sec.65 of Evidence Act- second evidence = "Therefore, the marking of secondary evidence, if not objected to at the trial cannot be objected to later, and the 'contents' can also be looked into." In R.V.E.VENKATACHALA GOUNDER v. ARULMIGU VISWESWARASWAMY AND V.P.TEMPLE5 of the Supreme Court, the Supreme Court had occasion to deal with the subject. The Supreme Court after noting the difference between admissibility of a document and mode of proof of a document, laid down as follows: "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 later 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 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 herein above, 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."

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9750

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

Second Appeal No.188 of 1999

25-03-2013

Nesam Subbarao @ Subbayya,S/o. China Ramayya, Konda Kamma, 45        
years,Supparipalem village, Rampachodavaram Mandal.  
                                       
State, rep.by its Public Prosecutor,High Court of A.P., Hyderabad and another.

Counsel for appellant/s: Sri G.Rama Gopal,

Counsel for Respondent/s: Sri V.L.N.G.K.Murthy        

<GIST:

>HEAD NOTE:  
? Cases referred
1. (2013)2 Supreme Court Cases 114
2. (2011)4 Supreme Court Cases 240
3. (2007)5 Supreme Court Cases 730
4. AIR 1991 Andhra Pradesh 31
5. (2003)8 Supreme Court Cases 752
6. AIR 2005 Supreme Court 439

JUDGMENT:  
        Unsuccessful defendants in both the courts below are the appellants
herein.
The plaintiff/first respondent filed the suit for declaration of title
to the plaint schedule property, for possession of the same after evicting the defendants there from and for damages for unauthorized use and occupation of the same. 
According to the plaintiff, the plaint schedule property is part of Balayya Sastry layout.
Plaint schedule consists of site of 180 square yards
with R.C.C. roof building therein in S.No.2 of Balayya Sastry layout,
Visakhapatnam within the specified boundaries.  
Late Balayya Sastry is father of the plaintiff.  
He along with his wife and the plaintiff were assigned by Board
of Revenue, Andhra Pradesh, Hyderabad by proceedings dated 01.06.1961 an extent  
of Ac.65.55 cents, vide Ex.A1, out of which the plaintiff was assigned Ac.22.88
cents.  
According to the plaintiff, the suit property is part of the said
property.  
It is the plaintiff's case that on 24.09.1986, she came to know about the encroachment of the suit property when she went to the property where thatched house was in existence in an extent of 20 X 20 feet.  
It is alleged
that after issue of Ex.A2 legal notice dated 10.11.1986, the defendant
constructed a shed with brick and cement in approximately 140 square yards.
The
second defendant is father of the first defendant.
It is their contention that
the second defendant occupied the suit site about 17 years ago, filled up gedda
with sand and soil and constructed a house.  
The defendants contend that the
suit property is not in Balayya Sastry's lay out or in the land covered by Ex.A1
proceedings and that the plaintiff with a view to grab gedda property of the
Government, filed the suit with false averments.  
After trial, the trial Court
decreed the suit with costs; and on appeal by the defendants, the lower
appellate Court confirmed the said decree; and it resulted in the defendants
approaching this Court with this second appeal.

At the time of admission of this second appeal, the then learned Judge of this
Court found that substantial questions of law are stated in Para 10 of the
memorandum of grounds of second appeal.  They are as follows:
(a) Whether the findings of the Courts below are
perverse?
(b) Whether the findings of the Courts below are based on misreading and non-
reading of evidence?
(c) Whether the Courts below have failed in appreciating the evidence available
on record?
(d) Whether the Courts below have wrongly placed the burden of proof on the
appellants/defendants?


On reading of judgments of both the Courts below, I find that findings therein
are not at all perverse.  The appellants' counsel failed to demonstrate that any
findings or reasons given by lower appellate Court are perverse.  So, I find
question of law No.10(a) against the appellants.

Grounds (b) to (d) go together.  Appreciation of evidence is in the realm of
fact finding.  It cannot be
a question of law as such, unless the appreciation is vitiated by misreading or
non-reading of evidence or the burden is wrongly placed on any person other than
the person to whom it should be placed.  No material is placed before this Court
by the appellants' counsel to show that there was any misreading or non-reading
of evidence by the lower appellate Court.  Nothing was also pointed out on
placing burden of proof wrongly by the lower appellate Court on the defendants-
appellants.

It is contended by the appellants' counsel that 
Ex.A1 was wrongly admitted by the lower appellate Court as it is
a photostat copy and there were no circumstances pleaded much less proved by the 
plaintiff under Section 65 of the Indian Evidence Act(in short 'the Act') laying
foundational facts for receipt of secondary evidence on record.
The appellants'
counsel placed reliance on
U.SREE v. U.SRINIVAS1, H.SIDDIQUI v. A.RAMALINGAM2      
and J. YASHODA v.K.SHOBHA RANI3 of the Supreme Court on this aspect.
 On the    
other hand, it is contended by the respondent's counsel that since the
defendants or their counsel did not take any objection at the time of marking of
Ex.A1 during trial of the suit in the trial Court, such objection cannot be
permitted to be raised by the appellants in this second appeal.
The
respondent's counsel placed reliance on a full bench decision of this Court and
another decision of the Supreme Court on this aspect.
Full bench of this Court
in THE LAND ACQUISITION OFFICER v. NUTALAPATI VENKATA RAO4 after discussion of        
march of law from the privy council until that date, finally concluded:

"Therefore, the marking of secondary evidence, if not objected to at the trial cannot be objected to later, and the 'contents' can also be looked into."


In R.V.E.VENKATACHALA GOUNDER v. ARULMIGU VISWESWARASWAMY AND V.P.TEMPLE5 of the                    
Supreme Court, the Supreme Court had occasion to deal with the subject.  The
Supreme Court after noting the difference between admissibility of a document
and mode of proof of a document, laid down as follows:

"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 later 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 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
herein above, 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."

The appellants' counsel tried to contend that non-laying foundation for receipt
of secondary evidence under Section 65 of the Act leads to inadmissibility of
such document.  From the above discussion of difference between admissibility
and mode of proof of a document elaborated by the Supreme Court, this Court is
of the opinion that marking of a secondary evidence relates to mode of proof of
a document and not relating to admissibility of that document.  In the case on
hand, admissibility of original of Ex.A1 proceedings of Board of Revenue, is
permissible in law.  The only objection for the appellants' counsel is that
marking of photostat copy thereof by the trial Court is impermissible in law.
Marking of photostat copy of a document without laying foundational facts for
receiving secondary evidence under Section 65 of 'the Act' is within the purview
of mode of proof only and it does not relate to admissibility as such of the
document.  Admittedly, in this case, Ex.A1 is marked by the trial Court in the
evidence of P.W.1 and there was no objection made by the defendants or their
counsel for marking photostat copy of the document as Ex.A1.  Therefore, the
appellants are not entitled to raise that ground in this second appeal.

It is contended by the appellants' counsel placing reliance on JANKI VASHDEO
BHOJWANI v. INDUSIND BANK LIMITED6 of the Supreme Court that the plaintiff did  
not examine herself in this case, but her power of attorney holder vide Ex.A4
power of attorney deed, was examined as P.W.1 on her behalf.  This Court is of
the opinion that even without there being Ex.A4 power of attorney deed in favour
of P.W.1, he is a valid witness for the plaintiff.  P.W.1 is no other than
brother of the plaintiff.  Under Ex.A1, the plaintiff was assigned Ac.22.88
cents whereas her father S. Balayya Sastry was assigned Ac.23.23 cents and her
mother S.Meenakshamma was assigned Ac.19.44 cents, totaling Ac.65.55 cents.  
According to the plaintiff, her father S. Balayya Sastry formed a layout of the
total extent and got it approved.  The plaintiff contends that the suit site is
part of Balayya Sastry layout, but no plot number was assigned to the suit site.
It cannot be said that the plaintiff who is a woman was the person who took part
in forming Balayya Sastry layout.  It was Balayya Sastry during his lifetime,
who formed the said layout in his name and got it approved.  P.W.1 being son of
two assignees and brother of another assignee under Ex.A1, is most competent
person to speak to facts of the case.  Therefore, evidence of P.W.1 cannot be
brushed aside, in the particular circumstances of this case.

It is next contended by the appellants' counsel that the lower appellate Court
erred in relying upon infirmities in the defendants' case and failed to note
that the plaintiff has to fall or stand on merits of her own case.  While
considering merits of the plaintiff's case, the Court need not shut its eyes to
the demerits in the defendants' case though the Court may not pass a decree in
favour of the plaintiff solely on demerits of the defendants' case.  In the case
on hand, the plaintiff took steps before the trial Court for appointment of an
advocate-commissioner to localize the suit property.  The advocate-commissioner
inspected the suit property in the presence of both the parties together with
all the documents including lay out plan of Balayya Sastry layout and with the
assistance of officials of Visakhapatnam Urban Development Authority (VUDA) and
filed his report along with plan.  In the report, the advocate-commissioner came
to the conclusion that the suit property is part of Balayya Sastry layout.  This
is a piece of positive evidence in favour of the plaintiff to show that the suit
property is part of Balayya Sastry layout and is not outside Balayya Sastry's
layout and is not in gedda belonging to the Government adjacent to Balayya
Sastry layout.  Therefore, it cannot be said that without there being any
material on record, the Courts below granted decree in favour of the plaintiff
on only demerits of the defendants' case.

Therefore, in the light of discussion of contentions of the appellants' counsel
with reference to material on record and findings of the Courts below, this
Court is of the opinion on substantial questions of law Nos.10(b) to (d) that
decisions of the Courts below are not vitiated by non-appreciation of evidence
on record, much less by any misreading or non-reading of evidence on record or
by placing burden of proof wrongly on the defendants.
 I find that the Courts
below did not err either on facts or on law and came to correct conclusion in
favour of the plaintiff.  I find that the substantial questions of law raised
and framed are untenable.

In the result, the second appeal is dismissed with costs.
____________________________    
SAMUDRALA GOVINDARAJULU, J.      
25th March 2013