MARWARI KUMHAR AND ORS. versus BHAGWANPURI GURU GANESHPURI AND ANR.

Citation: [2000] SUPP. 2 S.C.R. 368 · Decided: 10-08-2000 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Disposed off

Judgment (excerpt)

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B 
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G 
H 
MARWARI KUMHAR AND ORS. 
v. 
BHAGWANPURI GURU GANESHPURI AND ANR. 
AUGUST 10, 2000 
rv.N. KHARE AND S.N. VARIAVA, JJ.] 
Evidence Act, (872-Section 65(c), (f)-Secondary evidence-In case of 
public documents which is lost or destroyed-Whether admissible in evi-
dence-Held, Yes. 
Civil Procedure Code, 1908-Suit for declaration-Between appellants 
and respondents becoming .final-Subsequent suit for possession by appel-
lants-Respondents claiming title by adverse possession-No pleading that 
title became adverse after the decree in declaration suit-Suit decreed by trial 
Court-Appeal allowed by Appellate Court-Second appeal by appellant dis-
missed-Whether respondents can claim adverse possession-Held, no. 
The Appellants, belonging to the Marwari Kumhar Community were 
holding religious functions in a temple and were using the Dharamshala 
situated on the suit property. They had engaged one 'G' who acted as a 
Pujari for the temple. After the death of 'G' his wife and son, the respond· 
ents herein, started claiming ownership to the property. The Community, 
therefore, filed a representative suit, in December 1945, for a declaration 
of their title against the respondents. They also claimed in that suit that 
they were entitled to keep on performing their religious functions and to 
use the Dharamshala as they always have been doing. The respondents 
contended that the suit property was owned by 'G' and that the Commu-
nity had no right, title or interest in the suit property. The suit was decreed 
in favour of the Community. It was specifically held that 'G' and the 
respondents were mere Pujaris. Against the decree the respondents filed 
an Appeal. That Appeal was allowed. The Community then filed a Second 
Appeal. The Second Appeal was allowed in 1948. The decree .of the trial 
court was. restored by the High Court and it became final. 
Since the respondents again started asserting their title, a second 
suit, for possession of the property, was filed in December, 1960. In this"suit 
the appellants claimed that the 1st respondent had executed a Nokarnama 
on 31st October 1948, that they had lost all their papers. In the suit the 
368 
MARWARI KUMHAR v. BHAGWANPURI GURU GANESHPURI 
369 
Appellants relied upon an ordinary copy of the judgment in the earlier suit 
and a certified copy of the decree in that suit. The Nokarnama was also lost 
and only oral evidence was led about it. The respondent/defenda1 its again 
claimed title as legal heirs of deceased 'G'. The respondents also claimed 
that they and their predecessor i.e., G were in open, adverse and hostile 
possession since long and that in any event they had acquired title by 
adverse possession. 
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B 
The trial court relied upon the judgment in the earlier proceedings . 
and held that the title in the property vested in the community. It was 
noted that it was already held that the respondents and their predecessor 
were on the suit property only as Pujaris. The trial court accepted the oral 
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evidence and held that it was proved that a Nokarnama was executed. It 
was held that the earlier Judgment was binding on the respondents and 
that this suit was not barred by Order 2 Rule 2 C.P.C. It was held that the 
suit was within· time and that the respondents had not been able to prove 
adverse possession. 
The appeals filed by the respondents were allowed by a common 
Judgment. The Appellate Court held that the earlier judgment being a 
public document only a C'ertified copy could have been tendered in evi• 
dence. The Appellate Court held that the earlier judgment could not be 
held to have been proved as only an ordinary copy had been tendered in 
evidence, the Appellate Court held thatthe Community had failed to prove 
its title and that the Nokarnama was not proved. The Appellate Court held 
that the Respondents had been able to prove that 'G' and the respondents 
had been in possession for a long period of time and that they perfected 
title liy adverse possession, the Appellate Court dismissed the suit. 
The Appellants filed a second Appeal which was dismissed. It was 
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held that an ordinary copy of the earlier judgment could not have been 
admitted in evidence and that the same could not be looked into, that the 
appellants had failed to prove their title to tile suit property; that tile 
Nokarnama was not proved and that the respondents have acquired title 
G 
by adverse possession. 
Disposing of the appeal, the Court 
HELD

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