# Dinesh Chandra v. Santosh Kumar @ Hari Prakash & Ors

- **Citation:** (2024) 5 ILRA 794
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-08
- **Case number:** Second Appeal No. 350 of 2024
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-chandra-v-santosh-kumar-hari-prakash-ors-51987
- **Pages:** 8

## Headnote

A. Specific Relief Act, 1963 -Section 19
(1)(b) - Transfer of Property Act, 1882, S. 3
"a person is said to have notice" - S. 3,
Explanation I.-Where any transaction
relating to immovable property is required
by law to be and has been effected by a
registered
instrument,
any
person
acquiring such property shall be deemed to
have notice of such instrument as from the
date of registration, provided that - (1) the
instrument has been registered and its
registration completed in the manner
prescribed by the Indian Registration Act,
1908, (2) the instrument has been duly
entered in books kept u/s 51 of that Act,
and (3) the particulars regarding the
transaction to which the instrument relates
have been correctly entered in the indexes
kept under section 55 of that Act. Unless
the three conditions enumerated in the
first proviso to Explanation-I are complied
with and established on record, so that
after
the
due
registration
of
the
instrument, the entries have been made as
contemplated under Sections 51 and 55 of
the Registration Act, no benefit of the
expression "a person is said to have notice"
in the interpretation clause defined in
Section 3 of the Act, 1882, can be extended
to a party, that on registration of an
instrument, a person is supposed to have
notice about such fact. (Para 28)

B. The Plaintiff/Appellant instituted a suit
for specific performance of contract with
regard to three registered agreements to
sell. It was pleaded that the defendant 1st
set illegally executed a sale deed in favour
of the defendant 2nd set in respect of the
suit property. Defendant 2nd set pleaded
that they are bona fide purchasers of the
suit property for value and that they had no
knowledge about the execution of any
agreement to sell. Held: Pleading in the
plaint is silent in respect of the compliance
of condition nos. 2 and 3 enumerated in the
First Proviso to Explanation-I. Fulfilment of
the above three conditions is necessary to
seek the benefit of Explanation-I to the
expression "a person is said to have
notice". (Para 27)

C. Transfer of Property Act, 1882, S. 3 "a
person is said to have notice" - S. 3
Explanation II - Any person acquiring any
immovable property shall be deemed to
have notice of the title, if any, of any
person who is, for the time being, in actual
possession thereof. Held: To claim the
benefit of Explanation II, the plaintiff must
demonstrate that he is in possession of the
suit property. In the present case, the
Subordinate Courts have returned a finding
that the plaintiff is not in possession of the
suit property. Therefore, the plaintiff
cannot claim the benefit of Explanation II.
(Para 31)

Dismissed. (E-5)

List of Cases cited:

Ram Niwas (Dead) through LRS. Vs Bano (Smt.)
& ors., (2000) 6 SCC 685

## Text

794 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 5 ILRA 794
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2024

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Second Appeal No. 350 of 2024

Dinesh Chandra ...Appellant
Versus
Santosh Kumar @ Hari Prakash & Ors.
 ...Respondents

Counsel for the Appellant:
Pankaj Agarwal, Vishakha Pande

Counsel for the Respondents:
Rama Shanker Mishra

A. Specific Relief Act, 1963 -Section 19
(1)(b) - Transfer of Property Act, 1882, S. 3
"a person is said to have notice" - S. 3,
Explanation I.-Where any transaction
relating to immovable property is required
by law to be and has been effected by a
registered
instrument,
any
person
acquiring such property shall be deemed to
have notice of such instrument as from the
date of registration, provided that - (1) the
instrument has been registered and its
registration completed in the manner
prescribed by the Indian Registration Act,
1908, (2) the instrument has been duly
entered in books kept u/s 51 of that Act,
and (3) the particulars regarding the
transaction to which the instrument relates
have been correctly entered in the indexes
kept under section 55 of that Act. Unless
the three conditions enumerated in the
first proviso to Explanation-I are complied
with and established on record, so that
after
the
due
registration
of
the
instrument, the entries have been made as
contemplated under Sections 51 and 55 of
the Registration Act, no benefit of the
expression "a person is said to have notice"
in the interpretation clause defined in
Section 3 of the Act, 1882, can be extended
to a party, that on registration of an
instrument, a person is supposed to have
notice about such fact. (Para 28)

B. The Plaintiff/Appellant instituted a suit
for specific performance of contract with
regard to three registered agreements to
sell. It was pleaded that the defendant 1st
set illegally executed a sale deed in favour
of the defendant 2nd set in respect of the
suit property. Defendant 2nd set pleaded
that they are bona fide purchasers of the
suit property for value and that they had no
knowledge about the execution of any
agreement to sell. Held: Pleading in the
plaint is silent in respect of the compliance
of condition nos. 2 and 3 enumerated in the
First Proviso to Explanation-I. Fulfilment of
the above three conditions is necessary to
seek the benefit of Explanation-I to the
expression "a person is said to have
notice". (Para 27)

C. Transfer of Property Act, 1882, S. 3 "a
person is said to have notice" - S. 3
Explanation II - Any person acquiring any
immovable property shall be deemed to
have notice of the title, if any, of any
person who is, for the time being, in actual
possession thereof. Held: To claim the
benefit of Explanation II, the plaintiff must
demonstrate that he is in possession of the
suit property. In the present case, the
Subordinate Courts have returned a finding
that the plaintiff is not in possession of the
suit property. Therefore, the plaintiff
cannot claim the benefit of Explanation II.
(Para 31)

Dismissed. (E-5)

List of Cases cited:

Ram Niwas (Dead) through LRS. Vs Bano (Smt.)
& ors., (2000) 6 SCC 685

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
appellant and the learned counsel for the
respondents.
5 All. Dinesh Chandra Vs. Santosh Kumar @ Hari Prakash & Ors.
795

2. The plaintiff/appellant has preferred
the present Second Appeal challenging the
judgement and decree dated 12.02.1986
passed by the Additional Civil Judge,
Shahjahanpur in Original Suit No.130 of
1984 and judgement and decree dated
03.04.2024 passed by the Additional
District Judge, Court No.43, Shahjahanpur
dismissing
the
appeal
of
the
plaintiff/appellant.

3. Brief facts of the case are that the
plaintiff instituted a suit for specific
performance of contract with regard to three
agreements to sell dated 24.08.1983,
14.12.1983 & 06.01.1984 in respect to the
suit property described in the plaint against
the respondent nos.1 & 2 (defendant nos. 1
& 2) and respondent nos. 3 to 7 (defendants
no. 3 to 7). For convenience, the
plaintiff/appellant is referred to as 'plaintiff'
and respondents no.1 & 2 are referred to as
'defendant 1st set' and respondents no.3 to 7
are referred to as 'defendant 2nd set'.

4. The plaintiff instituted the suit on the
ground that three agreements to sell dated
24.08.1983, 14.12.1983 & 06.01.1984
executed between him and defendant 1st set
were duly registered in the office of SubRegistrar,
Shahjahanpur.
The
plaintiff
pleaded that he was ready and willing to
perform his part of the contract, but the
defendant 1st set failed to perform their part
of contract. It is further pleaded that the
defendant 1st set illegally executed the sale
deed dated 06.01.1984 in favour of the
defendant 2nd set in respect to the suit
property, which gave the plaintiff cause of
action to institute the suit for the above
relief.

5. The suit was contested by the
defendant 1st set by filing a written
statement denying the allegations made in
the plaint. The defendant 2nd set also filed a
written statement denying the averments in
the plaint. The defendant 2nd set further
pleaded that they are bonafide purchasers of
the suit property for value and they had no
knowledge about the execution of any
agreement to sell, therefore, the suit for
specific performance against them deserves
to be dismissed.

6. The Trial Court framed as many as
nine issues. However, the Trial Court on the
issue of "whether the agreement to sell was
validly executed" held that the three
agreements to sell were duly executed by the
defendant 1st set in favour of the plaintiff.
The Trial Court framed issue no.8 "whether
the defendant 2nd set had any knowledge
about the three agreements to sell and the
defendant 2nd set are bonafide purchasers".

7. The Trial Court in detail considered
the testimony of PW1(Dinesh Chandra),
PW2 (Puttu Lal) & PW3 (Rajendra Prasad)
and recorded a finding that though PW1 had
stated that the defendant 2nd set had
knowledge about the agreement to sell,
however, PW2 and PW3 stated that they
don't know whether any information about
agreements to sell was given to the
defendant 2nd set. The Trial Court further
considered the testimony of DW2 (Siya
Ram) who categorically deposed that the
defendant 2nd set did not know of the
execution of the agreement to sell. The Trial
Court further noted that no documentary
evidence was filed on record which could
establish that the defendant 2nd set had
knowledge
about
the
execution
of
agreements to sell between the plaintiff and
defendant 1st set.

8. The Trial Court further noted the
argument of the learned counsel for the
defendant 2nd set and stated that since the
796 INDIAN LAW REPORTS ALLAHABAD SERIES
sale deed was executed by the defendant 1st
set in their favour within one month from the
date of execution of the agreement to sell,
and it takes about a month in making
relevant entries in the registration office
regarding the execution of any agreement to
sell in respect of any property or creation of
any charge over the property, and since no
entry showing execution of any agreement
to sell in respect of said property was
recorded in the records of the Registrar
Office as contemplated under law, therefore,
the defendant 2nd set could not collect any
document or information about the alleged
agreement to sell from the Office of
Registrar.

9. The Trial Court after noticing
the above facts held that the defendant 2nd
set are bonafide purchasers for value, and
they had no knowledge about the
execution
of
agreements
to
sell.
Consequently, the Trial Court concluded
that the relief of specific performance of
contract cannot be granted in the facts of
the present case. After recording the above
finding, the Trial Court denied the relief of
the execution of the sale deed in pursuance
of three agreements to sell. However, the
Trial Court granted the relief of refund of
earnest money paid by the plaintiff to the
defendant 1st set under the agreements to
sell.

10. The Trial Court further considered
in detail the judgement of Original Suit
No.429 of 1984 instituted by the defendant
2nd set against the defendant 1st set and the
plaintiff, and also the fact that after the sale
deed was executed in favour of the
defendant 2nd set, the names of defendants
2nd set have been recorded in the rights of
record. Consequently, it concluded that the
defendant 1st set and plaintiff is not in
possession of the suit property.

11.
 Feeling
aggrieved
by
the
judgement of the Trial Court, the plaintiff
preferred Civil Appeal No.36 of 1986. The
First Appellate Court affirmed the finding of
the Trial Court on the issue that the
agreements to sell executed between the
plaintiff and defendant 1st set were valid.
The First Appellate Court while considering
the issue whether the defendant 2nd set are
bonafide purchasers considered in detail the
evidence on record and also the judgement
of the Trial Court in Original Suit No.429 of
1984 instituted by the defendant 2nd set
against the defendant 1st set and the plaintiff
for mandatory injunction, which was
decreed by the Trial Court, and has attained
finality since it was neither assailed by the
defendant 1st set nor by the plaintiff.

12. The First Appellate Court on
appreciation of evidence on record found
that the defendant 2nd set are bonafide
purchasers for the value, and therefore, they
are entitled to the benefit of Section 19 (b)
of the Specific Relief Act. Consequently, it
dismissed the appeal and affirmed the
judgement of the Trial Court.

13. Challenging the aforesaid
judgment, learned counsel for the appellant
has contended that the Subordinate Courts
have erred in law in dismissing the suit
inasmuch as once a finding has been
recorded by the Subordinate Courts that the
agreements to sell were validly executed,
this implies that due notice of the agreement
to sell is to everybody, and Subordinate
Courts
have
failed
to
consider
"Interpretation Clause" in Section 3 of the
Transfer of Property Act, 1882 (hereinafter
referred to as "Act, 1882"). The learned
counsel for the appellant laid emphasis on "a
person
is
said
to
have
notice"
in
'Interpretation Clause' to contend that in
view of Explanation-I to the expression "a
5 All. Dinesh Chandra Vs. Santosh Kumar @ Hari Prakash & Ors.
797
person is said to have notice", it shall be
deemed that after the registration of
agreement to sell as per law, everyone has
notice about execution of the agreement to
sell and burden of proof was upon the
defendant 2nd set to establish that they had
no knowledge or information about the three
agreements to sell. It is submitted that in the
instant case, since the defendant 2nd set had
failed to discharge their burden of proving
that they had no knowledge or information
about the agreement to sell, therefore, the
Subordinate Courts have erred in law in
dismissing the suit. In this respect, learned
counsel for the appellant has placed reliance
upon the judgement of the Apex Court in the
case of Ram Niwas (Dead) through LRS.
Vs. Bano (Smt.) and Others, (2000) 6 SCC
685.

14. Per contra, learned counsel for the
respondents would contend that defendant
2nd set are entitled to the benefit and
protection of Section 19 (b) of the Specific
Relief Act inasmuch as defendant 2nd set
are bonafide purchasers for value. It is
submitted that the defendant 2nd set had
proved by leading cogent evidence that they
had no knowledge or information about the
execution of the agreement to sell, and the
Subordinate
Courts
have
recorded
categorical findings after appreciating the
evidence on record that the defendant 2nd
set had no knowledge about execution of the
three agreements to sell, consequently, the
Subordinate Courts returned a finding that
the defendant 2nd set are bonafide
purchasers
having
no
knowledge
or
information about the execution of the three
agreements to sell. It is contended that the
finding returned by the Subordinate Courts
on the aforesaid issue is a finding of fact.

15. It is further contended that the
expression "a person is said to have
notice" referred to in Section 3 of the Act,
1882 is not attracted in the instant case
inasmuch as there is no pleading in the
plaint
that
after
execution
of
the
agreement, the conditions enumerated in
First Proviso to the Explanation-I to the
expression "a person is said to have
notice"
had
been
complied
with.
Accordingly, he submits that the benefit of
the expression "a person is said to have
notice" in Section 3 of the Transfer of
Property Act cannot be extended to the
plaintiff.

16. He further placed reliance upon
explanation II to the expression "a person is
said to have notice" in Section 3 of the Act,
1882 and submits that in the instant case,
it is proved on record that the plaintiff was
not in possession over the suit property
and defendant 2nd set are in possession of
the suit property, and in such view of the
fact, expression "a person is said to have
notice" as quoted in Section 3 of the Act,
1882 is not attracted in the present case.
Accordingly, he submits that the finding
returned by both the Subordinate Courts
are finding of fact and no substantial
question of law arises in the present
second appeal which calls for the
invocation of the power of this Court
under Section 100 of C.P.C.

17. I have considered the rival
submissions advanced by the learned
counsel for the parties.

18. So far as the question whether the
three agreements to sell were duly executed
or not, there is no dispute about the fact that
three agreements to sell in favour of the
plaintiff were duly executed by the
defendant 1st set given the finding returned
by the Trial Court as well as Appellate Court
in this regard.
798 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The sole question which invites the
attention of this Court is whether the
defendant 2nd set are the bonafide
purchasers for value without knowledge to
entitle them to protection provided under
Section 19 (1) (b) of the Specific
Performance Act. The Trial Court in this
respect considered the testimony of PW1,
and also the testimony of PW2 and PW3 and
found that though PW1 had stated that
defendant 2nd set knew about the execution
of agreements to sell, however, PW2 and
PW3 had stated that they did not give any
information about the three agreements to
sell to the defendant 2nd set.

20. The Trial Court further noticed that
DW2 (Siya Ram) had stated in his testimony
that he did not know of the execution of
agreements to sell. The Trial Court further
considered the fact that the sale deed had
been executed in favour of the defendant
2nd set within one month from the date of
execution of the agreements to sell, and
since necessary entries were not made in the
Office of Registrar, therefore, defendant 2nd
set could not obtain any information or
relevant document from the Office of
Registrar about the execution of the
agreements to sell in respect of the suit
property. Consequently, it held that the
defendant 2nd set are bonafide purchasers of
the suit property and are entitled to the
protection provided under Section 19 (1) (b)
of the Specific Relief Act.

21. The Appellate Court also
considered in detail the testimony of the
witnesses led by the plaintiff as well as
defendants and also the judgement of the
Trial Court in Original Suit No.429 of 1984
instituted by the defendant 2nd set against
the plaintiff and defendant 1st set for
mandatory injunction, which was decreed
by the Trial Court in favour of the defendant
2nd set and has attained finality since no
appeal was preferred against the judgement
and decree of the Trial Court in Original Suit
No. 429 of 1984 either by the plaintiff or by
the defendant 1st set. After appreciating the
aforesaid facts and evidence on record, the
Appellate Court found that the plaintiff was
not in possession of the suit property.

22. The Appellate Court also
considered the fact that after the execution
of the sale deed in favour of the defendant
2nd set, their names have been mutated in
the rights of record and they are in
possession of the suit property. The first
Appellate Court held that the appellant
could not demonstrate that the finding of the
Trial Court with respect to the possession
was perverse or against the record.

23. Now, before proceeding as to
"whether the plaintiff is entitled to the
benefit of expression "a person is said to
have notice" referred in interpretation clause
(3) of the Act, 1882, it would be apt to
reproduce the same:-

"a person is said to have notice" of
a fact when he actually knows that fact, or
when but for wilful abstention from an
enquiry or search which he ought to have
made or gross negligence, he would have
known it.

Explanation
I.-Where
any
transaction relating to immovable property
is required by law to be
 and has been effected by a
registered instrument, any person acquiring
such property or any part of, or share or
interest in, such property shall be deemed to
have notice of such instrument as from the
date of registration or, where the property is
not all situated in one sub-district, or where
the
registered
instrument
has
been
registered under sub-section (2) of Section
5 All. Dinesh Chandra Vs. Santosh Kumar @ Hari Prakash & Ors.
799
30 of the Indian Registration Act, 1908 (XVI
of 1908), from the earliest date on which any
memorandum of such registered instrument
has been filed by any Sub-Registrar within
whose sub-district any part of the property
which is being acquired, or of the property
wherein a share or interest is being
acquired, is situated:

Provided that-

(1) the instrument has been
registered and its registration completed in
the manner prescribed by the Indian
Registration Act, 1908 (XVI of 1908) and the
rules made thereunder,
 (2)
the
instrument
or
memorandum has been duly entered or filed,
as the case may be, in

books kept under Section 51 of
that Act, and

(3) the particulars regarding the
transaction to which the instrument relates
have been correctly

entered in the indexes kept under
Section 55 of that Act.

Explanation
II-
Any
person
acquiring any immoveable property or any
share or interest in any such property shall
be deemed to have notice of the title, if any,
of any person who is for the

time being in actual possession
thereof.

Explanation III.-A person shall
be deemed to have had notice of any fact if
his agent acquires

notice thereof whilst acting on his
behalf in the course of business to which that
fact is material:

Provided
that,
if
the
agent
fraudulently conceals the fact, the principal
shall not be charged with notice thereof as
against any person who was a party to or
otherwise cognizant of the fraud."

24. Reading of the said expression
in the "Interpretation Clause" reveals that a
person is supposed to have notice of a fact
when he actually knows the fact or though
he ought to have known this fact, but
because of his wilful abstention from an
enquiry or search which he ought to have
made, or gross negligence, he could not
acquire the knowledge of such fact. The said
expression explains that in case a transaction
relating to immovable property is required
by law to be and has been effected by a
registered instrument, any person acquiring
such property subsequently is supposed to
have notice of such instrument from the date
of its registration.

25. Learned counsel for the appellant
has laid emphasis upon the Explanation-I to
submit that in the instant case, the
transaction of agreements to sell has been
effected by the registered document, and
therefore, the defendant 2nd set who
acquired the said property is supposed to
have notice of the three agreements to sell
from the date of its registration.

26. It is pertinent to note that
Explanation-I is attracted only when the
conditions stipulated in First Proviso to the
Explanation-I are complied with, which
are:-

 (1) the instrument has been
registered and its registration has been
completed in the manner prescribed by the
Indian Registration Act, 1908 and the rules
made thereunder;

(2)
the
instrument
or
memorandum has been duly entered or filed,
as the case may be in books kept under
Section 51 of that Act and
(3) the particulars regarding the
transaction to which the instrument relates
800 INDIAN LAW REPORTS ALLAHABAD SERIES
have been correctly entered in the indexes
kept under Section 55 of that Act.

27. In the present case, the first
condition enumerated in the proviso i.e.
registration of agreement to sell has been
completed in the manner provided by the
Registration Act and the Rules framed
thereunder are complied with. Condition
nos.2 and 3 enumerated in First Proviso are
not fulfilled in the instant case as is evident
from the perusal of the plaint since the Plaint
reveals that the pleading in the plaint is
silent in respect to the compliance of
condition nos. 2 and 3 enumerated in the
First Proviso to Explanation-I. Fulfilment of
the above three conditions is necessary to
seek the benefit of Explanation-I to the
expression "a person is said to have notice".
In other words, to seek the benefit of the
expression "a person is said to have a
notice", the plaintiff has to establish that the
above three conditions enumerated in the
proviso to Explanation-I have been fully
complied with.

28. There is no pleading in the plaint
that the instrument or memorandum had
been duly entered and filed in the books kept
under Section 51 of the Registration Act,
and particulars of the transaction to which
the instrument relates have been correctly
entered in the indexes kept under Section 55
of the Registration Act. Unless three
conditions enumerated in the First proviso to
Explanation-I are complied with and
established on record that after the due
registration of the instrument, the entries
have been made as contemplated under
Sections 51 and 55 of the Registration Act,
no benefit of the expression "a person is said
to have notice" in the interpretation clause
defined in Section 3 of the Act 1882, in the
opinion of the Court, can be extended to a
party that on registration of an instrument, a
person is supposed to have notice about such
fact. Thus, for the aforesaid reason, the
submission of the counsel for the appellant
regarding Explanation -I to the expression "a
person is said to have notice" is devoid of
merits and is rejected.

29. At this stage, it would also be
apposite to consider Explanation-II to the
expression "a person is said to have notice"
which states that any person acquiring any
immovable property or any share or interest
in any such property shall be deemed to have
notice or title, if any, of a person who is for
the time being in actual possession.

30. At this stage, it would be
appropriate to consider the judgment of the
Apex Court in the case of Ram Niwas
(Supra) relied upon by the learned counsel
for the appellant. Relevant Paragraphs No. 7
to 9 of the said judgement are reproduced
below:

"7. Thus, it is seen that a statutory
presumption of "notice" arises against any
person who acquires any immovable
property or any share or interest therein of
the title, if any, of the person who is for the
time being in actual possession thereof.

8. The principle of constructive
notice of any title which a tenant in actual
possession may have, was laid down by Lord
Eldon in Daniels Vs. Davison (Ves at
P.254). The learned Law Lord observed:

"Upon one point in this cause
there is considerable authority for the
opinion I hold; that, where there is a tenant
in possession under a lease or an
agreement, a person, purchasing part of the
estate, must be bound to inquire, on what
terms that person is in possession."

9.
That principle
has
been
followed by various High Courts in India.
(See : Faki Ibrahim vs. Faki Gulam
5 All. Jamia Urdu Aligarh Regd Vs. Jamia Urdu Sansthan & Ors.
801
Mohidin, AIR 1921 Bombay 459; Mahadeo
vs. S.B.Kesarkar, AIR 1972 Bombay 100;
Tiloke Chand Surana vs. J.B.Beattie & Co.,
AIR 1926 Calcutta 204; Parthasarathy
Aiyer vs. M. Subbaraya Gramany, AIR 1924
Madras
67
and
Mummidi
Reddi
Papannagiri Yella Reddi vs. Salla Subbi
Reddi, AIR 1954 A.P. 20)."

31. Since to claim the benefit of
Explanation-II,
the
plaintiff
has
to
demonstrate that he is in possession of the
suit property whereas in the present case, the
Subordinate Courts have returned the
finding based upon the appreciation of
evidence on record that the plaintiff is not in
possession over the suit property and the
counsel for the appellant could not
demonstrate that finding on the issue of
possession by the Subordinate courts is
perverse or against the record, therefore, the
plaintiff cannot claim the benefit of
Explanation-II. In such view of the fact, the
judgement of the Apex Court in the case of
Ram Niwas (Supra) is not applicable in the
facts of the present case.

32. Since, the Subordinate Courts have
returned the finding that the defendant 2nd
set are the bonafide purchasers for the value
without knowledge and are in possession of
the suit property, and the finding in this
respect are finding of fact based upon proper
appreciation of fact on record, therefore, this
Court is of the view that the judgement and
decree passed by the courts below are based
upon sound principles of law and do not call
for any interference by this Court.

33. Since no substantial question of
law arises in the present appeal, therefore,
the appeal lacks merit and is, accordingly
dismissed with no order as to costs.
----------
(2024) 5 ILRA 801
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2024

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Second Appeal No. 352 of 2024

Jamia Urdu Aligarh Regd ...Appellant
Versus
Jamia Urdu Sanstha & Ors. ...Respondents

Counsel for the Appellant:
Pradeep Kumar Upadhyay

Counsel for the Respondents:

A. Indian Evidence Act, 1872 - Sections 61,
62, 63, 64 & 65 - Proof of Document by
Secondary Evidence - S. 61 provides that
the contents of a document may be proved
either by primary evidence or secondary
evidence. S. 64 mandates that a document
must be proved by primary evidence,
except in the circumstances mentioned in
S. 65 of the Act. To take benefit of S. 65, a
party must establish that it could not
produce the primary evidence for bona fide
reasons. In this case, original sale deed
was not produced before the lower court;
only a certified copy of the sale deed was
filed i.e. secondary evidence. Plaintiff did
not laid any factual foundation in the plaint
or filed an application seeking leave of the
Court to prove the sale deed by secondary
evidence, citing the absence of primary
evidence (i.e., the original sale deed). Held:
The plaintiff failed to provide a factual
foundation justifying the non-production
of
primary
evidence;
therefore,
the
certified copy of the sale deed, being
secondary evidence, could not be admitted
as evidence. (Para 22)

B. Civil Law - Limitation Act, S. 3: The
question of limitation is a pure question of
law. If it is evident from the pleadings that
the suit is barred by limitation, and there is
no need to examine any question of fact to