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Madhya Pradesh High Court · body

2008 DIGILAW 1299 (MP)

Jethalal v. Jinendra Kumar

2008-11-06

R.S.GARG

body2008
ORDER 1. Parties are heard. 2. The petition is admitted for hearing. 3. With the consent of the parties, the matter is finally heard. 4. The plaintiff had filed a suit for declaration and injunction against the respondent-defendant on the foundation that upon intervention of the certain relations, the property was partitioned and the document was written on 8.10.1980 and as mentioned in the document the title over the disputed property was given to the plaintiff, he was entitled to retain the possession of the same and was also entitled to a declaration of his title. The defendant filed his written-statement denying the material allegations but, however, submitted that the document dated 8.10.1980 was illegal and was inadmissible in evidence, it was not on proper stamps nor was it registered. It was also submitted by the defendant that the document dated 8.10.1980 was not a memorandum of partition and, therefore, the plaintiff could not be held to be in inclusive possession of the property. 5. It is not in dispute before us that the copy of the document dated 8.10.1980 was already produced on the record but, however, the plaintiff after closing his own evidence summoned one Samrathmal, the eldest brother with a request to produce the original document in the Court. Said Samrathmal Jain appeared in the Court and submitted that he was never given possession of the document and he was not possessed of the document. Immediately, thereafter, the plaintiff filed an application along with his affidavit before the Court with a submission that the document dated 8.10.1980 filed in the Court be taken on record as secondary evidence. The application was again opposed by the defendant and the Court below rejected the application mainly on the ground that in paragraph-2 of the application the plaintiff had stated that the original document was given in his possession and if that was so the plaintiff could not produce same as secondary evidence. 6. Shri Joshi, learned counsel for the appellant submitted that a typographical mistake which crept in paragraph-2 of the application could not be used as in hangman's rope against the interest of the plaintiff, especially when he had summoned his eldest brother alongwith the original of the document. It is also submitted that if the plaintiff was possessed of the original document there was no reason for him not to produce the same. 7. It is also submitted that if the plaintiff was possessed of the original document there was no reason for him not to produce the same. 7. Shri Jain, learned counsel for the respondent-defendant, on the order hand submitted that from paragraph-2 of the application it would clearly appear that the petitioner-plaintiff is in possession of the original and his witness Samrathmal has also admitted that he has seen original of the document in possession of the plaintiff's son. He also submitted that the copy of the document dated 8.10.1980 is also otherwise inadmissible in evidence and even otherwise also on an unregistered award of the plaintiff cannot claim in title in the property or in inclusive possession. 8. After hearing learned counsel for the parties, we must agree with the plaintiff's submission that a typographical error crept in paragraph-2 of the application. From the entire notesheet, proceedings and conduct of the plaintiff, it would clearly appear that although he had been contending that the original document dated 8.10.1980 was in possession of Samrathmal and the plaintiff was possessed a copy of the same. After Samrathmal had refused to produce the original for one reason or the other, the plaintiff certainly would be entitled to submit to the Court that the document possessed by him be allowed to be produced as secondary evidence. 9. In our opinion, the learned Court below was unjustified in rejecting the application and failed to exercise the jurisdiction vested in it by law and has committed such material irregularity which has in fact vitiated the order passed by the learned Court below. 10. The plaintiff is allowed to lead evidence in support of the copy of the document dated 8.10.1980. It is, however, made clear that the defendant would be entitled to raise question relating to admissibility of the document on the ground which is available to him in law. The petition is allowed. However, there shall be no order as to costs.