MAMTA AWASTHY Vs. AJAY KUMAR SHRIVASTAVA

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India the petitioners have challenged the validity of the order dated 6-7-2009 passed by the Trial court by which the .objection raised by the respondent with regard to admissibility of partition deed dated 2-11-1985 has been upheld and the same has been held to be inadmissible in evidence on the ground that it is neither registered nor properly stamped.

(2.) Facts, giving rise to filing of the writ petition, briefly stated,are that the house bearing number 1664 situate at Gorakhpur, Jabalpur was an ancestral property of which late Narmada Prasad Shukla and Basant Awasthy were the joint owners. On 2-11-1985 a partition deed was executed. Late Narmada Prasad Shukla, Smt. Shyama Bai, wife of Narmada Prasad Shukla, late Smt. Munni Bai and late Basant Awasthy were parties to the aforesaid partition deed. Though the partition deed was not registered yet the parties were placed in possession of their respective shares in the year 1985 in pursuance of the partition deed. The parties were given the right of preamption to purchase the property. The respondent who is a stranger to the family, filed the civil suit for specific performance of the contract on the basis of an agreement for sale alleged to have been executed by late Narmada Prasad Shukla in favour of the respondent which was registered as civil suit number, C.S. No. 194-A/1994. In the civil suit, the name of late Narmada Prasad Shukla who was arrayed as defendant No. 1 was ordered to be deleted on the ground that he expired during pendency of the suit. The Trial Court passed an ex parte decree by which the cLalm of the respondent for specific performance of the contract was decreed. Late Basant Awasthy who was in possession of his share pursuant to the partition deed dated 2-11-1985 filed an objection under Order 21 Rule 97 of the Code of Civil Procedure resisting the execution of the decree passed in favour of the respondents. The present petitioners are legal representatives of late Basant Awasthy. The case was fixed for recording evidence. The petitioners filed their examination-in-chief in the form of affidavit and the proceeding was fixed for their cross-examination on 17-6-2009.

(3.) It is pertinent to mention here that late Basant Awasthy had filed a civil suit, namely, 81-A/2002 in which the partition deed dated 2-11-1985 was marked as an Exhibit. However, the aforesaid civil suit as per petitioner's version was later on dismissed for default. The petitioners had produced the certified copy of the partition deed dated 2-11-1985 in the proceedings under Order 21 Rule 97 of the Code of Civil Procedure. However, the respondent raised an objection that the partition deed was not admissible in evidence as the same was neither registered nor it was properly stamped. The Trial Court vide order dated 6-7-2009 upheld the objection raised with regard to admissibility of the document and held that the document in question cannot be held to be admissible even for collateral purposes.