# Jamia Urdu Aligarh Regd v. Jamia Urdu Sanstha & Ors

- **Citation:** (2024) 5 ILRA 801
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-08
- **Case number:** Second Appeal No. 352 of 2024
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jamia-urdu-aligarh-regd-v-jamia-urdu-sanstha-ors-51992
- **Pages:** 11

## Headnote

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
802 INDIAN LAW REPORTS ALLAHABAD SERIES
conclude that the suit is barred, the
Court has jurisdiction u/s 3 of the
Limitation Act to address the issue of
limitation, even if the defendant has
not raised a plea of limitation or if no
issue regarding limitation has been
framed. In the present case, plaintiff
alleged that the first and second
defendants colluded to fraudulently
execute
the
sale
deed
dated
27.12.2001. Plaintiff instituted the suit
in 2010, approximately nine years
after
the
sale
deed's
execution.
However, the plaintiff did not state the
date on which he acquired knowledge
of the execution of the sale deed. To
circumvent the issue of limitation,
plaintiff deliberately did not seek the
cancellation of the sale deed; instead,
he prayed for a decree of permanent
injunction
to
restrain
the
second
defendant from interfering with his
possession of the suit property. Held:
Despite the issue of limitation not
being raised before the Trial Court and
the First Appellate Court, the High
Court addressed it in the second
appeal. The limitation for filing a suit
for cancellation of a sale deed is three
years; thus, the suit was barred by
limitation
and
rejected
since
the
question
of
limitation
is
a
pure
question of law. (Para 33, 35)

Dismissed. (E-5)

List of Cases cited:

## Text

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
802 INDIAN LAW REPORTS ALLAHABAD SERIES
conclude that the suit is barred, the
Court has jurisdiction u/s 3 of the
Limitation Act to address the issue of
limitation, even if the defendant has
not raised a plea of limitation or if no
issue regarding limitation has been
framed. In the present case, plaintiff
alleged that the first and second
defendants colluded to fraudulently
execute
the
sale
deed
dated
27.12.2001. Plaintiff instituted the suit
in 2010, approximately nine years
after
the
sale
deed's
execution.
However, the plaintiff did not state the
date on which he acquired knowledge
of the execution of the sale deed. To
circumvent the issue of limitation,
plaintiff deliberately did not seek the
cancellation of the sale deed; instead,
he prayed for a decree of permanent
injunction
to
restrain
the
second
defendant from interfering with his
possession of the suit property. Held:
Despite the issue of limitation not
being raised before the Trial Court and
the First Appellate Court, the High
Court addressed it in the second
appeal. The limitation for filing a suit
for cancellation of a sale deed is three
years; thus, the suit was barred by
limitation
and
rejected
since
the
question
of
limitation
is
a
pure
question of law. (Para 33, 35)

Dismissed. (E-5)

List of Cases cited:

1. Appaiya Vs Andimuthu @ Thangapandi & ors.,
2024 (1) JCLR 99 (SC)

2. H. Siddiqui (Dead) by LRS. Vs A. Ramalingam,
(2011) 4 SCC 240

3. Rakesh Mohindra Vs. Anita Beri & ors., (2016)
16 SCC 483

4. Jagmail Singh & anr. Vs Karamjit Singh & ors.,
(2020) 5 SCC 17

5. Narne Rama Murthy Vs Ravula Somasundaram
& ors., (2005) 6 SCC 614
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
appellant.

2. The present appeal has been
preferred
by
the
plaintiff/appellant
challenging the judgement and decree dated
05.03.2024 passed by the First Appellate
Court i.e. Additional District Judge, Court
No.14, Aligarh in Civil Appeal No.34 of
2017 as well as judgement and order dated
13.01.2017 passed by the Additional Civil
Judge (Senior Division), Court No.2,
Aligarh in Original Suit No.914 of 2010.

3. The case of the plaintiff/appellant
(hereinafter referred to as 'plaintiff') is that
the plaintiff is a registered educational
institution
having
Registration
No.625/1983-84 (Renewal No.551/1995)
under the Societies Registration Act, 1860,
and Smt. Saba Khan is the Registrar of the
said institution who is competent to verify
and sign the plaint. As per the plaintiff's
case, the plaintiff purchased a piece of land
measuring 1250.07 square yards out of
Khasara No.539 situated at Dhorra Muafi,
Pargana & Tehsil Koil, District Aligarh as
detailed in Schedule-A at serial no.1 by
registered sale deed dated 31.03.1997
executed
in
pursuance
of
registered
agreement to sale dated 06.03.1997 for a
sale consideration of Rs.10,62,500/-.

4. The plaintiff purchased another
piece of land measuring 1250.07 square
yards abutting the said land towards the
southern side of the above land as detailed
in Schedule-A at serial No.2 out of Khara
No.539 situated at Dhorra Muafi, Pargana &
Tehsil Koil, District Aligarh by another sale
deed
dated
31.03.1997
executed
in
pursuance to agreement to sell dated
06.03.1997. It is further stated that on
5 All. Jamia Urdu Aligarh Regd Vs. Jamia Urdu Sansthan & Ors.
803
01.06.2010,
respondent
nos.1
&
2
(defendant first set) and respondent no.3
(defendant second set) (hereinafter referred
to as defendant first set and defendant
second set) came on the spot and tried to
take forcible possession over 111 square
yards land out of total land purchased by the
plaintiff by the two sale deeds detailed
above to raise illegal construction.

5. The further case of the plaintiff is
that after getting the knowledge of the sale
deed dated 27.12.2001, the plaintiff applied
for the certified copy of the said sale deed on
02.06.2010 which was made available to the
plaintiff on 05.06.2010. The plaintiff came
to know for the first time about the contents
of the sale deed and also the fraud and
misrepresentation played by the defendant's
first set and the defendant's second set in
collusion with each other in getting the sale
deed dated 27.12.2001 executed.

6. It is further stated that the defendant
first set in collusion with the defendant
second set created a fake institution in the
name of 'Jamia Urdu Sanstha' which is akin
to the name of the plaintiff's institution to
usurp the property detailed in Schedule-A
and to use the registration number of the
plaintiff i.e. Jamia Urdu Aligarh. It is further
stated that a fraudulent power of attorney
was executed on 28.09.2001 in respect of the
property of Schedule-A in favour of
defendant no.2 (Imran Sabir) who as
attorney holder of Jamia Urdu Sanstha,
transferred the plot measuring 111 square
yards out of Khasra No.539 to the defendant
second set detailed at the foot of the plaint
as
Schedule-B
by
sale
deed
dated
27.12.2001.

7. The plaintiff has prayed for the
following relief in the aforesaid backdrop:-

 (A). That a decree for declaration
be passed in favour of the plaintiff and
against the defendants. It be declared that
the alleged sale deed dated 27.12.2001
alleged to be executed by defendant No.1
through defendant No.2 as attorney holder
in favour of defendant IInd Set with regard
to the property in question as detailed at the
foot of the plaint in Schedule 'B' registered
in Bahi No.1 Zild No.3236 on pages 505 to
512 at No.221 registered on 10.1.2002 in the
office of the sub-Registrar, Koil, Aligarh
and the information to this effect be sent to
the office of the sub-Registrar, Koil, Aligarh.
 (B). That a decree for permanent
prohibitory injunction be passed in favour of
the plaintiff and against the defendants, the
defendants
their
agents,
servants,
subordinates, relatives and associates be
restrained from taking forcible possession
and raising illegal construction over the
property in question and also restrain from
transferring, alienating and disposing off
the property in question as detailed at the
foot of the plaint in Schedule 'B' or otherwise
in any manner whatsoever.
 (C). Cost of the suit be awarded to
the plaintiff and against the defendants.

(D). Any other relief or reliefs
which may be just and proper be also
granted to the plaintiff and against the
defendants which may be beneficial to the
plaintiff in the circumscribes of the case as
also in the opinion of the Hon'ble Court."

8. It appears that the defendant did not
appear to contest the suit and the Trial Court
proceeded ex-parte. The Trial Court framed
the following issues:-

"1. पररमशि अ में वमणटत सम्पमत्त का स्वाममत्व वादी
में मनमहत है।

2. सम्पमत्त मववामदत मजसे वादपत् के पररमशि ब में
वमणटत मकया गया है वह पररमशि अ में वमणटत सम्पमत्त का भाग है।
804 INDIAN LAW REPORTS ALLAHABAD SERIES
 3. सबा खान वादी जाममयां उदूट की रमजस्रार है।

4. प्रमतवादी संख्या-1 एक फजी संस्था है मजसने वादी
की पंजीकरण संख्या का कपट के द्वारा दुरुपयोग करते हुये बैनामा
मलखाया है। "

9. The Trial Court held that the
plaintiff despite having been granted several
times did not produce evidence to establish
its title over the suit property. The Trial
Court further recorded a finding that the
plaintiff had filed the true copy of the sale
deeds dated 31.03.1997 and 04.06.1997
which had been executed by Nahida Nijami
and Jamal Nijami in favour of Jamia Urdu
Shiksha Sanstha. The Trial Court while
considering the issue whether the scheduled
property described in Schedule-B in the
plaint is also a part of the property of
Schedule-A held that since it is admitted that
after the purchase of the land, no
construction had been raised, therefore
perusal of the boundaries in respect of plot
described in Schedule-A and Schedule-B
discloses that boundaries of the plot of
Schedule-A are not the same which have
been shown as boundaries of Schedule-B.
The Trial Court further held that the plaintiff
failed to establish that the total area of
Khasra No.539 was 2500.14 square yards.
Accordingly, it concluded that the property
described in Schedule B is not part of the
property of Schedule A.

10. The Trial Court further held that
the plaintiff had failed to establish that
defendant no.1-Jamia Urdu Sanstha and
plaintiff-Jamia Urdu Aligarh (Registered)
are two different societies and Saba Khan
was the Registrar of the society of Jamia
Urdu Aligarh. The said finding has been
returned by the Trial Court on the ground
that the plaintiff did not adduce any
evidence to establish that the plaintiff and
defendant no.1-Jamia Urdu Sanstha are two
different societies and Saba Khan was the
Registrar
of
the
plaintiff's
society.
Consequently, the Trial Court found that the
plaintiff had failed to prove its case and
accordingly, the Trial Court dismissed the
suit.

11. The plaintiff being aggrieved by
the judgment and decree of the Trial Court
preferred a civil appeal which was also
dismissed by the First Appellate Court by
recording a finding that the plaintiff did not
adduce any evidence regarding registration
of the society of the plaintiff nor did it
produce the constitution of the society. The
First Appellate Court further noted that it is
evident from the sale deed dated 04.06.1997
that the name of Jamia Urdu Shiksha
Sanstha is recorded in the sale deed dated
04.06.1997 whereas the plaintiff in the suit
has
named
itself
as
'Jamia
Urdu
(Registered)'.

12. The First Appellate Court further
noted that the plaintiff did not adduce any
documentary evidence to establish under
what name the plaintiff's society has been
registered. Accordingly, it concluded that
the name of the plaintiff-Jamia Urdu
(Registered) is different from the name
mentioned in the sale deed dated 04.06.1997
paper no.32Ga/10 namely Jamia Urdu
Shiksha Sanstha. Accordingly, the First
Appellate Court concluded that since there
was difference in the name of the society,
therefore the plaintiff ought to have filed the
necessary evidence to establish that the
society of the plaintiff is the valid society.
The First Appellate Court also found that the
plaintiff did not adduce any evidence to
prove its title, therefore, the Trial Court has
not committed any illegality in dismissing
the suit.

13. Challenging the above two orders,
learned counsel for the appellant has
5 All. Jamia Urdu Aligarh Regd Vs. Jamia Urdu Sansthan & Ors.
805
contended that the finding of the Trial Court,
as well as the First Appellate Court, is
perverse inasmuch as the plaintiff has filed
the certified copy of the sale deed which is
secondary evidence and being a public
document was liable to be read in evidence,
therefore, the Trial Court, as well as First
Appellate Court, has erred in law in
concluding that the plaintiff had failed to
establish its title over the suit property. In
support of his submission, he has relied
upon the judgment of the Apex Court in the
case of Appaiya Vs. Andimuthu @
Thangapandi & Others 2024 (1) JCLR 99
(SC).

14. I have considered the submission
advanced by learned counsel for the
appellant and perused the record.

15. The suit has been filed by Jamia
Urdu Aligarh (Registered) through its
Registrar Smt. Saba Khan. The case of the
plaintiff is that the plaintiff's society is the
registered society under the Societies
Registration Act, 1860 and is running an
educational institution. The plaintiff for
playground, purchased the suit property by
two sale deeds dated 31.03.1997 out of
Khasara No.539 situated at Dhorra Muafi,
Pargana & Tehsil Koil, District Aligarh.

16. According to the plaintiff, the
defendant first set- Jamia Urdu Sanstha is a
fake society, and it has no authority to grant
power of attorney to the defendant's second
set-Imran Sabir, therefore, the sale deed
executed by the defendant's first set in
favour of defendant second set in respect to
111 square yard was illegal. The plaintiff in
the aforesaid backdrop had prayed for the
relief, extracted above.

17. It is admitted on record that
original sale deeds were not filed on record
and only the certified copy of the sale dee
dated 31.03.1997 has been filed on record
which is secondary evidence.

18. Section 61 of the Indian Evidence
Act, 1872 (hereinafter referred to as 'Act,
1872') provides that the contents of a
document may be proved either by primary
evidence or secondary evidence.

19. Section 62 of the Act, 1872 deals
with primary evidence and Section 63 of the
said Act defines secondary evidence.

20. Section 64 of the Act, 1872
provides that a document must be proved by
primary evidence except in cases hereinafter
mentioned i.e. the circumstances mentioned
in Section 65 of the Act, 1872. Section 65 of
the Act, 1872 is reproduced herein below:-

"Section 65. Cases in which
secondary evidence relating to documents
may be given.- Secondary evidence may be
given of the existence, condition or contents
of a document in the following cases:-

(a)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 section 66, such person does
not produce it;

(b)when the existence, condition
or contents of the original have been proved
to be admitted in writing by the person
against whom it is proved or by his
representative in interest;

(c) when the original has been
destroyed or lost, or when the party offering
evidence of its contents cannot, for any other
806 INDIAN LAW REPORTS ALLAHABAD SERIES
reason not arising from his own default or
neglect, produce it in reasonable time;

(d) when the original is of such a
nature as not to be easily movable;

(e) when the original is a public
document within the meaning of section 74;

(f) when the original is a
document of which a certified copy is
permitted by this Act, or by any other law in
force in [India] to be given in evidence;

(g) when the originals consists of
numerous accounts or other documents
which cannot conveniently be examined in
Court, and the fact to be proved is the
general result of the whole collection.

In cases (a), (c) and (d), any
secondary evidence of the contents of the
document is admissible.

In case (b), the written admission
is admissible.

In case (e) or (f), a certified copy
of the document, but no other kind of
secondary evidence, is admissible.

In case (g), evidence may be given
as to the general result of the documents by
any person who has examined them, and
who is skilled in the examination of such
documents."

21. In the instant case admittedly,
primary evidence i.e. original sale deed was
not produced before the court below. As per
Section 64 of the Act, 1872, a document
must be proved by primary evidence except
in cases which have been enumerated in
Section 65 of the Act, 1872.

22. In the present case, no factual
foundation has been laid by the plaintiff in
the plaint or by filing any application
seeking leave of the Court to prove the sale
deed by secondary evidence on the ground
that they do not have the primary evidence
i.e. original sale deed. The law is settled that
to take the benefit of Section 65 of the Act,
1872, the party has to establish that for bona
fide reasons, it could not produce the
primary evidence. In the present case, the
plaintiff did not lay any factual foundation
giving reasons for not producing the primary
evidence, therefore, the certified copy of the
sale deed being secondary evidence could
not be read in evidence.

23. In this respect, it would be
beneficial to have a glance at a few
judgements of the Apex Court where the
Apex Court has elaborated the preconditions
for proving a fact by secondary evidence.

24. The Apex Court in the case of
H.Siddiqui (Dead) by LRS. Vs. A.
Ramalingam (2011) 4 SCC 240 in
paragraph 12 has held as under:-

"12. The provisions of Section 65
of the 1872 Act provide for permitting the
parties to adduce secondary evidence.
However, such a course is subject to a large
number of limitations. In a case where
original documents are not produced at any
time, nor has any factual foundation been
laid for giving secondary evidence, it is not
permissible for the court to allow a party to
adduce
secondary
evidence.
Thus,
secondary evidence relating to the contents
of a document is inadmissible, until the nonproduction of the original is accounted for,
to bring it within one or other of the cases
provided for in the section. The secondary
evidence
must
be
authenticated
by
foundational evidence that the alleged copy
is a true copy of the original. Mere
admission of a document in evidence does
not amount to its proof. Therefore, the
documentary evidence is required to be
proved by law. The court has an obligation
to decide the question of the admissibility of
a document in secondary evidence before
making endorsement thereon. (Vide Roman
5 All. Jamia Urdu Aligarh Regd Vs. Jamia Urdu Sansthan & Ors.
807
Catholic Mission v. State of Madras AIR
1966 SC 1457; State of Rajasthan v.
Khemraj (2000) 9 SCC 241, LIC v. Ram Pal
Singh Bisen (2010) 4 SCC 491 and M.
Chandra v. M. Thangamuthu (2010) 9 SCC
712)."

25. In the case of Rakesh Mohindra
Vs. Anita Beri and Others (2016) 16 SCC
483, the Apex Court again reiterated that if
a party desires to give secondary evidence,
it has to lay down the factual foundation that
despite best effort, it is not able to produce
primary evidence for the reason beyond its
control. Paragraphs nos. 15 & 20 of the said
judgement are reproduced herein below:-

"15.
The
preconditions
for
leading secondary evidence are that such
original documents could not be produced
by the party that relied upon such documents
in spite of best efforts, unable to produce the
same which is beyond their control. The
party sought to produce secondary evidence
must establish for the non-production of
primary evidence. Unless, it is established
that the original document is lost or
destroyed or is being deliberately withheld
by the party in respect of that document
sought to be used, secondary evidence in
respect of that document cannot accepted."

20. It is well settled that if a party
wishes to lead secondary evidence, the court
is obliged to examine the probative value of
the document produced in the court or their
contents and decide the question of
admissibility of a document in secondary
evidence. At the same time, the party has to
lay down the factual foundation to establish
the right to give secondary evidence where
the original document cannot be produced.
It is equally well settled that neither mere
admission of a document in evidence
amounts to its proof nor mere making of an
exhibit of a document dispense with its
proof, which is otherwise required to be
done in accordance with law."

26. In this respect, it would be apt to
reproduce paragraphs nos.11, 13, 14 & 17 of
the judgment of the Apex Court in the case
of Jagmail Singh and Another Vs.
Karamjit Singh and Others (2020) 5 SCC
178:-

"11. A perusal of Section 65
makes it clear that secondary evidence may
be given with regard to existence, condition
or the contents of a document when the
original is shown or appears to be in
possession or power against whom the
document is sought to be produced, 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 notice
mentioned in Section 66 such person does
not produce it. It is a settled position of law
that for secondary evidence to be admitted
foundational evidence has to be given being
the reasons as to why the original evidence
has not been furnished.

13. In the matter of Rakesh
Mohindra v. Anita Beri (2016) 16 SCC 483
this Court has observed as under:-

"15.
The
preconditions
for
leading secondary evidence are that such
original documents could not be produced
by the party relying upon such documents in
spite of best efforts, unable to produce the
same which is beyond their control. The
party sought to produce secondary evidence
must establish for the non-production of
primary evidence. Unless, it is established
that the original document is lost or
destroyed or is being deliberately withheld
by the party in respect of that document
sought to be used, secondary evidence in
respect of that document cannot be
accepted."
808 INDIAN LAW REPORTS ALLAHABAD SERIES

14. It is trite that under the
Evidence Act, 1872 facts have to be
established by primary evidence and
secondary evidence is only an exception to
the rule for which foundational facts have to
be established to account for the existence of
the primary evidence. In the case of H.
Siddiqui v. A. Ramalingam (2011) 4 SCC
420, this Court reiterated that where
original documents are not produced
without a plausible reason and factual
foundation for laying secondary evidence
not established it is not permissible for the
court to allow a party to adduce secondary
evidence.

17. Needless to observe that
merely the admission in evidence and
making exhibit of a document does not prove
it automatically unless the same has been
proved in accordance with the law."

27. In the case of Appaiya (supra)
relied upon by the learned counsel for the
appellant,
the
Apex
Court
after
considering the various provisions of The
Indian Evidence Act, 1872 namely,
Sections 61 to 65, Section 74, Section 77,
Section 79 and Section 57 (5) of the
Registration Act held that the High Court
has erred in holding that Exhibit A-1 sale
deed dated 27.08.1928 could not be
admitted in evidence. The case of Appaiya
(supra) is distinguishable and the law
postulated in the said case is not applicable
in the facts of the present case inasmuch
as in the case of Appaiya (supra), the issue
before the Apex Court was not that the
precondition to prove a document by
secondary evidence has been complied
with or not whereas in the present case, it
is evident from the record that the
precondition to prove the sale deed dated
27.12.2001 by secondary evidence has not
been complied with inasmuch as plaintiff
did not lay any factual foundation
establishing that despite its best effort, it
could not give primary evidence.

28. Further, this Court may note that
the First Appeal Court has recorded a
categorical finding that the plaintiff has
failed to establish its title by producing
cogent evidence. The First Appellate
Court also recorded a finding of fact that
no evidence had been adduced by the
plaintiff to establish that Smt. Saba Khan
was the Registrar of the plaintiff's society.
The First Appellate Court further held that
the sale deed dated 31.03.1997 registered
on 04.06.1997 reveals that the sale deed
was executed by one 'Jamia Urdu Shiksha
Sanstha' whereas the plaintiff is Jamia
Urdu (Registered) and it failed to establish
that they are the same and there is no
difference between plaintiff and Jamia
Urdu Shiksha Sanstha. The aforesaid
finding returned by the First Appellate
Court is a finding of fact, and learned
counsel for the appellant did not assail the
said finding.

29. It is further pertinent to note that
the suit has been filed on the ground that the
sale deed dated 27.12.2001 executed by the
defendant's first set in favour of the
defendant's
second
set
was
without
authority.

30. The suit was instituted in the year
2010 and there is no pleading in the plaint as
to the date on which the plaintiff acquired
the knowledge about the execution of the
sale deed dated 27.12.2001. Paragraphs
No.5 & 6 of the plaint are reproduced
hereinbelow:-

"5. That on 1.6.10 the defendants
in collusion with each other came on spot
and tried to take forcible possession with a
view to raise illegal construction over 111
5 All. Jamia Urdu Aligarh Regd Vs. Jamia Urdu Sansthan & Ors.
809
square yards land out of total land 2500.14
square yards aforesaid but they could not
get success in their illegal design due to the
resistance made by the plaintiff and its
employees. However the defendants and
their associates clearly alarmed and
threatened that they will take forcible
possession over 111 square yard land as
detailed at the foot of the plaint in Schedule
'B' which is the subject matter in the instant
suit and will raise illegal construction and
further threatened to transfer, alienate and
dispose off the same at any opportune
moment.

6.
That
after
getting
the
knowledge of the said sale deed dated
27.12.2001
the
plaintiff
applied
for
obtaining the certified copy of the same on
2.6.2010 which could be available to the
plaintiff on 5.6.2010 then the plaintiff for the
first time came to know about the contents of
the same and also about the fraud, cheating,
and misrepresentation committed by the
defendants in collusion with each other in
obtaining the said sale deed dated
27.12.2001 which is absolutely fraudulent,
fictitious, fabricated and forged document
which deserves to be declared as null and
void on following grounds:-

(A). That the defendants in
collusion with each other planned to usurp
and swallow up the property of Schedule 'A'
of the plaintiff, for that purposes the
defendants in collusion with each other
collusively, maliciously, fraudulently and
fictitiously created a fake institution Jamia
Urdu
Sanstha
and
connected
the
registration No. of the plaintiff i.e. Jamia
Urdu, Aligarh and its the then Registrar who
is no more in the mortal world without any
right and authority executed a General
Power of Attorney dated 28.9.01 with
regard to the property of Schedule 'A' in
favour of defendant No.2 who as attorney
holder of Jamia Urdu Sanstha transferred,
alienated and disposed of a plot measuring
111 square yards out of Khasra No.539 (out
of the land of the plaintiff of Schedule 'A')
situated at Dhorra Maufi, Pargana & Tehsil
Koil, District Aligarh as detailed at the foot
of the plaint in Schedule 'B' by virtue of
registered sale deed dated 27.12.2001 for a
total sale consideration of Rs.80,000.00/-.
The said plot has been transferred out of the
land of the plaintiff of Schedule 'A' of which
the defendants have no right and authority
to do the same in any manner whatsoever.

(B). That the then Registrar
Anwar Syeed had no right and authority
appointed the general power of attorney
holder dated 28.09.01 in favour of defendant
No.2 nor defendants Ist Set or the then
Registrar of Jamia Urdu, Aligarh or Jamia
Urdu Sanstha Aligarh had any right and
authority to transfer, alienate or dispose off
the land in question or its part to defendants
Ist Set in any manner whatsoever more
particularly when the institutional property
(plaintiff's
property)
could/cannot
be
transferred, alienated or disposed off in any
manner whatsoever.

(C). That defendant IInd Set never
acquired any right, title or interest in the
property of Schedule 'B' on the basis of
fictitious and forged sale deed dated
27.12.2001. Furthermore, she never became
the owner nor got possession over the same.

(D). That the transaction of the
sale deed dated 27.12.2001 is absolutely a
fake and imposter transaction which does
not carry any weight in the eye of law nor
the same is recognized under any law.

(E). That no amount of sale
consideration ever passed under the said
alleged sale deed nor any amount is
deposited in the account of the plaintiff.

(F). That the said alleged sale
deed never acted upon either on spot or on
record.
810 INDIAN LAW REPORTS ALLAHABAD SERIES

(G). That the alleged sale deed
dated 27.12.2001 is outcome of collusion
and connivance of scribe, witnesses,
employees of the office of Sub-Registrar,
Koil, Aligarh and also of the defendants."

31. The plaintiff to circumvent the
question of limitation deliberately did not seek
the cancellation of the sale deed dated
27.12.2001 inasmuch as the plaintiff to seek
the cancellation of the sale deed had to
establish that the suit had been filed within
three years from the date it acquired
knowledge of the execution of sale deed
whereas in the present case, the plaintiff did
not state the date of knowledge of the sale
deed.

32. The plaintiff has not assailed the sale
deed dated 27.12.2001 and surreptitiously,
prayed for a decree of permanent injunction
restraining the defendant second set from
interfering with the possession of suit
property.

33. This Court is conscious of the fact
that this issue was not raised before the Trial
Court and the First Appellate Court, therefore,
this Court may not deal with the said issue in
the second appeal, but the law is settled that
the question of limitation is a pure question of
law, and if it is manifest from the pleading that
the suit is barred by limitation, and no question
of fact is to be gone into to conclude that the
suit is barred by limitation, the Court under
Section 3 of the Limitation Act has jurisdiction
to look into the question of limitation, even if
no plea of limitation has been set up by the
defendant or no issue is framed regarding
limitation. In such an event, the suit deserves
to be rejected since the question of limitation
is a pure question of law.

34. In this respect, it would be apt to
reproduce paragraph 5 of the judgement of
Apex Court in the case of Narne Rama
Murthy Vs. Ravula Somasundaram and
Others (2005) 6 SCC 614:-

"5. We also see no substance in
the contention that the suit was barred by
limitation and that the courts below should
have decided the question of limitation.
When limitation is the pure question of law
and from the pleadings itself it becomes
apparent that a suit is barred by limitation,
then, of course, it is the duty of the court to
decide limitation at the outset even in the
absence of a plea. However, in cases where
the question of limitation is a mixed question
of fact and law and the suit does not appear
to be barred by limitation on the face of it,
then the facts necessary to prove limitation
must be pleaded, an issue raised and then
proved. In this case the question of
limitation is intricately linked with the
question whether the agreement to sell was
entered into on behalf of all and whether
possession was on behalf of all. It is also
linked with the plea of adverse possession.
Once on facts it has been found that the
purchase was on behalf of all and that the
possession was on behalf of all, then, in the
absence of any open, hostile and overt act,
there can be no adverse possession and the
suit would also not be barred by limitation.
The only hostile act which could be shown
was the advertisement issued in 1989. The
suit filed almost immediately thereafter."

35. In the present case, the plaintiff has
not stated the date on which he acquired the
knowledge of the execution of the sale deed
dated 27.12.2001. The limitation for filing a
suit for cancellation of the sale deed is three
years. The suit was instituted in the year
2010 about 9 years after the date of
execution of the sale deed. The facts in the
present case demonstrate that the plaintiff
deliberately did not pray for the cancellation
5 All. Rajendra Singh & Ors. Vs. State of U.P. & Ors.
811
of the sale deed since the limitation for filing
a suit for cancellation of the sale deed is
three years whereas in the present case, the
suit has been instituted after about 9 years
from the date of execution of sale deed.
From the pleading in the plaint, it is evident
that the suit is barred by limitation and the
question of limitation in the instant case is a
pure question of law and not a mixed
question of fact and law.

36. Therefore, this Court for the
aforesaid reason is also of the view that the
suit of the plaintiff is nothing but an abuse
of the process of law since the plaintiff knew
that it could not succeed in the suit being
barred by limitation if it prays for
cancellation of sale deed.

37. In such view of the fact, this court
is of the view that no substantial question of
law is involved in the present appeal which
needs to be answered by this Court.
Consequently, the appeal lacks merit and is
hereby dismissed with a cost of Rs.25,000/-
.
----------
(2024) 5 ILRA 811
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Special Appeal No. 441 of 2024

Rajendra Singh & Ors. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Aklank Kumar Jain, Arun Kumar Rana

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Basic Education Act,
1972 - Right of Children to Free and
Compulsory
Education
Act,
2009
-
Assistant teacher - Essential qualification
- Petitioner did not possess Teacher
Eligibility Test - Effect - After according
approval, the petitioner were appointed,
but
no
salary
was
paid
-
Validity
challenged - Held, TET was an essential
qualification with effect from the date of
notification dated 23.8.2010 issued by
NCTE. Admittedly, in the present case, the
recruitment process had commenced later
on and therefore, it was mandatory that
the
petitioners
must
possess
TET
qualification at the time of selection, which
they did not possess. (Para 14)

B. Service Law - Selection - Requisite
qualification - No date was fixed in the
advertisement, on which a candidate may
possess requisite qualification - Effect -
Held, uncertainty of the date may also lead
to a contrary consequence viz. even those
candidates
who
do
not
have
the
qualifications in praesenti and are likely to
acquire them at an uncertain future date,
may apply for the posts thus swelling the
number of applications. But a still worse
consequence may follow, as it may leave
open a scope for malpractices. The date of
selection may be so fixed or manipulated as
to entertain some applicants and reject
others, arbitrarily - In the absence of a
fixed
date
indicated
in
the
advertisement/notification
inviting
applications with reference to which the
requisite qualifications should be judged,
the only certain date for the scrutiny of the
qualifications will be the last date for
making the applications. (Para 17)

Special Appeal dismissed. (E-1)

List of Cases cited:

1. Writ A No. 12908 of 2013; Shiv Kumar Sharma
Vs St. of U.P. & ors. decided on 31.05.2013