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2001 DIGILAW 764 (PNJ)

Swarn Singh v. Narinder Kaur

2001-07-26

R.C.KATHURIA

body2001
Judgment 1. This revision petition is directed against the order dated 6-2-2001 passed by the Civil Judge (Senior Division), Kapurthala whereby application moved by defendant Nos. 1 and 2 seeking permission of the Court to prove the agreement of exchange dated 8-2-1983 by way of leading secondary evidence, has been disallowed. 2. The essential facts for the decision of the present petition need to be noticed. Banta Singh and Dalip Singh sons of Narayan Singh were the owners of land measuring 96 kanals which was recorded in the revenue record in their joint Khata. Out of this land, 23 Kanals 18 Marlas was Niain land located adjacent to village Abadi. The remaining land of 72 kanals was not of good quality and was inferior to the land of 23 kanals 18 marlas. Both the brothers decided to partition their land in order to settle the dispute between their families. A family settlement in the shape of agreement of exchange was executed on 8-2-1983 which was scribed by the Deed Writer. As a result of partition of their joint holdings, the land abutting the Village Abadi was retained by Dalip Singh and the remaining land came to the share of Banta Singh. Mutation No. 578 was sanctioned to this effect on 14-2-1983. Possession of the respective holdings was also transferred. After the death of Dalip Singh and Banta Singh, their heirs consisting of respondent Nos. 1 to 4 and the petitioners succeeded to their respective holdings. Later on, respondent Nos. 1 to 4 filed a suit for possession of the land measuring 71 Kanals, 18 Marlas and in the alternative to the extent of 1/2 share including the land which was subject-matter of the transfer effected by means of sale by the parties out of the total land measuring 96 Kanals, 4 Marlas. The suit was resisted by the petitioners-defendants on the ground of agreement of exchange executed on 8-2-1983 between Banta Singh and Dalip Singh which was the basis of sanction of Mutation No. 578 effected on 14-2-1983. 3. The suit was resisted by the petitioners-defendants on the ground of agreement of exchange executed on 8-2-1983 between Banta Singh and Dalip Singh which was the basis of sanction of Mutation No. 578 effected on 14-2-1983. 3. During the course of trial of the case, plaintiffs-respondents denied the execution of agreement of exchange dated 8-2-1983 and further failed to produce the said document which compelled the defendants-petitioners to move an application for its production before the trial Court and in the alternative seeking permission of the Court to produce the secondary evidence to prove the agreement of exchange dated 8-2-1983. The learned trial Judge disallowed the prayer made vide order dated 6-2-2001. It is against this order, the present revision petition has been filed. 4. I have heard learned counsel for the parties. 5. It is manifest from the order dated 6-2-2001 that the learned trial Judge was mainly influenced by the fact that the agreement of exchange in question is unstamped and unregistered document and for that reason secondary evidence cannot be allowed in respect of this document. This finding of the learned trial Judge had been seriously challenged primarily on the ground that this was not the stage where the question whether the agreement was stamped or unstamped was required to be gone into. Further according to the petitioners, it is only when the document is to be produced in the Court that the Court is to examine the same and the questions of its admissibility would arise. 6. I find considerable merit in the stand taken from the side of the petitioners because, the respondents have not disputed in the written statement that agreement of exchange was not executed between Dalip Singh and Banta Singh. They have failed to produce the said agreement. Therefore, in that situation, the observations made in Bihari Lal V/s. Smt. Ram Piari (1999) 2 Pun LJ 213 would be attracted. In that case, a photostat copy of the Will was filed. Objection was taken in regard to the admissibility of photostat copy. Dealing with this issue, it was observed as under :- "What evidentiary value can be given is a matter to be decided in the suit itself. In that case, a photostat copy of the Will was filed. Objection was taken in regard to the admissibility of photostat copy. Dealing with this issue, it was observed as under :- "What evidentiary value can be given is a matter to be decided in the suit itself. In this connection, it is useful to refer to the decision of this Court in Sinnu V/s. Smt. Pali, reported in (1992) 1 Pun LR 378 : 1992 Pun LJ 74; wherein it has been held that it may also be made clear that the Court in granting permission to lead secondary evidence does not pronounce on the evidentiary value to be attached to the secondary evidence. Viewed from this angle it will be open to the parties to bring on record all possible facts and circumstances which would eventually help the Court to determine the evidentiary value to be given to the photostat copy proposed to be poroduced in the secondary evidence. It may also be made clear that S. 63 of the Evidence Act defines what is secondary evidence and it is open to the parties to raise an objection that the evidence proposed to be given does not in fact fall within the purview of S. 63. This question is left open to be decided according to law at the appropriate stage when it is raised. For the time being, I am concerned only with deciding the question whether the petitioner has made out a case under S. 65(c) of the Act for permission to lead secondary evidence. The present case squarely falls within the parameters laid down in the above decision. In Mukhtiar Singh V/s. Bant Singh (1991) 1 Pun LR 15 : 1991 Pun LJ 143, this Court also held that a photostat copy of the original Will which has been placed on record may be permitted as secondary evidence to be let in. The same view was taken in Smt. Raj Kumari V/s. Shri Lal Chand, (1994) 1 Pun LR 190. The decision in Roman Catholic Mission V/s. State of Madras, AIR 1966 SC 1457 has no application at this stage. Whether the original was produced at any time before any other person is a matter to be decided on evidence. The same view was taken in Smt. Raj Kumari V/s. Shri Lal Chand, (1994) 1 Pun LR 190. The decision in Roman Catholic Mission V/s. State of Madras, AIR 1966 SC 1457 has no application at this stage. Whether the original was produced at any time before any other person is a matter to be decided on evidence. In that case the Supreme Court was dealing with the matter after conclusion of the entire evidence and not at the stage when the secondary evidence is sought to be adduced during the pendency of the suit. As already stated, the value which can be given to the secondary evidence is to be decided at the time of arriving at final decision. The decision in Sital Das V/s. Sant Ram, AIR 1954 SC 606, also cannot be pressed into service since on the facts of this case, the foundation has been laid of the secondary evidence as it is proved that the original was lost when the petitioner was going in a Rickshaw to attend the District Consumer Forum." 7. The Apex Court in Nawab Singh V/s. Inderjit Kaur (1999) 2 Pun LJ 71 , had the occasion to deal with the issue of production of secondary evidence. In that case, the appellant had filed the suit for permanent preventive injunction restraining the defendant-respondent from interfering with the possession of the property in dispute. He had taken the plea that he was a tenant in the shop in dispute and was inducted by the defendant as per rent note dated 23-9-1994. The stand of the appellant was contested by the respondent. The appellant had taken 14 adjournments for adducing evidence and it is thereafter he moved an application seeking production of the rent note from the custody of the respondent, which application was rejected by the trial Court. On the next date of hearing, another application was moved by the appellant seeking permission of the Court for production of secondary evidence of the rent note dated 23-9-1994, which application too was rejected by the trial Court. That order was challenged by him through a revision petition before the High Court but was unsuccessful. The matter was taken to the Apex Court. That order was challenged by him through a revision petition before the High Court but was unsuccessful. The matter was taken to the Apex Court. The only ground which prevailed upon the trial Court to reject the prayer of the appellant was that copy of the rent note sought to be produced by the appellant was of doubtful veracity. The Hon ble Supreme Court did not approve this reasoning of the trial Court with the observation that the trial Court was not justified in forming that opinion without affording the appellant an opportunity of adducing secondary evidence. The definite stand of the appellant was that the original rent note was in possession of the respondent and the case was covered by clause (a) of S. 65 of the Indian Evidence Act, 1872 . 8. The ratio of the above-mentioned cases would apply to the facts of the present case. The learned trial Judge had mainly rejected the prayer on the ground that agreement of exchange was unstamped and unregistered and would not be admissible in evidence. Strength was sought from the observations made in Harshvardhan Singh V/s. Ranveer Singh, AIR 1997 Raj 211. 9. In view of the position of law explained in the cases decided by our own High Court and the Apex Court noticed earlier, it would be premature to go into the question which had influenced the decision of the learned trial Judge. It is only after the document is produced that the trial Court would be in a position to go into the question as to whether it is unstamped and whether it would be inadmissible in evidence. At this stage, the limited question which arose for determination of the learned trial Judge was whether the petitioner had fulfilled the necessary requirement laid down in S. 65(a) of the Indian Evidence Act. In this case, the respondents have not disputed that agreement of exchange was executed and that they have failed to produce the same despite notice. In the given circumstances of the case, the prayer made for leading of secondary evidence on record should not have been disallowed. 10. For the reasons mentioned above, the revision petition is accepted and the petitioners are allowed to produce secondary evidence in respect of agreement of exchange as prayed in the petition. In the given circumstances of the case, the prayer made for leading of secondary evidence on record should not have been disallowed. 10. For the reasons mentioned above, the revision petition is accepted and the petitioners are allowed to produce secondary evidence in respect of agreement of exchange as prayed in the petition. However, it is made clear that it shall be open to the plaintiffs to raise any objection with regard to its admissibility in evidence at the time when this document is sought to be produced in evidence. Under the circumstances, the parties are left to bear their own costs. 11. The parties, through their counsel, are directed to appear before the learned trial Judge on 25-8-2001. Revision allowed.