Inder Singh vs State of H.P and ors.

Chander Bhusan Barowalia, J.

1.The present petition is maintained by the petitioner, under Article 227 of the Constitution of India, for quashing and setting aside the impugned order,

dated 26.5.2017, passed by the learned Civil Judge (Junior Division) Court No. II, Ghumarwin, District Bilaspur, H.P, in Civil Suit No.1-1 of 2012 titled

Inder Singh vs. State of Himachal Pradesh & ors, whereby the learned Court below, has allowed the application of the defendants/respondents filed,

under Section 65 of the Indian Evidence Act.

Brief facts giving rise to the present petition are that the petitioner/plaintiff (hereinafter referred to as the ‘plaintiff’) maintained a suit for

Permanent Prohibitory Injunction restraining the respondents/defendants (hereinafter referred to as ‘defendants’) from constructing a road

through any part of land comprised in Khasra No.58 in Khata/Khatauni No.162/182 min. situated in Village Lanjta Pargana Ajmerpur, Tehsil

Ghumarwin, District Bilaspur (hereinafter referred to as ‘suit land’) and further restraining the defendants from digging the land, cutting and

destroying the plants/trees and from changing the nature of the suit land in any manner. The stand of the respondents through written statement is that

the State of Himachal Pradesh has constructed the road with the consent of the petitioner/plaintiff, which was in the shape of an affidavit in the year

1993. Now, the Villagers have requested for metalling of the road and State has spent considerable amount. During the pendency of the proceedings,

the respondents/defendants moved an application, under Section 65 of the Indian Evidence Act, averring that the petitioner/plaintiff alongwith other

villagers had given donation letter, dated 16.8.1993 alongwith affidavit, but these documents have been lost and could not be traced out despite best

efforts. Hence, the present petition.

Reply to the petition has been filed and it has been averred that the road known as “Rihru Gadod Badog Bhapral†was constructed during 1993

with the consent of land owners including the petitioner/plaintiff, on the demand and request of the inhabitants of the area. The work for metalling of

the road was taken in hand, during 2012 and during the execution of work, plaintiff maintained a suit for Permanent Prohibitory Injunction. The original

affidavit executed by the land owners were not traceable with the respondents, so the respondents/defendants filed an application, under Section 65 of

the Indian Evidence Act, 1972 to adduce copy of affidavit in support of evidence. It is further submitted that had the original documents/affidavit been

in the custody of the respondents/defendants, then the same would have been produced on record. The learned Court below after looking into the

copy of affidavit, allowed the application, under Section 65 of the Indian Evidence Act, thereafter the witnesses as examined by the

respondents/defendants have admitted the existence of these documents alongwith their signature on them.

Learned counsel appearing on behalf of the petitioner has argued that there is nothing on record to show that the original document was lost, rather

the witness of the defendant examined in the learned Court below has stated that Gift Deed is with the Department. He has further argued that there

is no proof that the original document is lost, so the order of the learned Court below is required to be set aside. In support of his arguments, he has

relied upon the judgment rendered by the Hon’ble Apex Court in 2015 STPL 9855, SC titled Rakesh Mohindra vs. Anita Beri and others, on this

aspect. On the other hand, learned Additional Advocate General has strenuously argued that the original document i.e. Gift Deed, which was executed

by the plaintiff in favour of the State Government and affidavit was lost in the office, the same was not traceable and so, the photocopy, which is kept

in the office was to be proved and produced in the learned Court below. He has further argued that the impugned order passed by the learned Court

below is just, reasoned and needs no interference.

To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail.

In the present case, the State Government has given the application that the original document, which was in the office of the defendant i.e. Gift

Deed executed by the plaintiff in favour of Government of Himachal Pradesh and affidavit was lost, that is why, secondary evidence was to be

produced, so, this Court finds that the primary evidence was rightly appreciated by the learned Court below and the learned Court below has rightly

come to the conclusion that the original document has been lost, as the same has been established by the applicant/defendant.

Hon’ble Apex Court in 2015 STPL 9855 SC titled Rakesh Mohindra vs. Anita Beri and others, has held as under : “17. The pre-conditions

for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best

efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-

production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in

respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.

It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in

the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down

the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that

neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is

otherwise required to be done in accordance with law.â€​

The existence of the document was proved by AW-1, Sehjad Singh Chauhan, who has deposed that ‘Barog Bhapral’ road was constructed

in the year 1993 with the consent of land owners and Inder Singh gave gift of his land by way of affidavit. In his cross-examination, he could not tell

Khasra number, but deposed that it was written in affidavit. He could not tell date of preparation of the affidavit. He has stated that Gift Deed was in

the custody of XEN, HPPWD, which was given by him in favour of the Department. AW-2 Inder Singh, has deposed that he has identified affidavit,

as attested by him. He has deposed that he did not have any affidavit, as he was not allowed to keep the same. He has stated that Inder Ram was

identified by Ram Prakash, after which, he attested Mark-X2. In his cross-examination, he has agreed that he had not seen the original of Mark-X2.

The applicant/defendant wanted to produce secondary evidence on record stating that the same had been lost and to prove the said certificate had

also been produced on record from Village Panchayat. Now, the said fact, which is required to be looked into, is that the same had been lost. AW-1,

Sehjad Singh Chauhan, has stated that the affidavit was executed, which was with the department. AW-3, Chaman Lal, had also stated that the

affidavit was given to them, but the same was not with them. Considering the said affidavit had been lost and the applicant wanted to produce the

same on record for the purpose of proving donation of the land, it can be safely stated that the affidavit had been lost and, therefore, it is required to be

proved by leading secondary evidence. As the execution of affidavit has been proved that the original document was lost, this Court finds that there is

no illegality and infirmity with the impugned order passed by the learned Court below. Consequently, the aforesaid judgment (supra) as cited by the

learned counsel appearing on behalf of the petitioner, is not applicable to the facts of the present case and so, this Court finds that the impugned order

passed by the learned Court below is in accordance with law, as the original document has been proved to be lost. In these circumstances, after

careful appreciation of the evidence and the material, which has come on record, this Court finds that the impugned order passed by the learned Court

below is just and reasoned and so, no interference is required by this Court.

In view of what has been discussed hereinabove, the present petition, which sans merits, deserves dismissal and is accordingly dismissed. Parties,

through their learned counsel, are directed to appear before the learned Court below on 30th May, 2018. However, the parties are left to bear their

own costs. The petition, so also pending application (s), if any, shall stand (s) disposed of accordingly.