1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 8240 OF 2010 Dattatraya s/o Krishna Sonkamble .. PETITIONER VERSUS Sidram s/o Krishna Sonkamble & others .. RESPONDENTS Mr. Prashant Deshmukh, advocate for the petitioner. ===== CORAM : R. M. BORDE, J. DATE : 9 th SEPTEMBER, 2010. PER COURT : 1 The defendants are permitted to lead secondary evidence in respect of memorandum of partition copy of which is placed on record. The petitioner / original plaintiff objects to the order passed by the trial court on the ground that the alleged document is bogus and fabricated. 2 On perusal of the order passed by the trial court it transpires that it is the contention of the defendants that the original memorandum of partition is in possession of the plaintiff and necessary averments are made by defendants in the written statement presented earlier. Plaintiff has, however, 2 denied possession of the document. In this view of the matter, defendants have presented an application requesting the court to permit them to lead secondary evidence in respect of said document. Trial court, on consideration of the relevant circumstances, permitted the defendants to lead secondary evidence in respect of the document i.e. memorandum of partition. 3 I have perused the application as well as the interim order passed by the trial court. In view of provisions of section 65(a) of the Evidence Act, secondary evidence in respect of the document can be lead if the original is shown or appears to be in possession or power of a person against whom the document is sought to be proved. In the instant matter, defendants have contended that the original document is in possession of the plaintiff and the court is satisfied that it appears to be in possession or power of the plaintiff. In this situation, trial court was justified in passing the order permitting the defendants to lead secondary evidence in respect of memorandum of partition. At this interlocutory stage of proceeding, in exercise of powers under Article 227 of the Constitution of India, no interference is called for in the instant petition. Petition is devoid of substance hence stands rejected. 3 4 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp8240.10.odt