The captioned writ petition is filed by the defendant No.1

assailing the order of the learned Judge on an application filed

under Section 65 of the Indian Evidence Act read with Section

151 of CPC.

2.

The respondents/plaintiffs have instituted a suit for

partition and separate possession in O.S.No.83/2013. The

respondents/plaintiffs have specifically pleaded that the suit

schedule properties are joint family ancestral properties. The

plaintiffs claim that they are entitled for 1/7^th share in the suit

schedule properties and therefore, has requested the Court to

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effect partition by metes and bounds thereby allotting 1/7^th

share to the plaintiffs in respect of suit schedule properties.

3.

The present petitioner who is arrayed as defendant

No.1, on receipt of summons, tendered appearance and

contested the suit by filing written statement. The present

petitioner at para 24 of the written statement has set up a

plea of prior partition. The petitioner specifically claimed that

there is a partition in the family and in terms of palupatti

dated 22.10.1985, there is severance in the family and

plaintiffs and defendants are in exclusive possession of their

respective shares. It is also stated that defendant Nos.2 to 9

pursuant to partition have asserted exclusive right over the

properties allotted to their respective share and have also

alienated some of the properties in favour of third parties and

the said transactions are clearly reflected in the Encumbrance

Certificate. On these set of pleadings, the present petitioner

sought for dismissal of the suit.

6

4.

The respondents/plaintiffs to substantiate their

claim have let in ocular evidence and have also produced

documentary evidence. The present petitioner while leading

his ocular evidence has filed the present application. In the

affidavit filed in support of the application filed under Section

65 of Indian Evidence Act, the petitioner now intends to claim

that the original palupatti dated 22.10.1985 is in custody of

plaintiffs and that plaintiffs have purposefully withheld the

production of original palupatti and therefore, requested the

Court to permit the present petitioner to lead secondary

evidence. The said application is rejected by the learned

Judge. It is this order which is under challenge.

5.

Heard learned counsel appearing for the petitioner.

Perused the order under challenge.

6.

The learned Judge while rejecting the application

was of the view that the existence of original panchayath

palupatti is not established by defendant No.1. Having regard

7

to the material on record, the learned Judge found that the

present petitioner has not averred in regard to source from

which Xerox copy of panchayath palupatti is secured. The

learned Judge was also of the view that an unregistered and

insufficiently stamped palupatti is inadmissible in evidence and

therefore, has rejected the application.

7.

It would be useful for this Court to refer to the

averments made in the written statement. Para 24 of the

written statement would be relevant to consider whether

petitioner

is

entitled

to

lead

secondary

evidence

to

substantiate his claim that there was partition in the family.

Para 24 of the written statement is culled out and the same

reads as under:

"24. The suit is bad for non joinder of necessary

parties and mis joinder of parties. The palupatti dated

22.10.1985 is acted upon and the shares of their

respective properties have further transacted and

mutation entries also made in their favour as per the

RTC extract and they were in possession and

enjoyment of their share. The plaintiffs and the

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defendant No.2 to 9 are the parties to the partition

deed and the said partition deed dated 22.10.1985 is

acted

upon

and

this

defendant

has

executed

registered sale deed in favour of defendant No.3

Akkayamma on 10.04.1988 as sold site in Sy.No.4/2

measuring

30x45

feet

and

this

defendant

has

executed several documents in favour of plaintiffs and

other defendants and the