HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.2330 OF 2025

ORDER:

This Civil Revision Petition is filed aggrieved by the order passed in I.A.No.73 of 2025 in O.S.No.1 of 2018 on the file of learned Senior Civil Judge, at Nirmal in which the application filed by the petitioner under Section 65 of the Indian Evidence Act was dismissed.

2. Heard Sri C.Naresh Reddy, learned counsel for the petitioners and perused the material available on record.

3. Petitioners herein are defendants and respondent herein is the plaintiff in the suit.

4. Brief facts of the case are that the respondent herein has filed suit in O.S. No.1 of 2018 on the file of learned Senior Civil Judge, at Nirmal for preliminary decree for partition of schedule properties and final decree and for rectification of revenue and Municipal records; that the petitioner Nos.1, 2, 4 to 6 have filed written statement on 19.03.2018 denying the averments made in the suit; that during the pendency of the suit, petitioner No.4 expired and petitioner Nos.7 to 14 were brought on record as his legal representatives. The newly impleaded petitioner Nos.7 to 14 herein have filed additional written statement and have taken a new plea that there was family settlement deed among the members of the family and same was reduced into writing on 31.10.2006, on stamp paper of Rs.100/- as per which, the respondent has relinquished all his rights in respect of suit schedule property. In the written statement, it is also averred that original of the settlement deed dated 31.10.2006 is in the custody of respondent and on repeated demands of deceased petitioner No.4, an attested copy of the settlement deed was handed over to the deceased petitioner No.4 and it was finally averred that in view of the family settlement deed, the suit filed for partition by the respondent is liable to be dismissed.

4.1. That, the petitioners herein filed an application under Section 65 of the Indian Evidence Act seeking permission to lead secondary evidence in so far as the agreement/settlement, dated 31.10.2006 is concerned and the respondent filed counter resisting the said application. The trial Court vide impugned order dated 09.06.2025 dismissed the application with an observation that attested copy of agreement/settlement deed dated 31.10.2006 as secondary evidence, is not permissible, for want of registration of the original document and also in the absence of any proof as to custody of the said document with the respondent. Aggrieved by the same, present Civil Revision Petition is filed.

5. Learned counsel for the petitioner would submit that the trial Court has committed error in dismissing the application without considering the fact that the petitioner specifically stated that original settlement deed dated 31.10.2006, is in the custody of respondent and despite notice to respondent, he failed to produce the original document, therefore, the trial Court ought to have allowed the application. He further submits that the trial court failed to exercise the power conferred with it and dismissed the application with an erroneous observation. He further submit that the petitioners are only seeking permission to lead secondary evidence and admissibility and evidentiary value of the document can be gone into by the trial Court during the course of trial. Therefore, the impugned order is unsustainable and the same is liable to be set aside.

6. A perusal of the record would reveal that respondent filed suit for partition in respect of suit schedule property and initially the petitioner Nos.1, 2, 4(deceased), 5 and 6 filed written statement on 19.03.2018 denying the plaint averments and there is no whisper with regard to alleged settlement deed dated 31.10.2006 in the written statement. Subsequently, petitioner Nos.7 to 14 who came on record as legal heirs of petitioner No.4, have filed additional written statement on 10.04.2024, where they have introduced new plea of execution of family settlemen