Documents regarding the declaration of pre-existing rights are not compulsorily registerable and can be proved by way of secondary evidence. The court must address objections related to stamp duty and the admissibility of documents as evidence.

GURBIR SINGH, J.

1. Challenge in this revision petition filed under Article 227 of the Constitution of India is to order dated 07.11.2019 (Annexure P-5), passed by learned Additional Civil Judge (Senior Division), Bholath (hereinafter referred to as – the Trial Court), whereby application moved by the plaintiff-petitioner seeking permission to lead secondary evidence by producing a photocopy of settlement (Iqrarnama) dated 23.05.1990 regarding domestic oral partition, has been dismissed.

2. Learned counsel for the petitioner has submitted that the petitioner filed suit for declaration that the petitioner is owner in possession of land measuring 03 kanals 09 marlas i.e. the suit property and mutation sanctioned in favour of respondent no.1 on the basis of order dated 21.03.1989 is illegal, wrong, void and ineffective. The suit land was previously owned by father of petitioner and respondents. He died on 18.11.1984. The suit land was inherited by his three sons i.e. petitioner, respondent no.1 and respondent no.2 in equal shares and mutation no.1184 dated 15.05.1985 was sanctioned in their favour. On 23.05.1990, the parties effected an oral family partition of the suit land along with the ownership of other land, which they all had inherited from their father. An agreement of memory of oral partition dated 23.05.1990 was reduced to writing, in which, land measuring 115 kanals 04 marlas including the suit property was given to the petitioner. Mutation no.1332 dated 29.05.1990 was also sanctioned in favour of the petitioner. The remaining land was also divided between the parties as per the aforesaid oral family partition. Respondent no.2, in his written statement, admitted the factum of oral family partition of the suit land as well as other lands inherited by the partied from their father. Respondent no.1, in his written statement, admitted that the suit property was owned by his father as co-sharer and after his death, the same was inherited by him and his two brothers.

3. Learned counsel for the petitioner further submitted that the suit land was recorded in the ownership of the petitioner on the basis of oral family partition settlement dated 23.05.1990 and the original document dated 23.05.1990 is in possession of respondent no.1. The petitioner had earlier moved an application before the learned Trial Court to call upon respondent no.1 to produce the original oral family partition document dated 23.05.1990 but he did not produce the same. Rather, he denied the execution of aforesaid settlement. The petitioner moved application for secondary evidence by producing a photocopy of the above-mentioned settlement. The learned Trial Court dismissed the application on the ground that if the family settlement creates rights in the immovable property, the same is compulsorily registerable and ought to have been executed on a proper stamp and such unstamped and unregistered family settlement, which creates rights in the suit property, could not be proved by way of secondary evidence.

4. The petitioner also summoned Sadar Kanungo of the office of Deputy Commissioner along with register of mutations for the year 1990 but he deposed that the copy of document dated 23.05.1990 was not attached with the mutation.

5. It is further contended by learned counsel for the petitioner that if a document does not create a new right but is with regard to declaration of pre-existing right, then it is not required to be registered. Reliance in this regard is placed on judgments of Hon’ble Supreme Court passed in Bhoop Singh vs. Ram Singh Major reported as 1996 AIR (Supreme Court) 196, Ripudaman Singh vs. Tikka Maheshwar Chand reported as (2021) 7 Supreme Court Cases 446 and Ravinder Kaur Grewal and others vs. Manjit Kaur and others reported as (2020) 9 Supreme Court Cases 706. .

6. Learned counsel for respondent no.1 has produced a photocopy of the document in question dated 23.05.1990 and has submitted that the said document is not legible. The same is take