ALOK SHARMA,J. - (1.) Reportable By The Court: Under challenge in these two petitions are the orders both dated 20-10-2016 passed by Additional District Judge No.2 Beawar, District Ajmer in Objections No.106/2012 and 107/2012, respectively dismissing the objectors' application under Section 65 of the Evidence Act. As common issues of facts and law are involved, these petitions are being disposed of by this judgment.
(2.) Relevant background facts are that a suit for specific performance (No.50/1998) at the instance of one Upendra Nath was decreed ex-parte against one Shiv Kumar on 30-3-1999 on usual terms as to execution of the sale deed qua the agreement to sell on which the suit was founded. Compliance with the decree dated 30- 3-1999 remaining undone, the decree holder filed an execution application under Order 21, Rule 22 CPC. Objections thereon were filed by the petitioners stating to be the purported co-owners, with the judgment debtor, of the immovable property to be conveyed under the decree dated 30-3-1999 and submitting that the agreement to sell on which the decree rested was without their consent and hence the decree based thereon unexecutable to their detriment. In support of the objections photo copies of four documents (1.registered will dated 29-1-1998; 2.registered adoption deed dated 10-11-1998; 3.registered release deed dated 10-11-1993 and 4.registered will dated 11-12-1992) were filed with the objections. Subsequently certified copies of documents in issue are stated to have been placed before the trial court with an application under Section 65 of the Evidence Act praying that secondary evidence in respect of the aforesaid four documents be allowed. On the decree holder contesting the applications under Section 65 of the Evidence Act, by the impugned order dated 20-10- 2016, they were dismissed by the trial court. In so doing it held that the preconditions for taking the documents in issue on record as secondary evidence, as required under Section 66 of the Evidence Act, were made out. The trial court further noted that the applications were supported by any affidavit nor detailed loss of original of the documents in issue. Aggrieved, the objectors now challenged the trial court's orders dated 20-10-2016 in these petitions.
(3.) Mr. Tarun Mishra for the objectors submitted that the four documents registered before the jurisdictional registrar partook the character of public documents as defined under Section 74(2) of the Evidence Act. Their certified copies were secondary evidence under Section 65(e) of the Evidence Act, and hence liable to be admitted without anything more. He submitted that the four documents in issue being registered, there could also be any question of their authenticity. The said documents were relevant to the rights of the objectors and their opposition to the execution of the decree dated 30-3-1999. Hence secondary evidence in regard thereto ought to have been allowed. The impugned order dated 20-10-2016 holding to the contrary is mechanical, unjust and wholly unsustainable, submitted Mr. Tarun Mishra.;