TMI Blog2004 (8) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 in the Court of Principal Munsiff, Bellary (hereinafter for the sake of brevity referred to as the trial Court ) for a declaration that a portion of T.S. No. 272-A and T.S. No. 273-B admeasuring 80'x120' (hereinafter for the sake of brevity referred to as the suit plot ) was his and his brother's absolute property. In the said suit, the plaintiff also sought an injunction restraining the appellant herein (defendant) from entering the suit plot. 3. T.G. Sreenivasa Pillai, T.G. Vivekananda Pillai and T.G. Sathyanarayana Pillai sons of Gurunatham Pillai were the owners of suit land bearing S. No. 635R (which was revised to T.S. 272) admeasuring 90 cents and S. No. 635T (revised to T.S. 273) admeasuring 5 acres 38 cents. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Khan Saheb Abdul as alleged. It was contended that sons had no right to sell the said lands. That the wife of Gurunatham was the owner. That she had not executed any conveyance in favour of Khan Saheb. In the written statement, appellant denied the gift by sons of Khan Saheb to Sattar and Rahiman. 5. Two main points arose for determination before the trial Court. Firstly, whether the plaintiff is the owner of the suit plot. Secondly, whether the suit plot formed part of T.S.272A and T.S.273B. According to PW1 the title came to him through the sons of Gurunatham vide Ex.P1 which was a registered sale deed dated 14.11.1944 and later on under Ex.P2 which is gift deed executed by sons of Khan Saheb in favour of Sattar and Rahiman. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Court decreed the suit. 9. Being aggrieved by the decree passed by the trial Court, the appellant herein preferred Regular Appeal no. 36 of 1988 in the Court of Civil Judge, Bellary (hereinafter for the sake of brevity referred to as the lower appellate Court ), who took the view inter alia that the plaintiff had failed to prove Ex.P1 and Ex.P2 as neither the executant nor the donor had been examined. That Ex.P1 and Ex.P2 could not be acted upon as the original deed dated 14.11.1944 (Ex.P1) had not been produced. The lower appellate Court found that the plaintiff had not laid the foundation for admissibility of secondary evidence under Section 65(a) and (f) and in the circumstances the sale was not proved. The lower appellate Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, this civil appeal. 12. Ms. Kiran Suri, learned counsel appearing on behalf of the appellant submitted that once the document becomes incapable of being proved for want of primary evidence, the foundation of secondary evidence must be laid, without which, such secondary evidence was inadmissible. That in the present case, no steps were taken by the plaintiff to produce the original sale deed. That no steps were taken to prove the loss of the original sale deed. That no steps were taken to establish the source from which certified copy was obtained. She submitted that if the foundation is laid under Section 65 and if the plaintiff was able to prove that the original sale deed was lost then the secondary evidence was admissible but in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anr. v. Sri Thakurji Ors. 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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