MUNNI BAI Vs. KUBRA BEE

JUDGEMENT

(1.) The petitioners/defendants No.1 to 3 have filed the present petition being aggrieved by order dated 28.2.2020 whereby the application filed u/s. 63 and 65 of the Indian Evidence Act by the respondents/plaintiffs has been allowed.

(2.) Respondents/Plaintiffs have filed the suit for declaration, permanent injunction and cancellation of 'Hiba' in respect of land bearing Survey Nos. 56+64/2, 57, 58/2 and 60/1 of Village Sutarkhedi, Tehsil Mhow, District Indore (hereinafter referred to as "the suit property"). The suit property was initially owned by Ismail and the plaintiffs are claiming their right and title over the suit property by virtue of succession. The suit property has been mutated in the name of defendants by virtue of oral 'Hibanama', which gave the cause of action to the plaintiffs for filing the suit challenging the 'Hibanama'.

(3.) The plaintiffs filed the suit on 15.2.2018. After receipt of the summons, the defendants appeared and filed the written statement on 11.7.2018. Thereafter, the trial Court framed the issues on 18.7.2018. The plaintiffs have concluded their evidence and at present, evidence of defendants are going on. Along with the written statement, the defendants have filed the original affidavit of Ismail executed in respect of 'Hibanama' and also filed photocopy of another affidavit of Ismail bearing Notary No.133/2007 dated 19.6.2007. The original affidavit was marked as Ex. D/6 and at the time of marking the photocopy of the affidavit in evidence at the instance of plaintiffs, the defendants came up with the plea that by mistake, the said affidavit has been filed and the same is not related with the subject matter of the suit, hence same be ignored. The plaintiffs, after getting the photocopy of the affidavit of Ismail along with the written statement by defendants, immediately filed the application under Order 7 Rule 12 of C.P.C. seeking production of the original of the said affidavit by the defendants. The defendants filed an affidavit on 26.2.2020 that the original document is not in their possession. Thereafter, the plaintiffs filed another application u/s. 63 & 65 of the Indian Evidence Act seeking permission to prove the affidavit of Ismail as secondary evidence which was opposed by the defendants on the ground that the property mentioned in the said affidavit are different and not related to the suit property. Learned trial Court vide order dated 28.2.2020 has allowed the application by placing the reliance over the judgment of apex Court in the case of J. Yashoda V/s. K. Shobharani, 2007 5 SCC 730, hence the present petition before this Court.