Hemant Gupta, J.
1. The plaintiff is in revision aggrieved against the order passed by the learned trial Court on 9.3.2004, whereby the application filed by the petitioner for permission to lead secondary evidence to prove agreement dated 11.9.1992 in respect of the property in dispute, was declined.
2. The plaintiff-petitioner has filed a suit for declaration with consequential relief of permanent injunction in respect of residential plot measuring 220 square yards. It was alleged that though the sale deed in respect of the said plot was prepared in the name of defendant No. 1 and proforma defendant Nos. 2, 3 and 4 out of love and affection, whereas the property actually belonged to the Joint Hindu Family. The petitioner has relied upon a family arrangement dated 11.9.1992, whereby the property was allegedly partitioned. It has been further pleaded that since the date of petition, the Cotton Spinning Machine has been installed and the plaintiff is in peaceful possession of the suit property as owner.
3. In the written statement, the defendants have denied that the property is a Joint Hindu Family property. It was submitted that earlier agricultural land was partitioned through oral partition for cultivation purposes. However, a private partition was reduced in writing on 11.9.1992. Except the partition of the agricultural land, it was pleaded that ho other family arrangement was ever made and it has been further pointed out that the alleged family arrangement dated 11.9.1992 has been fabricated on the pattern of private partition of agricultural land. The aforesaid document was fabricated and prepared by purchasing the stamp paper from the same stamp vendor on the same day when the aforesaid partition of the agricultural land was arrived at between plaintiff and defendant No. 1 and the proforma defendant Nos. 2 to 4.
4. During the course of trial, the plaintiff moved an application for permission to lead secondary evidence to prove the agreement dated 11.9.1992 by placing photocopy of such compromise. The defendant was called upon to produce the original but the defendant denied that no such original document is in his possession. After considering the respective stands of the parties, the learned trial Court declined the application on the ground that the petitioner has not mentioned that photocopy is the copy of original or is duly compared with the original. It has been further found that secondary evidence of a certified copy of document is not permissible and in case of loss of documents, it has to be established that the document was executed or that subsequently the document was lost without which photocopy of the document can never be allowed to be placed on record. Consequently, the application for secondary evidence was dismissed.
5. The question whether agreement dated 11.9.1992 was executed in respect of a residential plot is a question of fact which can be determined only if opportunity is given to the parties to prove the execution of such document. Once, the existence, execution and loss of a document is proved, only then the plaintiff would be able to make out a case for admission of a document sought to be produced by way of secondary evidence. However, without any evidence having been led on the question of existence, execution and loss of the document, it would not be fair and reasonable to conclude that no such document was ever executed. Therefore, 1 am of the opinion that the order passed by the learned trial Court suffers from patent illegality and irregularity.
6. In view of the above, the present revision petition is allowed. The plaintiff is permitted to prove the existence, execution and loss of the agreement dated 11.9.1992 in respect of the suit property. If the plaintiff is able to prove the existence, execution and loss of the agreement dated 11.9.1992, only then it can be considered in evidence.
7. Parties through their counsel are directed to appear before the learned trial Court on 6.3.2006 for further proceedings in accordance with law.