SMT. DAYAMATHI BAI versus SRI K.M. SHAFFI

Citation: [2004] SUPP. 3 S.C.R. 336 · Decided: 04-08-2004 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
D 
SMT. DAYAMATHI BAI 
v. 
SRI K.M. SHAFFI 
AUGUST 4, 2004 
(ASHOK BHAN AND S.H. KAPADIA, JJ.] 
Code of Civil Procedure, 1908-0rder XIJJ Rule 3 : 
Evidence Act, 1872-Section 65 : 
Civil suit-Production of secondary evidence-No objection raised 
against the evidence at trial stage-Objection to mode of proof at appellate 
stage-Permissibility of such objection-Held: Mode of proof falls within 
procedural law-Such objection can be taken before the document is 
marked as rm exhibit and admitted to the record and not at appellate stage. 
Respondent-plaintiff filed a suit for declaration that the suit plot 
was his and his brother's absolute property and sought injunction 
restraining the appellant-defendant from entering the suit property. 
According to the respondent the title came t!l him through the sons of 
E 'G' vide a registered sale deed dated 14.11.1944 Exhibit P-1 and later 
on under Exbt. P-2 a gift deed. Appellant claimed title of only a portion 
of the suit property claiming to have title of the same through wife of 
'G'. Appellant did not challenge Exbts. P-1 (the certified copy' of sale 
deed) and P-2. Trial Court decreed the suit inter a/ia holding that Exbt. 
F P-1 was admissible as the document was 30 years old and hence 
presumption under Section 90 of Evidence Act applied to the same and 
that Exbt. P-2 stood proved. Lower appellate Court, dismissed the suit 
holding that Exbts. P-1 and P-2 were not proved as original sale deed 
(Exbt. P-1) was not produced, that plaintiff had not laid foundation for 
admissibility of secondary evidence under Section 65(a) and (t). In 
G second appeal High Court upheld the order of trial Court. 
In appeal to this Court appellant contended that the certified copy 
of the sale deed being secondary evidence was not admissible as no 
steps were taken to produce the original sale deed nor any step was 
H taken to prove the loss of the same. 
336 
11
DAYAMATHI BAI v. K.M. SHAFFI [KAPADIA, J.] 
337 
Dismissing the appeal, the Court 
A 
HELD : 1.1. In th.e present case, the objection was not that the 
certified copy of Ex. Pl is in itself inadmissible but that the mode of 
proof was irregular and insufficient. Objection as to the mode of proof 
falls within procedural law. Therefore, such objections could be B 
waived. They have to be taken before the document is marked as an 
exhibit and admitted to the record. [341-C-DI 
R. V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. 
Temple and Anr., (20031 8 SCC 752 and Gopal Das and Anr. v. Sri 
Thakurji and Ors., AIR (1943) PC 83, relied on. 
C 
Evidence by Sarkar 15th Edition, page 1084, referred to. 
1.2. In the present case, when the plaintiff submitted a certified 
copy of the sale deed (Ex.Pl) in evidence and when the sale deed was 
taken on record and marked as an exhibit, the appellant did not raise D 
any objection. Even execution of Ex. P2 was not challenged. In the 
i:ircumstances, it was not open to the appellant to object to the mode 
of proof before the lower appellate Court. If the objection had been 
taken at the trial stage, the plaintiff could have met it by calling for 
the original sale deed which was on record in collateral proceedings. E 
1343-C-D) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2434 of 
2000. 
From the Judgment and Order dated 18.12.1998 of the Karnataka F 
High Court in R.S.A. No. 802/1995. 
Kiran Suri for the Appellant. 
S.K. Kulkarni, M. Gireesh Kumar and Ankur S. Kulkarni for 
Khwairakpam, Nobin Singh for the Respondents. 
G 
The Judgment of the Court was delivered by 
KAPADIA, J. : This appeal by special leave is filed by the original 
defendant against the judgment and order dated 18th December, 1998 
passed by the High Court of Karnataka in R.S.A. No. 802 of 1995. 
H 
338 
SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R. 
A 
Briefly, the facts giving rise to this appeal are as follows:-
K.M. Shaffi, respondent herein instituted a suit bearing O.S. No. 451/ 
84 in the Court of Principal Munsiff, Bellary (hereinafter for the sake of 
brevity referred to as "the trial Court") for a declaration that a portion of 
B T.S. No. 272-A and T.S. No. 273-B admeasuring 80'xl20' (hereinafter for 
the sake of brevity referred to as "the suit plot") was his and his brother's 
absolute property. In the said suit, the plaintiff also sought an injunction 
restraining the appellant herein (defendant) from entering the suit plot. 
T.G. Sreenivasa Pillai, T.G. Vivekananda Pillai and T.G. 
C S

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