Judgment

Mr. Arun Monga, J.

Petition herein is for setting aside order dated 02.03.2023 (Annexure P-3) passed by Ld. Civil Judge (Jr. Division), Patiala, whereby the application moved by respondent/defendant No.1 for leading secondary evidence, was allowed.

2. Succinct facts first, as pleaded in the instant petition.

2.1. Petitioner/plaintiff filed a suit for declaration to the effect that she is owner in joint possession of suit property left behind by Late S. Chhota Singh to the extent of her share as per natural succession of Late Sh. Chotta Singh, who died intestate without executing any Will; that the alleged Will dated 02.12.1997, allegedly executed by Late Sh. Chotta Singh in favour of defendants No.1 to 3/respondents No.1 to 3 herein is also null and void; that mutation sanctioned in favour of defendants No.1 to 3 on the basis of the said unregistered Will is also null and void; that entries in revenue record are also liable to be corrected on the basis of inheritance by natural succession and sale deed dated 26.12.2011 executed by defendant No.3 in favour of defendant No.4 from the suit property and mutation sanctioned on the basis of said sale deed are also illegal, null and void. Further, prayer has been made for permanent injunction restraining defendants No.1 to 4 from alienating, mortgaging, leasing, making gift deeds or transferring in any manner the land more than their share i.e. to the extent of 1/6th share out of the total suit property.

2.2. Respondent No.1 filed an application (Annexure P-1) for leading secondary evidence and alleged that after the death of Chotta Singh, he handed over the original Will dated 02.12.1997 executed by Chotta Singh in favour of respondents No.1 to 3 to Halqa Patwari, but now from the statement of DW3 it came on record that the original file of mutation is not traceable. As the original Will dated 02.12.1997 is not traceable, the same is presumed to be lost.

2.3. Petitioner/plaintiff also filed reply (Annexure P-2) to the application but vide impugned order (Annexure P-3), Ld. Trial Court has allowed the defendant’s application.

3. Learned counsel for petitioner/plaintiff would argue that Ld. Trial Court failed to appreciate the fact that as per Section 64 of the Indian Evidence Act, the documents must be proved by way of preliminary evidence and even the instant application does not fall within the exceptions as provided under Section 65 of the Indian Evidence Act since the defendant has not mentioned in his written statement that the document was lost. He would further argue that even non-traceability of alleged document is not yet proved. Further, foremost requirement of law is respondent No.1 has to prove the existence of original document, which he has miserably failed to do.

4. Heard.

5. Para 3 of revision clearly suggests in so many words that respondent/defendant No.1 came to know of the loss of original Will after the revenue record was inspected and it was in those circumstances that he was compelled to file an application for leading secondary evidence.

6. Order dated 02.02.2023 (Annexure P-3) assailed herein, is premised, inter alia, on the following reasoning:

“xxx xxxx xxxx xxxx”

Office Kanungo revenue record room, Mini Secretariate Block A Patiala along with original record of mutation no.142 of village Behal, Tehsil and District Patiala entered and sanctioned on the basis of decree passed by Sub Judge-IInd Class Patiala dated 1.4.1970 in the name of Ram Singh, Gurdial Singh and Chotta Singh son of Sohan Singh son of Ram Ditta. After that said witness has appeared before this court as DW3 and suffered a statement as under:

Stated that he is submitting that on