Harbhajan Singh vs Balwant Singh and others

L.N. Mittal, J.—Plaintiff Harbhajan Singh has invoked jurisdiction of this Court under Article 227 of the Constitution of India by filing this revision petition to assail order dated 02.11.2010, passed by learned Civil Judge (Junior Division), Zira, thereby allowing application moved by defendant no. 2 for secondary evidence of Will allegedly executed by Massa Singh in favour of defendant no. 1 Baba Kundan Singh I have heard learned counsel for the parties and perused the case file.

Defendants examined DW-5 Gurmeet Singh, who was summoned with file of mutation no. 1732, which was allegedly sanctioned on the basis of the alleged Will. Gurmeet Singh stated that file of the aforesaid mutation has been destroyed as Tehsil complex premises had fallen down. In view thereof, defendant no. 2 sought permission to lead secondary evidence of the Will.

Plaintiff-petitioner, in his reply, repudiated the averments made in the application and pleaded that no Will, as alleged, was executed by Massa Singh and mutation no. 1732 is not related to the alleged Will.

Learned trial court, vide impugned order, allowed application for secondary evidence of the aforesaid Will, subject to proof of existence and loss of the document and all just exceptions.

Learned counsel for the petitioner contended that the alleged Will is not in existence, and therefore, secondary evidence thereof could not be permitted. The contention cannot be accepted. According to the defendants, the alleged Will was produced in mutation no. 1732, file whereof has since been destroyed, as stated by DW-5 Gurmeet Singh. Consequently, defendants were left with no option, but to seek permission to lead secondary evidence of the Will. As regards existence or non-existence of the Will, the trial court has granted permission for secondary evidence of the Will, subject to proof of its existence and loss and also subject to all just exceptions. In view thereof, the aforesaid contention of counsel for the petitioner does not survive. For the reasons aforesaid, I find no merit in this revision petition. Impugned order of the trial court does not suffer from any perversity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is accordingly dismissed.