VISHNU PRATAP SINGH Vs. MUKTESHWAR RAI

JUDGEMENT

(1.) The petitioner/plaintif has iled the present writ petition under Article 227 of the Constitution of India assailing the order dtd. 9/9/2019 (Annexure P/1) passed in Civil Suit No 91-A/2016 by the 4th Additional District Judge, Bilaspur, District Bilaspur by which the application under Sec. 65 of the Indian Evidence Act, 1872 (for short, 'the Act, 1872') iled by the petitioner/plaintif to examine the photo copy of the agreement dtd. 17/5/1991 as secondary evidence has been rejected.

(2.) The brief facts as relected from the record are that the petitioner/plaintif had iled a civil suit for declaration, title and grant of permanent injunction relating to the property situated at village Bodri, Patwari Halka No.1, Tahsil Belha, District Bilaspur bearing Khasra No. 279 and 280 and Khasra No 15 total area 4.26 acres of land. It has been contended that the plaintif along with defendants No.1 and 2 had agreed to purchase the land bearing Khasra No. 279/3 and 280/3 area 3.81 acres situated at village Bodri, Patwari Halka No.1, Tahsil Belha, District Bilaspur, but the defendant No.1 was not having suicient money to meet the expenses of registry, therefore, the defendant No.1 has shown his unwillingness to purchase the property before the plaintif. It has also been contended the defendant No. 1 has assured the plaintif that within 4 ' 6 months whenever consideration of the property and expenses towards registration is available with him, the plaintif will execute the sale deed of the land bearing Khasra No. 279/3 and 280/3 admeasuring 3.81 Acres registration in the name of defendant No.1 by paying himself. It has also been contended that though the sale deed was executed in favour of defendant No.1, still the possession of the property bearing Khasra No 279/3 and 280/3 area 3.81 acres are with the plaintif and defendant No.2 and they are doing the agricultural work. Though lot of time has passed after registration, still the defendant No.1 is not ready to pay the money. As such, defendant No.1 has no right over the suit property as entire property was invested by the plaintif and defendant No.2 who are in possession of the suit property.

(3.) It has also been contended that the defendant No. 1 has no objection if the name of defendant No.2 is also recorded in the revenue records, therefore, defendant No.1 voluntarily executed the agreement in favour of defendant No.2 and it has been signed by the defendant No.1 in presence of the witnesses. This agreement was executed on 17/5/1991. On the basis of said agreement the names of the plaintif and defendant No.2 were recorded in the revenue record. Thereafter, with mutual consent of the plaintif and defendant No.2 the property was partitioned and out of total 3.81 acres, land bearing Khasra No. 2.77 acres was given to the plaintif and defendant No.2 was given 1.04 acres and since then they are in possession of the suit property. Thereafter, defendant No. 1 out of greed has challenged the said mutation order by iling an appeal before the Sub Divisional Oicer, Belha which was allowed on 28/9/2015 and mutation proceeding entry No 96 dtd. 30/6/1991 has been cancelled, against which the plaintif had preferred an appeal. Before the Commissioner, Bilaspur which is pending. Thus, on the above factual matrix, he has prayed for declaration, title and grant of permanent injunction with regard to suit property.