M.M. Sankanagouder Vs. the State of Mysore and ors.

- section 100: [a.s. bopanna, j] second appeal - suit for declaration and permanent injunction - plaintiff claimed to be the donee under the gift deed - finding of the lower appellate court that the gift deed ex.p1 cannot be accepted as the attesting witness not being examined - held, that the document marked as ex.p-1 is the certified copy of the gift deed which is marked as secondary evidence as provided under section 65 of the evidence act after laying the foundation vide ex.p-9 stating that the original of the document is deposited with the pld bank. however, the perusal of the records would indicate that the defendants have not raised any objection before the trial court for marking the certified copy of the document at the time of evidence nor is it indicated as a ground in the appeal memo before the lower appellate court. there is no objection raised at the stage of marking the document as secondary evidence though it is contended that the mode of proof is irregular and insufficient. the finding of the lower appellate court that the document at ex.p-1 being inadmissible is not sustainable. that apart, it is noticed that the endorsement (ex.p-9) issued by the bank is of the year 1996 and as such if the loan has been discharged and if the document is available with the plaintiff, it would be open for him to produce the same before the lower appellate court along with an application. matter is remanded to lower appellate court. a. narayana pai, c.j.1. the order impugned in this case is an order of the state government bearing no. rd 208 eng 39 dated 10/19th june 1964, whereby sanction was accorded to the pre-enlistment service in respect of 130 officials of belgium. bijapur and dharwar districts as noted in the annexed statement being counted for purposes of pay, pension and seniority.2. the attack or challenge is limited to the question of seniority only.3. so far as that matter is concerned, the contentions and arguments are not different from those considered in our order just pronounced in writ petition no. 530 of 1969 (reported in 1972 lab ic 1204 (mys)) and connected cases.4. applying the same, therefore, we quash the impugned order bearing no. rd 208 eng 39, dated 10/19th june 1964 to the extent it directs that the pre-enlistment service shall be taken into account for the purpose of seniority.