MANGAT RAM Vs. ASHOK KUMAR SHARMA

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India, the petitioner has assailed an order dated 23rd April, 2009 whereby the petitioner was not allowed to lead secondary evidence to prove the originals of documents which were in the nature of power of attorney and agreement to sell.

(2.) It is submitted by counsel for the petitioner that the respondent was his son. The petitioner was owner of the property in question and has been residing in the property. The property was ancestral property. The petitioner allowed respondent, his eldest son, to reside with him while rest of the family was residing in another house. In the year 2004, the petitioner lost his wife and became dependent on the respondent for his daily needs. The respondent and his second wife started putting pressure on him to sell the property and give money to them so that the respondent could buy a plot in Delhi. The petitioner refused to oblige. However, when petitioner found that respondent was trying to sell his property, he got published a notice in newspaper that he was the owner of the property and the people should desist from purchasing the property. He also filed the suit in question against his son seeking permanent injunction restraining his son from selling and alienating the property. The original documents of the property which were in his custody earlier, fell in hands of the respondent during his living with him. The petitioner wanted to prove his ownership of the property by virtue of secondary evidence. The petitioner served a notice on the respondent to produce the original documents relating to the title of the property. He moved the application under Section 63 of Evidence Act for permission to place on record the photocopies of the documents and to prove the documents by secondary evidence, which the trial court dismissed by impugned order.

(3.) A perusal of the order of trial court would show that the trial court denied permission to lead secondary evidence on the ground that the defendant in his reply to the notice had refused that he was in possession of the documents of title showing that the petitioner was the owner. The trial court observed that the plaintiff has prima facie failed to prove the averments made in the application and failed to prove the existence of the original documents, which could entitle him to lead secondary evidence.