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2013 DIGILAW 199 (HP)

Prem Kumar v. Tek Singh

2013-03-26

SANJAY KAROL

body2013
JUDGMENT Sanjay Karol, J. (Oral) 1. In this petition filed under Article 227 of the Constitution of India, original defendant has assailed the order dated 22.9.2012 passed by Civil Judge (Jr. Division), Kandaghat, District Solan, in an application filed by the plaintiff under the provisions of Section 65 of the Indian Evidence Act, 1872 in Civil Suit No. 50-K/1 of 2007, titled as Tek Singh vs. Prem Kumar. 2. Plaintiff filed a suit for possession with respect to the suit land. As per the case set out by the plaintiff in his plaint, the suit land was owned by Shri Ram Rattan, father of the plaintiff and defendant. During his life time Shri Ram Rattan divided the suit land and put the plaintiff and defendant in possession in their respective portions. Shri Ram Rattan also executed a Will dated 10.3.1983 reflecting such possession of the parties. 3. Since plaintiff was employed with the Haryana Electricity Board, as such he was residing in the State of Haryana. In the month of March, 1987, when plaintiff visited his house constructed over the suit land, he discovered that the defendant had encroached upon part of his land. 4. In the written statement, defendant denied the factum of partitioning of the land but admitted the factum of execution of the Will by Shri Ram Rattan in favour of his wife and sons. 5. During trial, plaintiff moved an application under Section 65 of the Indian Evidence Act pleading that after the death of Shri Ram Rattan, the Will was placed on the record of Assistant Collector, 2nd Grade, for the purpose of effecting mutation in the name of legal heirs. However, the same was destroyed by the revenue officials at the time when the record was weeded out under Para 15.6 of the Land Records Manual. Plaintiff also served upon the defendant notice to produce the Will but to no avail. Since the plaintiff was possessed a photocopy of the Will he wanted the same to be proved by leading secondary evidence. 6. Application was opposed by the defendant, inter alia, pleading that photocopy of the Will placed on record by the plaintiff is a forged and fabricated document. 7. In terms of the impugned order the Court has allowed the application and permitted the plaintiff to prove the Will by leading the secondary evidence. 8. It is urged by Mr. 6. Application was opposed by the defendant, inter alia, pleading that photocopy of the Will placed on record by the plaintiff is a forged and fabricated document. 7. In terms of the impugned order the Court has allowed the application and permitted the plaintiff to prove the Will by leading the secondary evidence. 8. It is urged by Mr. Goverdhan, learned counsel for the petitioner-defendant that the trial Court erred in allowing the application inasmuch as essential ingredients contained in Section 63(2) of the Indian Evidence Act were not stated in the application. In support of his contention, he has referred to and relied upon a decision of the Apex Court in J.Yashoda vs. K.Shobha Rani, (2007) 5 SCC 730 . On the other hand, Mr. Neeraj Gupta, learned counsel for the respondent-plaintiff has taken me through the evidence of the plaintiff in support of his application. 9. On first brush, the view expressed by Mr. Governdhan, appears to be plausible, but, however, deep examination of the testimony of the plaintiff, to my mind, would only show that all essential ingredients stand proved by him. 10. The application was filed on 16.6.2009 and reply was filed on 29.6.2009. Thereafter, parties led evidence on the application and the plaintiff filed a detailed affidavit in support of his evidence, disclosing the fact that the original Will was placed on the file of the Assistant Collector, 2nd Grade, for the purpose of effecting mutation after the death of Shri Ram Rattan. After some time when the plaintiff tried to take the same back, he was informed that the same had been weeded out in accordance with the Land Records Manaual. He made enquiries in various offices where the file for mutation had been sent but the Will was not traceable. He had a photocopy of the original Will, which was placed alongwith the application. 11. In J.Yashoda (supra), the Court was dealing with a case where the documents were marked and taken as secondary evidence. It is in this background, the Court held that “The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section”. 12. In the instant case, it is no doubt true that the application does not specifically state that photocopy of the Will was compared with the Original. But, however, one cannot loose sight of the fact that execution of the Will dated 10.3.1983 by Shri Ram Rattan, is not disputed by the defendant in his written statement. That apart, whether photocopy of the Will is the copy of Original or not is a question to be examined after the evidence with regard to its authenticity and contents thereof, is established by the propounder during trial. To my mind, the stage has not come as yet. In terms of the impugned order, the trial Court has only allowed the plaintiff to prove the Will by way of leading secondary evidence. In these circumstances, the ratio of law laid down by the Apex Court in J.Yashoda (supra), is inapplicable to the given facts. 13. It may be seen that subsequently the Apex Court in M.Chandra v. M.Thangamuthu, (2010) 9 SCC 712 , has been held as follows:- “47. … It is true that a party who wishes to reply upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party”. 14. The aforesaid view has been reiterated in U.Sree vs. U.Srinivas¸ (2013) 2 SCC 114 . 15. As already noticed earlier, the plaintiff in support of the application has stepped into the witness box and has categorically deposed that the original Will was destroyed by the concerned Revenue office at the time when the record pertaining the mutation was weeded out in accordance with the procedure established by law. 16. Plaintiff has been able to show sufficient reasons for non-production of the original document. The said document is not in his possession, which fact stands corroborated by the testimony of another witness Shri Mohan Singh (AW-1), who has produced the record from the Revenue Office. 17. For the purpose of leading secondary evidence, the Court has to form an opinion about the loss of the document and not with regard to its existence. In the instant case, the Court below has come to this conclusion and hence rightly allowed the plaintiff to lead secondary evidence. 18. For all the aforesaid reasons, the present petition is dismissed, so also the pending application, if any.