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2016 Supreme(MP) 665
IN THE HIGH COURT OF MADHYA PRADESH
S. A. Dharmadhikari, J.
Babulal Dhangi v. Ganeshram and others
Writ Petition No.1257 of 2016 (Gwalior); against order dated 27.1.2016 passed by Civil Judge, Class-I, Kurwai, District Vidisha in COS No.39-A/2012; Decided on 2.12.2016.
D. D. Bansal for petitioner; M. K. Jain for respondents No.1, 2 and 5.
Headnote: ¼1½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 178 & flfoy izfØ;k lafgrk] 1908 & /kkjk 54] vk-20 fu-18 rFkk vk-13 fu-4 & foHkktu ds fy, okn & vkilh vjftLVªhÑr ^^QnZ caVokjk**@foHkktu ij vk/kkfjr & izn'kZ djrs le; QnZ caVokjk ds vxzkg~; gksus ds fo"k; esa vkifÙk & vkifÙk ij fopkj fd, fcuk & ,slk nLrkost iznf'kZr ugha fd;k tk ldrk & fopkj.k U;k;ky; us ,slk nLrkost izn'kZ djus ls iwoZ vkifÙk ij fopkj u djus esa vf/kdkfjrk dh =qfV dh gS & vkns'k 13 fu;e 4 ds vuqlkj ,sls nLrkost dks izn'kZ djus ds fy, ekeyk fopkj.k U;k;ky; dks izfrizsf"krA ¼iSjk 12½
¼2½ flfoy izfØ;k lafgrk] 1908 & vk-13 fu-4] /kkjk 54 rFkk vk-20 fu-18 & foHkktu ds fy, flfoy okn & vjftLVªhÑr ^^QnZ caVokjk**@foHkktu ij vk/kkfjr & lk{; esa vxzkg~; gksus ds fo"k; esa vkifÙk & ,sls nLrkost dks izn'kZ ds :i esa fpfUgr~ djus ds iwoZ & vkns'k 13 fu;e 4 ds vuqlkj vkifÙk ij fopkj fd;k tkuk pkfg,A 2015 ¼3½ ts ,y ts 19 foosfprA ¼iSjk 12½
(1) Land Revenue Code, 1959 (M.P.) -- S.178 -- Civil P.C., 1908 -- S.54, O.20 R.18 and O.13 R.4 -- suit for partition -- based on mutual unregistered “Fard Batwara”/partition -- objection about inadmissibility of Fard Batwara at time of making exhibit -- without considering objection -- such document cannot be exhibited -- trial Court committed error of jurisdiction in not considering objection before marking such document as exhibit -- matter remanded to trial Court for marking such document as exhibit as per Order 13 rule 4. [Para 12
(2) Civil P.C., 1908 -- O.13 R.4, S.54 and O.20 R.18 -- civil suit for partition -- based on unregistered “Fard Batwara”/partition -- objection about inadmissibility in evidence -- prior marking such document as exhibit -- objection should be considered as per Order 13 rule 4. 2015(3) JLJ 19 discussed. [Para 1
1. Heard finally with the consent of learned counsel for the parties.
2. In this petition under Article 227 of Constitution of India, the petitioner/defendant has challenged the order dated 27.1.2016 passed in COS
No.39-A/2012 by Civil Judge, Class-I, Kurwai, District Vidisha, whereby, the learned trial Court without passing speaking order has overruled/deferred the objection raised by the petitioner about admissibility of the “Fard Batwara” and the same has been marked as Exhibit on the ground which is not permissible in the eye of law.
3. Facts giving rise to filing of the present petition are that the respondent No.1/ plaintiff had filed a civil suit against the petitioner by impleading other respondents/defendants with regard to the agricultural land situated in village Parewara, village Chheerkheda and village Dhuwa alleging that it was ancestral property which was partitioned in 20.9.1980 in the presence of Panchas and according to the partition deed each share holder received about 19-19 bigha land. It is alleged that the defendant No.1 was not given any land in village Chheerkheda, therefore, he wants to take an area admeasuring 0.765 hectare in village Chheerkheda which is in possession of the plaintiff on the basis of entry made in revenue record.
4. The written statement was filed by the defendants No.1, 3 and 4 denying the plaint allegations. It is contended that there is no dispute about the ancestral land, but no partition with respect to the land situated at village Chheerkheda and village Parewara was made amongst the plaintiff and the defendants. As such, it was prayed that the suit be dismissed. On the basis of the pleadings, the trial Court framed issue and fixed the case for evidence of the plaintiff who submitted affidavit of chief examination of Ganeshram and cross-examination is yet to be done by the defendants. At the time of additional chief examination i.e. at the time of marking Exhibits, learned counsel for the petitioner/defendants raised objections about admissibility of the “Fard Batwara” for want of stamp duty and registration of documents and contended that the same cannot be exhibited being inadmissible in evidence. In support of his contention, learned counsel for the petitioner relied on the judgment passed by the Division Bench of this Court in Writ Petition No.3805/2008 (Smt. Indra and others v. Gulabchand through LRs. and others).
5. In the present matter, undisputedly the document is a “Fard Batwara” (partition deed), the same is unregistered and unstamped and therefore it cannot be admitted in evidence for any purpose. Unstamped document would be inadmissible in evidence in view of section 49 of Indian Registration Act.
6. On the other hand, learned counsel for the respondents/defendants submitted that “Fard Batwara” was made in presence of the Panchas which bear signatures of all brothers and Panchas which is basis of the suit, therefore, the same is admissible in evidence.
7. Learned trial Court without deciding the specific objection raised by the petitioner/plaintiff exhibited the document (“Fard Batwara”) as Ex.P-6 and observed that its admissibility shall be decided at the time of decision.
8. The contention of learned counsel for the petitioner is that the order impugned is contrary to law and is also against the well settled principle of law. The trial Court erred in not deciding the objection prior to marking “Fard Batwara” as Ex.P-6. It is further contended that the objection regarding admissibility of the document for want of stamp duty and registration ought to have been decided by the trial Court at the threshold prior to marking document as exhibit. The impugned order is contrary to law, therefore, the same is liable to be quashed.
9. On the other hand, learned counsel for the respondents has supported the findings given by the trial Court and has contended that the trial Court has not rejected the objection raised by the petitioner inasmuch as the same shall be cons
