RAJESH KUMAR Vs. RAKESH KUMAR

JUDGEMENT

(1.) 'panch Faisla' dated 14. 12. 2000, treated nor as a panch award and neither a recital of a past family partition in metes and bound, but as an "agreement" by the trial court which allowed the respondent/defendant to prove the same by leading secondary evidence by order dated 9. 7. 2004, which is being questioned in the present writ petition filed under Article 227 of the Constitution of India.

(2.) THE background facts necessary for the adjudication of the issue whether the existence, contents and conditions of document in question could have been allowed to be proved by leading secondary evidence, are that, the petitioner brought a suit for declaration of his title over the suit lands situate at Mouja Kandeli and Khamaria, Tahsil and District Narsinghpur and permanent injunction restraining respondent/defendant No. 1 from interfering with plaintiffs possession over the suit lands and from alienating the same in favour of third party. The claim, inter alia, rested on the averment that the suit land among other lands and house are the joint Hindu family properties of the petitioner and the respondent No. 1 and after the death of father Premchand Jain in 1994 and mother Pushpabai in 1993, there was an oral partition in 1999 between the petitioner and the respondent No. 1 and the suit land carved out to the share of the petitioner which was duly acknowledged by the respondent No. 1 on 26. 4. 1991 and since he was not adhering to the same, therefore, the suit has been filed. The respondent No. 1 denied the very existence of the partition by filing written statement. The petitioner led his evidence and closed the same.

(3.) THAT, while the respondent No. 1 was being examined, an application on 24. 6. 2004 came to be filed on his behalf, seeking the leave of the Court to bring a 'panch Faisla' dated 14. 12. 2000 on record and to prove the same by leading secondary evidence on the anvil that one Dr. Sudhir Singhai, a signatory of said 'panch Faisla', in his evidence has denied his signature and the execution of the said Panch Faisla.