1 [CASE NUMBER] [CASE NUMBER] 02.11.2016 Shri [ENTITY], learned counsel for petitioner. Shri [ENTITY], Panel Lawyer for respondent-State.
Petitioner/plaintiff takes exception to order dated 19.01.2016 passed in Civil Suit No.71-A/2015 whereby the trial Court has declined the petitioner to lead secondary evidence of an instrument said to be a memorandum of partition dated 15.01.1998.
Suit at the instance of petitioner is for declaration of title over half of the land forming part of Arazi No.42, 43, 44 and 45 situated at Mauza Madhavgarh, Tehsil Raghuraj Nagar, District Satna and for permanent injunction.
The relief, as is evident from the suit, has been sought on the basis of partition which is recorded on 19.01.1998 (Annexure P/3).
That, during pendency, when the matter was posted for recording of evidence, petitioner filed an application under [SECTION] seeking leave to Court to lead secondary evidence in respect of partition deed dated 15.01.1998 on the plea that the original is in possession of respondent No.1/defendant. An application to that effect was filed on 09.10.2014 wherein paragraph 3 it is specifically averred :
3& ;gfd izfroknh 0&1 oknhx.k ds firk gS vkSj mDr ewy caVokjk fnukad 7&12&98 dks ys[kc) djus ds mijkar caVokjk dh ewy izfr izfroknh 0 1 ds }kjk Lo;a vius ikl j[k yh xbZ Fkh rFkk mDr ewy nLrkost ls gh rS;kj dh xbZ Nk;k izfr oknhx.kksa dks nh xbZ Fkh mDr Nk;k izfr izdj.k esa is'k gSA Responding to the said application, respondent No.1 filed reply on 20.04.2015 wherein paragraph 3 it is stated :
3- vkosnu i= dh df.Mdk 03 esa fy[kh bckjr iw.kZ #i ls Lohdkj gS fd oknh ds }kjk eux<ar rF;ksa ds vk/kkj ij nkok izLrqr fd;k x;k tks izFke&n`"V;k [kkfjt fd;s tkus ;ksX; gSA The trial Court rejecting the application held :
izdj.k esa oknh dh vksj ls izLrqr Nk;k izfr lknk dkxt ij ys[kc) gS tks fd viathd`r gSA tcfd caVokjk foys[k lk{; esa fxjk;s gksus ds fy;s iathd`r gksuk vko';d gS vr% izLrqr CkaVokjk Nk;k izfr dks f}rh;d lk{; ds #i esa i<+s tkus dh vuqefr ugha nh tk ldrh gSA vr% vkosnu i= /kkjk 65 lk{; vf/kfu;e Lohdkj ;ksX; u gksus ls fujLr fd;k tkrk gSA [SECTION] of the [ACT] envisages :
"65. Cases in which secondary evidence relating to documents 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], such person does not produce it;"
In the case at hand, respondent No.1/defendant having not disputed being in possession of the original [ENTITY] dated 15.01.1998, as borne out from paragraph 3 of reply to application under [SECTION] of [ACT], trial Court was in patent error in declining to acceded to the prayer on behalf of petitioner/plaintiff, however, it is borne out from impugned order the reasons which weighed the trial Court for not allowing the application under [SECTION] of [ACT] is that the documents besides being a photocopy was also not registered document.
It is the contention on behalf of petitioner that the document in question was only recital of partition which had taken place amongst the members of the family at the instance of respondent No.1/defendant and since it was only recital it was not compulsorily registrable under [SECTION] of [ACT].
Learned counsel for petitioner has placed reliance on the decision by Supreme Court in the case of Roshan Singh vs. [PRECEDENT] : AIR 1988 SC 881. Learned counsel placing reliance on the observation in paragraph 9, 12 and 16 has to submit that a close look at the documents in question does not disclose the factum of partition in metes and bounds. It was not incumbent upon the parties to said partition to get it registered.
Reading into the proposition of law laid down by their Lordships in [PRECEDENT] (supra) as is borne out from paragraph 16 that "it is well-settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants.
The document Exh. P-12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document Exh. P-12 was a mere list of properties allotted to the shares of the parties."
The aforesaid proposition of law is reiterated by the Supreme Court in [PRECEDENT] vs. Vittala M.N. 2016 8 SCC 705 wherein their Lordships have held :
"15. Under [SECTION] of the [ACT], the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under [SECTION] of the [ACT] no document required by [SECTION] or by any provision of the [ACT] to be registered shall be received as evidence of any transaction affecting an immovable property. As provided by [SECTION] of the [ACT], any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved under [SECTION] of the [ACT].
16. Even though recitals in the Ex.D22 is to the effect of relinquishment of right in items No.1 and 2, Ex.D22 could be taken as family arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ex.D22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in items No.1 and 2."
In the case at hand there is no iota of doubt, as borne out from the instrument in question a copy whereof is brought on record at Annexure P/2 that, it is on draw of lot that the parties to the settlement were placed in possession over respective area of immovable property drawn in their favour and that the parties being placed over the respective immovable property there was relinquishment of right of either of the parties over said area. This aspect gets established as the document in question uses the word/letter dks fn;k tkrk gS ; vkaxu dk iz;kax djsxk ; fudyus ds fy, jkLrk fn;k tkosxk ; dk dCtk jgsxk ; fn;s tk jgs gS ; bPNk ds }kjk fn;k tkosxk ; fn;k tk jgk gS ; nh tk jgh gS That the partition was in metes and bounds with the execution of deed in question dated 15.01.1998 and was compulsorily registrable under [SECTION] of the Act of 1908. Being not registered is not admissible under [SECTION] of the [ACT] and therefore even if there is an admission on the part of respondent No.1/defendant of being in possession of the original of [ENTITY] dated 15.01.1998, the petitioner cannot be allowed to tender the document in evidence. However, as observed by their Lordships in [PRECEDENT] (supra) that if, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties."
(emphasis supplied) In view whereof, petitioner would be at liberty to use the document in question to corroborate piece of evidence for showing or explaining conduct of the parties. The impugned order is modified to the said extent.
Petition is disposed of finally in above terms.
([ENTITY]) JUDGE anand