TRILOCHAN PARIDA Vs. PURNA CHANDRA NANDA

JUDGEMENT

(1.) This petition challenges the order dated 21.2.2014 passed by the learned Civil Judge (Senior Division), Udala, Mayurbhanj in Civil Suit No.63 of 2012. By the said order, the learned trial court allowed the application of the plaintiff to accept the photostat copy of Panchayat Bantan Patra as secondary evidence.

(2.) Opposite party no.1 as the plaintiff instituted Civil Suit No.63 of 2012 in the court of the learned Civil Judge (Senior Division), Udala, Mayurbhanj for declaration of easementary right, mandatory and permanent injunction impleading the petitioner and proforma opposite party no.2 as defendants. The case of the plaintiff is that Late Raj Kishore Parida, the father of defendant no.1 and proforma defendant no.2 and two others were the joint recorded owners of homestead appertaining to Sabik Khata No.28 and Jantrida under Sabik Khata No.26 of Mouza-Nagabani. The property was amicably partitioned between the parties. Raj Kishore got land measuring 11 gunths towards South in East-West direction. After death of Raj Kishore, his two sons i.e., both the defendants, amicably partitioned the property keeping the provisions of road for their joint use towards north with width-18. In the said partition, Jaykrushna got western side. It was decided that the road towards north will be used by both of them for ingress and egress to public road. It is further pleaded that he purchased the share of Jay Krushna proforma defendant no.2 by means of two sale deeds dated 24.11.1981. He constructed a dwelling house and used the suit passage for ingress and egress. The land purchased by the plaintiff has been recorded in his name.

(3.) Pursuant to issuance of summons, defendant no.1 entered appearance and filed the written statement denying the assertion made in the plaint. It is stated that there is no passage. The land of defendant no.2 is adjacent to public road and thus the plea of existence of no passage to public road is not correct. The defendant no.2 also filed a written statement contending inter alia that there is a passage in between the land of defendant nos.1 and 2. While the matter stood thus, the plaintiff filed an application to accept the photostat copy of Panchayat Bantan Patra as secondary evidence on the ground that he has procured the same from defendant no.2. It is stated that defendant no.2 has filed objection to the petition of the plaintiff for production of original document on the ground that he is an old man of 90 years and has lost his memory. He could not remember where the original was kept. Earlier, the Court has directed defendant no.2 not to produce the original Bantan Patra without leave of this Court. In course of cross-examination of defendant no.1, since document was not filed, the court had to accept the photostat copy of the same as secondary evidence. It is further stated that defendant no.1 was a party to the said document. The defendant no.1 filed objection to the same. It is stated that there is no whisper in the plaint with regard to the said document. After closure of the evidence from the side of the plaintiff, the petition has been filed. There is no material on record that the document sought to be produced as secondary evidence was made from the original. The photostat copy of the document is not admissible unless it is proved to be genuine. Defendant no.2 supported the case of the plaintiff. The learned trial court assigned the following reasons and allowed the application.