P L D 1967 Dacca 591 (PLP)

(4) that the suit is not maintainable, firstly because the plaintiff No. 1 has got no interest in the land and secondly because the plaintiffs Nos. 2 to 4 did not institute the suit; and (5) that the defendants' possession has been proved beyond reasonable doubt. Strangely enough the learned appellate Court has not at all adverted to the above‑mentioned findings arrived at by the learned Munsif nor even directed its attention to that aspect of the case to which the said findings relate. In this behalf, all that he has said is that "if the case of the defendant No. 1 about his exchange with the plaintiffs Nos. 2‑4 and pro‑defendants Nos. 8‑11 be false, then certainly the plaintiffs become entitled to the reliefs prayed for by them." Proceedings thereafter he has taken the view that "though the exchange deed in favour of the defendant No. 1 and his sister could not create title of the defendant No. 1 and his sister, as the exchange deed was an unregistered one, but the defendant No. 1 was put in posses sion on the basis of exchange, and as the deed is now missing, the defendant No. 1 is not precluded from adducing secondary evidence of the deed", and then come to the conclusion that the execution of the alleged deed of exchange having been proved, the defendant No. 1 can resist the claim of the plaintiffs under section 53‑A of the Transfer of Property Act and that the plaintiffs are not entitled to any relief in the suit. As has already been observed above and found by the learned Courts below, the alleged deed of exchange was unstamped and unregistered and came to be missing from the custody of the Police. Accordingly the original document could not be produced and therefore the defence adduced secondary evidence to prove this contract. The first question that therefore arises is whether secondary evidence to prove an unregistered and unstamped deed of exchange is admissible in law. In this connection, reference may be made to the case of the Rajah of Robbili v. Inuganti China Sitarasami Garu (26 I A 262). Therein it was held by their Lordships, of the Judicial Committee that secondary evidence cannot be given of a document which has not been properly stamped, as under the provisions of the Stamp Act such a document is only admissible in evidence when the Collector has assessed and charged the penalty on the production of the original writ and f when he has written an endorsement upon the writ submitted to him. Therefore, it would not be open for the plaintiff in this case to adduce secondary evidence of the written agree ment even upon payment of the penalty. It was further observed therein: "The provisions for due payment of a penalty made in Act I of 1879 for the case of deeds either unstamped or insufficiently stamped do not apply when the deed so affected has not been produced ; and accordingly secondary evidence of its contents cannot be given." This has been followed in Hiralal Ramnarayan v. Shankar Hirachand (A I R 1921 Bom. 401). That related to a suit by the plaintiff for specific performance of an agreement by ordering the defendant to execute a sale‑deed in respect of the lands and to deliver up possession of the house. What happened is that the defendant agreed to sell to the plaintiff two pieces of lands and a house. The agreement was reduced to writing on a plain paper. Plaintiff was put in possession of the lands; the house was conveyed by the defendant's passing a deed of sale on a stamped paper but the sale‑deed was not registered, nor any sale‑deed of the lands was ever passed. Agreement to sell also was not brought on record. In these circumstances it was held that the plaintiff was entitled to call upon the defendant to execute a deed of sale of the lands and the house and to deliver up possession of the house, and that inasmuch as the written agreement of sale was not on a stamped paper, it was not open to the plaintiff to adduce secondary evidence of it even upon payment of penalty. The same view has been taken also in the case of Chidambaram Chettiar v. M. A. Meyyappan Ambalam and others (A I R 1946 Mad. 298). In that case before the trial commenced plaintiff produced an unstamped document purporting to support his claim to certain lands. Later on a mob invaded the Court and set fire to it in which the record of the case was destroyed among other things. When the trial commenced plaintiff sought to put in a copy of the document and paid the penalty into Court. On these facts it was held that the copy of the document was not admissible in evidence even on payment of the penalty. The fact that the original document was destroyed by the mob's action put the plaintiff in no better position. It is thus clear that the secondary evidence adduced in this case was legally inadmissible and as such the learned Courts below acted illegally in acting upon such evidence. Again even assuming that secondary evidence as adduced were admissible, the question still arising would be whether that evidence is legal and sufficient to support the defence case with respect to the alleged contract of exchange. Under section 63 of the Evidence Act secondary Evidence means and includes, inter alia, oral accounts of the contents of a document given by some person who has himself seen it. Section 65 deals with the cases in which secondary evidence relating to docu ments may be given and provides that such evidence may be given of the existence, condition or contents of a document when, among others, 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 phrase "oral accounts of the contents of a document by some person who has himself seen it" came to be considered by the Privy Council in the case of Ma Mi and another v. Kallander Ammal (31 C W N 621) wherein their Lordships have laid down:‑ "The phrase `oral accounts of the contents of a document by some person who has himself seen it' in the definition of secondary evidence in section 63 of the Evidence Act means oral evidence by some person who has seen those contents, that is to say, who has read the document; Evidence that the witness only saw the document and heard it read out by someone else is only hearsay so far as the contents are concerned and does not fulfill the requirements of section 60 as to oral evidence generally, viz. if it refers to a fact which could be seen, it must be evidence of a witness who says he saw it. The subject‑matter of a document is a fact which can be seen only by reading it." In the present instance there is nothing in the evidence of the witnesses through whom the contents of the document in question were sought to be proved to show that they actually read the document. In this view of the matter, therefore, the said witnesses are in competent and as such the evidence given by them as to the contents of the relevant document cannot be acted upon in law. Again under section 53‑A of the Transfer of Property Act a person in order to entitle himself to the benefit of the doctrine of part performance must show inter alia that the contract involved has been reduced to writing and signed by the person making the contract or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. It has already been observed that the defence produced some witnesses to prove the alleged contract of exchange. The question now falling to be determined therefore is whether from their evidence the terms necessary to constitute the alleged transfer, i.e. exchange can be ascertained with reasonable certainty. In my opinion, their evidence is sadly lacking in that behalf and it is not at all possible to ascertain what the terms of the contract between the parties in fact were. In this view of the matter, too, the defendant cannot successfully claim the benefit of section 53‑A on the evidence actually led by it in support thereof. So even if it were to be assumed that secondary evidence were admis sible, it follows that the decision made by the learned Courts below giving the benefit of the said provision to the defendants is legally insupportable. The question arising next is whether a decree can be rendered in favour of the plaintiff. It has already been pointed out above that the findings of the learned trial Court on the question of title and possession are entirely against the plaintiff and so far as the learned Subordinate Judge is concerned, he has not at all adverted to those findings nor to that aspect of the case to which the said findings relate. In other words, the learned Subordinate Judge has not at all considered the plaintiff's case on merit. That being so, a remand appears to be inevitable. I, therefore, allow the appeal, set aside the judgment and decree of the learned Lower Appellate Court and send the appeal back to that Court for rehearing on the question of plaintiff's title and possession on merit keeping in view the observations made in the body of the judgment herein above. Costs of this appeal shall abide the final result. The appeal may be disposed of expeditiously and to that end let the record be sent down as early as possible. K. B. A. Appeal accepted.