The admissibility of photocopies as secondary evidence and the significance of documentary evidence, such as a mortgage deed, in establishing ownership.

VALMIKI J. MEHTA, J.

CM No. 34674/2017 (Exemption)

Exemption allowed, subject to just exceptions.

CM stands disposed of.

CM Nos. 34675/2017, 34673/2017 (for condonation of delay in filing and re-filing the appeal)

For the reasons stated in the applications, the delay in filing and re-filing the appeal is condoned.

CMs stand disposed of.

RSA No. 234/2017 and CM No. 34672/2017 (stay)

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit, impugning the concurrent judgments of the courts below; of the trial court dated 7.12.2016 and the first appellate court dated 23.3.2017; by which the courts below have decreed the suit of the respondent/plaintiff/mother against the daughter/appellant no. 1 and appellant no. 2 who is the second husband of the appellant no. 1.

2. The facts of the case are that the subject suit was filed by the respondent/plaintiff claiming ownership of the suit property being House no. 20/68, Second Floor, Trilok Puri, Delhi. Respondent/plaintiff/mother claims ownership of the suit property by virtue of the Will dated 28.8.2003 duly registered with Sub-Registrar, and executed by her husband Sh. Parshu Ram in her favour. Sh. Parshu Ram has also simultaneously executed other documents being the General Power of Attorney, Gift Deed etc. on the same date in favour of the respondent/plaintiff/wife Smt. Devki. It was pleaded in the plaint by the respondent/plaintiff that appellant no. 1/daughter who was guilty of bad behavior due to which she had to take divorce from the first husband on 30.11.2009 and where after the appellant no. 1 started living with the respondent/plaintiff. Appellant no. 1 thereafter said to have got married on 24.6.2010, with the appellant no. 2, the second husband and who was a tenant in the suit property. The appellant no. 2 is alleged to be a habitual drinker who used to misbehave with the respondent/plaintiff and other family members in drunken condition and also used to create scenes. It was also pleaded that the appellant no. 1/defendant no.1/daughter had also started quarrelling and had misbehaved with the respondent/plaintiff/mother and other family members without any rhyme and reason. It is pleaded that appellants/defendants refused to vacate the suit property being the second floor of the suit property in spite of the request of the respondent/plaintiff, and therefore, the subject suit for permanent and mandatory injunction was filed.

3. The suit of the respondent/plaintiff was contested by the appellants/defendants and who pleaded that the suit property was not owned by the respondent/plaintiff but was owned by respondent/plaintiff’s husband, i.e the father of the appellant no. 1/defendant no.1, namely Sh. Parshu Ram. It was pleaded that after the death of the father all the legal heirs including appellant no. 1/defendant no. 1 became owner of the suit property. Ownership of the respondent/plaintiff in terms of Will dated 28.8.2003 was denied.

4. After pleadings were complete, trial court framed the issues and parties led evidence and which aspects are noted in paras 5 to 9 of the judgment of the trial court, and these paras read as under:-

“5. On the basis of the pleadings of the parties, following issues were framed vide order dated 10.09.2014.

(1) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP

(2) Whether the plaintiff is entitled for the relief of permanent injuction as prayed for? OPP

(3) Relief, if any.

6. Thereafter, the evidence was led on behalf of the plaintiff who examined herself as PW1. She has reiterated the facts of plaint in his affidavit Ex. PW1A/A. She also relied upon the documents i.e. site plan Ex. PW1/A, copy of ration card Ex. PW1/B, electricity bill Ex. PW1/C, copy voter I card ex. PW1/D, copy of death certificate of husband of plaintiff Ex. PW1/E, copy of legal notice Ex. PW1/f, postal receipts Ex. PW1/G, copy of publication Ex. PW1/H, copy of pro