1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 666/2011 (Onkar Hemrajbhau Upwanshi & others VERSUS Bhuwanlal Haribhau Upwanshi & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Prashant Gode, counsel for the petitioners. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 17 , 2011 . By this petition, the petitioners impugn the order passed by the Civil Judge (Senior Division), Gondia on 26.10.2010 allowing an application filed by the defendant no.1 for adducing secondary evidence. The petitioners are the original plaintiffs. A suit was filed by the plaintiffs for partition and separate possession of their 1/4th share (each) in the suit property. It was the case of the plaintiffs that though there was a family arrangement between the parties, there was no partition and, hence, the plaintiffs were entitled to partition of the suit property. The defendant nos.1 to 3 filed their written statement and specifically denied the claim of the plaintiffs. They denied that there was no partition but, there was only a family arrangement. They pleaded that the said family arrangement was in fact a partition and in the eye of law, it amounted to partition. They pleaded that it was fully acted upon by the parties. It was also stated by the defendants that there was a family arrangement and the plaintiffs were not entitled to 1/4th share in the suit property. The defendants 2 categorically mentioned the portions, which fell to the plaintiffs’ and the defendants’ share in terms of the family arrangement/partition. During the pendency of the suit, the defendant no.1 filed an application for leading secondary evidence in regard to the partition-deed dated 10.04.1994. According to the defendant no.1, the defendant no.1 was not in possession of the original deed and it was necessary to prove the said document as the original was not available. The plaintiffs denied the prayer made in the stay application and pleaded that there was no partition-deed in existence at all. The plaintiffs pleaded that the partition-deed needs to be registered and since the original was not in existence, it was not admissible in evidence. The trial Court, however, on an appreciation of the pleadings of the parties and the submissions made on their behalf allowed the application by the impugned order dated 26.10.2010. The order passed by the trial Court appears to be just and proper. The trial Court has observed that for showing the status of severance of the properties, an unregistered document can also be admitted in evidence for collateral purpose. In the instant case, the plaintiffs had pleaded that there was a family arrangement but, no partition had taken place whereas, it was the claim of the defendants that the family arrangement was indeed a partition and the property was partitioned between the parties by metes and bounds. The trial Court held that in case, the defendants were not permitted to produce a document by secondary evidence, they would not have got an opportunity to adduce oral evidence in regard to the same. While granting 3 permission to adduce secondary evidence, the trial Court also observed that the alleged document was nothing but, an agreement of partition and was not a deed of partition and, therefore, it did not require registration. The apprehension expressed on behalf of the petitioners that the aforesaid observation about the nature of the document i.e. that, it was merely an agreement of partition and not a deed of partition, would hamper the case of the plaintiffs at the subsequent stage of the proceedings, is not well founded as the said observations are prima-facie observations made by the trial Court while deciding the interlocutory application filed by the defendant no.1, by the impugned order dated 26.10.2010 and would not govern the case any further. The aspect whether the document is an agreement of partition or a deed of partition would be considered at the later stage of the proceedings. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE