Suresh Salariya vs Smt. Rita Vijay Suri

P.S. Dinesh Kumar, J.—Issue rule.

These petitions are filed with a prayer to quash the order dated 18-2-2016 in O.S. No. 16375 of 2006 passed by the Trial Court.

Heard Sri M.N. Uma Shankar, learned Counsel for the petitioners, Sri R. Rajashekhar, learned Counsel for respondent 1, Sri V.D. Raviraj, learned Counsel for respondent 2 and Smt. M.N. Hymavathi, learned Counsel for respondent 3.

Sri M.N. Uma Shankar, learned Counsel for the petitioners submits that when the examination of defendant-D.W. 1 was in progress, a document produced at Annexure-B to the writ petition was sought to be marked in evidence and the same was objected by defendant 1/respondent 1. He submits that Annexure-B is in fact record of proceedings of an oral partition effected on 1-1-1981 and recorded on 17-5-1981. However, learned Trial Judge while considering the matter misconstrued the said document to be a partition deed dated 1-1-1981 and held that the same is inadmissible in evidence unless it is charged with duty and penalty as per law.

Further assailing the validity of the impugned order, learned Counsel for the petitioner submits that the document in question is a record of proceedings drafted and signed on 17-5-1981. It cannot be construed by any stretch of imagination as a partition deed. He adverts to the first two lines of the said document to contend that it is a record of proceedings and submits that the impugned order is unsustainable because it is based on an assumption, which is incorrect in law and accordingly prays for allowing these writ petitions.

Per contra, learned Counsel appearing for the respondents submits that the document though is in the form of a record, it is indeed a partition deed and the learned Trial Judge is right in holding that the same is inadmissible in law. However, on perusal of the said document again he would not seriously contest that the opening sentence in the document reads as "This Deed is To Record, the oral partition ". However, he prays for dismissing the writ petitions.

I have given my careful consideration to the submissions made by learned Counsel for both the parties and perused the material papers.

A perusal of Annexure-B shows that it is styled as record of oral partition and the first four lines of the said document read as follows:

"This Deed is To Record, the oral partition effected on 1-1-1981, is made on the 17th day of May, 1981, between Sri K.C. Salariya, Hindu, Major, residing at No. 168, Nagavara, Dooravaninagar Post, Bangalore-16."

A plain reading of the aforesaid extracted portion indicates that the oral partition was effected on 1-1-1981 and it was recorded on 17-5-1981. However, learned Trial judge at every stage in the order has adverted to the said document as unregistered partition deed dated 1-1-1981. The learned Trial judge has also given a finding that recitals in the document make it clear that the document in question does not bear reference to oral partition. This finding, in my considered view is clear perverse and unsustainable because the opening sentence of the document itself makes it clear that it is a record of oral partition effected on 1-1-1981. Therefore, the reasons recorded in the impugned order is unsustainable in law and warrants interference by this Court.

In the result, the following:

ORDER

(i) Writ petition is allowed and rule made absolute.

(ii) Impugned order dated 18-2-2016 in O.S. No. 16375 of 2006 passed by the Trial Court (Annexure-A), is set aside.

(iii) Petitioners/plaintiffs are permitted to mark the said document namely deed of record dated 17-5-1981. Court.