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8. On the other hand, the defendant-appellant’s case is that they have inherited the property from Smt. Vijaya Kumari who became the owner of the suit property on the basis of the gift deed dated 19.03.1965. Appellant’s further case is that Justice Tek Chand had issued a letter of disclaimer dated 24.08.1982. According to the appellant, the said letter of disclaimer was handed over by Justice Tek Chand to his sister Smt. Vijaya Kumari who in turn handed over to the appellant. On the basis of letter of disclaimer, the appellant vide letter dated 21.07.2001 requested the authority, namely, Defence Estate Officer (DEO), Ambala Cantt for effecting mutation of the property in his name.

9. On these backgrounds, the defendant filed an application in the Trial Court under Section 65 of the Evidence Act seeking permission to prove the letter of disclaimer executed by Justice Tek Chand by way of secondary evidence. For that purpose, the defendant summoned the record of GLR from the office of DEO, Ambala who is said to be the custodian of the record. According to the appellant, at the time of sanction of mutation with respect to the suit property, the appellant had filed the original affidavits of the co-sharers along with the letter of disclaimer executed by Justice Tek Chand with one Photostat set lying in the office of DEO, Ambala.

10. For the purpose of deciding the application under Section 65 of the Evidence Act, the appellant examined the concerned official to produce the record available in the said office. On the basis of the evidence given by the witness, who produced the record and the evidence of defendant, the Trial Court allowed the application and admitted the letter of disclaimer to be used as secondary evidence.

11. As averred in the application, the defendant has summoned the record of General Land Register from the Office of D.E.O. Ambala, who is the custodian of the record. It is defendant’s case that at the time of sanction of the mutation with regard to the suit property he had filed the original affidavits of the co-sharers including affidavits and original letter of disclaimer of late Justice Sh. Tek Chand with one Photostat set of the same in the office of D.E.O. Ambala. On the basis of the original letter of disclaimer and affidavits, mutation of the suit property was sanctioned in favour of the deponent. The concerned official produced the original record in the Court on 4.7.2013 except the letter of disclaimer executed by late Justice Sh. Tek Chand on 24.8.1982, in favour of Sh. Harish Chandra Dhanda and Smt. Vijaya Kumari, the mother of the applicant. The original disclaimer letter is supposed to be in the said office but the concerned official made statement on oath in the Court that the original is not in their office and their office has Photostat copy of the original, and therefore, he produced the Photostat copy of the letter. According to the defendant, despite his efforts, the original of DW-2/B was not traceable and has been misplaced/lost from the Office of D.E.O. Ambala. In reply to the application, it was denied that the letter of disclaimer ever existed or Photostat of the same was ever made. It has been pleaded that late Justice Sh. Tek Chand never executed disclaimer letter and the Photostat copy was a forged one.

12. Allowing the application of the defendant and granting leave of the court to lead secondary evidence qua document Ext.DW-2/B, trial court observed that:

“The photocopy Ext.DW-2/B has come from the custody of DEO Ambala and the applicant has been able to comply with the provision of Section 65 of the Indian Evidence Act as it has come in evidence that the original document i.e. letter of disclaimer Ext.DW-2/B was handed over by the applicant to DEO Ambala. In view of the aforesaid this court is satisfied that the original document stands misplaced and the applicant is allowed to lead secondary evidence with respect to the document Ext.DW-2/B as enviasaged under Section 65(c) of the Indian Evidence Act and both these issues are decided in favour of the applicants and against the respondents.”