1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5829 OF 2008 Pramod Kashinath Salunkhe ...Petitioner Versus Rajendra Kashinath Salunkhe and others ...Respondents ..... Mr. A.S. Sawant h/f Mr. M.S. Sonwane, advocate for the petitioner Mr. S.P. Shah, advocate for respondent Nos.1 and 3. Mr. Hemant F. Pawar, Advocate for respondent No.2. ..... CORAM: S. S. SHINDE, J. DATED: 9TH OCTOBER, 2009 PER COURT:- 1 This writ petition is filed challenging the order dated 25.8.2008 passed by the learned Civil Judge, Senior Division, Amalner below Exh.124 in Special Civil Suit No. 54 of 2005. 2. The petitioner/plaintiff, by way of the said application, had requested for certified true copy of release deed dated 31.12.1983 produced by him with application (Exh.50) and list of documents at Exh.59 as well as the same produced by P.W.2 Subhash Krushna at Exh.108/4 and his own affidavit below Exh.118 be accepted as a secondary evidence and on that basis, he be allowed to lead further evidence in connection with it. 2 3 Learned counsel appearing for the petitioner invited my attention to the grounds taken in the petition, documents annexed thereto and more particularly the notice issued to respondents through the advocate calling upon them to concede about possession of documents and also application filed before the court below for necessary orders and other annexures annexed to the petition. Learned counsel submitted that original document of release deed is in the possession of the respondent No.1 being Karta of the family and the said document was taken away by him therefore, though the said document is executed in favour of the plaintiff/petitioner, the same is not in the custody of the petitioner, and thus, the notice was sent to the respondent and also that application was field before the court asking the respondent to produce those documents on record. 4 The counsel appearing for the respondents have supported the reasonings recorded in the impugned order by the trail court and submitted that whether the original release deed is in the custody of the petitioner or in the custody of respondent, is disputed question of fact and which cannot be gone into in exercising the writ jurisdiction. The counsel further invited my attention to para 9 and 10 of the impugned order and submitted that the court below has taken into 3 consideration all aspects of the matter and had reached to the correct conclusion. Trial court has taken a reasonable and plausible view and no interference is warranted in extra ordinary writ jurisdiction of this Court. 5 After hearing counsel for respective parties and after perusal of para 9 of the impugned order, it is not in dispute that the release deed was executed in favour of the plaintiff. When the document is executed in favour of the plaintiff, the primary duty to place the said document on record lies on the plaintiff. The contention of the plaintiff that the original release deed is in the custody of the respondent No.1 has not been convincingly proved and custody of the said document is denied by respondent No.1. The court below taking into consideration the rival contentions in para 9 observed thus:- "9. Then, let us see whether case of plaintiff falls under S. 65(a) of the Evidence Act. In this regard both defendants Nos. 1 and 3 have already denied in their respective affidavits below Exh.121 and 123 that no such original release deed is in their possession or power. The nature of the release deed is such that it has been executed in favour of plaintiff and therefore, in that, it ought to have been in possession of plaintiff himself. But plaintiff has also denied such fact in his affidavit below Exh.118 and has simply contended that defendant No.1 is his elder brother and acting as a Karta of the Hindu Joint family, has taken away from him for recording mutation entries. 4 However, this fact does not find any support looking to the affidavits filed by defendants Nos. 1 and 3 below Exh.121 and 123 and so, plaintiff is trying to make out a new case in the course of recording of evidence, which case, he never pleaded in the plaint too and he therefore, cannot be believed to say that he gave such original release deed to defendant No.1. Therefore, his case is also totally out of consideration of S. 65(a) of the Evidence Act, 1972. On careful perusal of the contents in para 9 as quoted above, it appears that whether the release deed is in the custody of the petitioner or respondent No.1 or in the custody of Tahsildar, is disputed question of fact, which cannot be gone into in writ jurisdiction. That apart, the findings recorded by the court below in para 9 of the impugned order cannot be said to be unreasonable or perverse therefore, any interference in the extra ordinary writ jurisdiction of this Court under Article 227 of the Constitution of India is not warranted. Hence. Writ petition is dismissed. Interim relief stands vacated. Civil application, if any, stands disposed of in view of dismissal of writ petition itself. *****