Secondary Evidence--Existence of original will not proved--Permission to prove by way of secondary evidence cannot be granted.

Jaspal Singh, J.

1. By virtue of this revision petition preferred under Article 227 of the Constitution of India, petitioners have sought setting aside of order dated September 30, 2015 passed by the Civil Judge (Junior Division), Moga, whereby an application filed by them under Section 65 & 66 of the Indian Evidence Act, 1872 (for short, ‘Act’) seeking permission to prove Will dated January 24, 1989 executed by Babu Singh in favour of petitioners by way of secondary evidence was dismissed.

2. The facts giving rise to instant petition are that petitioners preferred a suit for declaration to the effect that they are owners to the extent of ½ share each of the land owned by Babu Singh son of Phuman Singh, situated in village Kokri Kalan, Tehsil & District Moga and mutation Nos.9971 dated February 28, 1991 and 9359 dated February 25, 1991 sanctioned by the Assistant Collector 2nd Grade, Moga in favour of Baldev Singh (predecessors-in-interest of respondent Nos.1 and 2) and Shamsher Singh (respondent No.3) are illegal, null and void as the said mutations have been sanctioned on the basis of a forged Will dated March 20, 1988 and also prayed for consequential relief of permanent injunction to restrain the respondents from alienating, transferring or mortgaging the suit property.

3. During pendency of the aforesaid suit, an application under Section 65/66 of the Act was filed on March 19, 2014 seeking permission to prove copy of Will dated January 24, 1989 by way of secondary evidence. The said application was allowed vide order dated July 4, 2014. Feeling aggrieved against the said order, respondents preferred Civil Revision No.4645 of 2014 which was allowed by this Court on the ground that once the petitioners have alleged that the original Will is in possession of the revenue official, they should have served a notice upon him under Section 66 of the Act for its production and in case, it is alleged that the said Will has been lost, then the application could have been filed for leading secondary evidence but in the absence of the compliance of the aforesaid procedure, the application per se filed under Section 65 of the Act is not maintainable. In view of the aforesaid apparent error on the part of the Court below, the present revision petition is hereby allowed and the impugned order is set aside. However, the respondents are still at liberty to move an application under Section 66 of the Act to the revenue official to whom the alleged Will was given for the purpose of sanctioning of mutation and in case of denial on his part that the Will has been lost, they can maintain the application for secondary evidence.

4. Subsequent thereto, petitioner preferred another application under Section 65/66 of the Act, pursuant to aforesaid order for issuance of notice under Section 66 of the Act to the revenue officials for production of original Will dated January 24, 1989 stated to have been handed over by the petitioner to revenue officials for sanctioning the mutation in their favour. Both the revenue officials were given notice for production of the original Will dated January 24, 1989 but they failed to produce the said Will. It was only thereafter, after hearing learned counsel for the parties, application was dismissed vide impugned order dated September 30, 2015.

5. Dis-satisfied by the impugned order, petitioners have approached this court by way of instant revision petition.

6. The contention of learned counsel for the petitioners is that impugned order is not sustainable in the eyes of law as it suffers from patent errors of law and is against the letter & spirit of Sections 65 & 66 of the Act. While the above referred provisions of the Act, learned counsel for the petitioners has contended that Section 65(a) of the Act allows for production of secondary evidence when the original is shown or appears to be in possession or power of against whom the document is sought to be proved, or any person out of reach of, or not subjec