Menka And Others vs Reena And Others

Alok Awasthi, J

The present petition has been filed under Article 227 of the Constitution of India being aggrieved by the order dated 09/09/2025 passed by IVth Civil Judge, Junior Division, Mandsaur in RCS A No.35/2020 whereby the application filed by the petitioner under Section 65 of the Evidence Act for accepting the photocopy of affidavit submitted by the respondents for mutation in favour of the petitioner's deceased husband has been rejected.

Facts of the case are that the Respondent/Plaintiff filed the suit for declaration, partition and possession and alleged that Late Shri Rajendra Singh (who had received properties from Buttonsingh) was the owner and possessor of agricultural land bearing Survey No. 3355 & 3356 admeasuring 0.063 & 2.620 Hect. of Mandsaur referred as the disputed property in suit apart from the house and plot in other Village Chandrapura. After the notice of the suit Petitioner/defendant filed the Written Statement and admitted relationship between the parties and denied all the other allegation made in the plaint and it was specifically averred that after the death of Rajendra Singh they have given up their right in disputed property by executing the Affidavit dated 07/01/10 &17/11/11 in favour of their mother Guddi Bai and deceased brother Girvar Singh who became the owner and possessor of the disputed property. It was pleaded in the Written Statement that on the basis of aforesaid affidavit, names of Guddi Bai and deceased Girvar Singh were mutated & they became the owner and possessor of the disputed property and after the death of Guddibai & deceased Girvarsingh, petitioners become owner and possessor & further the respondent never objected during the lifetime of deceased Guddi Bai and deceased Girvar Singh, and they are bound by their admission. During the pendency of the suit, the petitioner has preferred the application under Section 65 of Evidence Act for taking the photocopy of the aforesaid affidavit on record as secondarv evidence and it was specifically mentioned in the application that after the death of Girvar Singh, the Respondent had taken the original affidavit as the petitioner who is the widow was not in her senses at that time and hence the photocopy of the aforesaid may be taken on record. The respondent filed the reply of aforesaid application and denied all the averments made in the petitioners application, and after hearing both the parties the Trial Court vide impugned order, rejected the petitioner's application under section 65 of Evidence Act.

After hearing learned counsel for the parties, this Court finds that the impugned order has been passed without giving any cogent reasons. Therefore, the impugned order is quashed. The trial Court is directed to allow the application filed under Section 65 of the Evidence Act for taking secondary evidence on record.

With the aforesaid, present petition is disposed of.