Sitaram Golhani vs Nokhelal

S.K. Gangele, J.—The appellant-plaintiff has filed this appeal against the judgment and decree dated 12.08.2005 passed by the Ist appellate court in Civil Appeal No. 12-A/2003 arising out of Civil Suit No. 12-A/1998 decided on 31.01.2003 in Civil Judge, Class-I, Lakhandaun. The court set aside the decree passed by the trial court and dismissed the suit filed by the original respondent. The plaintiff filed a suit for partition. He pleaded that the suit property was the joint family property. There was a partial partition of the family property on 2.8.1994. However, there was no partition of the suit land and the plaintiff was deprived of his share in the suit land because he was in service and he was residing outside. The defendant denied the averments of the plaintiff and pleaded that there was oral partition in the year 1970. Thereafter, the plaintiff himself issued a notice for partition on 27.8.1980 and then the partition deed was executed between the parties on 11.10.1980 and the family property was partitioned accordingly. The first appellate court relied on the partition deed, Ex. D-3 and held that there was a partition between the parties and after partition the names of persons were recorded separately in accordance with the partition, hence the plaintiff had no right of partition of the family property.

Learned senior counsel appearing on behalf of the appellant has contended that Ex. D-3 is the photocopy, hence the secondary evidence could not be admitted in the evidence. He further pleaded that there was no partition between the parties.

In regard to admissibility of Ex. D-3, the trial court has specifically ordered, vide order dated 10.01.2003 that the original copy was with the plaintiff. The plaintiff did not produce the original copy, hence the photocopy was produced before the court by the defendant. The document was admitted in the evidence and the plaintiff was given an opportunity to raise the objection at the time of evidence. However, the plaintiff - appellant did not raise the objection. The Supreme Court in the matter of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, AIR 2003 SC 4548 : (2004) 6 JT 442 : (2004) 136 PLR 612 : (2003) 8 SCALE 474 : (2003) 8 SCC 752 : (2003) 4 SCR 450 Supp : (2003) AIRSCW 5316 : (2003) 8 Supreme 193 has held that if the document admitted in the evidence without objection, it can not be said that it is an admissible being photocopy because the original was not produced after considering the legal position. Apart from this, it is observed by the first appellate court that in accordance with partition deed name of the parties were entered in the revenue records. The partition deed was acted upon between the parties. The plaintiff himself submitted an application for mutation on the basis of Batwara. In the aforesaid application the defendant had submitted their no objection and signed the same. The carbon copy of the same was filed as Ex. D-2. It is signed by the plaintiff himself. The defendant, DW-1 in his evidence further pleaded that the original partition deed was with the plaintiff and he did not produce the same. The defendant produced, Ex. D-3. The Sansodhan Panji on the basis of partition deed was produced before the authority which is Ex. D-4 and in accordance with aforesaid documents all the family property was partitioned. The appellate court has appreciated the evidence properly and recorded the correct findings. In my opinion, when there was a partition, vide D-3 of the family property and it was acted upon and the plaintiff himself filed an application before the authority for mutation, hence he can not claim partition of the family property subsequently. The first appellate court has rightly dismissed the suit filed by the plaintiff. No substantial question of law involves for determination in this appeal. It is hereby dismissed.