SITARAM GOLHANI Vs. NOKHELAL

JUDGEMENT

(1.) THE appellant -plaintiff has filed this appeal against the judgment and decree dated 12.08.2005 passed by the Ist appellate court in Civil Appeal No. 12 -A/2003 arising out of Civil Suit No. 12 -A/1998 decided on 31.01.2003 in Civil Judge, Class -I, Lakhandaun. The court set aside the decree passed by the trial court and dismissed the suit filed by the original respondent. The plaintiff filed a suit for partition. He pleaded that the suit property was the joint family property. There was a partial partition of the family property on 2.8.1994. However, there was no partition of the suit land and the plaintiff was deprived of his share in the suit land because he was in service and he was residing outside. The defendant denied the averments of the plaintiff and pleaded that there was oral partition in the year 1970. Thereafter, the plaintiff himself issued a notice for partition on 27.8.1980 and then the partition deed was executed between the parties on 11.10.1980 and the family property was partitioned accordingly. The first appellate court relied on the partition deed, Ex. D -3 and held that there was a partition between the parties and after partition the names of persons were recorded separately in accordance with the partition, hence the plaintiff had no right of partition of the family property.

(2.) LEARNED senior counsel appearing on behalf of the appellant has contended that Ex. D -3 is the photocopy, hence the secondary evidence could not be admitted in the evidence. He further pleaded that there was no partition between the parties.