JAGDISH PARSHAD Vs. SURINDERJIT KAUR JODHKA

JUDGEMENT

(1.) This order shall dispose of two revision petitions bearing CR No.254 of 2012 titled as "Jagdish Parshad Vs. Surinderjit Kaur Jodhka and another" [for short 'Ist petition'] and CR No.2139 of 2012 titled as "Jagdish Parshad Vs. Surinderjit Kaur Jodhka and another" [for short 'IInd petition']. The plaintiff has filed both the revision petitions. He filed suit for possession in respect of the property in dispute on the basis of a Will dated 23.3.1984. On the other hand, the case of the defendants is that they are in possession of the property in dispute on the basis of sale deed in their favour and the excess area is in possession of the Municipal Corporation, who was not arrayed as a defendant.

(2.) On the pleading of the parties, the trial Court framed the issues on 20.9.2007. The plaintiff had also filed application for temporary injunction, which was also taken up by the trial Court when the evidence of the plaintiff had started. The plaintiff, despite availing various opportunities, did not lead evidence and ultimately filed an application on 11.2.2009 under Order 26 Rule 9 of the Code of Civil Procedure, 1908 [for short 'the CPC'] for appointment of a Local Commissioner for the purpose of demarcation of the property in dispute. The said application was dismissed by the trial Court on 15.10.2011. The plaintiff did not challenge that order and thereafter the case was adjourned many times for the evidence of the plaintiff but no witness was examined despite the fact that cost was also imposed. On 5.12.2011, the plaintiff filed an application under Section 65 of the Indian Evidence Act, 1982 [for short 'the Act'] to which reply was also filed and the trial Court vide order dated 15.11.2011 dismissed the application. Against that order, Ist petition [CR No.254 of 2012] has been filed. The Court adjourned the case again for leading evidence by the plaintiff in rebuttal, last opportunity was granted and since the petitioner/plaintiff did not conclude his evidence, therefore, his evidence was closed vide order dated 16.3.2012 which has been challenged in IInd petition [CR No.2139 of 2012].

(3.) In the Ist petition, learned counsel for the petitioner has submitted that the trial Court has committed an error in not granting permission to lead secondary evidence to prove the certified copy of the Will. He has submitted that since the said Will dated 23.3.1984 was lost, therefore, it could be proved by leading secondary evidence as it is an official document coming from the custody of the Registrar. The application filed in this regard dated 3.12.2011 refers to the Will dated 23.3.1984.