CR No. 230/2007 CMP No.1099/2007 24.8.2009 Present: Mr. Amar Deep, vice counsel for the petitioners. Mr. Neeraj Gupta, Advocate, for the respondent. In terms of the impugned order dated 6.11.2007 passed by the Civil Judge (Jr. Division), Kandaghat camp at Solan in case CMA No. 43/6 of 2007/06 titled as Smt. Kiran & Others vs. Shri Nigham Singh, the defendant’s application under Section 65 of the Indian Evidence Act for leading secondary evidence stands allowed. The plaintiffs-petitioners filed a suit for declaration and injunction against the defendant with respect to the suit property. The defendant-respondent in his written statement categorically took a stand that by virtue of a registered Will dated 9.9.1987 duly executed by Shri Ram Saran in his favour, he is owner in possession of the suit property. In fact on the strength of the Will the suit property stood mutated in his name in the revenue record which was attested on 30.11.1989. During the course of the trial, the defendant moved an application seeking permission to prove the Will by leading secondary evidence for the reason that the original Will filed with the revenue authorities during the mutation proceedings was not taken back and now the same is not traceable with the Department. Even though this fact is disputed by the plaintiff but however the factum of the Will having been deposited by the defendant with the revenue authorities at the time of effecting mutation entries is evident from the Certificate dated 25.4.2008 issued by the District Revenue Officer, Solan. The Court below, in my considered view, has rightly allowed the application and permitted the defendant to prove the contents of the Will by leading secondary evidence. Section 65 of the Indian Evidence Act clearly provides for proving a document by leading secondary evidence if it is shown that the original of the document sought to be proved is lost and cannot be produced by the parties within a reasonable time. In the instant case, there is no default on the part of the defendant. The document was lost while it was in the possession of the Revenue authorities. Simply because the defendant has not stated in the written statement that the original registered Will was lost would not preclude the defendant from exercising his statutory right under Section 65 of the Act, if otherwise all the conditions laid down therein stands fulfilled. For the aforesaid reasons, I find no ground to interfere with the present petition. The same is accordingly dismissed, so also the pending application. The record is directed to be sent back immediately. ( Sanjay Karol ), Judge. August 24, 2009 (rana)