The admissibility of secondary evidence should be determined when the document is produced in evidence, and parties have the opportunity to raise objections at that stage.

1. This revision petition is directed against the order dated 6-2-2001 passed by the Civil Judge (Senior Division), Kapurthala whereby application moved by defendant Nos. 1 and 2 seeking permission of the Court to prove the agreement of exchange dated 8-2-1983 by way of leading secondary evidence, has been disallowed.

2. The essential facts for the decision of the present petition need to be noticed. Banta Singh and Dalip Singh sons of Narayan Singh were the owners of land measuring 96 kanals which was recorded in the revenue record in their joint Khata. Out of this land, 23 Kanals 18 Marlas was Niain land located adjacent to village Abadi. The remaining land of 72 kanals was not of good quality and was inferior to the land of 23 kanals 18 marlas. Both the brothers decided to partition their land in order to settle the dispute between their families. A family settlement in the shape of agreement of exchange was executed on 8-2-1983 which was scribed by the Deed Writer. As a result of partition of their joint holdings, the land abutting the Village Abadi was retained by Dalip Singh and the remaining land came to the share of Banta Singh. Mutation No. 578 was sanctioned to this effect on 14-2-1983. Possession of the respective holdings was also transferred. After the death of Dalip Singh and Banta Singh, their heirs consisting of respondent Nos. 1 to 4 and the petitioners succeeded to their respective holdings. Later on, respondent Nos. 1 to 4 filed a suit for possession of the land measuring 71 Kanals, 18 Marlas and in the alternative to the extent of 1/2 share including the land which was subject-matter of the transfer effected by means of sale by the parties out of the total land measuring 96 Kanals, 4 Marlas. The suit was resisted by the petitioners-defendants on the ground of agreement of exchange executed on 8-2-1983 between Banta Singh and Dalip Singh which was the basis of sanction of Mutation No. 578 effected on 14-2-1983.

3. During the course of trial of the case, plaintiffs-respondents denied the execution of agreement of exchange dated 8-2-1983 and further failed to produce the said document which compelled the defendants-petitioners to move an application for its production before the trial Court and in the alternative seeking permission of the Court to produce the secondary evidence to prove the agreement of exchange dated 8-2-1983. The learned trial Judge disallowed the prayer made vide order dated 6-2-2001. It is against this order, the present revision petition has been filed.

4. I have heard learned counsel for the parties.

5. It is manifest from the order dated 6-2-2001 that the learned trial Judge was mainly influenced by the fact that the agreement of exchange in question is unstamped and unregistered document and for that reason secondary evidence cannot be allowed in respect of this document. This finding of the learned trial Judge had been seriously challenged primarily on the ground that this was not the stage where the question whether the agreement was stamped or unstamped was required to be gone into. Further according to the petitioners, it is only when the document is to be produced in the Court that the Court is to examine the same and the questions of its admissibility would arise.

6. I find considerable merit in the stand taken from the side of the petitioners because, the respondents have not disputed in the written statement that agreement of exchange was not executed between Dalip Singh and Banta Singh. They have failed to produce the said agreement. Therefore, in that situation, the observations made in Bihari Lal V/s. Smt. Ram Piari (1999) 2 Pun LJ 213 would be attracted. In that case, a photostat copy of the Will was filed. Objection was taken in regard to the admissibility of photostat copy. Dealing with this issue, it was observed as under :-

"What evidentiary value can be given is a matter to be decided in the suit itself. In this connection, it is useful to refer to the decision