MUKHTIAR SINGH Vs. BANT SINGH

JUDGEMENT

(1.) THIS is plaintiff's revision petition where order of Sub Judge 1st Class, Ludhiana, dated 20. 11. 1989 granting permission to adduce secondary evidence of family partition under Section 65 of the Indian Evidence Act (hereinafter referred to as the Act) has been impugned.

(2.) DEFENDANT respondent Bant Singh in a suit filed by Mukhtiar Singh plaintiff took the plea that partition of land measuring 3 kanals 9 marks, comprised in Khasra No. 348, Khewat No. 77, Khatoni No. 108 situated in village Saholi, District Ludhiana, had taken place on 15. 6. 1985. Original Document was not produced and an application was filed under Section 65 of the Act for proving the partition by leading secondary evidence on the ground that original partition was handed over to the Sarpanch of the village who had died. A photostat copy of the document was placed on record. The plaintiff petitioner denied the alleged partition or the execution of the partition deed dated 15. 6. 1985. His case was that in fast no partition had taken place between the parties. The trial Court relying upon the fact that photostat copy had been placed on the record permitted the secondary evidence to be led subject to proof of loss.

(3.) IN this revision petition, petitioner has challenged the order on the ground that the alleged partition deed executed on 16-6-1985 was a forged document and without proving the loss of the original, secondary evidence could not be permitted to be led. I find no substance in this submission Relevant provisions of the Act i. e. Section 65 (a) and Section 66 are reproduced below :" 65 Cases in which secondary evidence relating to documents may be given-Secondary evidence may be given of the existence condition or contests of a document in the following cases : (a) when the original is shown or appears to be in possession or powerof the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; (b) to (g) xx xx xx xx xx xx "66. Rules as to notice to produce.-Secondary evidence of the contents of the documents referred to in Section 65, clause (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, such notice to produce it as is prescribed by law ; and if no notice is prescribed by Jaw, then such notice as the Court considers reasonable under the circumstances of the case : Provided that notice shall not be required in order to render secondary evidence admissible in any of following cases, or in any other case in which the Court thinks fit to dispense with it (1) when the document to be proved is itself a notice ; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it ; (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force ; (4) when the adverse party or his agent has the original in Court ; (5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process the Court. " Under Section 65 of the Act, secondary evidence can be led when the original document is shown or appears to be in possession or power of any person out of reach of, or not subject to, the process of the Court provided a notice mentioned in Section 66 of the Act is issued to him and that person does not produce that document. Section 66 sub-clause (6) further provides that such a notice would not be required in order to render secondary evidence admissible in case the person in possession of the document in out or reach of, or not subject to, the process of the Court. In the present case, the person in whose possession allegedly, the document was, has already died and is thus not subject to, the process of the Court. Petitioner has placed on record a photostat copy of the original. Under the circumstances, the trial Court was right in granting permission to lead secondary evidence by way of producing a photo copy of the partition deed dated 15 6. 1985 subject to the loss of proof. The person in whose possession allegedly, the document was, has already died and it can be said that the said person is out of reach of the process of the Court.