JOGU Vs. BHIKI

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 25 9 1981 passed by the Senior Sub Judge, Kutu by which the application of the plaintiff petitioner under Section 65 of the Evidence Act, seeking permission to lead secondary evidence, was rejected.

(2.) THE plaintiff petitioner Sled a suit for declaration to the effect that the plaintiff is owner and in possession of the suit property (detailed in the plaint) and in the alternative Cor possession of the property. The allegations are that Shayam Dass (now deceased) executed a gift deed (regarding disputed property) in plaintiff favour on 26 12 1974 The deed was registered on 27 12 1974 and the possession of the gifted property was delivered to the plaintiff. After execution of the gift deed, Shayam Dass (donor) re ailed from the transaction. When the plaintiff was intimated about mutation proceedings an, the basis of the gift deed, he search ed for the gift deed for showing the same to revenue authorities, but could not find the same. The plaintiff came to know that the original gift deed was stolen by the donor. During the mutation proceedings the donor denied the gift with the result that the mutation was rejected. The plaintiff filed an appeal but his appeal was also rejected. On these allegations the plaintiff filed this suit on 12 7 1977.

(3.) THE plaintiff was examining his evidence when it transpired that the original gift deed was not on record. The plaintiff therefore, filed an application under Sections 65/66 of the Evidence Act seeking permissions to lead secondary evidence This application was contested by Shayam Dass (donor/defendant) and the following issue was framed on 7 4 1978: