Appellate Use of Unexhibited Public Documents Produced by the Plaintiff & Limits of Second Appeal Interference under Section 100 CPC

Case: PIRZADA SAIYED BAHAUDDIN B. KADRI(SINCE DECD.THRO HEIRS & ORS. v. STATE OF GUJARAT
Court: Gujarat High Court
Date: 11-02-2026
Coram: HONOURABLE MR. JUSTICE J. C. DOSHI
Proceeding: Second Appeal No. 27 of 2006 (Section 100 CPC)

1. Introduction

The litigation arose from a dispute over religious and burial activities at “Danteshwar Hajira @ Bada Hajira” situated on Survey Nos. 322/1 and 322/2 at Pratapnagar, Danteshwar, Vadodara (“suit land”). The plaintiff, claiming to be a religious head (Dharma Guru) of the Qadariya lineage, sought:

  • Declaration that a Collector’s notice dated 04.02.1986 restraining activities within the monument was null and void; and
  • Permanent injunction restraining the State from obstructing religious observances and burials on/around the tomb complex.

The State contested on, inter alia, the premise that the site was a protected monument governed by the Ancient Monuments and Archaeological Sites and Remains (AMASR) Act, 1958.

The trial court decreed the suit, but the first appellate court reversed and dismissed it. The second appeal primarily attacked the appellate court’s reliance on documents said to be “unexhibited” and raised objections about the appellate court allegedly deciding on issues not tried below, and not remanding the matter.

2. Summary of the Judgment

The High Court dismissed the second appeal, holding that no “substantial question of law” arose. In essence, the Court held:

  • The first appellate court’s reference to documents was not an illegality warranting interference in second appeal, especially where those documents were the plaintiff’s own filings (lists at Exhibit-3 and Exhibit-55) and were public documents (revenue entries, governmental/ASI orders, and a former ruler’s notification).
  • The plaintiff failed to plead and prove a legally cognizable customary right to burial in the protected monument area, including failure to establish lineage, appointment/recognition as Dharma Guru, or consistent custom through credible evidence.
  • The site’s status as a protected monument (including historical notifications) and the statutory restriction under Section 19 of the AMASR Act, 1958 undermined the burial claim, as burial would entail digging beyond what the statute permits.
  • The suit suffered from a significant procedural deficiency: the Archaeological Survey of India, being directly concerned, was not joined, despite the notice itself referring to ASI’s objections.
  • The Court noted the issue had effectively been negatived earlier when the plaintiff’s challenge in Special Civil Application No.13033 of 2000 (as referred) was dismissed in limine regarding permission for burial.

3. Analysis

3.1 Precedents Cited

(a) Sardar Sarovar Narmada Nigam Ltd. v. Rupdevsinhji Dolatsinhji Gohild-decd., 2021 (4) GLR 3361

The appellant relied on this decision to argue that mere marking/admission of documents does not automatically make them “evidence” unless admissibility is judicially determined. The High Court, however, found the appellant’s grievance misplaced on the facts: the documents in question were (i) filed by the plaintiff himself, and (ii) of a public character (revenue entries/notifications/orders), with no serious dispute about authenticity. Thus, the case did not turn on a contested private-document admissibility question of the type for which the appellant invoked this authority.

(b) Jaichand (Dead) through Lrs and Ors. v. Sahnulal and Anr., 2024 SCC OnLine SC 3864

This precedent was deployed by the High Court to restate the narrow corridor of second appellate interference: findings of fact by the first appellate court are ordinarily final, unless vitiated by (i) contravention of mandatory law, (ii) being contrary to settled law, (iii) reliance on inadmissible evidence, or (iv) absence of evidence. The High Court used this to frame the core inquiry: whether the appellant’s objections truly disclosed a “substantial question of law,” or merely a fact-centric attempt to reopen the appellate appreciation.

(c) Gurbachan Singh (Dead) through Legal Representatives v. Gurcharan Singh (Dead) through Legal Representatives and Others, (2023) 20 SCC 104

This decision was cited to reinforce that Section 100 CPC is confined to substantial questions of law and that “reappreciation of evidence” is typically impermissible, though not an absolute bar where legal error is shown. The High Court relied on this to clarify that the appellant could not convert documentary evaluation (especially of documents he himself produced) into a second-appeal-worthy legal controversy.

(d) Prior proceedings: “Special Civil Application No.13033 of 2000” (as referred in the judgment)

Although not treated as a formal precedent, the High Court used this prior dismissal in limine as contextual reinforcement that the plaintiff’s burial-related claim had already failed when tested against the protected monument framework and administrative refusal by ASI. The Court treated this as further reason not to entertain the second appeal as raising anything substantial.

3.2 Legal Reasoning

(i) Why the “unexhibited documents” point did not mature into a substantial question of law

The substantial questions framed at admission were anchored in Order XIII Rules 4, 5, and 7 CPC (endorsement/exhibition and record-formation), and in criticism that the appellate court relied on documents not admitted in evidence. The High Court answered this by a fact-law synthesis:

  • Source and ownership of documents: The documents were filed by the plaintiff himself with the plaint (Exhibit-3 and Exhibit-55). The Court held the plaintiff “cannot turn blind” to documents he relied upon to found his claim, even if he did not get them formally exhibited.
  • Public document character: The materials were described as revenue entries, orders of the Superintending Archaeologist/ASI, and a former ruler’s notification (Farmaan/notification). The Court treated them as “unquestionable” and noted the plaintiff did not dispute them. This reduced the force of a technical “exhibition” objection, because the core complaint (risk of unreliable material) was absent.
  • Appellate power to call/consider documents: The Court invoked Order XLI Rule 27(1)(b) CPC, which allows additional evidence where required for pronouncing judgment or for “any other substantial cause.” The High Court treated the appellate court’s reliance on these documents as justified on the premise that they were essential to decide the protected monument/legal status issues.

Notably, the High Court’s approach signals a practical principle: Section 100 CPC will not be used to police procedural formality (exhibition/endorsement) in isolation where (a) the appellant is the producer of the material, (b) the material is public/official and undisputed, and (c) the appellate court’s use of it is tied to deciding the real controversy.

(ii) Failure to plead and prove customary right and status

The plaintiff argued customary and religious rights, invoking the AMASR Act’s recognition of worship/observance. The High Court rejected the claim mainly on evidentiary and pleading deficits:

  • The plaint lacked “necessary averments” as to how the plaintiff became Dharma Guru, who appointed/recognized him, and the factual basis of the claimed office and authority.
  • Bare assertions of lineage and customary burial practice were held insufficient. The Court noted the plaintiff did not produce strong proof of lineal descent; even the pedigree did not match his claim.
  • A key adverse inference: though the plaintiff claimed his elder brother administered the site, he did not examine him to substantiate custom, practice, or rights.

(iii) Protected monument status and statutory restrictions under the AMASR Act, 1958

The Court accepted the protected status of Bada Hajira as long-standing, tracing it to:

  • Notification No.1 of 1938 (03.05.1938) issued by the Gaikwad of Baroda State under the Ancient Monument Protection Act, 1904 (as applied), extending protection to “Hajira at Danteshwar village” (Bada Hajira).
  • Post-independence acknowledgement (1951) that no fresh notification was required because protection was already declared.

On statutory interplay, the plaintiff relied on Section 5(6) and Section 16 of the AMASR Act, 1958 to argue customary religious observance is recognized. The High Court’s decisive statutory pivot, however, was Section 19: the Court reasoned burial would require digging beyond one foot, and thus would be barred. In effect, even if religious observance is recognized, the plaintiff’s specific act (burial involving excavation) conflicts with statutory protection.

(iv) Non-joinder of necessary party (ASI) as a structural defect

The Court highlighted that the notice itself recorded ASI’s objection and that Bada Hajira is governed by the Archaeological Survey of India. Yet the plaintiff sued only the State of Gujarat. The Court treated ASI as a necessary party for any effective adjudication on rights within a protected monument. This observation is important: claims seeking functional permission/rights in protected monuments should ordinarily implead the authority statutorily charged with control and regulation, otherwise relief may be practically and legally ineffective.

3.3 Impact

  • Second appeal screening becomes stricter where the “legal question” is document-handling formalism: The decision indicates that exhibition/endorsement arguments will not automatically qualify as “substantial questions of law” under Section 100 CPC, particularly where the appellant produced the documents and their public nature/authenticity is not in dispute.
  • Reinforcement of protected monument constraints against burial claims: The judgment illustrates how AMASR Act protections can override asserted customary practices, especially where the practice involves physical alteration (excavation/construction) of protected areas.
  • Litigation design in heritage/monument disputes: Parties seeking declaratory/injunctive relief affecting protected monuments should implead the competent heritage authority (here, ASI) and plead/prove specific customary rights with particulars and corroboration. Bare status-based assertions will likely fail.
  • Appellate reliance on “plaintiff’s own documents” as a fairness principle: A litigant cannot strategically file documents to found a claim and later object to their consideration on technical exhibition grounds when the contents undermine his case.

4. Complex Concepts Simplified

4.1 “Substantial Question of Law” (Section 100 CPC)

A second appeal is not a third round of fact-finding. The High Court intervenes only when there is a real legal issue of general importance or a serious legal error affecting the outcome—e.g., ignoring mandatory law, relying on plainly inadmissible material in a way that changes the result, or deciding without evidence.

4.2 “Exhibited” vs “Produced” Documents

“Exhibited” usually means the court has formally marked a document as evidence. Here, the High Court emphasized that where documents are (i) produced by the plaintiff to support his own case, and (ii) official/public and undisputed, an appellate court’s reference to them is unlikely to be treated as a second-appeal-level legal error.

4.3 Public Documents

Official records like revenue entries, government notifications, and orders of public authorities are treated differently from private writings because they carry official authenticity. That does not eliminate all admissibility rules, but it reduces the force of objections based solely on formality when authenticity is not contested and relevance is direct.

4.4 “Customary Right”

A custom is not proved by assertion. Courts expect particulars (what the custom is, since when, how consistently followed, by whom) and credible evidence (witnesses, records, past instances). The judgment found the pleadings and proof inadequate.

4.5 Protected Monument Restrictions (AMASR Act, 1958)

Even if worship or religious observance is recognized, activities that physically alter the monument/land—such as excavation for burial—can be restricted by statute. The Court treated burial-related digging as conflicting with Section 19 limitations.

5. Conclusion

The Gujarat High Court’s dismissal of the second appeal reaffirms two connected principles: (i) Section 100 CPC is not a forum for re-arguing facts or converting procedural technicalities into “substantial questions of law,” especially where the questioned documents are the plaintiff’s own undisputed public/official records; and (ii) protected monument status under the AMASR Act, 1958 meaningfully constrains claims of burial rights, particularly where the act entails excavation and alteration of the protected site. The decision also underscores practical pleading and party-joinder discipline in heritage disputes—customary rights must be specifically pleaded and proved, and the ASI should ordinarily be before the court when relief concerns a protected monument.