Mukhtiar Singh vs Gursharan Singh And Another on 4 May, 2009

Civil Revision No. 136 of 2009                                -1-

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       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                       CHANDIGARH

                        Civil Revision No. 136 of 2009
                        Date of decision: 4.05.2009.

Mukhtiar Singh
                                                         Petitioner

                                  Versus

Gursharan Singh and another
                                                         ...Respondents


CORAM: HON'BLE MR. JUSTICE S.D.ANAND.

Present:    Mr. S.P.Soi, Advocate for the petitioner.

            Mr. Ramesh Sharma, Advocate for the respondents
            No. 1 and. 2.

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S.D.ANAND, J.

The learned Trial Court is seized of a suit filed by the

plaintiffs-respondents for the possession of the land in suit, as owner

thereof.

The plaintiffs-respondents have relied upon a sale deed dated

9.12.1996 as the essential premise of the claim. The factum/validity of that

sale deed had been questioned by the defendant-petitioner. The plaintiff-

respondents raised a plea for being allowed to adduce secondary evidence

in respect of the sale deed dated 9.12.1996 on an averment that it had

been misplaced. The learned Trial Court did not call upon the plaintiffs-

respondents to adduce even a bit of evidence to prove the averment

regarding misplacement of sale deed dated 9.12.1996 and proceeded to

allow the application by observing that even the fact of misplacement of the

sale deed would be proved at the trial only. Ofcourse, the learned Trial
Civil Revision No. 136 of 2009 -2-

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Court allowed the secondary evidence subject to the condition that the

plaintiffs-respondents shall prove that the sale deed had been misplaced.

There is force in the plea on behalf of the learned counsel for

the defendant-petitioner that the learned Trial Court had to first record a

finding on point of misplacement and thereafter only the party applying for

secondary evidence could be allowed to adduce it. The proof of

misplacement of record and the adducing of substantive evidence

otherwise at the trial cannot be validly made a simultaneous affair.

The petition shall stand allowed accordingly. The impugned

order dated 26.11.2008 shall stand set aside. The learned Trial Court shall

proceed to consider the validity or otherwise of the averment, that the sale

deed dated 9.12.1996 had been misplaced. Thereafter only, the learned

Trial Court shall proceed to pass an order with regard to allowance or

otherwise of the secondry evidence plea.

May 04, 2009                                      (S.D.Anand)
Pka                                                  Judge