1 2026:HHC:37901 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 14 of 2026 Decided on: 3.9.2026 Anku @ Mahesh Sharma … Petitioner Versus Abhinandan & others …Respondents _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Petitioner: Mr. Y.P. Sood, Advocate. For the Respondents : Mr. Nitin Thakur, Advocate, for respondents No. 1 and 2. Virender Singh, Judge (oral) Petitioner Anku @ Mahesh Sharma has filed the present petition, under Article 227 of the Constitution of India, against the order dated 1.11.2025, passed by the Court of learned Senior Civil Judge, Court No. 1, Shimla, (hereinafter referred to as ‘the trial Court’), in Civil Suit No. 63-1 of 2013, titled as, ‘Abhinandan versus Shivam & others’. 2. By way of order dated 1.11.2025, the learned trial Court has allowed the application, filed under 2 2026:HHC:37901 Section 151 of the CPC, read with Section 65 of Indian Evidence Act, enabling the plaintiffs to prove the Will, dated 15.6.2007, by way of secondary evidence. 3. For the sake of convenience, parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court. 4. Necessary facts, as borne out from the documents, annexed with the petition, may be summed up, as under: Plaintiffs have filed the suit for declaration with the consequential relief of injunction, under Sections 34, 36 and 38 of the Specific Relief Act, on the ground, that the land comprised in Khata/Khatauni No. 189/231, Khasra Nos. 57, 58, 59 and 528 Kitas 4, measuring 3-15 bighas, situated at mauza Dhalli Hadbust No. 350, Tehsil and Distt. Shimla (HP) was owned and possessed by the Grand Father/common ancestor/predecessor-in- interest of the plaintiffs and defendants, namely Sh. Prabhu Dayal Sharma S/o Sh. Beli Ram Sharma. 4.1 After the settlement, now, the Khata/Khatauni numbers have been changed to Khata/Khatauni No. 3 2026:HHC:37901 265/428 and Khasra Numbers aforesaid, have been changed to Khasra Nos. 1026, 1030, 1030/1, 1047, 1048, 1050, 1029, 1032, 1028, 1027, 1031, 1034, 1033, 1046 Kitas 14 measuring 2894-17 S Meters (hereinafter referred to as ‘the suit land’). 4.2 It is the further case of the plaintiffs that Prabhu Dayal Sharma had six sons and four daughters. He, during his life time, executed a legal and valid will, duly registered, vide Registration No. 266/2007, dated 15-06- 2007 with the Sub-Registrar Shimla. Prabhu Dayal Sharma expired on 13-04-2010. After the death of Prabhu Dayal Sharma, the said land was succeeded by the plaintiffs and defendants, in equal shares i.e. 1/ 8th share, each. 4.2 Mutation, on the basis of Will, was attested on 29.6.2010, in which, estate of Prabhu Dayal was mutated in favour of the beneficiaries, stripe wise, instead of equal shares, whereby, both the plaintiffs, being sons of same father, were jointly given one share, whereas, as per the true spirit of the Will, all the beneficiaries were to get one share each, thereby, 4 2026:HHC:37901 causing a very grave and illegal/unlawful damage/loss to the plaintiffs, who jointly got 1/7th share instead of 1/8thshare each, illegally against the specification, in the will, thereby, causing a tremendous damage to their legal rights. 4.3 On the basis of above facts, the plaintiffs have sought declaration to the effect that mutation No. 153, passed on 29.6.2010, and the subsequent revenue entries thereof, on the basis of this mutation, are illegal, null and void ab-initio, and the plaintiffs are owners in possession of 1/8th share, each, out of the bequeathed land, as per the Will dated 15.6.2007. 5. The said suit was contested by defendant No. 1, by taking preliminary objections that the suit is not maintainable in the present form; the suit is barred by the principles of estoppel and acquiescence, and the plaintiffs are barred to file the present suit, due to their own acts and conduct, the suit is not properly valued for the purpose of court fees and jurisdiction; the Court has no pecuniary jurisdiction to try and maintain the 5 2026:HHC:37901 present suit; the suit is barred by limitation; and the plaintiffs have no cause of action to file the present suit. 5.1. 5.1. On merits, contents of the suit have been admitted, to the extent, that the mutation was duly attested, but, it is denied emphatically that the mutation was attested illegally. 5.2 Defendants No. 3, 5 and 6 have filed the written statement, by admitting the fact that Prabhu Dayal has executed a legal and valid Will, on 15.6.2007. 5.3 Defendant No. 4 has filed the separate written statement, in which, he has taken the plea that Prabhu Dayal has not executed the Will, dated 15.6.2007, and according to him, said Prabhu Dayal has executed last Will, on 28.2.2004, whereby, he has bequeathed his entire property, in favour of defendants No. 4 and 6. 6. Plaintiffs have filed the replication, denying the preliminary objections, as well as, contents of the written statement, by virtue of which, the suit has been contested. 6 2026:HHC:37901 7. From the pleadings of the parties, the learned trial Court has framed the following issues, on 16.7.2016: 1. Whether the plaintiff entitled for the decree of the declaration to the effect that mutation No. 153, dated 29.06.2010 and subsequent revenue entries in favour of the defendants are illegal, null and void? OPP 2. If issue No.1 is prove in affirmative, whether plaintiff is entitled for the declaration to the effect that they are having 1/8th share in the suit land? OPP 3. Whether defendants be restrained by way of permanent prohibitory injunction from changing the nature of the suit land and creating any charge over it? OPP 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the suit is barred by limitation? OPD 6. Whether this suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 7. Relief. 8. When, the lis was listed for DWs, then, the plaintiffs have filed an application, under Section 151 CPC, read with Section 65 of the Indian Evidence Act, seeking indulgence of the learned trial Court to prove the Will, dated 15.6.2007, by way of secondary evidence. 9. According to the plaintiffs, at the time of filing the suit, the plaintiffs had also filed separate list of 7 2026:HHC:37901 documents, in support of their plaint, and some original and verified documents have also been filed. However, the Will, which is the document, on which, the plaintiffs are relying upon is a Xerox copy of the original copy. 10. It is the further case of the plaintiffs that the original Will is not in possession of the plaintiffs, and on the last date of hearing, it was gathered from the cross- examination of DW-5 Ravi Shankar that he saw the Will, when, he came to his house. On the basis of said deposition, made by DW-5, in the cross-examination, it has been pleaded that the original Will is in custody of DW-5, and as such, the plaintiffs could not prove the original Will. 11. According to the plaintiffs, Exhibit PW3/A is the copy of the Will. The original Will could not be produced earlier, as plaintiffs were not aware of the fact that DW-5 is in the possession of the original Will. 12. On the basis of above facts, a prayer has been made to allow the application. 13. The application has been contested by defendant No. 4 by filing the replying, denying the preliminary 8 2026:HHC:37901 objection that the application, at the belated stage, is not maintainable, as at that time, the matter was listed for arguments. 14. According to defendant No. 4, plaintiff could not establish the existence of the alleged Will, as such, the plaintiff has failed to make out a case for secondary evidence. Other contents of the reply have been contested. 15. The learned trial Court, after hearing learned counsel for the parties, has allowed the application, vide order dated 1.11.2020. 16. Aggrieved by the said order, the petitioner/defendant No. 4, is before this Court, under Article 227 of the Constitution of India, where scope of interference, by this Court, is very limited. 17. Hon'ble Supreme Court in "K. Valarmathi & Ors. Versus Kumaresan”, 2025 INSC 606" has elaborately discussed the scope of interference under Article 227 of the Constitution of India. Relevant para 9 of the judgment, is reproduced, as under: "9. Essence of the power under Article 227 being supervisory, it cannot be invoked to usurp the 9 2026:HHC:37901 original jurisdiction of the court which it seeks to supervise. Nor can it be invoked to supplant a statutory legal remedy under the Civil Procedure Code, 1908. For example, existence of appellate remedy under Section 96 of the Code operates as a near total bar to exercise of supervisory jurisdiction under Article 227." 18. In a recent decision in "Nandi Infrastructure Corridor Enterprises Ltd. & Anr. Versus B. Gurappa Naidu & Ors.”, 2026 INSC 434", the scope of interference has again been explained by the Hon'ble Supreme Court. Relevant paragraph 35 of the judgment, is reproduced, as under:- "35. In short, the principles laid down in the above matters is as follows: a) The power of superintendence under Article 227 is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals. b) It is also well settled that the High Court while acting under this. Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. c) The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon 10 2026:HHC:37901 which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal." 19. In view of above decision, this Court can interfere with the findings of the learned trial Court, only in the eventuality, if the learned trial Court has passed the order, without having the jurisdiction to decide the same, or has exceeded its jurisdiction, while passing the order. The findings can only be interfered with, if the same falls within the definition of ‘perverse findings’. 20. The term “perverse” has duly been elaborated by the Hon’ble Supreme Court in ‘Arulvelu and Another Versus State represented by the Public Prosecutor and Another’, reported in (2009) 10 Supreme Court Cases 206. Relevant paragraphs 22 to 30 of the said judgment are reproduced, as under:- “22. We have carefully perused the judgment of the trial court and the impugned judgment of the High Court. The trial court very minutely examined the entire evidence and all documents and exhibits on record. The trial court's analysis of evidence also seems to be correct. The trial court has not deviated from the normal norms or methods of evaluation of 11 2026:HHC:37901 the evidence. By no stretch of imagination, we can hold that the judgment of the trial court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently the judgment of the trial court is perverse. 23. We also fail to arrive at the conclusion that the discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal. 24. The expression `perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad (Dead) through LRs. & Others, this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. 25. In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd. & Others, the Court observed that `perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. Collector of Central Excise, Cochin, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. 26. In M. S. Narayanagouda v. Girijamma & Another, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. 27. The expression "perverse" has been defined by various dictionaries in the following manner: 12 2026:HHC:37901 1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition Perverse: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. 2. Longman Dictionary of Contemporary English – International Edition Perverse: Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English - 1998 Edition Perverse: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) Perverse: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. 5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition Perverse: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 28. In Shailendra Pratap & Another v. State of U.P., the Court observed thus: "8. … We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity." 29. In Kuldeep Singh v. The Commissioner of Police & Others, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: "9. Normally the High Court and this Court would not interfere with the findings of fact 13 2026:HHC:37901 recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with." 30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992, this Court observed as under: "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the 14 2026:HHC:37901 finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law." 21. Similar view has again been taken by the Hon’ble Supreme Court in ‘S.R. Tewari Versus Union of India and Another’, reported in (2013) 6 Supreme Court Cases 602. Relevant paragraph 30 of the said judgment is reproduced, as under:- “30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, Kuldeep Singh v. Commissioner of Police & Ors., Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary and Babu v. State of Kerala).” 22. Being guided by the aforesaid decisions, this Court would now ascertain the fact whether the learned trial Court has wrongly exercised the jurisdiction, vested 15 2026:HHC:37901 in it, while allowing the application, filed under Section 151 CPC, read with Section 65 of the Indian Evidence Act, permitting the plaintiffs to lead secondary evidence to prove the Will, and the order, so passed by the learned trial Court, falls within the definition of ‘perverse findings’? 23. As stated above, the very basis of the case of the plaintiffs, in the present case, is the Will executed on 15.6.2007, by Prabhu Dayal Sharma, in favour of parties to the lis. Defendant No. 4, in the present case, has set up the Will, in his favour, which was allegedly executed by Prabhu Dayal Sharma, on 28.2.2004. 24. Plaintiff No. 1, Abhinandan Sharma, appeared in the witness box, as PW-1 and has categorically stated that his grand father had executed the Will, on 15.6.2007, in favour of his grand-sons and daughter Savitri Devi, in equal shares. He has proved the copy of the Will, as Mark-A. 25. It is not the case of PW-1 that the original Will, allegedly executed by his grand-father was not in his possession or the same was in possession of DW-5. In 16 2026:HHC:37901 relation to this, the plaintiffs have examined PW-2 Rohit Kumar, from the office of Sub-Registrar, Office (Rural) Shimla, who has proved the copy of Will, dated 15.6.2007, as mark-A. He has categorically stated that mark-A is not the correct copy of original Will. 26. The plaintiffs have examined Kuldeep Guleria, who has scribed the Will, dated 15.6.2007 and proved the same, as Ext. PW3/A. 27. In this case, the plaintiffs have sought permission to prove the Will, by way of secondary evidence, on the statement of DW-5. DW-5, in his cross- examination, has deposed that he does not know whether after death of his father, from the office of Kuldeep Guleria, the copy of the Will was delivered to them, through registered post. Merely because DW-5 has stated that he has seen the original Will, does not entitle the plaintiffs to seek permission to prove the same, by way of secondary evidence. It has not been suggested to DW-5 that the original Will is in his possession. 28. Onus to prove the case, as set up in the plaint, was on the plaintiffs, and once, they have led the 17 2026:HHC:37901 evidence, and closed their evidence, then, on the basis of a stray sentence, deposed by DW-5, in his cross- examination, the plaintiffs cannot seek indulgence of the learned trial Court to permit them to prove the copy of Will, dated 15.6.2007, by way of secondary evidence. 29. The provisions of Section 65 of the Indian Evidence Act (Section 60 of Bharatiya Sakshya Adhiniyam), are reproduced as under: 65. Cases in which secondary evidence relating to document may be given- Secondary evidence may be given of the existence, condition or contents of a document in the following cases : (a)When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b)When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c)When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d)When the original is of such a nature as not to be easily movable; (e)When the original is a public document within the meaning of section 74; 18 2026:HHC:37901 (f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence; (g)When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 30. If the contents of the application are examined, in light of the provisions of the Indian Evidence Act, as reproduced above, then, this Court is of the view that the plaintiffs have failed to probabilize the requisite ingredients of Section 65 of the Indian Evidence Act, so as to seek indulgence of the learned trial Court to permit them to lead secondary evidence to prove the Will, dated 15.6.2007. The plaintiffs have not been able to demonstrate the existence of any of the conditions, enumerated in the said provisions, which could justify the admission of secondary evidence in proof of the Will in question. 19 2026:HHC:37901 31. The learned counsel for the plaintiffs could not satisfy the judicial conscience of this Court as to how the learned trial Court has concluded that the original Will is in the custody of DW-5, who withheld it and refused to produce the same, whereas, there is nothing on the record to suggest that any application was moved to direct DW-5 to produce the original Will, nor it is the pleaded case of the plaintiffs. 32. Considering the above facts and circumstances, this Court is of the considered view that the learned trial Court has exceeded its jurisdiction, while allowing the application under Section 65 of the Indian Evidence Act, as permission to lead secondary evidence, can only be granted by the learned trial Court, once it has been established that the original Will is in possession of DW- 5. In the absence of any such proof, the impugned order is not sustainable in the eyes of law. 33. Even otherwise, the order passed by the learned trial Court on 1.11.2025, falls within the purview of ‘perverse findings’, as the conclusion drawn by the learned trial Court, regarding the custody of the original 20 2026:HHC:37901 Will with defendant No. 5, is not borne out from the statement of DW-5. The finding, so recorded, is devoid of any credible evidence on record and suffers from illegality and perversity, rendering the same liable to be set aside. 34. In view of above, the present petition is allowed and the order dated 1.11.2025, (Annexure P-5), passed by the learned trial Court is set aside. The pending application(s), if any, are also disposed of. 35. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application. 36. Record be sent back. (Virender Singh) 3.9.2026 Judge Kalpana