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2009 DIGILAW 794 (RAJ)

Mahendra Kumar Jain v. Shri Vedvart Sharma

2009-03-18

NARENDRA KUMAR JAIN

body2009
JUDGMENT 1. - Heard learned counsel for the parties. 2. All the aforesaid three writ petitions in between the same parties arise out of one suit and are directed against the common order dated 25th August, 2008 passed by the Additional District Judge No. 5, Jaipur City, Jaipur, in Civil Suit No. 75/2007, whereby three applications of the petitioners have been dismissed, hence they are being disposed of by this common order. 3. The plaintiff-petitioners filed a suit for possession against the respondents No. 1 and 2 in the trial court in respect of the property, in dispute. During the pendency of the suit, the petitioners filed three applications first application under Section 66 of the Evidence Act, second application to summon two files of Suit No. 146/2004 from the Court of Additional Civil Judge (Junior Division) & Judicial Magistrate No. 3 and Case No. 100/1997 decided by the Court of Munsiff, Chomu, vide judgment dated 20th August, 1997, and third application to summon the original sale-deed dated 6th October, 1990 from the Federal Bank Limited, Subhash Marg, M.I. Road, Jaipur. The trial Court rejected all the three applications vide impugned order dated 25th August, 2008. Being aggrieved with the same, the petitioners have preferred these three writ petitions. 4. The Writ Petition No. 13908/2008 relates to the application under Section 66 of the Evidence Act; the Writ Petition No. 13909/2008 relates to summoning of two files from two different courts, as mentioned above, and the Writ Petition No. 13910/2008 relates to summoning of sale-deed from the Federal Bank Limited. 5. The learned counsel for the petitioners contended that the petitioners filed the present suit for possession against the respondents No. 1 and 2, inter alia stating that the petitioners purchased a part of Plot No. D-152, Durga Marg, Bani Park, Jaipur from Shri Arvind Kumar Sharma, brother of defendant No. 1 Vedvart Sharma, by registered sale-deeds dated 15.11.1990 and 30.05.1991. It was stated that the area of the purchased part of the said Plot was 66' x 124.5', which came in the share of Shri Arvind Kumar by an amended family settlement dated 10.06.1989 between Shri Arvind Kumar and Shri Vedvart. The defendants claimed possession over the land measuring 1' x 124.5' of the sold out part of the Plot, hence the present suit has been filed for possession to avoid any conflict. The defendants claimed possession over the land measuring 1' x 124.5' of the sold out part of the Plot, hence the present suit has been filed for possession to avoid any conflict. It is contended that the said family settlement was filed by the defendant No. 1 himself in a suit filed against Shri Arvind Kumar Sharma, his brother, from whom the petitioners purchased the said property, in the Court of Munsiff, Chomu. The plaintiff has obtained a certified copy of the said family settlement and the same has been placed on the record of the trial court alongwith the present application with a prayer to allow the plaintiffs to lead secondary evidence in this regard. The document was relied upon by the defendant No. 1 himself in a suit filed by him against his brother Arvind Kumar Sharma, therefore, it is an admitted document of the defendant No. 1. The plaintiff also filed affidavit of Arvind Kumar Sharma to the effect that the original amended family settlement is in possession of the defendant No. 1 Vedvart Sharma, whereas he has also denied the possession thereof and in these circumstances it is necessary to allow the plaintiffs to lead secondary evidence in this regard. Hence, the trial court committed an illegality in dismissing the application under Section 66 of the Evidence Act. 6. It is further contended that the trial court committed an illegality in dismissing the second application also whereby the plaintiff prayed to summon two files one relating to the family settlement and another relating to permission granted by the Municipal Corporation for raising construction, in favour of the plaintiffs. It was contended that in case any objection is raised that certified copy of the family settlement placed on the record is a Photostat copy of the Photostat copy of the family settlement filed in the Chomu Court, then original file containing Photostat copy of original family settlement may be summoned so this objection may not come in his way. So far as another file relating to permission granted by Municipal Corporation is concerned, the original document has been placed by the plaintiffs in the suit filed by them, therefore, the same is also required to be summoned so there may not be any objection about original copy of sanction order. 7. So far as another file relating to permission granted by Municipal Corporation is concerned, the original document has been placed by the plaintiffs in the suit filed by them, therefore, the same is also required to be summoned so there may not be any objection about original copy of sanction order. 7. It is further contended that third application to summon the original sale-deed from Bank was wrongly rejected by the trial court on the ground that the plaintiffs may file certified copy thereof in the trial court after obtaining the same from the Bank. He contended that the original sale-deed is lying in the Bank as security and the Bank will never supply original or certified copy thereof to him. The plaintiffs have already placed on the record a Photostat copy of the sale-deed. The trial court has wrongly observed that the plaintiff may obtain the documents from the Bank and file the same in the Court whereas it is not possible as the original documents are lying in the Bank as security and, as such, the impugned order passed by the trial court in all the three applications may be set aside. 8. The learned counsel for the respondents contended that so far as Writ Petition No. 13910 relating to summoning of original documents from the Bank is concerned, he has no objection in case the application and the writ petition filed by the petitioners are allowed. 9. So far as the Writ Petition No. 13908/2008 relating to amended family settlement dated 10.06.1989 is concerned, he contended that he has filed one additional affidavit of non-petitioner along-with one affidavit of Arvind Kumar Sharma filed by him in JDA, wherein he has denied the execution of any family settlement in between him and his brother. He, therefore, contended that it is wrong on the part of Arvind Kumar Sharma to say that the original family settlement is lying with the defendant No. 1, However, during the course of arguments, he fairly and frankly admitted that a Photostat copy of the original family settlement was placed by the defendant No. 1 in the Court of Munsiff, Chomu. 10. 10. So far as third Writ Petition No. 13909/2008 relating to summoning of two files from two different courts is concerned, he contended that the court has already given liberty to the plaintiffs to file certified copy of the sanction granted by the Municipal Corporation for raising construction, in favour of the plaintiff and, in these circumstances, there is no need to summon the file and the trial court rightly rejected the application of the plaintiffs. 11. I have considered the submissions of the learned counsel for the parties and examined the impugned order in the light of their submissions and also examined other documents placed on the record as Annexures with the writ petitions. 12. The petitioners filed a suit for possession against the respondents No. 1 and 2, inter-alia, stating that the petitioners purchased a part of Plot No. D-152, Durga Marg, Bani Park, Jaipur from Shri Arvind Kumar Sharma, brother of defendant No. 1 Vedvart Sharma, by registered sale-deeds dated 15.11.1990 and 30.05.1991. It was stated that the area of the purchased part of the said Plot was 66' x 124.5', which came in the share of Shri Arvind Kumar by an amended family settlement dated 10.06.1989 between Shri Arvind Kumar and Shri Vedvart. It was stated that the defendants claimed possession over the land measuring 1' x 124.5' of the sold out part of the Plot, therefore, it became necessary for the plaintiffs to file the present suit for possession. 13. The plaintiff's suit for possession is based on the sale-deed dated 06.10.1990/15.11.1990, which is said to be in possession of the Federal Bank. The learned counsel for both the parties agree that a direction may be given to the concerned Bank to produce the original sale-deed and the same may be returned back to the Bank after comparing the Photostat copy from it and marking exhibit on the Photostat copy of the sale-deed produced by the plaintiffs in the Court. 14. Consequently, the Writ Petition No. 13910/2008 is allowed. The application filed by the plaintiffs to summon the original sale deed dated 06.10.1990/15.11.1990 from the Federal Bank is allowed and the trial court is directed to issue necessary directions to the concerned Bank to produce the original sale deed in the Court. 14. Consequently, the Writ Petition No. 13910/2008 is allowed. The application filed by the plaintiffs to summon the original sale deed dated 06.10.1990/15.11.1990 from the Federal Bank is allowed and the trial court is directed to issue necessary directions to the concerned Bank to produce the original sale deed in the Court. It may also be mentioned in the order directing the Bank that the original sale-deed will be returned to the Bank after comparing the Photostat copy from it and marking exhibit on the Photostat copy of the sale-deed produced by the plaintiffs. 15. So far as the Writ Petition No. 13908/2008 relating to the application under Section 66 of the Evidence Act is concerned, I think it fit and proper that another application filed by the petitioners to summon the original file of Case No. 100/1997 decided on 20.08.1997 may be allowed so the certified Photostat copy of the Photostat copy of original amended family settlement dated 10.06.1989 may be referred and marked Exhibit from the original File No. 100/1997 itself. The said document was referred and placed on the record by the defendant No. 1 himself in the Court of Munsiff, Chomu and the entire suit of the plaintiffs is based on this document, therefore, it is material and relevant document and production of the said document is necessary for proper adjudication of the case, hence the application under Section 66 of the Evidence Act is also allowed. The trial court is directed to grant permission to the plaintiffs to lead secondary evidence in respect of amended family settlement dated 10.06.1989. Thus, the Writ Petition No. 13908/2008 is also allowed. 16. In view of the above discussion of facts and contentions of the learned counsel for both the parties, I also think it fit and proper that ends of justice will meet in case the second application to summon two files i.e. file of Case No. 100/1997 and File of Suit No. 146/2004 may also be allowed. Consequently, the said application and the Writ Petition No. 13909/2008 are allowed. The trial court is directed to summon the above referred both the files from the concerned court immediately.In the result, all the three writ petitions are allowed. The impugned order passed by the trial court is set-aside and all the three applications filed by the petitioners are allowed in the manner as indicated above.Costs is made easy.Petitions Allowed. The trial court is directed to summon the above referred both the files from the concerned court immediately.In the result, all the three writ petitions are allowed. The impugned order passed by the trial court is set-aside and all the three applications filed by the petitioners are allowed in the manner as indicated above.Costs is made easy.Petitions Allowed. *******