IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 29.11.2010 C.R.No.3750 of 2010 Dharam Pal ...Petitioner Versus Jaspal Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. A.K.Garg, Advocate, for the petitioner. HEMANT GUPTA, J. (Oral) Defendant No.2 is in revision aggrieved against an order passed by the learned trial Court on 18.05.2010, whereby the plaintiff (respondent No.1 herein) has been permitted to prove family partition dated 21.12.1999 by way of secondary evidence. Plaintiff-respondent No.1 filed a suit challenging the sale deed dated 11.12.2003 executed by his father Gurnam Singh in favour of his brother-defendant No.2. It is the case of the plaintiff that the land in the hands of defendant No.1 Gurnam Singh was ancestral property and that in the year 1999, a family partition took place between the parties, whereby he himself, plaintiff and defendant No.2 partitioned the entire land measuring 61 bighas 4 biswas. The plaintiff has also pleaded that writing regarding memorandum of family partition dated 21.12.1999 was reduced into writing, signed by the parties and registered in the Register of Deed Writer Sham Lal Gupta. A copy of the said family partition was attached with the plaint. C.R.No.3750 of 2010 The plaintiff moved an application for permission to lead secondary evidence to prove family settlement dated 21.12.1999 during the course of his evidence. The learned trial Court has allowed the said application. It is the said order, which is subject matter of challenge in the present revision petition. Learned counsel for the petitioner has vehemently argued that the plaintiff has not pleaded in the plaint that the original of the partition deed was with either of the defendants. The defendants have denied the existence of such family partition in their written statement. Therefore, the plaintiff cannot be permitted to lead secondary evidence, as such document does not satisfy the requirement of Section 65(b) of the Evidence Act, 1872. Learned counsel for the petitioner has also relied upon a judgment of the Hon’ble Supreme Court reported as Smt. J. Yashoda Vs. Smt. K. Shobha Rani AIR 2007 (SC) 1721. The plaintiff has relied upon a writing dated 21.12.1999 in his plaint. A photocopy of such writing was attached with the plaint. In para 3 of the written statement, the defendants have firstly denied the existence of the document, but proceed ahead to state that the said document is not admissible in evidence being unregistered. As per the stand of the petitioner, no partition deed was ever executed and, therefore, there is no question of original of such document being in his possession. It is, thus apparent that the original of the said family settlement has not been produced on evidence either by the plaintiff or by the defendants. The issue; whether any document was executed on 21.12.1999 is required to be proved by examining such evidence, which is necessary to prove execution of a document. If once the existence of document is proved, the loss of the 2 C.R.No.3750 of 2010 document is presumed on proof of execution of the document as neither the plaintiff nor the defendants are said to be in possession of the same. The judgment referred to by the learned counsel for the petitioner is in altogether different facts. In the said case, the primary evidence was found to be in possession of third person. Therefore, it was held that the secondary evidence cannot be permitted to prove a document, original of which could not be admitted in evidence. In fact, the Court held to the following effect: “7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence.” 9. The rule which the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be 3 C.R.No.3750 of 2010 admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.” In the present case, the plaintiff is required to prove existence and execution of document and that the copy produced has been prepared in terms of Section 63 of the Evidence Act. In view of the said fact, I do not find any patent illegality or irregularity in the order passed by the learned trial Court, which may warrant any interference by this Court in exercise of its revisional jurisdiction. Dismissed. 29.11.2010 (HEMANT GUPTA) Vimal JUDGE 4