IMPORTANT POINT
The main legal point established in the judgment is that the party seeking to admit secondary evidence must establish the non-production of the original document as required under the Indian Evidence Act, 1872.

ORDER :

1. The petitioner/plaintiff has filed the present writ petition under Article 227 of the Constitution of India assailing the order dated 9-9-2019 (Annexure P/1) passed in Civil Suit No 91-A/2016 by the 4th Additional District Judge, Bilaspur, District Bilaspur by which the application under Section 65 of the Indian Evidence Act, 1872 (for short, “the Act, 1872”) filed by the petitioner/plaintiff to examine the photo copy of the agreement dated 17-5-1991 as secondary evidence has been rejected.

2. The brief facts as reflected from the record are that the petitioner/plaintiff had filed a civil suit for declaration, title and grant of permanent injunction relating to the property situated at village Bodri, Patwari Halka No.1, Tahsil Belha, District Bilaspur bearing Khasra No. 279 and 280 and Khasra No 15 total area 4.26 acres of land. It has been contended that the plaintiff along with defendants No.1 and 2 had agreed to purchase the land bearing Khasra No. 279/3 and 280/3 area 3.81 acres situated at village Bodri, Patwari Halka No.1, Tahsil Belha, District Bilaspur, but the defendant No.1 was not having sufficient money to meet the expenses of registry, therefore, the defendant No.1 has shown his unwillingness to purchase the property before the plaintiff. It has also been contended the defendant No. 1 has assured the plaintiff that within 4 – 6 months whenever consideration of the property and expenses towards registration is available with him, the plaintiff will execute the sale deed of the land bearing Khasra No. 279/3 and 280/3 admeasuring 3.81 Acres registration in the name of defendant No.1 by paying himself. It has also been contended that though the sale deed was executed in favour of defendant No.1, still the possession of the property bearing Khasra No. 279/3 and 280/3 area 3.81 acres are with the plaintiff and defendant No.2 and they are doing the agricultural work. Though lot of time has passed after registration, still the defendant No.1 is not ready to pay the money. As such, defendant No.1 has no right over the suit property as entire property was invested by the plaintiff and defendant No.2 who are in possession of the suit property.

3. It has also been contended that the defendant No. 1 has no objection if the name of defendant No.2 is also recorded in the revenue records, therefore, defendant No.1 voluntarily executed the agreement in favour of defendant No.2 and it has been signed by the defendant No.1 in presence of the witnesses. This agreement was executed on 17-5-1991. On the basis of said agreement the names of the plaintiff and defendant No.2 were recorded in the revenue record. Thereafter, with mutual consent of the plaintiff and defendant No.2 the property was partitioned and out of total 3.81 acres, land bearing Khasra No. 2.77 acres was given to the plaintiff and defendant No.2 was given 1.04 acres and since then they are in possession of the suit property. Thereafter, defendant No. 1 out of greed has challenged the said mutation order by filing an appeal before the Sub Divisional Officer, Belha which was allowed on 28-9-2015 and mutation proceeding entry No. 96 dated 30-6-1991 has been cancelled, against which the plaintiff had preferred an appeal. Before the Commissioner, Bilaspur which is pending. Thus, on the above factual matrix, he has prayed for declaration, title and grant of permanent injunction with regard to suit property.

4. The defendant No.1 has filed his written statement denying the allegations made by the plaintiff/petitioner. During pendency of the case, plaintiff had moved an application under Section 65 of the Act, 1872 mainly contending that the agreement dated 17-5-1991 was kept with the defendant No.1 and photostat copy was given to the plaintiff which has been received after thorough search, as such he would submit that photostat copy of the agreement may be allowed as secondary evidence and documents may be exhibited.

5. The defendant No.1 has submitted reply to the said