SHAMBHU PRASAD SHARMA Vs. PUSHPA BADONYA

JUDGEMENT

(1.) This petition, under Article 227 of the Constitution, is directed against the order dated 5.10.2010, Annexure P7, passed in Civil Suit No. 46-A/2010 by the Second Additional District Judge to the Court of Seventh Additional District Judge (Fast Track Court), Sagar, whereby he has permitted the Respondents to give secondary evidence relating to document will dated 30.10.1991.

(2.) The Petitioners have filed a civil suit for declaration and permanent injunction against the Respondents in respect of suit property marked in the plaint map with blue colour. The suit property is situated at Gandhi Chowk Ward, Sagar. According to the Petitioners, the suit property belonged to their father Pandit Purushottam Lal Sharma which they inherited after his death on 14.11.1991. The Respondents in their written statement have denied the claim of Petitioners over the suit property. The Respondents have also pleaded that Pandit Purushottam Lal Sharma had executed a will dated 30.10.1991 by which he bequeathed the suit property to his daughter Meera Sharma (sister of Petitioners) and on the basis of that will the name of Meera Sharma has also been mutated in the record of Municipal Corporation.

(3.) On 7.9.2010 the Respondents filed an application under Order 11 Rule 12 of the Code of Civil Procedure, 1908 seeking direction against the Petitioners to produce the will dated 30.10.1991 contending that it is in their possession and the document is necessary for the just and proper decision of the suit. The Petitioners, in reply on affidavit, admitted that Pandit Purushottam Lal Sharma did execute a will dated 30.10.1991 in their favour and Meera Sharma but it has been misplaced and they are not in possession of the same. On this reply the Respondents filed an application under Section 65 of the Indian Evidence Act, 1872 seeking permission to give secondary evidence relating to will dated 30.10.1991. The Respondents have obtained a copy of will dated 30.10.1991 which was produced by Meera Sharma before the Municipal Corporation for mutation of her name under the provisions of Right to Information Act, 2005. The Petitioners objected to the prayer on the ground that in the absence of original will, a copy issued to them allegedly from the copy of will cannot be accepted as secondary evidence. The trial court, by the impugned order, has permitted the Respondents to give secondary evidence of the existence of will dated 30.10.1991.