RADHA CHARAN Vs. ADJ

JUDGEMENT

(1.) With the consent of the learned counsels for the parties, the petition is finally heard and decided at the admission stage.

(2.) The petitioner-plaintiff, by way of present petition, has challenged the legality of the two orders dated 8.2.10 and 2.12.10 passed by the Addl. District Judge (FT) No.1, Dholpur (hereinafter referred to as 'the trial court') in Civil Suit No. 53/06, whereby the trial court after recasting the issue No.10 decided the same as the preliminary issue.

(3.) Briefly stated, the facts of the case are that the petitioner-plaintiff has filed the suit against the respondents-defendants seeking partition of the suit properties. In the said suit, the respondents-defendants filed the written statement contending interalia that the family settlement had already taken place in the year 1965 and the plaintiff was separated from the Joint Hindu Family since then, and thereafter a memorandum was reduced in writing on 31.3.90. It appears that from the pleadings of the parties, the trial court had framed the issues, however an application was moved by the respondents-defendants for correcting the issue No.10 framed by the trial court. The trial court after hearing the learned counsels for the parties vide the order dated 8.2.10 re-framed the issue NO.10 to the effect that, whether the document dated 31.3.90 executed on the basis of the oral partition is admissible in evidence, though insufficiently stamped and unregistered document? The trial court also directed that the said issue No. 10 shall be decided as the preliminary issue. The trial court thereafter vide the order dated 2.12.10 held that the said document dated 31.3.90 was only a memorandum of partition and not the partition deed, and therefore, did not require registration under the Registration Act and also was not chargeable to stamp duty under the Rajasthan Stamp Act. Being aggrieved by the said orders dated 8.2.10 and 2.12.10, the present petition has been filed invoking Article 227 of the Constitution of India.