IMPORTANT POINT
Conditions for leading secondary evidence u/s 65, Evidence Act, 1872 discussed.

Judgment

M.Y. Eqbal, J.

Leave granted.

2. This appeal by special leave is directed against order dated 2.9.2014 passed by learned Single Judge of the High Court of Himachal Pradesh who set aside the order rendered by the trial court permitting the defendant-appellant to lead secondary evidence in the Civil Suit filed by respondent no.1.

3. The short question that arises for consideration by this Court is as to whether the High Court is justified in reversing the order passed by the Trial Court allowing the defendant-appellant to lead secondary evidence of the contents of the documents.

4. The facts of the case lie in a narrow compass.

5. The respondents-plaintiffs have filed a suit under Sections 34 and 38 of the Specific Relief Act, 1963 for declaration that the appellant-defendant has no right, title or interest over the suit property in any manner and plaintiffs are in possession of the same. Consequently, defendant be restrained from causing any type of loss, injury and doing any such act which may in any manner, cause prejudice to the user, possession and title of the plaintiff qua the suit property.

6. The subject matter of the suit is part of the land defined as Survey No. 41, Kasauli Cantt. Tehsil Kasauli and structures/buildings more specifically known as “Dharma Prakash, Homestead”. One late Sh. Duni Chand Advocate was owner in possession of land comprised in Survey No. 41, measuring 2.31 acres described as “Kildare Estate” Homestead Dharma Prakash. Late Sh. Duni Chand, during his life time executed a gift deed with regard to the property owned by him which was registered as deed No. 2 with Sub Registrar, Kasauli. He gifted his properties to his son Justice late Sh. Tek Chand. Justice late Sh. Tek Chand became owner-in-possession of the suit property. Justice late Sh. Tek Chand expired on 16.6.1996 leaving behind two daughters Smt. Anila Sood and Smt. Anita Beri and one son Sh. Vikram Dhanda. Justice late Sh. Tek Chand during his life time executed a legal and valid ‘will’ in favour of plaintiff No. 2, Smt. Anita Beri, which was duly registered with Sub Registrar Chandigarh, as deed No. 410 dated 19.6.1984. The mother of defendant was step sister of Justice late Sh. Tek Chand. He was using portion of house known as ‘Homestead’ with the permission of plaintiff No. 2, namely, Smt. Anita Beri. She came to know that defendant was misusing the license and raised some illegal construction in the shape of platform, so as to use the same for the purpose of car parking.

7. According to the plaintiff, defendant has no right, title or interest over the suit property and as such could not change the nature of the same. A legal notice was issued on 5.11.2006. Reply was sent by the defendant to the same. The defendant has also started causing obstruction to the path which leads from circular road to ‘Homestead cottage’ and ‘Homestead building’. Plaintiff No. 2 has requested the defendant not to lock the gate. However, the lock on the gate has been put to cause temporary obstruction, hindrance and prejudice to the user of the suit property by plaintiff No. 2.

8. On the other hand, the defendant-appellant’s case is that they have inherited the property from Smt. Vijaya Kumari who became the owner of the suit property on the basis of the gift deed dated 19.03.1965. Appellant’s further case is that Justice Tek Chand had issued a letter of disclaimer dated 24.08.1982. According to the appellant, the said letter of disclaimer was handed over by Justice Tek Chand to his sister Smt. Vijaya Kumari who in turn handed over to the appellant. On the basis of letter of disclaimer, the appellant vide letter dated 21.07.2001 requested the authority, namely, Defence Estate Officer (DEO), Ambala Cantt for effecting mutation of the property in his name.

9. On these backgrounds, the defendant filed an application in the Trial Court under Section 65 of the Evidence Act seeking permission to prove the letter of disclaimer executed by Justice Tek Chand by way of