The main legal point established in the judgment is that the admissibility of secondary evidence to prove a demarcation report is subject to compliance with Section 63 of the Evidence Act.

Vinod K.Sharma, J.

1. The petitioner has invoked the provisions of Article 227 of the Constitution of India to challenge an order passed by the learned Addl. Civil Judge (Sr. Divn.), Kurukshetra vide which application moved by the petitioner for leading secondary evidence to prove demarcation report has been ordered to be dismissed.

2. The plaintiff respondent filed a suit for possession with a consequential relief of permanent injunction. It was claimed by the defendant petitioner that demarcation of the suit land was effected by Hari Chand Kanungo, Sadar Thanesar as Local Commissioner, on 15.8.1989 and the report of the said date was prepared. It was claimed that the original file of demarcation report was not traceable in the record of V.R.K. Branch, Kurukshetra or in the office of Tehsildar Thanesar or in the office of Sadar Kanungo Thanesar.

3. It is the case of the petitioner that inquires were made about the file which was not traceable. It was claimed that the photo copy of the demarcation report was already on file, therefore, permission be granted to prove the same by leading secondary evidence. The petitioner sought to examine Rajbir Patwari son of Hari Chand Kanungo or any other person who was familiar with hand writing of Hari Chand Kanungo.

4. The application was opposed by the plaintiff- respondent and it was claimed that earlier also defendant filed an application for leading secondary evidence, which was dismissed. It was also claimed that present application was not competent as vide order dated 4.4.2006 last opportunity was granted to the petitioner to lead his entire evidence on 20.4.2006. The defendant petitioner led evidence on 20.4.2006 but did not close the evidence. The objection was also raised with regard to leading additional evidence to prove the photo copy in violation of Section 63 of Eviction Act. It was claimed that photo copy has been tampered with by the defendant with pen, which was admitted by Sadar Kanungo in his statement on oath before the Court.

5. It was also the stand of the plaintiff respondent that demarcation can be got done afresh by appointing a technical man to demarcate the suit property which is the main dispute between the parties as the dispute is with regard to the encroachment of portion of land which was owned by the plaintiff. It was also claimed that Rajbir Patwari never conducted demarcation nor he was competent to carry out such demarcation.

6. It was the case of the petitioner that the loss of record is proved and, therefore, the petitioner be allowed to lead secondary evidence. The claim of the petitioner was contested on the plea that the photo copy of demarcation report cannot be proved by leading secondary evidence in view of Section 63 of the Evidence Act As the demarcation report was not attested copy of the original nor the witness by whom it is sought to be proved was present at the time of preparation of actual demarcation. It was asserted that afresh demarcation can be conducted.

7. The Court came to the conclusion that as the demarcation report is neither a certified copy nor its original record has ever seen the light of day, therefore, the petitioner cannot be permitted to prove this document by way of secondary evidence.

8. Mr. P.K. Gupta, learned counsel appearing on behalf of the petitioner vehemently contended that in the suit for possession filed by the plaintiff demarcation report is a valid document which was necessary to be proved. The contention of the learned counsel for the petitioner, therefore, was that the learned trial Court was in error in considering the veracity of the document at the time of considering the application to lead secondary evidence.

9. The learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Bihari Lal v. Ram Piari, 1999(3) RCR(Civil) 239 (P&H) to contend that once loss of document was amply proved the application to lead secondary evidence should have been allowed.

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