Himachal Pradesh High Court
Sh. Raju And Another vs Smt. Anusuiya And Another on 25 March, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
CMPMO No 90 of 2019
Decided on: 25.3.2019
Sh. Raju and another ....Petitioners.
Versus
Smt. Anusuiya and another ....Respondents.
................................................................................................
Coram
Whether approved for reporting?1
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
No
For the petitioners. : Mr. Nimish Gupta, Advocate.
For decree holder. : None
Ajay Mohan Goel, J (Oral)
By way of this petition filed under Article 227 of the Constitution of India, petitioners assail Order dated 28.1.2019 passed by the Court of learned Senior Civil Judge, Chamba, vide which an application filed by the respondent under Order 18 Rule 17 and Section 65 of the Indian Evidence Act has been allowed.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 28/03/2019 21:57:59 :::HCHP2. I have heard learned counsel for the petitioners and have also gone through the impugned order as also the record .
appended with the petition.
3. Brief facts necessary for adjudication of the present petition are as under. Petitioners before this Court are plaintiffs before the learned Court below along with proforma respondent No.2. They have filed a suit for declaration that they were non occupancy tenants over the suit land measuring 020800 bighas situated at Mauza Baror, Pargna Gudial, Tehsil and District Chamba on payment of rent to one Sh. Mohd Sharif and had thus become owner of the same by operation of law. As per them, late Mohd. Sharif did not execute any Will in favour of defendant and Will dated 15.10.2002 was a result of fraud, misrepresentation and was a fabricated document and Mutation No. 1101 dated 17.3.2007 attested in favour of the defendant on the basis of Will dated 15.10.2002 was not binding upon them.
Decree for permanent prohibitory injunction against the defendants qua the suit land is also prayed for by the defendants. By way of written statement defendant has denied the claim of the plaintiff, inter alia, on the ground that ::: Downloaded on - 28/03/2019 21:57:59 :::HCHP defendant was owner in possession of the suit land and late Mohd Sharif had never inducted plaintiffs as tenants over the .
same and no rent was paid to late Mohd Sharif. As per defendant late Mohd Sharif had bequeathed his property to the defendant by executing a valid Will who submitted the same to the Revenue Authorities on the basis of which Mutation was duly attested in her favour after verifying the genuineness of the Will. As per defendant, late Mohd Sharif had taken her as his sister and she had looked after late Mohd Sharif. Further she was in possession of the suit land and plaintiffs were forcibly trying to dispossess her.
4. During the pendency of the suit, an application was filed under Order 18 Rule 17 and Section 65 of the Indian Evidence Act by respondentdefendant. It was mentioned in the same that the original Will, subject matter of the suit, was not in possession of defendant, as she had submitted the original Will of late Mohd Sharif to Revenue Authorities and regarding this Rapat was entered and on the basis of the Will, Mutation was attested in her favour by Revenue Authorities. It was further mentioned in the application that it had come to the knowledge ::: Downloaded on - 28/03/2019 21:57:59 :::HCHP of the defendant that Will Mark "X" in the Court file was issued to plaintiff No.1 under Right to Information Act and the same .
was certified as per endorsement by concerned authorities of Tehsil Office, Chamba. According to defendant, she intended to prove as exhibit Will Mark "X", death certificate Mark "Y" and Rapat Mark "Z" by leading additional evidence, as the same were essential to falsify the claim of the plaintiff.
5. This application was resisted by the petitioners on the ground that the same was not maintainable because as documents Mark X, Mark Y and Mark Z were produced on record by the plaintiffs, therefore, defendants had no right to prove the same.
6. Learned trial Court has allowed the application vide impugned order dated 28.1.2019. It held that as the document/Will was not traceable and plaintiffs had also only furnished a photocopy of the same, therefore, in view of Issue No.3 and 6 which stood framed with regard to the document i.e., Will dated 15.10.2002 executed by late Mohd Sharif, if the application is allowed the same will help the Court in deciding the dispute and the same will reduce multiplicity of litigation.
::: Downloaded on - 28/03/2019 21:57:59 :::HCHPLearned trial Court also held that if at all Mutation was sanctioned on the basis of said document, then it appears to be a .
public document within the meaning of Section 65E and 74 of the Indian Evidence Act. It further held that as the documents sought to be proved were out of the reach of the applicant as the same had been lost and were not traceable, Section 65C of the Indian Evidence Act provided for leading secondary evidence relating to such like document. On these basis, learned trial Court allowed the application subject to cost.
7. In my considered view, there is no infirmity with the order passed by the learned trial Court. The application filed under Order 18 Rule 17 and Section 65 of the Indian Evidence Act by the respondent defendant was with the prayer to lead secondary evidence to prove documents which otherwise were placed on record as Mark X, Mark Y and Mark Z by the plaintiffs. Learned counsel for the petitioners/plaintiffs could not dispute that these documents were obtained by the plaintiffs under Right to Information Act from the office of Tehsildar. That being so, there is no illegality with the order passed by learned trial Court permitting the defendant to lead secondary evidence ::: Downloaded on - 28/03/2019 21:57:59 :::HCHP to prove the said documents on the strength of record available in the office of Tehsildar because the same is necessary in the .
teeth of the controversy which is before the learned trial Court for adjudicating the lis before it. On the other hand, as defendant intends to prove the documents on the strength of official record, no prejudice is likely to be caused to the present petitioner and therefore also the impugned order suffers from neither any perversity or jurisdictional error. Therefore, as there is no merit in the present petition, the same is dismissed.
(Ajay Mohan Goel) Judge 25th March, 2019.
(Guleria) ::: Downloaded on - 28/03/2019 21:57:59 :::HCHP