1 WP 5919 OF 2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5919 OF 2010 Chandrakant Baburao Jadhav and ors. ..Petitioners Vs. Yeshwantrao Dattajirao Bhosale and ors. ..Respondents ......... Mr.V.B.Rajure, for petitioners. Mr.Madhav Jamdar, for respondents. ......... CORAM: R.G.KETKAR, J. DATE : 23rd SEPTEMBER, 2010. P.C. : Heard Mr.V.B.Rajure, learned counsel for petitioners and Mr.Madhav Jamdar, learned counsel for respondents. On oral application made by Mr.Rajure, name of respondent no.4 Sou.Shweta Kuldeep Shelke is permitted to be deleted. Amendment be carried out forthwith. 2] Rule. By consent of the parties, Rule is made returnable forthwith. 3] This petition is directed against the judgment and order dated 14 th June, 2010 below Exhibit 217 in Regular Civil Suit No.7 of 2003 passed by the learned 8 th Joint Civil Judge, Junior Division, Kolhapur. By that order, learned trial Judge impounded the documents exhibit 3/8 Kabulayat dated 11 th September, 1985, document at Exhibit 110/2 Memorandum of Partition dated 19 th November, 1964 and document at exhibit 110/4 Memorandum of partition dated 10 th February, 2 WP 5919 OF 2010.sxw 1985. Learned trial Judge further directed the petitioners original plaintiffs to take necessary steps to get impounded the said documents within 15 days from the date of order. 4] Petitioners took out application exhibit 217 praying that these documents may be marked as exhibits. Earlier by order dated 18 th February, 2010, learned trial Judge rejected the prayer made by the petitioners for exhibiting these documents. Petitioners challenged that order by filing Writ Petition No.1620 of 2010. This Court recorded that document dated 11 th September, 1985 purports to create a lease for 99 years from the year 1973-74 in respect of the immovable property and is compulsorily registrable document. The document at exhibit 110/2 dated 19 th November, 1964 purports to effect the partition of properties which are set out therein which is also compulsorily registrable document. In so far as the documents 110/4 dated 10 th February, 1995 is concerned, it is a Memorandum of Partition which only records details of partition that have been already effected upon the parties. This Court further directed the trial Court to decide the issue regarding the proof of documents as also decide objection regarding insufficiency of the stamp duty. The said Writ Petition was disposed of on 19 th March, 2010 by setting aside the order dated 18 th February, 2010 and restoring the said application at exhibit 217. 5] Pursuant to the order passed by this Court in Writ Petition, the trial Court, by impugned order, impounded the documents. The grievance made by learned counsel for petitioners is that though by order dated 19 th March, 2010 this Court directed the trial Court to decide the issue regarding proof of these documents, the learned trial Judge has not decided this issue. On the other 3 WP 5919 OF 2010.sxw hand, Mr.Jamdar submitted that the learned trial Judge has discussed each and every document in question and, in substance, came to the conclusion that these documents are not proved. 6] I have considered the submissions made by learned counsel for the parties. In paragraph 8 of the order dated 19 th March, 2010, this Court observed that as far as the objection regarding proof of execution of documents is concerned, the same should have been decided by trial Court. The reason is that if the court comes to the conclusion that the evidence on record does not prove the execution of documents, the party concerned can always move the Court for leading further evidence. It is no doubt true that the learned trial Judge during the course of impugned judgment has made certain observations in respect of each and every document. However, learned trial Judge has not recorded positive findings in respect of each of the documents as to whether the petitioners have proved the same or not. In my opinion, learned trial Judge ought to have decided that issue in view of the specific direction of this Court in paragraph 13(iii) in the order dated 19 th March, 2010. 7] In view thereof, the impugned order is quashed and set aside. The application at exhibit 217 is restored to the file of the learned trial Judge. The learned trial Judge shall hear and decide the said application exhibit 217 as per the observations made in the order dated 19 th March, 2010. It is expressly made clear that I have not decided anything on merits as regards the proof of these documents either way. 8] Mr.Jamdar, on instructions, makes a statement that pursuant to the 4 WP 5919 OF 2010.sxw impugned order, the documents have been impounded and sent to the Collector. Since I have set aside the said order, it will be necessary for the trial Court to call for those documents from the Collector forthwith. On receipt of the documents, learned trial Judge shall decide the issue as regards proof of documents i.e. documents exhibit 3/8 Kabulayat dated 11 th September, 1985, document at exhibit 110/2 Memorandum of partition dated 19 th November, 1964, document at exhibit 110/4 Memorandum of partition dated 10 th February, 1985, giving categorical findings on that issue. After giving categoric findings in respect of the proof of these documents, learned trial Judge shall impound these documents and, thereafter, pass appropriate order. In view of the above directions, the learned trial Judge shall conclude the hearing of the suit before 31 st December, 2010. [R.G. KETKAR, J.]