Krishna Murari JUDGMENT
Krishna Murari, J.
1. This appeal is directed against the judgment dated 09.01.2017 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Revision No. 7271 of 2015 whereby the High Court confirmed the order passed by the Civil Judge (Junior Division) Moga in application filed Under Section 65 and 66 of the Indian Evidence Act by the Appellants herein seeking permission to prove the copy of the Will dated 24.01.1989 executed by one Babu Singh in their favour by way of secondary evidence, as the original Will which was handed over to the village patwari for mutation could not be retrieved. The High Court while dismissing the application observed that as the pre-requisite condition of existence of Will is not proved, the Will cannot be permitted to be approved by allowing the secondary evidence.
2. Briefly stated the facts of the case are that the Appellants preferred a suit for declaration to the effect that they are owners to the extent of ½ share each of the land owned by Babu Singh son of Phuman Singh, situated in village Kokri Kalan, Tehsil & District Moga and Mutation No. 9971 dated 28.02.1991 and Mutation No. 9359 dated 25.02.1991 sanctioned by the Assistant Collector Second Grade, Moga in favour of Baldev Singh (predecessors-in-interest of Respondent Nos. 1 and 2) and Shamsher Singh (Respondent No. 3) are illegal, null and void, as the said two mutations have been sanctioned on the basis of a forged Will dated 20.03.1988. A further prayer for consequential relief of permanent injunction to restrain the Respondents from alienating, transferring or mortgaging the suit property was also sought for.
3. During pendency of the aforesaid suit, an application Under Section 65/66 of the Evidence Act was moved by the Appellants seeking permission to prove copy of Will dated 24.01.1989 by way of secondary evidence. The said application was allowed by the Trial Court vide order dated 04.07.2014.
4. Feeling aggrieved by the said order, Respondents preferred Civil Revision No. 4645 of 2014 which was allowed by the High Court by observing as under:
Once the Appellants have alleged that the original Will is in possession of the revenue official, they should have served a notice upon him Under Section 66 of the Act for its production and in case, it is alleged that the said Will has been lost, then the application could have been filed for leading secondary evidence but in the absence of the compliance of the aforesaid procedure, the application per se filed Under Section 65 of the Act is not maintainable. In view of the aforesaid apparent error on the part of the Court below, the present revi........