Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1239 (MP)

Bhajanlal Kushwaha v. Kanhaiyalal Kushwaha

2012-12-03

SUJOY PAUL

body2012
ORDER 1. By invoking the jurisdiction of this Court under Article 227 of the Constitution of India, the petitioner/plaintiff has challenged the validity of the order dated 1.9.2010 (Annexure P-1) whereby application of the petitioner for recalling of the earlier order dated 26.2.2010 (Annexure P-2) is rejected. 2. The petitioner/plaintiff filed a suit for declaration and permanent injunction (Annexure P-4). During the proceedings of the said suit, the defendant No.5 preferred an application (Annexure P-6) on 11.9.2009 under section 35 of the Stamp Act and stated that Exhibit P-3 is a partition deed and it is not properly stamped and, therefore, this document cannot be taken in evidence. The petitioner/plaintiff submitted his reply (Annexure P-7) on 24.10.2009. 3. The Court below passed order dated 26.2.2010 and opined that a careful perusal and contents of Exhibit p-3 shows that it is a partition deed, therefore opined that the document is not properly stamped. Consequently, matter was directed to be sent for the purpose of obtaining report regarding proper valuation from District Registrar. In turn, District Registrar passed the order Annexure P-9 on 13.4.2010 and raised two questions and requested the Court to give proper guidance in this regard so that further action can be taken. On the strength of Annexure P-9, the petitioner preferred an application under section 151 C.P.C. (Annexure P-10) for recalling of the earlier order dated 26.2.2010. The Court below by order dated 1.9.2010 opined that in earlier order dated 26.2.2010 the Court below has expressed its opinion in detail and there is no need for reconsideration of the matter. Accordingly, petitioner’s application for recalling of the said order is rejected with a finding that the said document, in absence of its registration, cannot be accepted in evidence even for collateral purpose. The orders dated 26.2.2010 and 1.9.2010 are called in question by the petitioner. 4. Shri Manoj Gupta, learned counsel for the petitioner submits that the Court below has erred in getting influenced by the heading/caption of Annexure P-8 and has not properly considered the contents of the said document. The orders dated 26.2.2010 and 1.9.2010 are called in question by the petitioner. 4. Shri Manoj Gupta, learned counsel for the petitioner submits that the Court below has erred in getting influenced by the heading/caption of Annexure P-8 and has not properly considered the contents of the said document. To elaborate, learned counsel for the petititoner submits that although on the forehead of the document Annexure P-8, it is mentioned as “partition deed”, but the contents of the said document would show that it is in fact not a partition deed because as per para 2 of the said document, it is clear that on certain portions of the property, the persons were already residing which shows that partition was already made in their favour. The learned counsel repeatedly stated that Annexure P-8 shows that a partition was already made at early point of time and, therefore, heading alone will not decide the nature of deed. He relied on 2010 (3) JLJ 16 = 2010 (1) M.P.L.J. 580 (Guljarilal Jain Vs. Ravikant Shrike) and 2011 (3) MPWN 77 2011 (3) M.P.L.J. (Suresh Kumar Agrawal and others Vs. State of M.P. and another) in this regard. 5. Per contra, Shri M.P. Agrawal, learned counsel for respondent No. 5 supported the orders passed by the Court below but he submits that a careful reading of Annexure P-8 would show that there is no mention about any partition which allegedly taken place at earlier point of time. He submits that there are contents with regard to partition between certain persons by meets and bounds at earlier point of time. He submits that language of the contents of Annexure P-8 makes it crystal clear that it is a partition deed. He heavily relied on the heading and the operative portion of Annexure P-8 wherein it is mentioned that the sale deed is signed by the parties without any force and pressure. He submits that in absence of any other partition earlier or otherwise by meets and bounds reflected in Annexure P-8, there is no reason in not treating this document as partition deed. In nut shell, he submits that the Court below has given a plausible reason in treating this document as partition deed and rightly directed the competent authority to impound it. 6. I have heard the learned counsel for the parties and perused the record. 7. In nut shell, he submits that the Court below has given a plausible reason in treating this document as partition deed and rightly directed the competent authority to impound it. 6. I have heard the learned counsel for the parties and perused the record. 7. The basic question is whether the document Annexure P-8 is a partition deed? I have carefully examined this document. The caption of this document is “partition deed”. The contents show that property is partitioned between the brothers. It does not show that any partition had taken place prior to Annexure P-8. Thus, the contention of the petitioner that the partition had already taken place is without any basis and substance. Para 2 of this document Annexure P-8 only shows that three persons are residing in the house and it does not reflect about any partition which allegedly took place prior in time. In last para also the parties have specifically mentioned that the document is a partition deed. 8. In the considered opinion of this Court, the Court below while passing Annexure P-2 has not committed any error of law nor the said order is perverse in nature. The scope of interference under Article of 227 of the Constitution is limited. This Court is not required to sit as an appellate Court. In absence of any perversity, jurisdictional error or palpable procedural irregularity, no interference is warranted. Even an erroneous order is not required to be interfered with. The basic principle is to keep the Court below within the bounds of their authority. In the opinion of this Court, the Court below has assigned plausible reasons for its conclusions in Annexure P-2. Annexure P-9 nowhere shows that Deputy Registrar has given any finding about the nature of the document Annexure P-8. On the contrary, the Deputy Registrar sought directions from the Court. In turn, the Court by order dated 1.9.2010 upheld/followed its earlier view expressed in order dated 26.2.2010 and opined that the document in question is a partition deed and in absence of its registration and proper stamping, it cannot be used even for collateral purposes. There is no infirmity or illegality in the said finding of the Court. The judgments cited by the Shri Gupta have no application in the facts and circumstances of the case. There is no infirmity or illegality in the said finding of the Court. The judgments cited by the Shri Gupta have no application in the facts and circumstances of the case. These judgments are based on different factual backdrop whereas in the present case, the document Annexure P-8 clearly shows that it is a partition deed. 9. Resultantly, I find no reason to interfere in this matter. The petition is bereft of merit and substance and is hereby dismissed. No cost.