SAHDEV SINGH Vs. SHYAMA SINGH

JUDGEMENT

(1.) By the instant petition filed under Article 226 of the Constitution of India, the petitioners are challenging the order dtd. 5/8/2022 (Annexure-P/7) passed by the trial Court whereby in a suit for declaration and partition, the application filed by the defendants/petitioners under Sec. 65 of the Evidence Act for taking secondary evidence on a photocopy of a partition deed, has been rejected by the trial Court.

(2.) The counsel for the defendants/petitioners submits that so far as the suit property is concerned, it was initially partitioned in the year 1987 and both the parties have admitted this fact, but later on the partition deed executed in the year 1987 was amended and another deed i.e. amended partition deed executed on 15/7/1989, although according to the defendants/petitioners, the said partition deed was not in their possession and it was in the possession of the plaintiffs, therefore, they have given notice under Sec. 66 of the Evidence Act for producing the original of said document, but no reply by the plaintiffs has been given. Although, when the application was filed before the trial Court under Sec. 65 of the Evidence Act for leading secondary evidence on the basis of photocopy of the amended partition deed executed on 15/7/1989, the plaintiffs filed reply to the application and have opposed the same mentioning therein that there was no amended partition deed and no such document has ever been executed, the trial Court, therefore, rejected the application filed under Sec. 65 of the Evidence Act on the ground that the document on which secondary evidence is sought to be lead, is not in existence and in absence of existence of such document, the application of Sec. 65 of the Evidence Act cannot be entertained and accordingly, it is rejected. Learned counsel for the defendants/petitioners submits that the plaintiffs have not replied the notice of Sec. 66 of the Evidence Act and only when the application under Sec. 65 has been filed, reply has been given by the plaintiffs in which they have denied that no notice was given to them of Sec. 66 of the Evidence Act and according to him, they have not denied the existence of that document, therefore, the trial Court has wrongly rejected the application filed by the defendants/petitioners.

(3.) However, Shri A.P. Singh, learned counsel appearing for the contesting(SANJAY DWIVEDI)JUDGE respondents submits that the notice of Sec. 66 of the Evidence Act was never given to the plaintiffs, although, in the reply to the application of Sec. 65 of the Evidence Act, it is very categorically stated that the alleged document i.e. amended partition deed said to have been executed on 15/7/1989 has never been executed and no such document was in existence. He submits that it is enough on the part of the plaintiffs to submit the reply of the said document and, therefore, the trial Court has rightly rejected the application on the ground that the document on which secondary evidence is required to be lead, is not in existence.