1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 20. WP/3428/2009 (ABDUL RIYAZ ABDUL WAHED DESHMUKH L.RS. ABDUL SALEEM V/S GAUSBIABDUL RAHEMAN ALIAS BADEMIYAN DESHMUKH) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr.R.R.Mantri, Adv., for the petitioners. Mr.R.F.Totala, Adv., for R.No. 12 and 13. ... CORAM: K.U.CHANDIWAL, J. DATE:12/10/2010 1. Heard. Mr.Mantri, learned Counsel, on instructions, does not press writ petition against respondent nos. 3 and 4, and respondent no.5(i) who are reported as either dead or for want of correct names/address, notices are not served, accordingly, such respondents are to be deleted from the writ petition. 2. In Regular Darkhast No. 27/1994, pending on the file of Civil Judge, Junior Division, Sillod, an application below Exh. 2 223 was moved by objector/respondent for production of a document titled as partition deed dt.4.8.1982. Learned Judge after hearing both the parties allowed its production by saddling a cost of Rs.1500/- upon the objector. The decree holder has,indeed, received costs of Rs. 1500/- on 11.2.2009. Another application Exh.228 was moved bringing to the notice of the learned Judge that since a notice in terms of Order 12 Rule 3 of C.P.C. was served upon the decree holder to admit or deny the document, the partition deed, part of Exh.226 and since it has been disputed, there is no option left to the objector by leading secondary evidence to get document of partition deed dt.4.8.1982 established. The learned Judge allowed the said application by order dt.1st April, 2009. Both these orders are questioned by the decree holder as to its legality, permissibility even facing procedural lacunae. 3 3. Little history in the matter is essential. RCS No.92/1985 was lodged on 19.7.1985 seeking partition and possession. It was decreed. During pendency of the said proceedings, after virtually 11 months of registration of the suit, the objector has purchased some part of the property on 10.6.1986 from the defendants. 4. Based on the decree, execution proceedings in terms of R.D.No. 27/1994 came to be lodged, seeking partition. Though both the learned Counsel have argued as to the scope of Order 21 Rule 98 ( Bombay amendment) of C.P.C. and also Rule 100 (Bombay Amendment) 1998 C.P.C., (sub rule 2), the fact remains whether the learned Judge could have justifiably entertained both these applications. 5. The history of the litigation as indicated earlier illustrate, the objector staked in the property during the pendency of the lis. Naturally, all effects and fruits, implications in terms 4 of Section 52 of the Transfer of Property Act will operate. 6. The objection raised by the objector, indeed, was closed when he filed Purshis before the learned Judge on 3.12.2008 ( Page No.44). It was then, the learned Judge allowed application on 11th Feb.,2009, by allowing production with cost of Rs.1500/-. 7. If, indeed, such deed of partition dt.4.8.1982 was available with the objector, nobody prevented him to produce the same during the ongoing litigation or get it proved through proper recourse. The objector did not adhere to this exercise. No explanations are offered by the objector for getting such document at belated stage. One does not know, it may be a new creation, as to how it has seen light of the day after such long drawn litigation. 8. The learned Judge though has recorded elaborate order, he was 5 conscious that the production of the document was not sought at proper stage without any accepted reasoning. This could have been sufficient ground or reason for the learned Judge not to entertain the application for production and subsequent application permitting secondary evidence. The exercise of the learned Judge was beyond the scope of hearing which was contemplated in execution proceedings. Both the orders, subject of challenge, are quashed and set aside. No costs. The scope to seek equities before Revenue Authorities for objector are un- briddled. Writ Petition allowed in above terms. (K.U.CHANDIWAL) JUDGE ... AGP/328-09wp