BHAGWAN DAS TIWARI Vs. PRAKASH CHANDRA TIWARI

JUDGEMENT

(1.) THE singular point needs to be decided in this matter is whether the photocopy of partition deed was rightly rejected by the Court below by holding that it cannot be treated as secondary evidence under Section 65 of the Evidence Act.

(2.) THE respondent/plaintiff filed a Civil Suit for partition and permanent injunction in respect of a property which was allegedly jointly purchased by plaintiff and defendant by registered sale deed dated 24.5.1986. During the pendency of suit, the petitioner/ defendant preferred an application under Section 151 CPC. In the said application, defendant stated that the original copy of partition deed is with the plaintiff and, therefore, he be directed to produce the same. The plaintiff, in turn, stated that no such partition had ever taken place and, therefore, there is no question of keeping its copy. The plaintiff stated that he does not have copy of original partition deed. The Court below by order dated 13.12.2012 (Annexure R -1) rejected the said application of the defendant by holding that since plaintiff has denied about any such partition, no directions can be issued to the plaintiff to produce the said document. At this stage, the defendant filed another application under Section 64 and 65 of the Evidence Act dated 17.1.2013 (Annexure P -3). The plaintiff filed its reply (Annexure P -4). The Court below by impugned order rejected the said application and disallowed the prayer for treating the photocopy of partition deed as secondary evidence.

(3.) SHRI Rajeev Raghuvanshi, learned counsel for the respondent, on the other hand, supported the order. He submits that defendant has filed a photocopy. Photocopy shows that it is notarized but not registered under Section 17 of the Registration Act, 1908. If the original partition deed itself is not registered, then even original is not admissible in evidence. Thus, the question of accepting the photocopy of such document as secondary evidence does not arise. He supported the order of Court below. In this regard he relied on : 2011(3) MPLJ 83 (H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam) and : 2013(3) MPLJ 242 (Vijendra Singh and others Vs. Deena and others). By placing reliance on : AIR 2007 SC 1721 (Smt. J. Yashoda Vs. Smt. K. Shobha Rani), it is alleged that Court below has not committed any legal error and such photocopy cannot be admitted as secondary evidence.