dismissed the plaintiffs’ suit. 9. Aggrieved by the dismissal, the plaintiffs have preferred this appeal on several grounds. Counsel for the appellants submitted that on 21.06.1911, the grandfather of the plaintiffs had purchased the property from the - 8 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 ancestors of the defendants measuring a total extent of 20 acres 11 guntas. Subsequently, an extent of 07 acres 07 guntas was assigned to the Nijappa Bevoor, whose name was entered in the revenue records. This entry was not questioned by either plaintiffs or by the defendants. Therefore, remaining portion of the property, by virtue of sale deed dated 21.06.1911, plaintiffs had purchased half of said property. Therefore, the plaintiffs are owners of 07 acre 07 guntas and in possession and cultivating the land. Further submitted that both the plaintiffs and defendants had filed appeals before the Assistant Commissioner seeking mutation of their respective names. 10. This conduct amounts to estoppel on the part of the defendants. Initially, the Assistant Commissioner passed an order entering the names of all the defendants in the revenue records, without including the plaintiffs. Being aggrieved by this decision, the plaintiffs filed a Writ Petition before the High Court. The High Court directed the Assistant Commissioner to reconsider the matter and pass - 9 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 appropriate orders in accordance with law. However, even upon reconsideration, the Assistant Commissioner did not mutate the names of the plaintiffs. Instead, in the order granted liberty to the plaintiffs to approach the competent Civil Court for redressal of their grievance. Accordingly, the plaintiffs filed the present suit, which was dismissed by the Trial Court. The plaintiffs now seek to establish their rightful ownership and possession through this appeal. 11. Learned counsel for appellant submits that after remand, the Assistant Commissioner had not mutated the names of the plaintiffs, but by giving liberty to the plaintiffs to approach the Civil Court, dismissed the appeal. Therefore, the plaintiffs have filed suit, but the trial Court has dismissed the suit. Hence, learned counsel for appellants prays to allow the appeal and decree the suit as prayed for. 12. On the other hand, learned counsel for respondents No.1 to 3 submitted that the suit is barred by limitation; as per the plaintiffs, their grandfather - 10 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 purchased the property in the year 2011. But the suit is filed in the year 2017. Hence the suit is barred by litigation. Further submitted that the original registered sale deed is not produced but only certified copy is produced which is secondary evidence, but has not laid foundation for leading secondary evidence. Therefore, if this documentary evidence is not considered, then virtually plaintiffs do not have any case. Further submitted that, there is no proper description of the property of the plaintiffs. It is submitted that when the plaintiffs are claiming ownership of 10 acres 5.5 guntas of land by virtue of the sale deed dated 21.06.1911, but the claim of the plaintiffs is only for 07 acres 07 guntas and for claiming declaration of only 07 acres 07 gutnas is concerned, there is no explanation by the plaintiffs. Therefore, the sale deed dated 21.06.1911 is not proved. Hence the trial Court is justified. Further submitted that, when the suit is filed for declaration based on the sale deed dated 21.06.1911, but the plaintiffs have not - 11 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 produced the original sale deed and filed certified copy only, but none of the officials or Sub-Registrar of the office of Sub-Registrar are examined. Therefore, there is no proper proof regarding secondary evidence which is certified copy of the sale deed. Further submitted that there is no cause of action to file the suit. Hence, the suit is liable to be dismissed and that is what the trial Court held which needs no interference. Therefore, prays to dismiss the appeal. 13. Upon hearing the learned counsels appearing for both the parties and perusing the trial Court records, the following points would arise for consideration in this appeal. i. Whether, under the facts and circumstances involved in the case, the plaintiffs prove that their grandfather purchased property, thus the plaintiffs have become owners of the property from the date of purchase? ii. Whether, under the facts and circumstances involved in the case, the plaintiffs are successful in proving their case on the basis of certified copy of sale deed, which is secondary evidence? - 12 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 iii. Whether, under the facts and circumstances involved in the case, non production of original copy of registered sale deed is fatal to the plaintiffs in proving their case for declaration? iv. Whether, the judgment and decree passed by the Trial Court requires interference? 14. It is not in dispute that originally the land bearing R.S.No.21 to the extent of 20 acres 11 guntas is belonging to the grandfather of defendants. It is pleading of the plaintiffs that grandfather of plaintiffs No.1 to 3 and father of plaintiffs No.4 to 14 have purchased half of the land in R.S.No.21 out of extent of 20 acres 11 guntas. Thus it is claim of the plaintiffs that they have become owners of the property by virtue of registered sale deed dated 21.06.1911. The plaintiffs are mainly relying on Ex.P.2 which is certified copy of sale deed dated 21.06.1911. It is rival submission with all vehements by the learned counsel for respondents/defendants that by virtue of the registered sale deed which is secondary evidence, the plaintiffs have not proved their title and possession over the suit schedule properties and hence - 13 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 placed reliance on Section 63 and 64 of the Indian Evidence Act, 1872 (for short ‘the Act’). 15. Section 63 of the Act, 1872, reads as follows: “63. Secondary evidence.—Secondary evidence means and includes--- (1) Certified copies given under the provisions hereinafter contained; (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.” 16. Section 64 of the Act, 1872, reads as follows: “64. Proof of documents by primary evidence.—Documents must be proved by primary evidence except in the cases hereinafter mentioned.” 17. Facts must be proved by primary evidence. Section 62 of the Act deals with primary evidence. Section 63 of the Act defines secondary evidence. Section 64 of the Act deals with proving of document by primary evidence. Section 65 of the Act deals with proving of facts - 14 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 by secondary evidence. Section 65 of the Act, 1872, reads as follows: “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 of section 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 India to be given in evidence; (g) when the originals consist 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. - 15 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 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.” 18. In the present, case Ex.P.2 is the certified copy of sale deed dated 21.06.1911, which is secondary evidence. As per section 63 of the Indian Evidence Act, for leading secondary evidence in proving the facts in issue, the party who wants to rely on the secondary evidence shall lay foundation by explaining why the party is not able to produce primary evidence. In the present case, the primary evidence is the original registered sale deed. But admittedly it is not produced. Its certified copy is produced which is coming within the definition of clause (2) of section 63 of the Indian Evidence Act. 19. Plaintiff No.3 who is examined as PW.1 has explained why secondary evidence is being adduced. Its - 16 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 foundation laid by the plaintiffs as to why primary evidence is not produced and secondary evidence is produced is that the original sale deed is not found in the house as it is old one and is not traceable. Therefore, produced the certified copy of the sale deed. Since the document is of the year 1911 and it was lost, hence obtained certified copy and produced the same before the Court. For leading secondary evidence, laying of foundation may be in the plaint or in the written statement or during the course of evidence or by filing application, the foundation could be laid. In the present case, for the first time while giving evidence, the plaintiffs have laid foundation for leading secondary evidence why primary evidence could not be produced. Then the question before the Court is whether the facts in issue could be proved by leading secondary evidence. 20. This Court in the case of SRI. V. VINAYAKA PRASAD AND OTHERS VS. SRI. V. PACKIRISAMY1 1 RFA No.340/2015 - 17 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 (Sri. V. Vinayaka Prasad and Others case), has observed regarding the procedures to be followed while leading secondary evidence at paragraph No.28, 29, 30 and 31, which reads as follows: 28. Therefore, in the present case, Ex.P-1 is secondary evidence, the plaintiff desires to produce Ex.P-1-secondary evidence. Therefore, while the party desires to produce secondary evidence, he has to lay foundation for what reasons he is going to lead secondary evidence, then only the secondary can be considered of its relevancy and admissibility, otherwise not. In this regard, I place reliance on the judgment of Hon’ble Supreme Court in the case of RAKESH MOHINDRA VS. ANITA BERI AND OTHERS reported in (2016) 16 SCC 483 while dealing with the Evidence Act, is pleased to observe at Para Nos.13, 14, 15, 17, 19, 20 and 21 as follows: “13. As a general rule, documents are proved by leading primary evidence. Section 64 of the Evidence Act provides that documents must be proved by the primary evidence except in cases mention in Section 65 of the Evidence Act. In the absence of primary evidence, documents can be proved by secondary evidence as contemplated under Section 63 of the Act which reads as under:- “Secondary evidence means and includes— (1) certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies. (3) copies made from or compared with the original; - 18 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a documents given by some person who has himself seen it. Illustration: (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but he copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.” 14. Section 65 of the Act deals with the circumstances under which secondary evidence relating to documents may be given to prove the existence, condition or contents of the documents. For better appreciation Section 65 of the Act is quoted herein below:- “65. Cases in which secondary evidence relating to documents may be given: - 19 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 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 public document within the meaning of section 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 40[India] to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. - 20 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 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, 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.” 15. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted. 16. xxxx.xxxx.xxxxx…….. 17. The High Court, following the ratio decided by this Court in the case of J. Yashoda vs. Smt. K. Shobha Rani, AIR 2007 SC 1721 and H. Siddiqui (dead) by lrs. vs. A. Ramalingam, AIR 2011 SC 1492, came to the conclusion that the defendant failed to prove the existence and execution of the original documents and also failed to prove that he has ever handed over the original of the disclaimer letter dated 24.8.1982 to the authorities. Hence, the High Court is of the view that no case is made out for adducing the secondary evidence. 18. xxxx…xxxx…..xxxx…….. - 21 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 19. In Ehtisham Ali V. Jamna Prasad, a similar question came for consideration as to the admissibility of secondary evidence in case of loss of primary evidence. Lord Phillimore in the judgment observed:- “ It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be, deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed.” 20. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law. 21. In M. Chandra vs. M. Thangamuthu, (2010) 9 SCC 712, this Court considered the requirement of Section 65 of the Evidence Act and held as under:- “47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any - 22 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.” 29. Therefore, the secondary evidence cannot be tendered as a matter of routine, but must be in exceptional circumstances that too upon laying foundation about existing condition or contents of documents. The party who wishes to lead secondary evidence shall have to state why primary evidence is not possible and what are the compelling circumstances to lead secondary evidence. If the party wishes to lead secondary evidence shall have to lay foundation. 30. Further, I also place reliance on the judgment of Hon’ble Supreme Court in the case of Smt. Dayamathi Bai Vs. Shaffi reported in AIR 2004 SC 4032, has dealt withregarding production of secondary evidence, objection raised, the duties of party/advocate for raising objection and duty of the Court of receiving secondary evidence. The Hon’ble Apex Court observed at Para Nos.13, 14 and 15 as follows: “13. We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ex.P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure). This aspect has been brought - 23 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Another reported in [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party vide para 20: "20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the - 24 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." 14. To the same effect is the judgment of the Privy Council in the case of Gopal Das - 25 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 and another v. Sri Thakurji and others reported in [AIR 1943 PC 83], in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage. 15. In the present case, when the plaintiff submitted a certified copy of the sale deed (Ex.P1) in evidence and when the sale deed was taken on record and marked as an exhibit, the appellant did not raise any objection. Even execution of Ex.P2 was not challenged. In the circumstances, it was not open to the appellant to object to the mode of proof before the lower appellate Court. If the objection had been taken at the trial stage, the plaintiff could have met it by calling for the original sale deed which was on record in collateral proceedings. But as there was no objection from the appellant, the sale deed dated 14.11.1944 was marked as Ex.P1 and it was admitted to the record without objection.” 31. Further, I place reliance on the judgment of Hon’ble Supreme Court in the case of Smt. - 26 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 Yashoda Vs. Smt. Shobha Rani reported in AIR 2007 SC 1721, while dealing with Section 63 and 65 of ‘the Act’, admissibility of secondary evidence of document where photocopies are produced. It is observed at Para Nos.9 and 10 as follows: “9. Indisputably, the Chandigarh Housing Board has been constituted under the Haryana Housing Board Act, 1971, as extended to the Union Territory of Chandigarh. The Union Territory of Chandigarh in exercise of its power conferred upon it by Section 74 of the said Act, made regulations known as `The Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations. 1979. Regulation (6) of the said Regulation, with which we are concerned, reads as under: "6. Eligibility of Allotment-(1) A dwelling unit or flat in the Housing Estate of the Board shall be allotted only to such person who or his wife/her husband or any of his/her dependent relations including unmarried children, does not own on free- hold or lease hold or on hire purchase basis, a residential plot or house in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula Similarly persons who have acquired a house/residential site anywhere in India through Government/Semi government/Municipal committee/Improvement Trust at concessional rate in their name or in the name of any/dependent member of their family will not be eligible to apply to the Board for allotment of a dwelling unit or flat. Subject to the above provision, the applicant should be domicile of U.T. of Chandigarh or should have been a bona fide resident of U.T. of Chandigarh for a period of at least three years on the date of submitting the application [Provided that - 27 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 the condition of eligibility regarding the applicant being a bonafide resident of U.T. Chandigarh for at least three years on the date of submitting the application or of his being a domicile of U.T. Chandigarh shall not apply to the following categories of persons: (i) Defence/Ex-defece personal including pensioners belonging to the defence forces; and (ii) employees of the Government of India, Punjab Government, Haryana Government and the U.T. Administration and then Boards/Corporation and undertaking] (iii) Retired employees including pensioners of Government of India. Punjab Government, Haryana Government and Union Territory Administration and their Boards/Corporation/Undertakings.] (2) The applicant shall furnish an affidavit in the prescribed form with regard to his eligibility along with the application. In the event of the affidavit being found false at any stage, the Board shall be entitled to cancel the registration or the allotment of dwelling unit of flat as the case may be, and to forfeit the deposit recieved with the application and all the payment made the Board thereafter..." 10. The relevant provision/stipulating conditions of eligibility as stated in the Brochure reads as under: "The applicant should not have acquired a house/residential site anywhere in India through Government/Semi- Government/Municipal Committee/Corporation/Improvement Trust at concessional rate i.e. at reserved/fixed - 28 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 price. In his/her own name or in the name of any dependent member of his/her family." 21. The Hon’ble Supreme Court in the case of APPAIYA VS. ANDIMUTHU @ THANGAPANDI AND OTHERS2, has observed as follows regarding secondary evidence. “29. Having regard to all the aforesaid circumstances and in the light of the various provisions of the Evidence Act mentioned hereinbefore we will firstly consider the question whether the appellant/plaintiff had succeeded in proving the contents of Ext.A1. Going by Section 65(e) when the original of a document is a public document within the meaning of Section 74, secondary evidence relating its original viz., as to its existence, condition or contents may be given by producing its certified copy. Ext.A1, indisputably is the certified copy of sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti. In terms of Section 74(2) of the Evidence Act, its original falls within the definition of public document and there is no case that it is not certified in the manner provided under the Evidence Act. As noticed hereinbefore, the sole objection is that what was produced as Ext.A1 is only a certified copy of the sale deed and its original was not produced in evidence. The hollowness and unsustainability of the said objection would be revealed on application of the relevant provisions under the Evidence Act and the Registration Act, 1908. It is in this regard that 2 Civil Appeal No.14630/2015 (SLP (C) No.10013/2015) dated 20.09.2023 - 29 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 Section 77 and 79 of the Evidence Act, as extracted earlier, assume relevance. Section 77 provides for the production of certified copy of a public document as secondary evidence in proof of contents of its original. Section 79 is the provision for presumption as to the genuineness of certified copies provided the existence of a law declaring certified copy of a document of such nature to be admissible as evidence. When that be the position under the aforesaid provisions, taking note of the fact that the document in question is a registered sale deed, falling within the definition of a public document, the question is whether there exists any law declaring such certified copy of a document as admissible in evidence for the purpose of proving the contents of its original document. Sub- section (5) of Section 57 of the Registration Act is the relevant provision that provides that certified copy given under Section 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document. In this context it is to be noted that certified copy issued thereunder is not a copy of the original document, but is a copy of the registration entry which is itself a copy of the original and is a public document under Section 74(2) of the Evidence Act and Sub-section (5) thereof, makes it admissible in evidence for proving the contents of its original. There is no case that foundation for letting in secondary evidence was not laid and as noted earlier, both the trial Court and the First Appellate Court found it admissible in evidence. Thus, the cumulative effect of the aforementioned sections of the Evidence Act and Section 57(5) of the Registration Act would make the certified copy of the sale deed No. 1209/1928 dated 27.08.1928 of SRO Andipatti, produced as Ext.A1 admissible in evidence for the purpose of proving the contents of the said original document. When this be the position in the light of the specific provisions referred hereinbefore under the Evidence Act and the Registration Act, we have no hesitation to hold - 30 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 that the finding of the High Court that the certified copy of Ext.A1 owing to the failure in production of the original and proving through an independent witness is inadmissible in evidence, is legally unsustainable. In the other words, the acceptance of the admissibility of Ext.A1 found in favour of the appellant/plaintiff by the trial Court and confirmed by the First Appellate Court was perfectly in tune with the provisions referred hereinbefore and the High Court had committed an error in reversing the finding regarding the admissibility of Ext.A1.” 22. Further, this Court in the case of SRI. V. VINAYAKA PRASAD AND OTHERS (supra) at paragraph Nos.32, 33, 34, 35, 36 and 37, has held as under: “32. Therefore, from the principal of law laid down as above stated the facts in issue are always proved by primary evidence. Secondary evidence is exception. What are secondary evidence are defined in Section 63 of the Act. As per clause (2) of Section 63 of the of the Act, copies made from the original by mechanical process which themselves ensure the accuracy of the copy, and copies compared with such original; is also secondary evidence. The copies made from the original by mechanical process is also photocopy/zerox copy. But the secondary evidence must ensure the accuracy of the copy and copies compared with such copies must inspire confidence of the Court. The process of laying foundation of tendering secondary evidence is enabling the Court to appreciate the document properly and such secondary evidence must inspire confidence of the Court that it is relevant and admissible. Therefore, while tendering secondary evidence if foundation is not laid down, then such secondary evidence cannot be admitted in the evidence; then the Court may - 31 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 reject it by making endorsement upon it, as per Order 13 Rule 3 r/w Rule 6 of CPC. 33. What are the characteristics of laying foundation for leading secondary evidence may be summarized as follows in illustrative manner. The following circumstances are not exhaustive one but only can be considered as illustrative. (i) The party shall state in the pleadings either in the plaint or in the written statement why primary evidence is not able to be produced and why secondary evidence is tendered; or (ii) The party shall depose in affidavit evidence in lieu of examination-in-chief under what circumstances he is going to lead the secondary evidence. (iii) By filing an application making request to lead secondary evidence stating the reasons why leading secondary evidence is necessary. 34. Therefore, before tendering secondary evidence, laying foundation is sine-qua-non. Therefore, the condition for leading evidence stating reasons is essential why primary evidence is not available and before leading secondary evidence the party shall lay down foundation for leading secondary evidence and shall have to state under which custody the primary evidence is available or under what circumstances the party is not able to produce primary evidence before the Court. Therefore, the above stated criteria are the parameters of laying foundation for any secondary evidence as an illustrative. As stated above, the proposal of leading secondary evidence is to making the Court to get inspired the production of secondary evidence. 35. Further, on the principle of law laid down for adducing the secondary evidence, I place reliance on the judgments of Hon’ble Supreme Court in the case of J. YASHODHA VS. K. SHOBHA RANI reported in (2007) 5 SCC 730 (yashodha case) and in the case of KALIYA VS. STATE OF MADHYA PRADESH - 32 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 reported in (2013) 10 SCC 758 (Kalia case). In Yashodha case (supra) their lordship were pleased to observed at Para Nos.7, 8 and 9 as follows. 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. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. 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 65 deals 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. Under Section 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 - 33 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 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, it was inter alia held as follows: “7. 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) of Section 65 of 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 in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify 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) of Section 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 - 34 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 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." 36. Further, in Kalia Case (supra), the Hon’ble Supreme Court has observed at Para Nos.13 and 14 as follows: 13. Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document 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. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui v. A. Ramalingam and Rasiklal Manikchand Dhariwal v.M.S.S. Food Products.) However, the secondary evidence of an - 35 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non- production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide Roman Catholic Mission v. State of Madras, Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, Dayamathi Bai v. K.M.Shaffi and LIC v. Ram Pal Singh Bisen. 14. In M. Chandra v. M. Thangamuthu, this Court considered this aspect in detail and held as under: “47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced - 36 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party. 37. Therefore, there are condition precedents, as enumerated in Section 65 of ‘the Act’ for leading secondary evidence. The Court must get inspired regarding the production of secondary evidence, and is duty bound to examine the probative value of the document of secondary evidence produced in Court and decide the question of admissibility of document of secondary evidence. Therefore, to enable the Court to appreciate the secondary evidence regarding its relevancy and admissibility, the party must state under what reasons and circumstances they are going to lead secondary evidence in absence of primary evidence. Therefore, this is the importance of laying foundation, as above stated. As in the proceedings of a suit, the best evidence can be produced normally is primary evidence; adducing the secondary is an exception. This exception to be exercised sparingly, but not as a routine. Therefore, the party desires to lead secondary evidence shall satisfy the Court regarding the secondary evidence. Otherwise, the Court is obliged to reject the evidence if not satisfied with the secondary evidence. Therefore, it is burden on the party, who lead secondary evidence to lay the foundation. The other party has every right to rebut the secondary evidence in the manner known to law. If the opposite party is successful in rebutting the secondary evidence about its origin, contents, authority from whom obtained, the party not able to state under whose custody the original document lies, etc., are - 37 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 found to be doubtful, then the secondary evidence can be rejected.” 23. Therefore by leading secondary evidence, the facts may be proved. But when a party desires to lead secondary evidence then the party has to lay down foundation for leading secondary evidence. 24. In the present case, as per Sub-Section (1) of Section 63 of the Act, certified copies issued by competent authorities in the regular official course of business are secondary evidence. Ex.P2 sale deed is of the date 21.06.1911, out of which half of the extent was purchased by grandfather of plaintiffs. The defendants simply denied execution of sale deed by grandfather of defendants in favour of grandfather of plaintiffs. But it is not specifically stated by defendants that the grandfather of defendants has not executed registered sale deed in favour of grandfather of plaintiffs. Evasive denial of the facts pleaded is different and pleading specific contention that such document is not executed is different. - 38 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 25. Furthermore, regarding this, whether the grandfather of plaintiffs has purchased half extent of land bearing R.S.No.21 is purchased or not, then, documentary evidence-Ex.P8 which is memorandum of appeal filed before the Assistant Commissioner could be considered. Ex.P8 is the memorandum of appeal filed before the Assistant Commissioner, in which, all the plaintiffs and defendants have filed appeal before the Assistant Commissioner for entering their names by deleting the name of Government and one Lakkappa Yallappa Bailwad and Maruti Lakkappa Bailwad. After execution of sale deed on 21.06.1911, one name Nijappa Bevoor is entered to the extent of 07 acres 07 guntas, that is not challenged either by the plaintiffs and defendants and the same is continued for long span of time, decades together. Out of 20 acres 11 guntas, if 07 acres 07 guntas is taken out as it is remained unchallenged, then the remaining land is 13 acres 04 guntas. Both plaintiffs and defendants have presented appeal before the Assistant Commissioner for - 39 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 entering names of plaintiffs and defendants by removing the name of Government and two persons namely, Lakkappa Yallappa Bailwad and Maruti Lakkappa Bailwad. Therefore, by this memorandum of appeal presented before the Assistant Commissioner, the defendants have admitted that the plaintiffs are also owners of the land bearing R.S.No.21 to the half extent. Therefore, acquisition of land bearing R.S.No.21, to the half extent by grandfather of plaintiffs is fortified by this memorandum of appeal presented before the Assistant Commissioner. Therefore, the defendants are estopped to deny the title of the plaintiffs as per Section 115 of the Indian Evidence Act. 26. Section 115 of the Act, 1872, reads as follows: “115. Estoppel—When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” - 40 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 27. In the present case, the defendants and also the plaintiffs have filed an appeal jointly before the Assistance Commissioner and in the said appeal, the defendants have admitted that the plaintiffs were also owners of the suit schedule land and requested to enter joint names. When this being the admission made by the defendants in previous proceedings therefore, subsequently, they are estopped from denying the title of the plaintiffs. 28. Subsequently, as per Ex.P9, the Assistant Commissioner has passed order by allowing the appeal filed by plaintiffs and defendants and remove the names of Government and Lakkappa Yallappa Bailwad but entered only the names of defendants without ordering to enter the names of plaintiffs. There is no reason given by the Assistant Commissioner in its order dated 20.05.2006- Ex.P9, why the names of plaintiffs could not be entered. While allowing the appeal filed by both plaintiffs and defendants, the Assistant Commissioner ought to have - 41 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 entered the names of plaintiffs or assigned reasons why the plaintiffs’ names could not be entered, but absolutely there is no reasons assigned by the Assistant Commissioner, why the names of plaintiffs could not be entered. The plaintiffs being aggrieved by it, have preferred W.P.No.6606/2008 as per Ex.P10. This Court on 28.05.2008 by the order has remanded the matter to the Assistant Commissioner and the Assistant Commissioner has passed order on 05.05.2017 as per Ex.D3 by giving liberty to the plaintiffs to workout their remedy before the competent Civil Court. Therefore, the plaintiffs have filed the present suit. Hence, considering all these eventualities as a bundle of facts which constitutes the cause of action to file a suit by the plaintiffs. Therefore, there is no merit found in the arguments addressed by the counsel for defendants/respondents that the suit is barred by limitation and also, there is no cause of action. Hence, there arouse cause of action for the plaintiffs to file a suit as above discussed by virtue of the order passed by the - 42 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 Assistant Commissioner. Therefore, the suit filed is within the period of limitation and there was cause of action to file the suit and accordingly, the suit is filed. 29. Though, the plaintiffs have claimed that their grandfather purchased property to the half extent in land bearing R.S.No.21, out of 20 acres 11 guntas but they have confined to the extent of 07 acres 07 guntas on the reason that before decades together, name of one Nijappa Bevur was entered to the extent of 07 acres 07 guntas which is unchallenged by either both plaintiffs and defendants. The said Nijappa Bevoor is not made as a party in the suit, which means both plaintiffs and defendants have not questioned the entry of name of the said Nijappa Bevoor to the extent of 07 acres 07 guntas. Then the remaining extent of land is 13 acres 07 guntas and by virtue of the sale deed of the year 1911, both the plaintiffs and defendants are entitled equal shares in the remaining land of R.S No.21. Therefore, this does not amount to incorrect description of property. Ex.P-11 is - 43 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 panchanama by the revenue official, in which it is proved that the plaintiffs are in possession. Plaintiff No.7 has given statement as per Ex.P12, stating that the plaintiffs are in possession over the property to the extent of 07 guntas and Ex.P-11 is the panchanama conducted by revenue official proving that the plaintiffs are in possession of suit schedule property to the extent of 07 acres 07 guntas. Ex.P-13 is the mutation entry made in the year 27.06.1911 that the name of grandfather of plaintiffs is entered to the extent of 07 acres 07 guntas in land bearing R.S.No.21. Therefore, all these documentary evidence proves that, on all its preponderance of probabilities that the plaintiffs are owners of the suit schedule property and what documents have been produced by the plaintiffs are the same documents produced by defendants which are produced and marked as Exs.D1 to D6. Therefore, upon appreciating both documentary and oral evidence as discussed above, the - 44 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 plaintiffs prove the fact that they are owners of the suit schedule property. 30. Further, the defendants No.4 and 5 who are brothers of defendants No.1 to 3 during course of arguments have filed affidavit admitting the ownership of plaintiffs and plaintiffs are in possession over the suit schedule property. Therefore, by all these evidence on record, it is proved that the plaintiffs have established their ownership and title over the suit schedule property. Therefore, the trial Court has not appreciated evidence correctly and in correct perspective manner and has passed judgment and decree erroneously by dismissing the suit, which is liable to be set aside. Accordingly, I answer points No.(i), (ii) and (iv) in the ‘affirmative’ and point No.(iii) in the ‘negative’. 31. Resultantly, the appeal filed by the plaintiffs is liable to be allowed. Hence, I proceed to pass the following: - 45 - HC-KAR NC: 2025:KHC-D:8892 RFA No. 100293 of 2022 ORDER i. The appeal is allowed. ii. The judgment and decree dated 31.03.2022 passed in O.S.No.80/2017 on the file of the Principal Senior Civil Judge, Saundatti, is set aside. iii. The suit in O.S.No.80/2017 is decreed. iv. It is declared that the plaintiffs are owners of the suit schedule property and consequently permanent injunction is granted as prayed for. v. No order as to costs. vi. Draw decree accordingly. In view of disposal of the appeal, pending IAs’, if any, shall stand disposed of. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RHR-para 1 to 10. MRK-para 11 to 19. RKM-para-20 to end. CT:BCK LIST NO.: 1 SL NO.: 70