JUDGMENT :

Heard learned counsel for the petitioner and perused the record.

2. This application under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 10.12.2018 passed by learned Sub-Judge-1st, Munger in Title Suit No. 110 of 2008 by which the application dated 12.07.2018 filed by the petitioner for taking into evidence the photostat copy of the sale deed dated 22.04.2018 has been rejected.

3. Learned counsel appearing for the petitioner submitted that in view of the provisions prescribed under Section 65 of the Evidence Act, the court below ought to have taken the photostat copy of the sale deed executed on 22.04.2008 on record and marked the same as exhibit. He contended that by rejecting the application filed by the petitioner the trial court has committed gross illegality.

4. On perusal of the plaint as contained in Annexure-1 to this application, I find that Title Suit No. 110 of 2008 has been filed by the petitioner for the following relief’s:-

“(a) On adjudicating of facts and circumstances of the case, the court be pleased to pass a decree in favour of the plaintiff directing the defendant 1st party to appear before the Sub-Register, Muger and duly present the sale deed and admit the execution within reasonable time and at the same time, defendant no. 2 may be directed to join the sale deed in case defendant fails to do so, the court may direct any officer of the court to admit the execution of the sale deed and thereafter the original sale deed may be handed over to the plaintiff and at the same time the defendants may be directed to give vacant possession of the suit property to the plaintiff, failing which the plaintiff may be put in possession of the suit property by ejecting the defendants or anybody else who may be found to be in possession through the process of the court and in case, if the suit property is found locked the plaintiff may be put in possession by breaking open the lock.

(b) The defendants may be restrained by an order of permanent injunction from withdrawing the sale deed from registry office, Munger and alienating the suit property in any manner or changing the physical feature of the suit property till the possession is handed over to the plaintiff.

(c) Full cost of the suit be awarded to the plaintiff.

(d) Any other relief or relief’s which the court may deem fit and proper be passed in favour of the plaintiff.”

5. It is the case of the petitioner that during the pendency of the suit, the defendant 1st party sold the suit property in favour of the present defendant through registered sale deed dated 27.09.2008 where after the petitioner filed an application under Order 1 Rule 10 of the Code of Civil Procedure for impleading the respondent Indu Devi as defendant 2nd party. The said petition was allowed, subsequently, the defendant 1st party died and now Indu Devi is the only defendant in the case.

6. On 29.01.2013, the petitioner filed an application before the trial court wherein it was contended that sale deed executed by the defendant 1st party is in custody of defendant 2nd party and, therefore, defendant no. 2 be directed to produce the sale deed dated 22.04.2008 in the court. The said application was contested by the defendant 2nd party. She filed an affidavit on 07.02.2014 wherein it was contended that no sale deed was executed on 22.04.2008 by the defendant no. 1. She further contended that she had purchased the property in dispute from defendant no. 1 on 01.10.2008. If any sale deed was executed on 22.04.2008, the same should have been in possession of the plaintiff. It was further pleaded that just in order to mislead the court a photostat copy of a purported sale deed was produced by the plaintiff, which cannot be taken into evidence. She completely denied custody of document in her possession and made a prayer to reject the application of the petitioner.

7. Having considered the submissions made on behalf of the parties, vide order dated 29