SMT. DALBIR KAUR Vs. SMT. AMAR KAUR

JUDGEMENT

(1.) THIS is a revision petition by the defendant against the order of the Subordinate Judge, Batala, dated October 5, 1977.

(2.) BRIEFLY the facts of the case are that Smt. Amar Kaur, on December 29, 1971, gave the possession of the property in dispute to her son. Dildar Singh, as a licencee. He died on September 26, 1975, leaving behind Smt. Dalbir Kaur, widow. It is alleged by the plaintiff that during the life time of Dildar Singh, her relations with him became strained and consequently she cancelled his licence in October, 1974. It is further alleged that the licence, at any rate, stood revoked on the death of her son She consequently filed a suit for mandatory injunction against Dalbir Kaur defendant praying that she be directed to restore the possession of the property to the plaintiff. The suit was contested by the defendant wherein she pleaded that she was in lawful possession of the property on the terms and conditions of the agreement dated December 29, 1971.

(3.) THE only question that arises for determination is whether the petitioner should have been allowed to lead secondary evidence of the agreement dated December 29, 1971. It is stated by the counsel for the petitioner that the agreement dated December 29, 1971 which is sought to be produced by the petitioner, is a registered document and she has produced its copy obtained from the registration department. It is not disputed that the counsel for the plaintiff had made a statement in the court that the document was not in possession of the plaintiff. Section 65 of the Evidence Act relates to the cases in which secondary evidence relating to the document may be given. According to the section, secondary evidence may be given of the existence, condition, or contents of a document, inter alia, on the ground that the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved. In the present case, the deed of licence is alleged to have been executed between Smt. Amar Kaur, plaintiff, and her son Dildar Singh. The nature of the document is such that it ought to be in the possession of the plaintiff. A notice was given to her counsel to produce the said agreement but the same was not produced on the ground that it was not in her possession. In the circumstances, in my view, a case has been made out under section 65 to lead secondary evidence, by the defendant.