- (1.) THE facts leading to this appeal are these, According to the plaintiff the shop in dispute initially belonged to one Madar Baksh, who expired in 1901. His brothers Idu and Jumman inherited his property in equal shares. THE father of defendant No. 1 took that shop on rent from those persons, Idu died somewhere in the year 1931. Out of his share in the shop 1 anna share was inherited by his widow Smt. Baqridan, 3 annas by his brother Jumman, and 4 annas by his daughter Smt. Ramzani. Thus according to the plaintiff Jumman's share in the shop became 11/16. Jumman was subsequently incapacitated and lost his power of understanding. THE rent of the shop was, therefore, realised by defendant No. 3 and other relations of Jumman. Jumman died in the year 1942 survived by the plaintiff. Smt. Ramzani died in 1948, and Smt. Baqridan died in 1951. THEy were succeeded by defendants 3 to 5. On the death of Sarabjit his son defendant No. 1 became the tenant of the shop. When he failed to pay rent of the shop for the Period commencing 1-1-1966 a suit was filed. Defendant No. 1 deposited the rent under S. 7-C (2) of the U. P. Temporary Control of Rent and Eviction Act in Misc. Case No. 40 of 1967. THE plaintiff then filed a suit claiming 11/16th share in the rent so deposited under S. 7-C of the Act.
(2.) THE suit was resisted by the defendants. THE contesting defendant No. 2 pleaded that the said shop was originally owned by Ramzan Ali, Mohd. Shafi, Ghulam Nabi alias Lallan who sold the same to defendant No. 2 on 28-1-1966 and since then the defendant had been in possession of the said shop as owner thereof. He further alleged that there had been a family settlement between Jumman, Dina, Badlu, Ramzani and Baqridan and the terms whereof were recorded in a deed dated 24-7-1931 registered on 7-10-1931. In pursuance of that family settlement Dina and Badlu became the owners of the shop and after the demise of Dina and Badlu Ramzan Ali, Mohd. Shafi and Ghulam Nabi alias Lallan became owners of the shop. THEy subsequently sold the said shop to defendant No. 2. THE contesting defendant No. 2 therefore, pleaded that the plaintiff was not entitled to get any share in the amount of rent deposited under Section 7-C of the Act. Defendants 3 to 5 admitted the plaintiff's case. The defendant No. 1 who was the tenant of the shop alleged that there was a bona fide dispute amongst the defendants as to who was the landlord of the shop, hence he deposited the rent under S. 7-C of the Act. The trial Court, after considering the evidence on record, concluded that the plaintiff was not the owner of the shop in dispute; on the contrary defendant No. 2 was held to be its owner, hence the suit was dismissed. The plaintiff preferred an appeal against the judgment and decree of the trial court which was also dismissed. He has now come up to this court on second appeal.
(3.) IT seems that before the appellate court below only one point was pressed, namely that the alleged family settlement set up by defendant No. 2 in his pleadings had not been proved in accordance with law. IT was contended that the original deed of family Settlement had not been filed, and as its loss had not been proved the defendant No. 2 was not entitled to lead secondary evidence with regard to it. The submission therefore, was that the trial court had erred in placing reliance on the secondary evidence and as there was no valid proof of the family settlement, it could not be held that defendant No. 2 had become absolute owner of the said shop inasmuch as the transferees from whom he had purchased the property were not proved to be the sole owners. This contention did not find favour with the trial court. Learned counsel for the appellant has pressed the same point over again in this second appeal. It was urged that in order to be entitled to adduce secondary evidence, the defendant No. 2 should have laid foundation for it by first proving that the original document was not in his possession and that it had either been lost or was in the possession of the other party and in case it was alleged that the document was in the plaintiff's possession a notice for its production in court should have been given as required by S. 66 of the Indian Evidence Act. True it is, that a foundation must be laid for reception of secondary evidence under S. 65 of the Evidence Act. There can hardly be any dispute that primary evidence must be produced before the court as laid down in S. 64 of the Evidence Act. Secondary evidence may, however, be given of the existence, or contents of a document under S. 65 of the said Act 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 S. 66, such person does not produce it, or 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. There are other circumstances also mentioned in S. 65 when secondary evidence can be led. Section 66 of the Act provides that secondary evidence of the contents of the document referred to in S. 65, Cl. (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.;