HARI SINGH Vs. SHISH RAM

JUDGEMENT

(1.) This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) seeks to challenge the order dated 13-1-1999 declining the application of the plaintiff-petitioner for adducing additional evidence. In the additional evidence the plaintiff-petitioner sought permission to lead secondary evidence of a document dated 31-12-1991 alleging that the original of the family arrangement witnessed in the writing was in possession of defendant-respondent No. 1. The application of the plaintiff-petitioner has been dismissed on the principal ground that the photostat copy of writing dated 31-12-1991, which is a family settlement, witnessed between the parties, it has been expressly recorded that consideration from one party to another has passed and, therefore, it required (sic) 1908 (for brevity, the Act). The Civil Judge (Junior Division), Mohindergarh while dismissing the application has recorded the following order : "Ld. counsel for the plaintiff has argued that writing was family partition, hence secondary evidence of the same should be allowed. Ld. counsel for the plaintiff has relied upon authority in case Mukhtiar Singh v. Bant Singh, (1991) 1 Pun LR 15. On the other hand. ld. counsel for the defendant has argued that alleged writing never came into existence otherwise also registration of the partition deed is necessary, hence secondary evidence of the same cannot be allowed. Ld. counsel for the defendant has placed reliance upon authority in case Jupudi Kesava Rao v. Pulawarthi Venkata Subbarao, AIR 1971 SC 1070; Ramayamma v. Mathummal, AIR 1974 Mad 321. I am convinced with the arguments of ld. counsel for the defendant because from the perusal of the alleged photostat writing it is clear that it is a partition between the parties and consideration also passed from one party to another. Thus it requires registration in view of authority in Thirumathi Ramayammals case (supra). A document of which registration is necessary if the same is unregistered then secondary evidence of the same cannot be allowed. And for the same reliance can be placed upon authority in Jupudi Kesava Raos case (supra). Authority in case Mukhtiar Singhs case (supra) is not sustainable in view of authority in Tek Bahadur Bhujil v. Debi Singh, AIR 1966 SC 292 in which Honble Supreme Court has held that when a family arrangement is brought about (sic. . . .?) a document it requires registration. Hence, I found no merit in the application. Hence, application for leading secondary evidence is dismissed."

(2.) Brief facts of the case necessary to decide the issue involved are that the plaintiff-petitioner filed a civil suit No. 820/95 dated 4-11-95 for mandatory injunction against the defendant-respondents claiming that on the basis of family partition recorded on 31-12-1991, he is entitled to the properties specified in the heading of the plaint. Further prayer has also been made in the suit restraining defendant-respondents from forcibly occupying the land in dispute or raising any construction thereon. An application was tiled on 21 -12-1998 with a prayer that the original document regarding the family partition dated 31-12-1991 is with defendant-respondent No. 1 Shish Ram because after recording the settlement between the parties, it was handed over to him. A photocopy of the aforementioned document was retained by the plaintiff-petitioner and a prayer was made that the original be got produced from defendant-respondent No. 1 Shish Ram. Defendant-respondent No. 1 having failed to produce that document, the plaintiff-petitioner sought permission to prove the document by way of secondary evidence. In the reply filed by the defendant-respondents, the existence of document dated 3-12-1991 was seriously disputed by asserting that such a document was never written and the witnesses on the alleged writing are relatives of the plaintiff-petitioner. Therefore, secondary evidence of such a document of which existence is doubtful could not be permitted to be adduced.

(3.) . I have heard Shri R. K. Gupta, learned counsel for the plaintiff-petitioner and Shri J. S. Yadav. learned counsel for the defendant-respondents and have perused the record with their assistance.