VISWALINGAM Vs. SESHADIRI

JUDGEMENT

(1.) THE third defendant in O.S. 27/93 on the file of the District Munsif Court, Jayankondam, has filed this revision against the order dismissing an application I.A. 236/95 seeking permission to file the document under question. THE respondent herein has filed the said suit for declaration of his title to the suit property and for recovery of possession and for mesne profits also. In the written statement, the defendant set up title under the partition deed of the year 1978. After the evidence on the side of the plaintiff was over, the petitioner herein got into the box to give oral evidence and during his evidence he produced the impugned document viz., the partition deed between his father and the plaintiff's father. Objection was taken for marking the document and hence the petitioner filed an application seeking permission of the court to mark the document. It was opposed by the respondent herein. THE trial court dismissed the said application against which the present revision has been filed.

(2.) THE counsel for the petitioner contended that the order of rejection by the lower court cannot be sustained, since the document can be admitted for collateral purpose to establish the defendant's nature of possession. Only if the defendant wants to recover possession from the plaintiff on the basis of the said partition deed, then only it can be said that the defendant is claiming his right under the partition deed. Now the plaintiff has filed the suit for recovery of possession and the defendant is in actual possession and as such the question of nature of possession can be ascertained by the document. In that case, on registered document can be marked in evidence.

(3.) I have carefully considered both the arguments of the learned counsel. The document to be marked is a document purporting to be a partition deed among the plaintiff's father and the defendant's father. Now both of them are not alive. The plaintiff has filed the suit for recovery of possession on the ground that the ancestors of the defendant got into possession of the suit property as tenants. Of course it is for the plaintiff to establish his case of tenancy. The defendant claims title to the property on the basis of the partition deed. The significant aspect is that the respondents in their counter did not dispute the genuineness of the document. But what all he has stated is that the document creates and declares the right in the immovable property and as such the document ought to have been registered under Section 17 and 49 of the Registration Act. There is no dispute that if a party (seeks to) enforce his claim of title under a document then that document ought to have been duly stamped and registered. In that case, we have to see whether the document is to be marked for collateral purpose of establishing the possession of the defendant or he is enforcing his claim of title.