This Civil Revision Petition has been filed to set aside the order dated 23.07.2015 passed by the learned District Munsif, Devakottai, in I.A.No.220 of 2015 in O.S.No.18 of 2000.
2. The brief facts of the case are as follows:
2.i) The suit in O.S.No.18 of 2000 was filed for declaration of easementary rights and for permanent injunction. In that suit, cross- examination was pending.
2.ii) At that stage, the plaintiffs filed an Interlocutory Application in I.A.No.220 of 2015 under Order 12 Rule 8 C.P.C and Section 151 of C.P.C for production of original Agreement deed dated 02.10.2000, which was entered between the parties before the Villagers and Panchayatars regarding the suit property. According to the plaintiffs, the original Agreement deed was under the custody of the defendants. The defendants filed a counter stating that no panchayat was held and no agreement was also entered between them. Further, the said Agreement was not marked in the suit and seeking production of an unmarked document itself is not in accordance with the Code of Civil Procedure.
2.iii) The trial court, after analyzing the oral and documentary evidence, has held that if original Agreement deed dated 02.10.2004 is under the custody of the defendants, the same shall be produced within 30.07.2015. On non-production of the same by the defendants, the plaintiffs are entitled to produce the xerox copy of the said Agreement deed under
Section 66 of Indian Evidence Act. Aggrieved against the order of the trial court, this Civil Revision Petition has been filed before this Court.
3. Learned counsel appearing for the petitioners vehemently argued against the order passed by the trial court on four specific grounds. Firstly, the plaintiffs have filed the suit for declaration of easementary rights and therefore, they have to prove their case by pleadings and documents. Secondly, since execution of the alleged document itself is denied by the defendants, the plaintiffs cannot be allowed to mark xerox copy as per
Section 66 of Indian Evidence Act. Thirdly, the Original Agreement Deed, on which the plaintiffs have relied, is an unregistered document, which cannot be used even for collateral purpose, as per the various Judgments of the Hon'ble Supreme Court and this Court. Fourthly, the respondents/plaintiffs have not informed the Commissioner with regard to the alleged exchange of property in favour of the petitioners, which would prove the malafide intension of the respondents/plaintiffs. Further, according to the petitioners, the witnesses, who deposed before the court, are fake witnesses.
4. I have paid my anxious attention to the submissions made by learned counsel for the petitioners and perused the materials available on record. Though notice has been served on the respondents/plaintiffs, they are not before this Court to defend the case.
5. Perusal of records would show that on 02.10.2004, the agreement was entered between the defendants/petitioners and the plaintiffs/respondents, by which pathway in Survey No.131/4 has been made for exchange of the property, which is a vacant land found in the southern side. According to the petitioners/defendants, there was no execution of any such agreement deed and only to escape from the clutches of law, it has been stated as if the xerox copy is available with them and the original copy is available with the petitioners. When the Advocate Commissioner visited the premises, even to the Commissioner the presence of such document was never stated, which does not find place in the Commissioner's report also. If there is specific denial by the petitioner as to the availability of such document, the learned District Munsif, Devakottai, ought not to have allowed the application to produce the document, which, according to the petitioners, is not available with them. Further, it is settled position that a person claiming easementary rights has to prove the same through documents.
6. Considering the above stated facts and circumstances, I am of the considered view that the plaintiffs have to prove their case with the available document and evidence. In such view of the matter, the order passed in I.A.No.220 of 2015 in O.S.No.18 of 2000 dated 23.07.2015 on the file of the District Munsif Court, Devakottai is liable to be set aside and accordingly, the same is set aside.
7. In the result, this Civil Revision Petition is allowed. No costs. Consequently, connected C.M.P.(MD) No.1612 of 2016 is closed.
To, The District Munsif Court, Devakottai .