S.K. Ray, J.
1. This second appeal is by defendant No. 2 from the reversing decision of Shri N.P. Mohapatra, Subordinate Judge, Sambalpnr, in Title Appeal No. 58/8/12 of 1966-67 decreeing the suit.
2. The plaintiff filed the suit for eviction of defendant-1 from the suit-house standing on plot No. 1786/2519, recovery of possession and for arrears of rent and damages, and alternatively for declaration of right, title and interest and recovery of possession. This plot measuring six decimals admittedly stood recorded in the names of four tenants. Two of them, namely, Hari Shankar and Santosh Barkk sold it to the plaintiffs by an unregistered sale-deed in 1953 for a consideration of Rupees 200/-, Subsequently to this purchase, the plaintiffs constructed a house thereon and were possessing the same. Defendant-1 was inducted as a monthly tenant in respect of the suit-house in September, 1982, on a monthly rent of Rs. 5/-. Defendant in collusion with defendant-2 subsequently defaulted in payment of rent from January, 1963. Defendant-2 is an ex-gountia. Plaintiffs, therefore, sent notice of suit to defendant-1, but defendant-1 paid no heed to it. Hence the present suit was filed for the aforesaid reliefs.
3. The case of the defendants is that the tenants surrendered this plot to the Gountia Mafidar-Lambardar, the late Dasarathi Patnaik, father of defendant-2 and it was then taken over by the Forest Department who constructed a forest-rest-shed thereon. The understanding with the Forest Department was that whenever the house will not be required by them, they would return it to the Gountia-Mafidar-Lambardar with the constructions, if any, thereon. In 1930 the Deraghar (rest-shed) constructed by the Forest Department was abandoned as no longer required and In pursuance of the agreement the Gountia-Mafidar, father of defendant-2 was placed in possession of the same along with its site. After the death of Dasarathi Patnaik, defendant-2 became the Gountia-Mafidar and also possessed the same and defendant-1 was inducted as a tenant in respect of the same. Thus defendant-2 has title, and defendant-1 has possession as a tenant under the former.
4. The trial Court dismissed the suit on finding that the plaintiffs have not been able to prove their possession and title within 12 years of the suit. The Oral evidence of title was rejected as the plaintiffs failed to call for the original unregistered sale-deed, and as no basis was laid for leading secondary oral evidence in proof of acquisition of title by purchase. The plaintiffs plea that they have constructed a house on the suit-plot was not accepted. It further held that the plaintiffs possession has not been proved, and in dealing with this question he discarded Exts. 1 and 2 series.
5. The lower appellate Court held that though the plaintiffs had failed to make out a case for secondary evidence in respect of the alleged sale in their favour, the defendants having failed to raise any objection to the leading of such secondary evidence, he came to the finding that the sale in favour of the plaintiffs had been established. He disbelieved the defence case of surrender of the suit-property by the recorded tenants to the Gountia. He also found the plaintiffs to be in possession. In reaching these conclusions, he relied upon Ext. 1, the mutation-entry and Ext. 3 series the rent-receipts. He discarded the defence evidence (Ext. C) in support of the factum of possession by the Forest Department in respect of the suit-property. Lastly, he held that even though the title has not been established, the plaintiffs are entitled to succeed on the basis of their possessory title.
6. A number of points have been raised by learned counsel for the appellant. The first point is that the learned lower appellate Court was in error in accepting the oral evidence of sale in favour of the plaintiffs and basing his finding of plaintiffs title thereon.
According to Section 91 of the Evidence Act no evidence shall be given in proof of the terms of the unregistered sale-deed in favour of the plaintiff except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under other provisions of the Evidence Act. There is evidence in the case that the unregistered sale-deed is in existence and was with the Patwari at the time of mutation, but no steps were taken by the plaintiffs to call for the said document. According to Section 65 of the Evidence Act, secondary evidence of the contents of this unregistered sale-deed could be given when the original is shown or appears to be in the possession or power of any person out of reach of, or not subject to the process of the Court or any person legally bound to produce it, and when such person, after notice mentioned in Section 66 of the Evidence Act, does not produce it. Section 66 provides that secondary evidence of the contents of the document referred to in Section 65, Clause (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is (or to his attorney or pleader), such notice to produce it as is prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. A proviso is appended to this section enumerating a number of cases in which the required notice for production of the document is not required to be given.
There is no controversy that the present case is not one covered by the enumerated classes of cases which are exempted from the requirement of notice before secondary evidence becomes admissible. The present case is one which is covered by Section 65(a) of the Evidence Act, and therefore, before secondary evidence can be adduced, notice under Section 66 of the Evidence Act is mandatory. It is not disputed that no such notice has been given, and accordingly, the oral evidence of the contents of the original sale-deed should have been rejected. On a plain reading of Sections 65, 66 and 91 of the Evidence Act the aforesaid contention appears to be well founded,
7. The Privy Council in the case of M. Subramanian v. M.L.R.M. Lutchman, AIR 1923 PC 50, dealing with Section 91 of the Evidence Act has said:
'The rule with regard to writings is that oral proof cannot be substituted for the written, evidence of any contract which the parties have put into writing. And the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement.'
8. The Supreme Court dealing with same Section 91 of the Evidence Act in the case of Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SG 448, said as follows:--
'Section 91 is based on what is sometimes, described as the 'best evidence rule'. The best evidence about the contents of the document is the document itself and it is the production of the document that is required by Section 91 in proof of its contents. In a sense, the rule enunciated by Section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act.'
Their Lordships further went on to say that Sections 91 and 92 of the Evidence Act are supplementary to each other and Section 91 would be frustrated without the aid of Section 92 and Section 92 would be inoperative without the aid of Section 91. This Section 91, applies to all documents, whether they are bilateral or unilateral, and whether they purport to dispose of rights or not. Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents, while Section 92, on the other hand, applies only between the parties to the instrument or their representatives in interest, Then their Lordships further went on to say that what Section 91 prohibits is the admission of oral evidence to prove the contents of the document.
9. Learned counsel for the plaintiffs-respondents, to meet the aforesaid formidable point contends that the requirement of additional secondary evidence can be waived by a party, and in the instant case it has been so waived, because, when P. Ws. 1 and 2 gave oral evidence as to sale, no objection to its admissibility was taken even though P. W. 2 was a party to the document of sale. In support of this contention reliance has been placed on a decision of the Andhra Pradesh High Court in the case of Subbarao v. Venkata Rama Rao, AIR 1964 Andh Pra 53, Their Lordships have said in that case;
'The rule in Section 65 of the Evidence Act excluding secondary evidence is not so rigid as to be enforced even if no objection has been taken at the trial by the party against whom the secondary evidence has been offered. When a party has waived proof of circumstances justifying the giving of secondary evidence, and the secondary evidence is allowed he cannot raise the objection to its admissibility in appeal.'
This case is distinguishable, because in that case all the documents in respect of which objection to admissibility was taken, on the basis of Section 65 of the Evidence Act, had been marked in the trial Court without any objection, and from the special conduct of the party in that case an inference of waiver arose. In the present case, however, the position is not the same because, objection was taken to the admissibility of the secondary evidence when P. W. 6 was being examined, that is, before close of the plaintiff's case. Thereafter, the plaintiffs took no step for calling for the original. In that view, the theory of waiver does not arise. That apart, this Andhra Pradesh case does not consider the mandatory language of Section 66 of the Evidence Act in this connection. Reading Sections 91 and 66 together, it appears to me that the law imposes an absolute prohibition against tendering of secondary evidence of the contents of the document referred to in Section 65(a) of the Evidence Act and thereby also prohibits the proof of the terms of the unregistered sale-deed of the plaintiffs by any other mode except by proof of the document itself, as the said document is admitted to be in existence. For the aforesaid reasons, I am of the opinion that the first point, taken by the learned counsel for the appellant is well founded and must succeed.
10. The result, from the aforesaid conclusion, is that the decision of the lower appellate Court has been vitiated on account of the acceptance of inadmissible secondary evidence regarding contents of the unregistered sale-deed.
11. Learned counsel for the plaintiff-respondent urges that in the event the decision of the lower appellate Court is held to be vitiated on account of the inadmissible secondary evidence, and the case is remanded on that account, then the plaintiffs should be given an opportunity to call for the original document, and prove the same or to lay foundation for the secondary evidence. I feel inclined to agree with him in this regard, because, the trial Court was also partly responsible for this mistake.
I would, therefore set aside the decision of the lower appellate Court and send the case back to him with direction that he shall give an opportunity to the plaintiffs to call for the original document of sale or to lay foundation for the secondary evidence already received in the case, and after such document is called for and proved, or the secondary evidence is led, the contesting defendants should be given opportunity to adduce rebutting evidence, and thereafter he shall dispose of the appeal afresh after hearing the parties. It is open to the lower appellate Court, while giving these opportunities to the plaintiffs and to the defendants, to direct the trial Court to take such evidence or to take it himself.
12. Learned counsel for the appellant further prays that he may be allowed to raise all the other contentions that ha raised before me. They are the following:
(i) It is incorrect to say that no case was made out to prove Ext. C which is a copy of the original letter from the D.F.O. to the Deputy Commissioner.
(ii) The Court has wrongly placed the onus of proof of possession on the defendants.
(iii) In accepting Ext. 1 and acting upon it, he has not taken into consideration the findings of the trial Court in this regard and the procedure for making entries in the mutation register as prescribed in Chapter III of the Sambalpur Manual, Vol. II. In absence of any signature or thumb-impression of the vendors against the entry in Ext. 1, this evidence should not have been relied upon.
(iv) Ext. 3 series are of no value in regard to the question of possession as they show payment of rent to the vendors of the plaintiffs and not to the Gountia.
(v) Admission of plaintiff-3 in ext. B that the house on the suit-land was handed over to defendant-2 on behalf of one Slier Singh is substantive evidence in the case, and is binding not only against him, but also against his co-plaintiffs. Plaintiff-3 has not come to the witness box to deny the said admission and
(vi) The plaintiffs claim to possessory title cannot be entertained as there is no averment in the plaint claiming such title.
Doubtless he cannot be prevented from raising these contentions before the lower appellate Court when the case goes back to him on remand. He may also raise any further additional point that may occur to him at the time. It is needless to say that after the original of the unregistered sale-deed is produced in Court, defendant No. 2 may raise such other objections, as to its admissibility or evidentiary value, as are permissible under law.
13. In the result, therefore, for the aforesaid reasons, the judgment and decree of the lower appellate Court are set aside, and the case is sent back to him for disposal, according to law, keeping in mind the directions given above.
Costs will abide the result.