1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.466 OF 2008. Shivanand S/o Baswant Patil and others ... Petitioners. Versus Dayanand Baswant Patil and others .. Respondents. ... Mr.A.B.Kadethankar, advocate for the petitioners. Respondent Nos.1 and 2 served - absent. Respondent No.3 deleted as per Court's order dt. 16.4.2009. ... CORAM : V.R.KINGAONKAR,J. Date : 22.06.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. Mr.Kadethankar, learned advocate makes 2 a statement that the Respondent Nos.1 and 2 were duly served by him as per directions of this Court but both of them remained absent, notwithstanding appropriate service. He points out from copy of the plaint (paragraph 12) that repartition effected on 26.7.1991 were pleaded. He also points out that the agreement of repartition was reduced into writing and that the contesting defendant Nos.1 and 2/Respondent Nos.1 and 2 in their pleadings admitted repartition dated 26.7.1991. It is true that execution of the repartition deed was not alleged specifically though a copy of the repartition deed was placed on record. 3. The petitioners would submit that the original partition deed was kept in custody of witness Sangram Patil, who was responsible Panch and attended the partition effected by after by consent of the parties. The petitioners filed application (Exh.126) alleging that a typed copy of the partition deed was filed on record but it was not known as to who was in custody of the original partition deed. The inquiry made with 3 the legal representatives of deceased Sangram Patil, showed that the partition deed could not be traced out. The original repartition deed is thus prima facie lost. The petitioners desire to prove the copy and sought permission to lead secondary evidence. Their application came to be dismissed on the ground that the tests contemplated U/s 65 of the Evidence Act have not been satisfied. 4. The trial Court observed that there is nothing in the pleadings about repartition and execution of the deed. This appears to be obviously incorrect. The pleadings of the parties show that there was repartition on 26.7.1994. A copy of partition deed was placed on record. There is sufficient explanation given about loss of the original documents. It will have to be said, therefore,that the petitioners had laid foundation to their contention regarding legal requirement for grant of leave to adduce secondary evidence. In this view of the matter, the impugned order is quite unsustainable inasmuch as the same appears to be arbitrary. 4 5. In the result, the petition is allowed. The impugned order is quashed. The petitioners be allowed to prove the copy of the repartition deed placed on record. Rule made absolute. No costs. (V.R.KINGAONKAR,J.) asp/office/wp466008