TaxTMI 
TaxTMI 
2015 (11) TMI 1840
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....t Under Sections 34 and 38 of the Specific Relief Act, 1963 for declaration that the Appellant- Defendant has no right, title or interest over the suit property in any manner and Plaintiffs are in possession of the same. Consequently, Defendant be restrained from causing any type of loss, injury and doing any such act which may in any manner, cause prejudice to the user, possession and title of the Plaintiff qua the suit property. 6. The subject matter of the suit is part of the land defined as Survey No. 41, Kasauli Cantt. Tehsil Kasauli and structures/buildings more specifically known as "Dharma Prakash, Homestead". One late Sh. Duni Chand Advocate was owner in possession of land comprised in Survey No. 41, measuring 2.31 acres described as "Kildare Estate" Homestead Dharma Prakash. Late Sh. Duni Chand, during his life time executed a gift deed with regard to the property owned by him which was registered as deed No. 2 with Sub Registrar, Kasauli. He gifted his properties to his son Justice late Sh. Tek Chand. Justice late Sh. Tek Chand became owner-in-possession of the suit property. Justice late Sh. Tek Chand expired on 16.6.1996 leaving behind two daughters Smt. Anila Sood ....
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.... respect to the suit property, the Appellant had filed the original affidavits of the co-sharers along with the letter of disclaimer executed by Justice Tek Chand with one Photostat set lying in the office of DEO, Ambala. 10. For the purpose of deciding the application Under Section 65 of the Evidence Act, the Appellant examined the concerned official to produce the record available in the said office. On the basis of the evidence given by the witness, who produced the record and the evidence of Defendant, the Trial Court allowed the application and admitted the letter of disclaimer to be used as secondary evidence. 11. As averred in the application, the Defendant has summoned the record of General Land Register from the Office of D.E.O. Ambala, who is the custodian of the record. It is Defendant's case that at the time of sanction of the mutation with regard to the suit property he had filed the original affidavits of the co-sharers including affidavits and original letter of disclaimer of late Justice Sh. Tek Chand with one Photostat set of the same in the office of D.E.O. Ambala. On the basis of the original letter of disclaimer and affidavits, mutation of the suit pro....
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....der: Secondary evidence means and includes-- (1) certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies. (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a documents given by some person who has himself seen it. Illustration: (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but he copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account o....
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....by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted. 18. The High Court in the impugned order noted the following: 9. There is no averment about Ext. DW-2/B in the Written Statement. The Written Statement was filed on 19.2.2007. DW-2/B infact is only a photocopy. The Plaintiffs are claiming the property on the basis of a registered will deed executed in her favour in the year 1984. It was necessary for the Defendant to prove that in what manner the document dated 24.8.1982 was executed. The Defendant while appearing as AW-1 has admitted in his cross-examination that except in his affidavit Ext. AW-1/A, he has not mentioned in any document that the letter of disclaimer was executed by Justice late Sh. Tek Chand in his presence. The statement of DW-2 does not prove that Ext. ....
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....on these documents. On Ex. DW-2/E the signatures at the place deponent also appears to have become illegible because of water. Ex. DW-2/F also bears the faded signatures and only Tek Chand is legible on the last page. It is incorrect to suggest that the last page does not have the signatures of the attesting authority. Volunteered: These are faded, but not legible. The stamp on the last paper is also not legible. There is no stamp on the first and second page. In our account, there is no family settlement, but only acknowledgement of family settlement. I do not know how many brothers Rakesh Mohindra has. It is correct that the original of Ex. DW-2/H does not bear the signatures of Sh. Abhay Kumar. I do not know whether Sh. Abhay Kumar Sud and Rakesh Mohindra are real brothers. The above mentioned documents were neither executed nor prepared in my presence. It is incorrect to suggest that the above mentioned documents are forged. It is incorrect to suggest that because of this reason I have not brought the complete file. 21. In the case of Rai Baijnath (dead) by Kedarnath Goenka v. Maharaja Sir Pavaneshwar Prasad Singh AIR 1922 Privy Council page 54, a similar question came for c....