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2018 DIGILAW 835 (HP)

Inder Singh v. State of H. P.

2018-05-07

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 26.5.2017, passed by the learned Civil Judge (Junior Division) Court No. II, Ghumarwin, District Bilaspur, H.P, in Civil Suit No.1-1 of 2012 titled Inder Singh vs. State of Himachal Pradesh & ors, whereby the learned Court below, has allowed the application of the defendants/respondents filed, under Section 65 of the Indian Evidence Act. 2. Brief facts giving rise to the present petition are that the petitioner/plaintiff (hereinafter referred to as the ‘plaintiff’) maintained a suit for Permanent Prohibitory Injunction restraining the respondents/defendants (hereinafter referred to as ‘defendants’) from constructing a road through any part of land comprised in Khasra No.58 in Khata/Khatauni No.162/182 min. situated in Village Lanjta Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur (hereinafter referred to as ‘suit land’) and further restraining the defendants from digging the land, cutting and destroying the plants/trees and from changing the nature of the suit land in any manner. The stand of the respondents through written statement is that the State of Himachal Pradesh has constructed the road with the consent of the petitioner/plaintiff, which was in the shape of an affidavit in the year 1993. Now, the Villagers have requested for metalling of the road and State has spent considerable amount. During the pendency of the proceedings, the respondents/defendants moved an application, under Section 65 of the Indian Evidence Act, averring that the petitioner/plaintiff alongwith other villagers had given donation letter, dated 16.8.1993 alongwith affidavit, but these documents have been lost and could not be traced out despite best efforts. Hence, the present petition. 3. Reply to the petition has been filed and it has been averred that the road known as “Rihru Gadod Badog Bhapral” was constructed during 1993 with the consent of land owners including the petitioner/plaintiff, on the demand and request of the inhabitants of the area. The work for metalling of the road was taken in hand, during 2012 and during the execution of work, plaintiff maintained a suit for Permanent Prohibitory Injunction. The original affidavit executed by the land owners were not traceable with the respondents, so the respondents/defendants filed an application, under Section 65 of the Indian Evidence Act, 1972 to adduce copy of affidavit in support of evidence. The original affidavit executed by the land owners were not traceable with the respondents, so the respondents/defendants filed an application, under Section 65 of the Indian Evidence Act, 1972 to adduce copy of affidavit in support of evidence. It is further submitted that had the original documents/affidavit been in the custody of the respondents/defendants, then the same would have been produced on record. The learned Court below after looking into the copy of affidavit, allowed the application, under Section 65 of the Indian Evidence Act, thereafter the witnesses as examined by the respondents/defendants have admitted the existence of these documents alongwith their signature on them. 4. Learned counsel appearing on behalf of the petitioner has argued that there is nothing on record to show that the original document was lost, rather the witness of the defendant examined in the learned Court below has stated that Gift Deed is with the Department. He has further argued that there is no proof that the original document is lost, so the order of the learned Court below is required to be set aside. In support of his arguments, he has relied upon the judgment rendered by the Hon’ble Apex Court in 2015 STPL 9855, SC titled Rakesh Mohindra vs. Anita Beri and others, on this aspect. On the other hand, learned Additional Advocate General has strenuously argued that the original document i.e. Gift Deed, which was executed by the plaintiff in favour of the State Government and affidavit was lost in the office, the same was not traceable and so, the photocopy, which is kept in the office was to be proved and produced in the learned Court below. He has further argued that the impugned order passed by the learned Court below is just, reasoned and needs no interference. 5. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail. 6. He has further argued that the impugned order passed by the learned Court below is just, reasoned and needs no interference. 5. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail. 6. In the present case, the State Government has given the application that the original document, which was in the office of the defendant i.e. Gift Deed executed by the plaintiff in favour of Government of Himachal Pradesh and affidavit was lost, that is why, secondary evidence was to be produced, so, this Court finds that the primary evidence was rightly appreciated by the learned Court below and the learned Court below has rightly come to the conclusion that the original document has been lost, as the same has been established by the applicant/defendant. 7. Hon’ble Apex Court in 2015 STPL 9855 SC titled Rakesh Mohindra vs. Anita Beri and others, has held as under : “17. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted. 22. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.” 8. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.” 8. The existence of the document was proved by AW-1, Sehjad Singh Chauhan, who has deposed that ‘Barog Bhapral’ road was constructed in the year 1993 with the consent of land owners and Inder Singh gave gift of his land by way of affidavit. In his cross-examination, he could not tell Khasra number, but deposed that it was written in affidavit. He could not tell date of preparation of the affidavit. He has stated that Gift Deed was in the custody of XEN, HPPWD, which was given by him in favour of the Department. AW-2 Inder Singh, has deposed that he has identified affidavit, as attested by him. He has deposed that he did not have any affidavit, as he was not allowed to keep the same. He has stated that Inder Ram was identified by Ram Prakash, after which, he attested Mark-X2. In his cross-examination, he has agreed that he had not seen the original of Mark-X2. The applicant/defendant wanted to produce secondary evidence on record stating that the same had been lost and to prove the said certificate had also been produced on record from Village Panchayat. Now, the said fact, which is required to be looked into, is that the same had been lost. AW-1, Sehjad Singh Chauhan, has stated that the affidavit was executed, which was with the department. AW-3, Chaman Lal, had also stated that the affidavit was given to them, but the same was not with them. Considering the said affidavit had been lost and the applicant wanted to produce the same on record for the purpose of proving donation of the land, it can be safely stated that the affidavit had been lost and, therefore, it is required to be proved by leading secondary evidence. As the execution of affidavit has been proved that the original document was lost, this Court finds that there is no illegality and infirmity with the impugned order passed by the learned Court below. As the execution of affidavit has been proved that the original document was lost, this Court finds that there is no illegality and infirmity with the impugned order passed by the learned Court below. Consequently, the aforesaid judgment (supra) as cited by the learned counsel appearing on behalf of the petitioner, is not applicable to the facts of the present case and so, this Court finds that the impugned order passed by the learned Court below is in accordance with law, as the original document has been proved to be lost. In these circumstances, after careful appreciation of the evidence and the material, which has come on record, this Court finds that the impugned order passed by the learned Court below is just and reasoned and so, no interference is required by this Court. 9. 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 30th May, 2018. However, the parties are left to bear their own costs. The petition, so also pending application (s), if any, shall stand (s) disposed of accordingly.