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2005 DIGILAW 431 (PAT)

Mostt. Hasmat Khatoon v. Md. Amin Mian

2005-04-20

S.N.HUSSAIN

body2005
Judgment 1. Learned counsel for the petitioners submits that petitioner no. 1 has died during the pendency of this revision on 8.2.2005 leaving behind his widow and two sons, whose details are given in paragraph-2 of the application. 2. Let the name of petitioner no.1, Md. Nurul Haque, be expunged and in his place the name of his heirs be substituted. The Vakalatnama of the newly added petitioners is already on record. 3. I.A. No. 1680 of 2005 is thus disposed of. 4. In spite of repeated notices, no one has appeared on behalf of the opposite parties. 5. Heard learned counsel for the petitioners, who are defendants in Title Suit No. 344 of 1997, which was filed by opposite parties 1st set for declaration that sale deed dated 6.1.1997 executed by defendants 2nd set in favour of defendant no. 1 with respect to the suit properties was null and void and for other ancillary reliefs. 6. The petitioners are aggrieved by order dated 22.6.2004 passed in the aforesaid suit, by which the learned 6th Subordinate Judge, Chapra rejected their petition for marking a Panchnama dated 30.10.1971 as an exhibit to the suit. 7. Learned counsel for the petitioners submits that the said documents is 30 years old and hence his petition should have been allowed under the provisions of Section 90 of the Indian Evidence Act, 1872. Learned counsel for the petitioners further submits that an Award or Panchnama is not compulsorily registrable under Section 17 of the Registration Act as it does not create or extinguish any right or title and in any view of the matter is relevant for proper disposal of the suit. In this connection he relies upon a decision of the Hon ble Apex Court in the case of Sardar Singh V/s. Smt. Krishna Devi and another reported in A.I.R. 1995 Supreme Court 491. Learned counsel for the petitioner further relies upon a decision of this Court in the case of Rajnarain Tiwari @ Rajnandan Tiwari V/s. Deo Narain Tiwari & Ors. reported in 2002(3) P.L.J.R. 24 in which it was held that even if the description of Panchnama was not given in the written statement but nevertheless the defendant had stated about a previous partition in the written statement and hence in the aforesaid circumstances an un-registered Panchnama can be allowed to be admitted as an evidence. reported in 2002(3) P.L.J.R. 24 in which it was held that even if the description of Panchnama was not given in the written statement but nevertheless the defendant had stated about a previous partition in the written statement and hence in the aforesaid circumstances an un-registered Panchnama can be allowed to be admitted as an evidence. In the said circumstances, he submits that the impugned order of the learned court below rejecting their petition is illegal, arbitrary and perverse. 8. After considering the arguments of the learned counsel for the petitioners and after perusing the materials on record, it is quite apparent that earlier the plaintiffs had filed a petition dated 2.7.2003 praying that the Award marked * for identification should not be exhibited in the suit. The said petition was allowed on contest by the learned court below by order dated 12.8.2003 (Annexure-4) holding that since the Award in question was un-registered, it cannot be taken into evidence as the same is inadmissible into evidence and cannot be made an exhibit in the suit. 9. It appears that thereafter the defendants-petitioners filed a petition dated 28.8.2003 for marking the said Panchnama dated 30.10.1971 as exhibit, which is already on record. This petition has been rejected by the impugned order by the learned court below on the sole ground that since the earlier order dated 12.8.2003 was not challenged by the defendants, it attained finality and hence that court cannot pass any order contrary to the earlier order. 10. Be that as it may the principle is well settled that a Panchnama is a document which need not be compulsorily registered and hence it does not come within the mischief of Section 17(1)(b) of the Registration Act. Hence when the said Panchnama was already on record, the learned court below should not have refused to make it as an exhibit, as it can be relevant for full, final and proper adjudication of the suit. 11. May be the learned court below cannot go against an order passed by its predecessor, but this Court cannot shut its eyes towards the legal infirmities committed by the court below at any stage of the suit. 12. 11. May be the learned court below cannot go against an order passed by its predecessor, but this Court cannot shut its eyes towards the legal infirmities committed by the court below at any stage of the suit. 12. Even if the said Panchnama is marked as an exhibit, it will merely be a piece of evidence, which the defendants-petitioner will have to prove and show that all the co-sharers had agreed to the said Panchnama and the learned court below while deciding the issues would consider the validity or otherwise of the said document, including the claim of the defendants. 13. In the aforesaid circumstances, this civil revision is disposed of with a direction to the learned court below to mark the said Panchnama dated 30.10.1971 as an exhibit.