SINNU Vs. PALI

JUDGEMENT

(1.) THIS revision is directed against order dated March 11, 1991, of Additional Senior Subordinate Judge, Karnal, dismissing plaintiff's application for leading secondary evidence. The aforesaid application was made in these circumstances.

(2.) ONE Smt. Antul was the owner of the property in question. The defendants are the daughters and son of said Antul. On the death of Antul, the plaintiff-petitioner Sinnu propounded a will dated October 12, 1983, for getting mutation of land entered on the basis thereof in his favour. The mutation was contested by the defendants. The petitioner produced the original unregistered will dated October 12, 1983, before Assistant Collector IInd Grade. The Will was exhibited as P-1. The mutation having been contested was transferred to Assistant Collector Ist Grade and after enquiry it was held by Assistant Collector Ist Grade that the Will was not genuine and consequently mutation was not sanctioned in favour of the petitioner. The petitioner thereafter instituted a regular Civil Suit. In the course of evidence, the plaintiff summoned record relating to mutation proceedings in which the original Will had been produced. Lakhi Ram, Office Kanungo, attended the Court and stated that the orginal record was not traceable and the above report was endorsed by the Tehsildar. Thereafter an application was made by the plaintiff for permission to lead secondary evidence, which is in the form of a photostat copy alleged to be of the original will. The application was resisted and by the impugned order the application was dismissed with the finding that the applicant had failed to establish that the original had been either destroyed or lost. Hence, this revision.

(3.) THE contention of the learned counsel for the petitioner is that whatever evidence could possibly he led to show the loss of the original document had been produced and it was not required by any law that the loss of the original should be proved in absolute terms. It was also argued that if the plaintiff is not allowed to lead secondary evidence, he would suffer for no fault of his. In fact, he had produced, the original will before Assistant Collector in the course of the mutation proceedings and he was not responsible for the loss of the original document.