( 1. ) THIS is a defendants revision from an order passed by the additional Civil Judge Class II, Shivpuri on 9-10-1982 in C. S. No. 5-A /82 holding that a memorandum of partition dated 24-9-1979 relied on by the plaintiff is duly stamped.

( 2. ) THE plaintiffs learned counsel has taken a preliminary objection that the revision is not tenable. The first limb of the argument in support of the objection is that the matter stands concluded by this Courts order dated 26-4-1982 in C. R. No. 113/82 by which it was held that the instrument in question needed no registration. That revision was preferred by the plaintiff (non-applicant here) against an order passed by the Trial court on 5-11-1981 holding that the instrument was inadmissible for want of registration and also required stamp.

( 3. ) A copy of the order dated 26-4-1982 of this Court was shown to me. No doubt the order shows that the revision was allowed. There is, however, nothing in the order that the parties had made any submission to this Court, on the matter of stamp duty. Hence the question of stamp duty cannot be said to have been concluded by the order dated 26-4-1982.

( 4. ) THE second limb of the argument is that the instrument had been admitted in evidence in the Court under section 36 of the Stamp Act. The matter can be raised, it is said, only in accordance with provisions of section 61 of the Indian Stamp Act. Now, the learned counsel for the non-applicant-plaintiff produced from bis custody the original instrument during the course of arguments. It is written on stamp papers worth Rs. 5. It does not bear any exhibit mark. It was not disputed before me that its execution has not been proved by any witness on oath. As such, hence, all that can be properly advanced in argument is that the trial Court has recorded a finding that the instrument is duly stamped. The non-applicants learned counsel has relied on Vinayak Dattatraya v. Hasanali, AIR 1969 M P 6, decided on 23-7-1960 by Krishnaa j. The learned Judge observed as follows:

"in my opinion, the order of the Civil Judge to the effect that the document is admissible (grahya hai) is equivalent to the admission itself. "

( 5. ) THE aforementioned proposition cannot be regarded as good law in the light of Javer Chand and others v. Pukhraj Surana, AIR 1961 S c 1655, decided on 25th april 1961 where it has been observed :

"once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. "

( 6. ) I, therefore, over-rule the preliminary objection raised on behalf of the non-applicant. Coming to the merits of the finding that the document is duly stamped, all that the learned Civil Judge has said is as follows;

( 7. ) SECTION 2 (15) of the Stamp Act, as amended by a local amendment, reads as follows:

"2 (15) "instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and also includes- (i) a final order for effecting a partition passed by any revenue authority or any civil Court; (ii) an award by an arbitrator directing a partition; and (iii) when any partition is effected without executing any such instrument, any instrument or instrument signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners. "

( 8. ) IT is evident from clause (iii) that a memorandum of partition also comes within the definition of an instrume