IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ANIL VERMA th ON THE 5 OF NOVEMBER, 2024 MISC. PETITION No. 7473 of 2023 SMT. VINEETA SHARMA Versus SMT. UMA SHARMA AND OTHERS Appearance:

Shri Santosh Agrawal, Advocate for the petitioner.

Shri Rishikesh Bohare, Advocate for the respondent nos. 1 to 4 and 6 to 10.

Shri S.S.Kushwaha, Government Advocate for respondent no.11/State.

ORDER

1. With the consent of both the parties, the matter is heard finally.

2. Petitioner has preferred this miscellaneous petition, under Article 227 of the Constitution of India, being aggrieved by the impugned order dated 4/12/2023 (Second part) passed by Additional Judge to the Court of I Civil Judge, Junior Division, Gohad, District Bhind in Civil Suit No. 95/2019, whereby application under section 65 of the Indian Evidence Act (I.A. No. 02/2023) filed by the petitioner has been rejected.

3. Brief facts of the case are that respondent nos. 1 to 4/plaintiffs filed a civil suit for declaring them Bhumiswamis of the suit land and for declaring the sale deed dated 1/10/2014 to be null and void and also for permanent injunction. It is the case of plaintiff/respondent nos. 1 to 4 that name of mother-in-law of plaintiff no.1 and grand mother of plaintiff nos. 2 to 4 was recorded as Bhumiswami of the disputed land and she was having possession over the suit land during her lifetime and after her death names of plaintiff and defendant nos. 1, 3 to Signature Not Verified Signed by: ANAND

7 was mutated in the revenue papers. Defendant no.1 has sold the disputed land to defendant no.2 and given threat that they will take forcible possession. During the pendency of civil suit, petitioner has preferred an application under section 65 of the Indian Evidence Act for taking the Bhu Adhikar and Rin Pustika in the name of her vendor on record as secondary evidence, but after hearing both the parties, the trial Court has rejected the same by impugned order dated 4/12/2023. Being aggrieved by the same, petitioner has preferred this petition.

4. Learned counsel for the petitioner contended that the impugned order passed by the learned trial Court is against law and facts. The trial Court has not considered that photocopy of Bhu Adhikar and Rin Pustika is a necessary document to establish the case of the petitioner and, without considering the actual controversy, has rejected the application. Therefore, the impugned order deserves to be set aside. In support of his submissions, learned counsel has placed reliance on decision of this Court in Shivraj Singh Yadav Vs. Prateek Jain (2019 0 Supreme (MP) 799) and that of Rajasthan High Court in Chandra Kumar Vs. State of Rajasthan (2017 0 Supreme (Raj) 2786).

5. Per contra learned counsel appearing for the respondents has opposed the prayer by supporting the impugned order passed by the learned trial Court. 6. Heard counsel for the parties and perused the documents filed by the parties.

7. From perusal of the application filed by petitioner under section 65-B of Evidence Act, its reply by respondents and the impugned order passed by the trial Court, it appears that petitioner has sought permission to prove certain documents by secondary evidence which are only photocopies. The petitioner in the entire application before the trial Court has not mentioned any specific document, date of document and nature of document which is sought to be proved in secondary Signature Not Verified Signed by: ANAND evidence. However, petitioner filed certain photocopies of the documents which were denied by respondents as the documents were neither signed by respondents nor the date or name of the author of document was mentioned in said document and petitioner did not disclose the authority who prepared the aforesaid documents.

8. In the case of Ratanlal Vs. Kishanlal reported in 2012(1) MPLJ 120, this Court has held as under :

“12 According to me, the photocopy is neither a primary nor secondary evidence and in this regard decisio