IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ALOK AWASTHI MISC. PETITION No. 4758 of 2025 GAYATRI BAI Versus LEELA BAI AND OTHERS Appearance:

Shri Vinay Kumar Zelawat, learned Senior Advocate alongwith Shri Aashay Dubey, learned counsel for the petitioner [P-1].

Ms. Mradula Sen, learned Govt. Advocate for the respondent/State.

No one is present on behalf of respondents even after service of notice.

Heard on : 10.10.2025 Pronounced on : 19.11.2025 ORDER The petitioner has preferred this petition under Article 227 of the Constitution of India being disgruntled by the impugned order dated 21.07.2025 passed by the Second Civil Judge, Senior Division, District- Dhar in RCS No. 01A/2018, whereby petitioner/defendant’s application under Section 65 of the Indian Evidence Act, 1872 (briefly “IEA, 1872”) [Now, Bharatiya Shakshya Adhiniyam, 2023 (for brevity “BSA, 2023”)] for taking photocopy of a will as secondary evidence, has been rejected.

2. Brief facts of the case are that the respondent Nos. 1 to 3 had filed a Civil Suit for declaration and possession of the land situated at Survey No. 229/1, Village Kunwarsi, Tehsil and District Dhar admeasuring 0.732 hectares. It was pleaded in the plaint that the respondents are the owner and possession holder of the land in question as they grow crops on the said land from many years. The respondent No. 4 being wife of the respondent No. 3, had with malafide intentions, mutated the said property in the name of the present petitioner. Further, the respondent Nos. 1 to 3 submitted that against the said illegal mutation, the aforementioned respondents sent a legal notice to the petitioner and accordingly filed a suit in the year 2012, which was withdrawn with liberty to file a fresh suit, therefore, respondent Nos. 1 to 3 filed present suit in question.

3. Petitioner filed its written statement on 23.08.2018 and denied the submissions made by the present respondents Nos. 1 to 3, in their plaint, The petitioner submitted that the said land was duly purchased by them from the respondent No. 4 in the year 2004, who was the true owner and possessor of the disputed land in question, and since then, the petitioner has been in ownership and possession of the said disputed property. Thereafter, the present petitioner moved an application under Section 65 of the Indian Evidence Act, 1872, in order to admit the photocopy of the said Will as secondary evidence into the record of the present suit in question. The learned trial Court has rejected the said application after considering all the facts. Hence, this petition is filed.

4. Shri Vinay Kumar Zelawat, learned Senior Advocate Counsel for the petitioner contended that the order passed by the learned trial court is arbitrary and illegal as application filed by the petitioner. learned trial court clearly ignored the settled principle of law that secondary evidence can be produced in case where the original is shown or appears to be shown in possession or power against whom the document is sought to be produced. It is also contended that the aforesaid application was only moved as the respondents Nos. 1 to 3 denied to produce the Will in question whose originals are with the respondent Nos. 1 to 3. Therefore, he has prayed that the present petition be allowed by setting aside the impugned order.

5. In support of his contentions, he has placed reliance over the judgment of the Apex Court in the case of Jagmail Singh & Anr. Vs. Karamjit Singh & Ors., Civil Appeal No. 1889 of 2020, dated 13.05.2020 (Arising out of Special Leave Petition (C) No. 17437 of 2017).

5. Per contra, learned counsel appearing for respondents supported the impugned order passed by the trial Court. He also submitted that the photocopy of Will not fall within parameters of Section 65 of IEA, 1872 (Section 50 of BSA, 2023). Therefore, the present petition is liable to be rejected.

6. Both the parties heard at length and perused the impugned order and other documents wit