SHRI VALLABH Vs. MADANLAL AND OTHERS

JUDGEMENT

(1.) Petitioner/plaintiff has filed the present petition being aggrieved by the order dated 21.09.2016 by which his application under Order 11, Rule 12 Civil Procedure Code has been rejected.

(2.) Petitioner/plaintiff filed a suit for declaration and permanent injunction against his own brothers. In para-5 of the plaint he has pleaded that there was a partition between the plaintiff, defendant No.1 and late Vishuprasad forty years back in presence of the witnesses and by virtue of the said partition all the three brothers have mutually divided the property and started residing in it.

(3.) During the pendency of the plaint, plaintiff filed an application under Order 11, Rule 12 Civil Procedure Code seeking direction to the defendants to produce the partition deed. Defendants filed reply to the said application in which they have specifically denied that they are not in possession of any partition deed. Learned Court below has rejected the application on the ground that when the document is not in possession, therefore, its discovery cannot be ordered and even otherwise plaintiff is required to prove his case, hence the present writ petition before this Court.