Unregistered documents affecting immovable property are admissible in evidence in a suit for specific performance of contract.

1. - By this petition, the petitioner has challenged the order dated 23.10.2008 passed by the Additional District Judge (Fast Track) No.2, Udaipur (for short 'the learned court below' hereinafter) in Civil Original Suit NO.376/2003, whereby the learned court below has decided the Issue No.8 in favour of the respondent and against the petitioner has held that the memorandum of partition deed dated 10.4.2001 is not properly stamped and registered and, therefore, not admissible in evidence.

2. Brief facts, necessary for disposal of this writ petition are that the petitioner-plaintiff filed a suit for specific performance of the contract, possession, permanent injunction and declaration against the defendant/non-petitioners before the learned court below seeking the decree of specific performance of contract and it was also prayed that the sale deed executed by non-petitioner No.1 in favour of the non-petitioner No.2 may be declared void ab initio and the possession over the suit property may be delivered to the petitioner and a decree for permanent injunction was also sought. The non-petitioner No.1 resisted the suit and filed written statement, however he denied the partition between the brothers dated 21.12.2000 and also denied to have executed the deed dated 10.01.2001, whereby it was agreed between the parties for selling out of the suit premises on the consideration of Rs. 12 lacs. The non-petitioner No.2 also filed the written statement and resisted the suit.

3. The learned court below, on the basis of pleadings of the parties, framed as many as 11 issues, out of which the issue no.8 is reproduced hereunder

"8- vk;k oknh o izfroknh la[;k 1 ds e/; fu"ikfnr ifjokfjd le>kSrk 31-12-2000 o la'kksf/kr vkilh le>kSrk 10-4-2001 lk{; esa xzkgkz ugha gS\-----izfr0 la[;k 2"

4. The Issue No.8 was to the effect as to whether the family settlement between the petitioner-plaintiff and defendant/non-petitioner No.1 dated 31.12.2000 and the amended settlement dated 10.04.2001 are not admissible in evidence.

5. The non-petitioner No.2 filed an application on 12.09.2008 under Order 14 Rule 2 read with section 151 CPC and prayed that Issue No.8 may be decided before cross-examination of the petitioner-plaintiff. The petitioner-plaintiff filed a reply to the said application and claimed that no such objection can be raised at this stage when the document has already been exhibited and admitted in evidence. It was also claimed on behalf of the petitioner-plaintiff that the factum of partition has been admitted by the non-petitioner No.1 in a sale-deed executed by him and as such now at this stage, no objection can be raised regarding admissibility of the documents.

6. The learned court below, vide impugned order dated 23.10.2000, allowed the application filed by the non-petitioner No.2 under Order 14 Rule 2 CPC and decided Issue No.8 as a preliminary issue in the manner that the document dated 10.04.2001 is not properly stamped nor it is a registered document and, therefore, the same is not admissible in evidence. The court below further observed that the document dated 31.12.2000 is also not admissible in evidence.

7. Being aggrieved with the above, this writ petition has been preferred by the petitioner.

8. Despite service of show cause notice as well as of admission, no one has appeared on behalf of the Respondents to contest the writ petition.

9. The learned counsel for the petitioner has contended that the documents in question are very much admissible in evidence as per the provisions of section 49 of the Indian Registration Act, however, the learned court below has illegally observed that the documents in question are not admissible in evidence. The learned counsel for the petitioner has further argued that the documents in question are memorandum of partition and the same are neither required to be registered nor required to be on the stamp and, therefore, the learned court below has completely misconceived in holding that such document i