DHARMENDRA SINGH Vs. PUSHPENDRA SINGH & OTHERS

JUDGEMENT

(1.) The petitioner/plaintiff has preferred this writ petition under Article 227 of the Constitution of India being aggrieved by an order dated 5th April 2013 (Annexure-P/1) rejecting his application under Section 65 of the Evidence Act in pending Civil Suit No.19A/11 for admitting the certified copies of the documents in secondary evidence.

(2.) The facts of the case are that the petitioner/plaintiff has filed the suit for declaration, perpetual injunction and for setting aside the sale-deed dated 11th July 2011 executed by the defendant No.1 in favour of defendant No.2 in respect of an agricultural land comprised in Survey Numbers 107 and 108 having areas of 6.81 and 6.21 hector situated in village Mansuri district Bhind on the ground that defendant No. 1 on the basis of forged 'Bhu Adhikar Pustika and Rin Pustica' disposed of the property owned by the plaintiff in favour of defendant No.2 by way of registered sale deed dated 11th July 2011. The petitioner/plaintiff alleged that the forged document is in possession of the defendant No. 1, who remained absent before the trial court. The trial court by an order dated 22nd November 2012 issued directions for production of the alleged 'Bhu Adhikar Pustika and Rin Pustika by the defendant No.1 which were admittedly in his possession but the defendant No. 1 after filing written statement did not appear on subsequent stage of trial, hence, the trial court proceed ex parte against the defendant No.1. In these state of affairs, the trial court observed that the plaintiff, if wishes, may proceed for secondary evidence on this issue.

(3.) In view of the aforesaid, by submitting the application (I.A.No.13) under Section 65 of the Evidence Act, the plaintiff/petitioner prayed for admitting the certified copies of Khasra of five years maintained by the revenue authorities as public document as well as certificate issued by the revenue authorities regarding the agriculture land as un-irrigated land alongwith copy of the alleged forged Bhu Adhikar Pustika and Rin Pustika, which were admittedly in possession of the defendant No. 1 but he did not produce the same even after due service of notice for production of the originals before the trial court. While considering the application, the learned trial court was of the view that the record in relation to 'Khasra and the certificate in relation to the land in question as un-irrigated land were maintained by the revenue authorities whereas the record of private document, such as sale-deed etc. is maintained by the Registration authorities, so it was directed that these documents can be proved by other means of evidence. On this ground, the application under Section 65 of the Evidence Act for admitting the certified copies of the above documents was rejected under the order impugned, hence this petition.