1 wp11045.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 11045 OF 2010 Babu S/o Kashiram Rathod and others ..PETITIONERS -VERSUS- The State of Maharashtra and others ..RESPONDENTS ..... Mr. D.L. Agrawal, advocate for petitioners. Mr. D.R. Korde, A.G.P. for respondent no.1. Mr. M.D. Joshi, Advocate for respondent nos. 2 and 3. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 18th January, 2011. PER COURT : 1. Heard Mr. D.L. Agrawal for petitioners, Advocate Mr. M.D. Joshi for respondent nos.2 and 3 and learned A.G.P. for respondent no.1. 2. The petitioners have filed Regular Civil Suit No. 103 of 2001 against the present respondent nos.2 and 3 for declaration of their ownership in respect of land gut no. 158 and for perpetual injunction to restrain them from inferring with their possession. In that suit, the petitioners-plaintiffs wanted to show how the name of father of respondent no. 2 erroneously appears in revenue records. 2 wp11045.10 He wanted to demonstrate that their father mortgaged the property with father of respondent no.2 and that mortgage was redeemed. The father of petitioners thereafter continued in exclusive possession but then the revenue records inadvertently continued in the name of father of respondent no.2. 3. The original mortgage document is in Urdu and has been registered way back in 1947. The petitioners' claim that its original is lost. They therefore obtained the certified copy and have produced it before the trial Court. They sought leave to adduce secondary evidence in relation thereto contending that their case is covered under Section 65(1)(c) of the Indian Evidence Act. Learned Advocate has also attempted to show that how the provisions of Section 90 of the Evidence Act apply in relation to that document. 4. Shri. Joshi on the other hand has placed reliance on the express observations made by trial Court to urge that those observations are neither demonstrated to be erroneous or perverse. As the necessary facts are not proved, there is no foundation laid by petitioners to enable them to lead secondary evidence and hence view taken by the trial Court can not be interfered. 3 wp11045.10 5. Learned A.G.P. has supported the arguments of Advocate Mr. Joshi. 6. Perusal of impugned order reveals that the trial Court has recorded the finding that the petitioners-plaintiffs did not plead about the receipt of alleged mortgage deed after its redemption. The custody of mortgage deed with the father of petitioners has also not been prima facie established and its alleged, loss is also not proved. The attempts to trace it out are also not brought on record. In view of these findings, the trial Court has rejected the application at Exhibit-124 moved by petitioners seeking leave to adduce secondary evidence. 7. During the course of hearing, it has transpired that the respondent nos.2 and 3 have denied all the contentions in their written statement. Thus, they are not accepting execution of any mortgage deed or its redemption. In order to show other material available on record to support such mortgage and its redemption, Advocate Mr. Agrawal has invited attention to other documents filed by him. However, it is not necessary for this Court to refer to those documents at this stage. It is only important to note that plea of respondent nos.2 and 3 is of total denial. Respondents are not in 4 wp11045.10 position to point out any prejudice, if leave as sought for is granted. 8. The copy produced on record is certified copy of registered mortgage deed. The petitioners do not stand to gain anything by suppressing original in this situation. They are attempting to show that the said mortgage was redeemed and possession of the land was received back by their father. In this situation, I find, the view taken by trial Court unsustainable. The question of prejudice if any in the matter to the respondent nos.2 and 3 can be left open and the respondent nos.2 and 3 can appropriately cross examine the petitioners in this respect. I, therefore, find reasons given by the trial Court for rejecting application unsustainable. The said order is therefore quashed and set aside. Application at Exhibit-124 is accordingly allowed. The trial Court shall permit the petitioners to lead secondary evidence in relation to certified copy of alleged mortgage deed. All the defences available to the respondent nos.2 and 3 in that respect are kept open. The Writ Petition is thus allowed with no order as to costs. (B.P. DHARMADHIKARI) JUDGE gas/wp11045.10