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2014 Supreme(Mad) 4065
High Court of Judicature at Madras
K. RAVICHANDRABAABU, J.
Muniappa Gounder
Versus
P. Dhanasekaran
C.R.P.(PD). 3732 of 2014 & M.P.No. 1 of 2014
Decided on: 13-11-2014
For the Petitioner:I.C. Vasudevan, Advocate.
For the Respondent:S. Dhanasekaran, Advocate.
Headnote:
Transfer of Property Act, 1882 - Specific Relief Act, 1877 - Suit filed for declaration - Permanent injunction - Separate and exclusive possession and enjoyment of scheduled properties - Plaintiffs father and defendant are brothers and they are jointly entitled of land they divided their property into two equal shares and out of such partition father of plaintiff was put in separate and exclusive possession and enjoyment of scheduled properties under said partition deed which is suit property herein - Plaintiffs father and sister of plaintiff jointly executed a registered gift settlement deed in favor of plaintiff in respect of said property and on and from date of said gift settlement deed plaintiff has become absolute owner of same - Suit property is lying in Old Survey measuring an extent - Plaintiffs father and defendant together were entitled of Village and they were enjoying property in common without any partition - There was no partition as claimed by plaintiff - Out of acres of land a substantial portion of same was taken away for so many purposes like formation of Government road to temple and for formation of east west cart track - A substantial portion of land out of total extent acres was taken away and only an extent is available to which plaintiffs father and defendant were made as joint pattadhars - Thus plaintiffs father was entitled share in common in punja whereas defendant is entitled share in common - Claim of plaintiff in suit in respect of suit property is false - If plaintiffs false claim on partition deed is accepted then defendant will get whereas plaintiff will get - Entire survey field is enjoyed by parties in common without any partition – Held, A perusal of above referred to decisions of Apex Court as well as this Court would make it clear that unregistered sale deed can be marked as evidence and looked into only for collateral purpose of finding nature of possession of property concerned - No doubt counsel for petitioner relied on decision of this Court reported to contend that unregistered partition deed cannot be admitted in evidence - A perusal of said decision would show that a family arrangement which allotted properties to respective parties and did not record earlier partition came up for consideration regarding its admissibility and learned Single Judge of this Court has found that such family arrangement allotting properties and not recording earlier partition cannot be admitted in evidence as same was an unregistered document - This Court found in said decision that agreement that was entered into therein cannot be marked as document since it required to be stamped and registered since reading of entire agreement showed that there was no recital to effect that it was for recording earlier partition which had already taken place - Here in this case as already pointed out plaintiff seeks for relief of declaration only based on registered settlement deed and to prove possession of his father which being collateral purpose he wants to mark unregistered partition deed - At any event based on respective pleadings of parties as discussed supra and also based on finding of Court below that such admissibility of document can be decided at later point of time while deciding suit court of view that present application filed once again by defendant before Court below is totally unwarranted and same was rightly rejected by Trial Court - Civil Revision Petition stands dismissed
The defendant is the petitioner and the plaintiff is the respondent herein. The petitioner is aggrieved against the order of the Trial Court in dismissing his application filed under Order 13 Rule 3 CPC to reject Ex.A.6/unregistered partition deed, dated 13.06.1988 filed by the plaintiff as inadmissible.
2. The case of the plaintiff in his suit filed for declaration of his title and for permanent injunction in respect of the suit property is as follows:
The plaintiff's father and the defendant are brothers and they are jointly entitled to 3 acres of land and on 13.06.1988, they divided their property into two equal shares and out of such partition, the father of the plaintiff was put in separate and exclusive possession and enjoyment of 'B(1)' scheduled properties under the said partition deed, which is the suit property herein. The plaintiff's father and the sister of the plaintiff jointly executed a registered gift settlement deed dated 24.11.2008 in favour of the plaintiff in respect of the said property and on and from the date of the said gift settlement deed, the plaintiff has become the absolute owner of the same. The suit property is lying in Old Survey No.269A, Re-survey No.306/2 measuring an extent of 1.43 acres.
3. The said claim of the plaintiff was resisted by the defendant in general, however in paragraphs 9 and 11 of his written statement, it is stated as follows:
The plaintiff's father and the defendant together were entitled to punja acre 3.00 in old S.F.No.269A of Elavamalai Village and they were enjoying the property in common without any partition. There was no partition on 13.06.1988 as claimed by the plaintiff. Out of the above 3 acres of land, a substantial portion of the same was taken away for so many purposes like formation of the Government road; to the Karupparayan temple and for the formation of east west cart track. Therefore, a substantial portion of land, out of the total extent of 3 acres was taken away and only an extent of 1.90 acres at R.S.No.306/2 is available, to which the plaintiff's father and the defendant were made as joint pattadhars. Thus the plaintiff's father was entitled to ½ share in common in punja acre 1.90, whereas the defendant is entitled to remaining ½ share in common. Therefore, the claim of the plaintiff in the suit in respect of the suit property is false. If the plaintiff's false claim on partition deed dated 13.06.1988 is accepted, then the defendant will get only 0.40 cents, whereas the plaintiff will get 1.50 acres. The entire survey field in R.S.No.306/2 is enjoyed by the parties in common without any partition.
4. With the above pleadings of the respective parties, the said suit for declaration and permanent injunction is pending before the trial court for its consideration and adjudication. During the pendency of the suit, the plaintiff sought to mark the said unregistered partition deed dated 13.06.1988, when he was examined as P.W.1. The defendant filed I.A.No.233 of 2014 for rejection of the said unregistered partition deed. The Trial Court dismissed the said application by observing that the admissibility of the said partition deed will be decided only at the time of trial.
5. Challenging the said order, a Civil Revision Petition in C.R.P.No.2954 of 2014 was filed before this Court and this Court by order dated 06.08.2014 has upheld the order of the Trial Court by holding that whether the document is admissible in evidence and whether the document can be marked for collateral purpose can be decided at the time of trial. However, this Court has granted liberty to both the parties to agitate when the document is marked. This Court also imposed a cost of Rs.2,000/- on the defendant for abusing not only the Trial Court but also this Court by preferring a revision. Further, a direction was issued to the Trial Court to take up the suit and dispose of the same within three months. Thereafter, the said document was marked as Ex.A.6 and in pursuant to such mark
