RSA No.1030 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1030 of 2010(O&M) Date of decision: 18.5.2010 Surjit Singh ......Appellant(s) Versus Kartar Singh etc. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Tribhawan Singla, Advocate for the appellant. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration that the suit land was a coparcenary and joint Hindu Family property of the plaintiff and defendants and the sale deed executed by Jangir Singh son of Sunder Singh was illegal and without any legal necessity, along with consequential relief of permanent injunction, was dismissed. As per the averments made in the suit by the plaintiff- appellant, he along with defendants No.2 and 3 as well as Jangir Singh, their father, were the members of the joint Hindu Family and the suit property was their ancestral coparcenary property. Jangir Singh was not competent to alienate the same without legal necessity. He alienated the suit land in favour of defendant No.1 vide sale deed dated 29.9.1973 to defeat the rights of the plaintiff as well as defendants No.2 and 3. Thus, the sale deed in question was not binding upon the plaintiff and defendants No.2 and 3 and the same was liable to be dismissed. Mutation No.7540 sanctioned on the basis thereof was also liable to be set aside. Despite several requests, defendant No.1 did not admit their claim and threatened RSA No.1030 of 2010(O&M) 2 to alienate the suit property. Thus, the necessity arose to file the present suit. In pursuance of the notice issued by the Court, defendants No.2 and 3 did not make appearance and were proceeded against ex parte. Defendant No.1 in his written statement raised various preliminary objections. On merits, it was denied that the suit land was the joint Hindu Family ancestral coparcenary property. Rather, it was averred that it was the self acquired property of Jangir Singh and thus, the sale deed dated 29.9.1973 was legal and valid document. After hearing learned counsel for the parties and on appreciation of evidence brought on record, both the Courts below dismissed the suit vide impugned judgment and decrees. Still not satisfied, the plaintiff has approached this Court by way of instant appeal. Learned counsel for the appellant has vehemently argued that the Courts below have dismissed the suit without considering the evidence on record. The Courts below have rejected the revenue record (jamabandies) on the ground that these were the photostat copies. The argument raised by the learned counsel for the appellant is that the photostat copies of the jamabandies were exhibited on record without any protest/objection and therefore, the same cannot be discarded and on this ground, the judgment and decree of the Lower Appellate Court was liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “(i) Whether as per the gift by one of the ancestors in the common pool, the whole of the property loses its character as an ancestral property? RSA No.1030 of 2010(O&M) 3 (ii) Whether the photocopy of the documents which are exhibited without any protest, can be read into evidence? (iii) Whether the judgments passed by the Ld. Courts below are perverse and illegal.” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. There is no dispute with regard to the fact that the revenue record produced on the case file are the photostat copies of Jamabandies and at no point of time, permission for proving the same by way secondary evidence was obtained from the Court. It is well settled that exhibition of documents on record will not dispense with the mode of proof. The document can be proved either by leading primary evidence or by way of secondary evidence as per the provisions of Section 65 of the Indian Evidence Act. The primary evidence means the original document itself and a copy thereof can be read as secondary evidence in accordance with the provisions of Section 65 of the Indian Evidence Act, 1872. Thus, photostat copy of a document not proved in accordance with the provisions of Section 65 of the Indian Evidence Act is neither a primary evidence nor a secondary evidence and thus, the same was not admissible in evidence and was rightly excluded from consideration. Learned counsel for the appellant was unable to point out any other material evidence on record, on the basis of which ancestral nature of the property could be proved. Not only this, the Courts below have also recorded a concurrent finding of fact that even from the photostat copies of the jamabandies placed on record, coparcenary nature of the suit land was not proved. Thus, no fault can be found with the concurrent finding of fact to the effect that the appellant has failed to prove the ancestral nature of the property as recorded by the RSA No.1030 of 2010(O&M) 4 Courts below. In this view of the matter, I find no merit in this appeal. No substantial question of law arises. No other point was argued. Dismissed. May 18, 2010 (RAKESH KUMAR GARG) ps JUDGE