RAM CHANDER Vs. KIDAR NATH AND OTHERS

JUDGEMENT

(1.) RAM Chander, Petitioner, filed a suit against Kedar Nath, Kirori Mal and Ganga Parshad respondents for a permanent injunction restraining the defendants from making constructions on certain property which, according to him, was in his ownership.

(2.) THE suit was contested by the defendants who claimed that a partition had taken place between the parties and the property in dispute had fallen to their share. Reliance for this plea was placed on a document dated 1st January, 1906. The plaintiff objected that that document was inadmissible in evidence for want of stamp and registration, inasmuch as it was a partition deed relating to immovable property of the value of more than Rs. 100/ -. The case of the defendants, on the other hand, was that it was a memorandum of a past partition which had taken place much earlier. By his order dated 11th March, 1S68, the learned Senior Subordinate Judge came to the conclusion that the document was not an instrument of partition within the meaning of section 2(15) of the Indian Stamp Act and as such it did not require stamp and registration and was admissible in evidence as it was. Against that order, the present revision petition has been filed by the plaintiff.

(3.) IT is needless to decide the first preliminary objection, because, in my view, there is merit in the second one. If it was now held by this Court that the said document was inadmissible in evidence for want of registration, the defendants are likely to be prejudiced, because they will not be allowed to lead evidence regarding the terms of the partition deed under the provisions of section 91 of the Indian Evidence Act. They would be able to produce evidence only to prove the fact of partition as distinct from the terms of partition. (See in this connection Punjab National Bank Ltd. v Mathra Das and another, : A.I.R. 1933 Lah. 194 Subbu Naidu and others, v. Varadarajuiu Naidu and another's, A.I.R. 1948 Mad. 25 Tejraj and another v. Mohan Lal and others, A.I.R. 1955 Raj 157 and Kanamathareddi Kanna Reddy v Kanamatha Reddy Venkata Reddy, : A.I.R. 1955 AP 274 Moreover, it could also be argued with some force that the court below had the jurisdiction to decide whether the document in question was a partition deed or a memorandum of an old partition and as such required registration or not. In deciding this matter, even if its decision be wrong either in fact or in law, the same could not be a ground for revision, because the court below had jurisdiction to decide it either rightly or wrongly. The mistake, if any, made in this behalf could be corrected in an appeal against the final decision in the suit given by the court below. Under these circumstances, in my view, no interference is called for in this case at this stage. The second Preliminary objection raised by the Learned Counsel for the respondents is sustained and the revision petition is dismissed, but with no order as to costs.