HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.2400 OF 2008 Dt.18.11.2010 Between: Yejurothu Appala Satyanarayana ..Petitioner And P.Suryakantham and others ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.2400 OF 2008 ORDER: Petitioner herein is defendant no.3 in O.S.No.237 of 2004 on the file of the Principal Senior Civil Judge, Visakhapatnam. The said suit was filed by the 1st respondent herein for partition of the joint family properties. Pending the suit, the plaintiff filed I.A.No.52 of 2008 under Section 65 and 66 of Indian Evidence Act, 1872 to permit her to lead secondary evidence with regard to partition list dated 14.5.2000 for marking. It is the case of the plaintiff that the properties are joint family properties and the said properties have been divided and in proof of division a partition list has been drawn on 14.5.2000, but the original of the partition list is with defendant no.3, the petitioner herein and the plaintiff got xerox copy of the partition list and though a notice was given to defendant no.3 to produce the original list of partition, defendant no.3 denied the existence of any partition list stating that there was no partition and the alleged xerox copy is fabricated and forged. It is the case of the 3rd respondent that by virtue of the Will he is claiming the said properties. But, the case of the plaintiff is that the Will was not executed in favour of defendant no.3 and the claim of defendant no.3 claiming the said property through the Will is without any basis whatsoever. The court below not only considering the entitlement of the plaintiff to permit her to lead secondary evidence, but also recorded a finding that there was a partition deed reduced into writing between D-2 and D-3 partitioning the family properties into equal shares and D-2 and D-3 intentionally withheld the original partition deed dated 14.5.2000 with a malafide intention to defeat the claim of the plaintiff and accordingly the court below permitted the plaintiff to get mark the photostat copy of partition list or deed dated 14.5.2000 as secondary evidence under Sections 65 and 66 of the Indian Evidence Act subject to Sections 61 and 63 of Evidence Act. Learned counsel appearing for the petitioner submits that there cannot be any objection in permitting the plaintiff to lead secondary evidence, but the finding recorded by the court below with regard to genuineness and authenticity of the partition deed is nothing but as good as proving the contents of the said document. I find force in the said contention. I am of the opinion that the court below is right in permitting the plaintiff to lead secondary evidence, but the court below ought not to have recorded a specific finding with regard to the genuineness or otherwise of the partition deed, as the evidence is to be established during the course of enquiry by the parties. Therefore, the finding recorded in para 14 of the impugned order is set aside. But, however, the I.A permitting the plaintiff to lead second evidence stands allowed subject to prove the contents of the said document as contemplated under Sections 61 and 63 of the Indian Evidence Act. It is always open for the petitioner herein to raise all his legal contentions for proving the said document. The civil revision petition is accordingly allowed. No order as to costs. ________________ V.ESWARAIAH, J. 18.11.2010 kpr