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2018 DIGILAW 1522 (HP)

Suresh Kumar v. Harbans Lal

2018-08-20

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : Chander Bhusan Barowalia, J. The present petition is maintained by the petitioner, under Article 227 of the Constitution of India, for quashing and setting aside the impugned order, dated 11.1.2018, passed by the learned Senior Civil Judge, Dharamshala, H.P, in Civil Suit No.302 of 2013 titled Suresh Kumar vs. Harbans Lal and others, whereby the learned Court below, has framed the issues in an application, under Section 65 of the Indian Evidence Act, for leading secondary evidence of the alleged document i.e. tatima and field book dated 6.7.2003. 2. Brief facts giving rise to the present petition are that the petitioner-plaintiff (hereinafter referred to as ‘the plaintiff’) maintained a suit through his wife Smt. Manju Devi-General Power of Attorney alleging therein that there exists only one approach to access Plot No.3 i.e. Khasra No.380/22/6/3, Khata No.34, Khatauni No.60, area measuring 0-00-78 hectares, situated at Mohal Chailiyan Mauza Mant Tehsil Dharamshala, District Kangra, H.P. Earlier, the suit land was owned and possessed by defendant No.1 and made an offer in the year 2003, to sell the same to the plaintiff and defendant No.3, which was accepted by the plaintiff. Prior to the offer and sale deed, the land comes, under the Town and Country Planning, Dharamshala and as such, defendant No.1, intends to sell out the land and after prior permission for sub division of land, under Section 16 (c) of H.P. Town and Country Planning Act, 1977, vide its approval order dated 2.7.2003, the said land was sub divided into three plots. The plaintiff is bonafide purchaser of the suit land i.e. plot No.2 and 3 from defendant No.1, moreover, plot No.3 has specifically purchased by the plaintiff to sale out the same in near future. Defendant No.3-Rajesh Chander Sharma, who is serving in the office of Town and Country Planning, Dharamshala, as a draftsmen, has prepared site plan, as well he is also purchaser of plot No.1 from defendant No.1, as such, defendants have sufficient knowledge qua the plotting of land and path that is 03 meters i.e. access to khasra No.3 is only the path for plot No.3. The plaintiff visited so many times in the office of Town and Country Planning, Dharamshala, as well D.R.O. Kangra at Dharamshala, for transferring the said path, as a path in the revenue record, but in vain. The plaintiff visited so many times in the office of Town and Country Planning, Dharamshala, as well D.R.O. Kangra at Dharamshala, for transferring the said path, as a path in the revenue record, but in vain. The plaintiff had applied for obtaining the copy of affidavit dated 1.7.2003, sworn by defendant No.1, under the Right to Information Act, while plotting of said land, but in response to the said application, under the Right to Information Act, the plaintiff intimating that the original case file is not traceable and advised him, if desired, then contact with the office of Tehsildar, Dharmashala, for incorporating the same in revenue record. Aggrieved by the response so given by the Public Information Officer, complaint under Section 18 of the Right to Information Act, has been maintained by the plaintiff before State Information Commissioner, Shimla, and after going through the record, defendant No.3 found guilty for misplacement/loss of file, and imposed Rs.25,000/- as maximum penalty, under Section 20 of the RTI Act, 2005 and directed to get the relevant file reconstructed. Accordingly, sale deed dated 9.5.2013, registered vide document No.772/2013, is fraud played by all the defendants in connivance with revenue officials, reason being that all the defendants having knowledge that the land cannot be sale out in any capacity and the revenue officials have also fully aware of the facts that the land in suit has already been surrendered by defendant No.1. As a path and tatima in this regard has got prepared and lying with the revenue record and further sale deed was got prepared on 29.4.2013 and the same has been attested by the Sub Registrar, Dharamshala, on 9.5.2013. Defendant No.1 without any right, title and interest by exercise of fraud and with intention to deceive the plaintiff further sold the land to defendant No.2. Hence, the present petition. 3. Learned counsel appearing on behalf of the petitioner has argued that though the learned Court below has framed issues with regard to the documents, which have been destroyed and not available with the office, as claimed, but since PW-3 has already deposed before the learned Court below that the documents were not available, so the learned Court below should allow the application, under Section 65 of the Indian Evidence Act. 4. 4. On the other hand, learned Senior counsel appearing on behalf of the respondents has strenuously argued that the documents were stated to be not available, but there is nothing to conclude that those were destroyed and could not be procured and prays for dismissal of the petition. 5. In rebuttal, learned counsel appearing on behalf of the petitioner has argued that there was already enough material on record that the original documents were destroyed and so, these issues were not required to be framed. 6. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 7. At this moment, this Court finds that the documents whether exists or not; destroyed or not; or are in the possession of same person or not; or can be produced before the learned Court below or whether the secondary evidence is to be allowed or not, in view of the non-production of the document is not available, which is pending adjudication. So, the learned Court below is within its right to frame issues in this regard. This Court finds that there is no illegality in the impugned order dated 11.1.2018, passed by the learned Court below, which cannot be said to be without any basis. So, the impugned order is just, proper and in accordance with law and needs no interference. As the case is pending since long and issues are only framed with regard to the application, under Section 65 of the Indian Evidence Act, it is ordered that the learned Court below will dispose of the said application within a period of two months positively. No other order is required for. 8. In view of what has been discussed hereinabove, the present petition, which sans merits, deserves dismissal and is accordingly dismissed. Parties, through their learned counsel, are directed to appear before the learned Court below on 29th August, 2018. However, the parties are left to bear their own costs. Ordered accordingly. Pending applications, if any, shall also stands disposed of.