KELONI MURMU Vs. DEBUBALA DAS

JUDGEMENT

(1.) The petitioner's predecessor-in-interest, Radhika Murmu, was one of several defendants in Title Suit No.89/2007, pending on the file of the learned Civil Judge (Junior Division), 3rd Court, Asansol, Burdwan, instituted by the opposite party nos. 1 and 2. It is a suit for declaration of title and permanent injunction, alternatively for partition of disputed land by metes and bounds.

(2.) On the death of Radhika Murmu, the petitioners have been substituted in his place and stead. In course of progress of the suit, the defendants/petitioners filed five copies of photographs for exhibiting the same as secondary evidence. For the purpose of identification, the photographs were marked 'X' to 'X-4'. The photographer, Mr. Anil Kumar Das, was witness no.4 for the defendants/petitioners. He had deposed on September 2, 2008 to the effect that the negatives of the photographs ('X' to 'X-4') are not in existence, having been destroyed by burning after preservation for one year.

(3.) A petition was filed on behalf of the defendants/petitioners on September 2, 2008 itself whereby they intended to exhibit the photographs. The petition was considered by the trial Court. On perusal of the deposition of DW4 (Anil Kumar Das), the trial Court noticed that the defendants/petitioners intend to exhibit photographs of which the negatives had been destroyed and, therefore, there was no scope of comparing the same with the negatives. Relying on illustration 'a' of Section 63 of the Evidence Act, 1872, a finding was returned that "at this stage there is no materials before this Court to believe that the thing photograph was the original. The Photographer failed to identify the lands relating to which he look (sic took) such photographs to (sic so), there is no materials before this Court regarding the indentities (sic identities) of the land in respect of which such photographs had been taken". Having found no reasonable ground to exhibit the photographs which had been marked 'X' to 'X-4' for identification at the time of examination-in-chief of DW4, it was ordered (vide order no.313 dated 19.11.2009) that the petition filed on behalf of the defendants for marking the photographs as exhibits stands rejected without costs. It was also ordered that January 12, 2010 be fixed for further examination-in-chief of DW4.