BALI RAM Vs. BAISAN DEVI

JUDGEMENT

(1.) The Petitioner/Defendant under Article 227 of the Constitution of India has challenged order dated 13.10.2009 passed by the learned Civil Judge (Jr. Division) Court No. II, Ghumarwin on an application under Section 65 of the Indian Evidence Act, 1872 (for short 'Act') in Civil Suit No. 627/1 of 2000 allowing the application of Respondents/Plaintiffs to produce the secondary evidence and to prove the attested / certified copy of alleged will dated 23.6.1997 of Smt. Janki Devi in favour of Mast Ram predecessor of Respondents.

(2.) The brief facts relevant to the controversy in the petition are that Respondents had filed a suit for permanent prohibitory injunction, in alternative for possession against Petitioner, who had filed the written statement and contested the suit. The Petitioner has also filed the counter claim in the suit and has taken the plea that he is owner in possession of the suit land on the basis of adverse possession. The alleged will of Smt. Janki Devi is the result of fraud, mis-representation and undue influence. The Respondents have filed replication to the written statement of the Petitioner and written statement to the counter claim of the Petitioner. They have taken the plea that Smt. Janki Devi had executed a will dated 23.6.1997 in favour of Mast Ram, predecessor-in-interest of Respondents. The will was registered on 21.9.2000 after the death of Smt. Janki Devi and Mast Ram. On the basis of pleadings of the parties, several issues were framed including issue No. 7D whether Smt. Janki Devi had executed a valid will in favour of Mast Ram, predecessor-in-interest of Plaintiff/counter-Defendants.

(3.) The Respondents had filed an application under Section 65 of the Act to permit them to prove the attested copy / certified copy of registered will dated 21.9.2000 allegedly executed by Smt. Janki Devi in favour of Mast Ram their predecessor-in-interest. The further case of the Respondents is that after the death of Smt. Janki Devi. Mast Ram produced the unregistered original will before Bishan Dass, Patwari, Patwar Circle, Samoh to enter the mutation of suit land on the basis of will. The original unregistered will was retained by the Patwari, who told Mast Ram lateron that the original will had been lost when Mast Ram contacted Bishan Dass, Patwari in connection with the mutation. Mast Ram had also died on 29.7.1999. The photocopy of the original will was with Mast Ram, who during his life time had filed an application under Sections 40, 41 of the Indian Registration Act for registration of the will before the Sub Registrar, Jhandutta. The Respondents were lateron impleaded in those proceedings as legal representatives of Mast Ram and said will was registered on 21.9.2000. The Respondents had issued notice under Section 66 of the Act to Patwari but he has not returned the will nor had given any reply to the notice. On these grounds, prayer was made by the Respondents to prove the will by leading secondary evidence.