The main legal point established in the judgment is the admissibility of a xerox copy of a partition list as secondary evidence under the Indian Evidence Act, based on the assertion made in the plaint and the specific provisions of the Act.

1. The plaintiff in O.S. No. 191 of 1997 on the file of Principle Subordinate Judge, Cuddalore is the petitioner in the above revision. She has filed the said suit for declaration of her title and injunction in respect of suit properties and in the alternative partition and separate possession of her share.

2. Thesecond defendant has filed a written statement disputing various averments made by the plaintiff. In the trial, during the examination of P.W.6 on the side of the plaintiff, the plaintiff wanted to mark xerox copy of partition list dated 14.07.1992. The said action was objected by the counsel for the defendants stating that marking of the same xerox copy which was objected when P.W.1 was examined and the said objection was sustained. Now again marking of the same document cannot be allowed and the xerox copy is not admissible. Accepting the objection raised by the defendants, the learned Principle Subordinate Judge, after holding that xerox copy cannot be marked and the claim of the plaintiff marking xerox copy of the document has been rejected, against which the plaintiff has filed the present revision.

3. Pursuant to the "Notice of Motion" ordered by this Court on 20.12.2000, the respondents are represented by counsel.

4. Heard the learned counsels for petitioner as well as respondents.

5. Mr. S.K. Raghunathan, learned counsel appearing for the petitioner, after taking me though the claim made in the plaint in O.S.No.191 of 1997, the list of documents filed along with the plaint as well as the defence taken by the second defendant in the written statement, xerox copy of partition list dated 14.07.1992 and in view of Section 65(a) and 66 of the Indian Evidence Act, the partition list dated 14.07.1992 can be marked through P.W. 6 -one of the attestors of the documents, as a secondary evidence and the contrary view taken by the learned Subordinate Judge is liable to be set aside.

6. On the other hand, Mr. Venkateswaran, learned counsel appearing for the respondents would contend that, in view of the specific defence taken by the second defendant in the written statement as well as reply notice to the plaintiff counsel informing that, there was no partition as alleged in the plaint and the learned Subordinate Judge is perfectly right in refusing to mark xerox copy of the alleged partition list dated 14.07.1992 as document, when the same was sought to be marked through P.W. 6.

7. I have carefully considered the rival submissions.

8. In the suit for partition, namely in O.S.No.191 of 1997, the petitioner herein who is the plaintiff in the said suit has specifically pleaded that, plaint "B" schedule properties were the properties allotted to the deceased Dakshinamoorthy, which is evident from subsequent partition list dated 14.07.1992 and further stated that, since the original partition list is with defendants 2 and 3, the plaintiff is having only a xerox copy of the same furnished by them. After saying so, filed xerox copy of the partition list dated 14.7.1992 along with the plaint. No doubt, in the written statement filed by the second defendant, particularly in para 5 he denied the allegation that the defendants 2 and 3 are in custody of original partition list. It is also stated that the alleged partition did not take place on 14.7.1992. Pending disposal of the suit before the Sub Court, Cudallore, by letter dated 22.03.1999, counsel for plaintiff has directed the third defendant for production of original partition list dated 14.07.1992. For this, by reply dated 12.04.1999, learned counsel for defendants informed that, no partition had taken place as alleged in the plaint, accordingly they cannot produce any document, which does not exist. When the plaintiff herself was examined as P.W.I, the xerox copy of partition list dated 14.07.1992 was sought to be marked through her. Since the same was objected, the plaintiff did not mark the same. However, while examining P.W.6 -K. Babu, one of the attestors of t