SURESH KUMAR Vs. HARBANS LAL AND OTHERS

JUDGEMENT

(1.) The present petition is maintained by the petitioner, under Article 227 of the Constitution of India, for quashing and setting aside the impugned order, dated 11.1.2018, passed by the learned Senior Civil Judge, Dharamshala, H.P, in Civil Suit No.302 of 2013 titled Suresh Kumar vs. Harbans Lal and others, whereby the learned Court below, has framed the issues in an application, under Section 65 of the Indian Evidence Act, for leading secondary evidence of the alleged document i.e. tatima and field book dated 6.7.2003.

(2.) Brief facts giving rise to the present petition are that the petitioner-plaintiff (hereinafter referred to as 'the plaintiff') maintained a suit through his wife Smt. Manju Devi-General Power of Attorney alleging therein that there exists only one approach to access Plot No.3 i.e. Khasra No.380/22/6/3, Khata No.34, Khatauni No.60, area measuring 0-00-78 hectares, situated at Mohal Chailiyan Mauza Mant Tehsil Dharamshala, District Kangra, H.P. Earlier, the suit land was owned and possessed by defendant No.1 and made an offer in the year 2003, to sell the same to the plaintiff and defendant No.3, which was accepted by the plaintiff. Prior to the offer and sale deed, the land comes, under the Town and Country Planning, Dharamshala and as such, defendant No.1, intends to sell out the land and after prior permission for sub division of land, under Section 16 ( c ) of H.P. Town and Country Planning Act, 1977, vide its approval order dated 7.2003, the said land was sub divided into three plots. The plaintiff is bonafide purchaser of the suit land i.e. plot No.2 and 3 from defendant No.1, moreover, plot No.3 has specifically purchased by the plaintiff to sale out the same in near future. Defendant No.3-Rajesh Chander Sharma, who is serving in the office of Town and Country Planning, Dharamshala, as a draftsmen, has prepared site plan, as well he is also purchaser of plot No.1 from defendant No.1, as such, defendants have sufficient knowledge qua the plotting of land and path that is 03 meters i.e. access to khasra No.3 is only the path for plot No.3. The plaintiff visited so many times in the office of Town and Country Planning, Dharamshala, as well D.R.O. Kangra at Dharamshala, for transferring the said path, as a path in the revenue record, but in vain. The plaintiff had applied for obtaining the copy of affidavit dated 1.7.2003, sworn by defendant No.1, under the Right to Information Act, while plotting of said land, but in response to the said application, under the Right to Information Act, the plaintiff intimating that the original case file is not traceable and advised him, if desired, then contact with the office of Tehsildar, Dharmashala, for incorporating the same in revenue record. Aggrieved by the response so given by the Public Information Officer, complaint under Section 18 of the Right to Information Act, has been maintained by the plaintiff before State Information Commissioner, Shimla, and after going through the record, defendant No.3 found guilty for misplacement/loss of file, and imposed Rs. 25,000/- as maximum penalty, under Section 20 of the RTI Act, 2005 and directed to get the relevant file reconstructed. Accordingly, sale deed dated 9.5.2013, registered vide document No.772/2013, is fraud played by all the defendants in connivance with revenue officials, reason being that all the defendants having knowledge that the land cannot be sale out in any capacity and the revenue officials have also fully aware of the facts that the land in suit has already been surrendered by defendant No.1. As a path and tatima in this regard has got prepared and lying with the revenue record and further sale deed was got prepared on 29.4.2013 and the same has been attested by the Sub Registrar, Dharamshala, on 9.5.2013. Defendant No.1 without any right, title and interest by exercise of fraud and with intention to deceive the plaintiff further sold the land to defendant No. Hence, the present petition.

(3.) Learned counsel appearing on behalf of the petitioner has argued that though the learned Court below has framed issues with regard to the documents, which have been destroyed and not available with the office, as claimed, but since PW-3 has already deposed before the learned Court below that the documents were not available, so the learned Court below should allow the application, under Section 65 of the Indian Evidence Act