Kashmir Singh vs Gurdeep Singh and others

L.N. Mittal, J

Plaintiff No.1-Kashmir Singh has invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing this revision petition to impugn order dated 04.05.2011 (Annexure P-1) passed by learned Civil Judge (Junior Division), Patti thereby dismissing the application (Anneuxre P-2) moved by the plaintiffs for secondary evidence of registered sale deed dated 10.08.1970. At the outset, it has to be noticed that application (Annexure P-2) was moved for secondary evidence of sale deed dated 10.08.1970 only, but in the impugned order, the trial Court has erroneously mentioned that plaintiffs want to lead secondary evidence of the aforesaid sale deed as well as of yaddasht (memorandum) dated 07.01.1972, although the plaintiffs never sought permission to lead secondary evidence of alleged yaddasht dated 07.01.1972.

I have heard counsel for the petitioner and perused the case file, whereas none has appeared for contesting respondents No.1 to 4 in spite of last opportunity. None appeared for them even on the preceding three dates of hearing in spite of service.

The plaintiffs alleged in the application that the original sale deed was lost by plaintiff No.1 in January 2010, while going to his counsel at Patti. In spite thereof, trial court has observed that it is not mentioned that as to which out of the plaintiffs lost the sale deed. Trial court has also observed that date of loss of the sale deed is not mentioned. However, omission to do so would not by itself disentitle the plaintiffs to lead secondary evidence of sale deed when it is mentioned that original sale deed was lost in January 2010. Trial court has also observed that certified copy of the sale deed from the record of Sub-Registrar has not been produced. However, it is stated by counsel for the petitioner that photostat copy of certified copy of the sale deed was produced along with application (Annexure P-2) in the trial court and has also been produced along with this revision petition as Annexure P-4.

It is thus apparent that the trial court has adopted erroneous and factually incorrect approach to dismiss the application of plaintiffs for secondary evidence. On the other hand, permission to lead secondary evidence may be granted to the plaintiffs subject to proof of existence, execution and loss of original sale deed. For the reasons aforesaid, I find that impugned order of the trial court is erroneous and illegal and suffers from jurisdictional error. Accordingly, this revision petition is allowed. Impugned order (Annexure P-1) passed by the trial court is set aside. Application (Annexure P-2) moved by plaintiffs for permission to lead secondary evidence of registered sale deed dated 10.08.1970 is allowed and plaintiffs are permitted to lead secondary evidence of the aforesaid sale deed subject to proof of existence, execution and loss of the sale deed and subject to all just exceptions.