GOMTI DEVI Vs. BALBIR SINGH

JUDGEMENT

(1.) Through the present petition under Article 227 of the Constitution of India, the petitioner has assailed the order dtd. 29/10/2015 (Annexure P-1) passed by learned Civil Judge (Jr. Divn.), whereby, an application filed by the respondent-defendant No.1, to lead secondary evidence, was allowed.

(2.) The facts, as culled out from the paperbook are that petitionerplaintiff Gomti Devi had filed a suit against defendants-respondents-Balbir Singh and others, for seeking declaration that plaintiff along with proforma defendants, being the legal heirs of Sheo Ram s/o Jetha Ram, are owners with possession in equal shares of the land, as detailed in the head note of the plaint, copy whereof is Annexure P-2, on the ground of inheritance of Sheo Ram and also sought declaration, vis-a-vis, legality and validity of the alleged Will No.7 dtd. 13/5/1993, obtained by defendants No.1 to 3, who are brothers of the plaintiff and also challenged the mutation No.1744 sanctioned on 2/8/1993, on the basis of the aforesaid Will. Besides the same, also sought issuance of permanent injunction to restrain defendants No.1 to 3 from alienating and transferring the suit land and creating any encumbrance over it.

(3.) During the pendency of the suit, at the stage of recording of the evidence, respondent-defendant No.1 Balbir Singh had filed an application for seeking permission to lead secondary evidence to prove the certified copy of the Will No.7 dtd. 13/5/1993. In the said application, it was averred that while preparing for the evidence, the original Will was not available with respondent-defendant No.1 and he tried his best to search the original Will, but could not find the same. When this fact was brought to the notice of his counsel, it was advised that Will dtd. 13/5/1993, being registered document, is lying in the office of Sub-Registrar and same can be proved by way of secondary evidence, for which permission from the Court is necessary. In view of the same, respondent-defendant No.1 sought permission to be allowed to prove the Will executed by Sheo Ram, while summoning the original second copy of the Will, lying in the office of Sub-Registrar, by way of secondary evidence, original of which, has been misplaced.