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2012 DIGILAW 1317 (BOM)

Babu alias Gopal Dharma Pednekar v. Vanita Naique

2012-07-19

F.M.REIS

body2012
Judgment : Heard Shri A.R. Kantak, the learned Counsel appearing for the petitioners and Shri Sudin M.S. Usgaonkar, the learned Counsel appearing for the respondent no.1. 2. Rule. Heard forthwith with the consent of the learned Counsel. The learned Counsel appearing for the respondent no.1 waives service. 3. The above petition challenges an order passed by the learned Civil Judge Junior Division at Pernem dated 3/05/2011 whereby an application filed by the petitioners for leave to produce a Deed of Partition dated 7/06/1950 came to be dismissed. 4. The brief facts of the case are that the respondents filed the suit on the ground that the petitioners have trespassed into their property surveyed under no.119/5 and 116/33 of Morjim Village. The prayer sought by the respondents is for a permanent injunction restraining the petitioners form inter alia interfering with the suit property. 5. The petitioners filed their written statement disputing the contentions in the plaint and inter alia contended at para 2 thereof that Shri Savlo Mukund Naik Beri of Chapora, Anjuna, who was the owner of the property by a Deed of Partition vide an agreement dated 9/02/1951 had leased the suit property in favour of the petitioners and according to the petitioners they along with their family members have been in exclusive possession and enjoyment of the suit property except some structures constructed therein. An application for temporary injunction came to be filed against the petitioners by the respondents which came to be allowed. Thereafter, an application was filed by the petitioners to produce the said Deed of Partition of the year 1950. The respondents opposed the said application and the learned Judge dismissed the application filed by the petitioner. Against the said order, a Writ Petition came to be filed before this Court bearing no.742/2008 which was disposed of by order dated 30/01/2009. This Court whilst disposing of the said Writ Petition came to the conclusion that the document which was sought to be produced by the petitioners was an incomplete document as the plan which was referred to therein was not part of the said document. Hence, this Court did not permit the petitioners to produce the said document. But however, this Court had given liberty to the petitioners to produce the complete document in case they could show to the learned trial Court that the same is otherwise relevant. Hence, this Court did not permit the petitioners to produce the said document. But however, this Court had given liberty to the petitioners to produce the complete document in case they could show to the learned trial Court that the same is otherwise relevant. Thereafter, the petitioners entered into correspondence with the Archeological Survey Department, seeking for the plan which was referred to in the said document, but however, the said Department informed the petitioner that no such plan was found on record. The Authorities further stated that even in the book of the concerned notary no such plan was placed. Accordingly, the petitioners filed a fresh application before the learned Judge to produce the said document as well as the said correspondence from the archives. In the said application, the petitioners have also sought to disclose the relevancy of the said document. 6. The respondents opposed the said application inter alia contending that the said document was not relevant for the purpose of deciding the matter in controversy and further that the petitioners were trying to get the document produced through the back door. The learned Judge by the impugned order dated 3/05/2011 dismissed the application filed by the petitioners. Being aggrieved by the said order the petitioners have preferred the present petition. 7. Shri A.R. Kantak, the learned Counsel appearing for the petitioners has assailed the impugned order essentially on the ground that as per the original written statement filed by the petitioners it was clearly pleaded that the property was leased by one Savlo Mukund Naik who had got the said property in Deed of Partition. The learned Counsel further pointed out that the said documents sought to be produced is in fact the same Deed of Partition referred to in the written statement. The learned Counsel further pointed out that in the application filed by the petitioners there were specific averments that the lease agreement relied upon by the petitioners clearly discloses the existence of the said Deed of Partition. The learned Counsel has taken me through the stand of the respondents and pointed out that the documents become relevant as they denied the execution of the said lease agreement. The learned Counsel has taken me through the stand of the respondents and pointed out that the documents become relevant as they denied the execution of the said lease agreement. The learned Counsel further pointed out that considering the correspondence with the Archives Department and as the plan is not available with the Authorities the question of refusing leave to produce the said document would not arise. The learned Counsel, as such, submits that the impugned order deserves to be quashed and set aside. 8. On the other hand, Shri Sudin Usgaonkar, the learned Counsel appearing for respondent no.1 has strongly argued that no leave can be granted to the petitioners considering their conduct. The learned Counsel further points out that the petitioners have failed to establish any relevancy of the said document with the matter in controversy in the suit. The learned Counsel further pointed out that the only ground on which the petitioners are seeking to produce the said document is on account of the fact that the petitioners contend that the property originally belongs to Savlo Mukund Naik Beri whereas the only relevant document is the alleged lease agreement of the year 1951 and any document prior to that is irrelevant for the purpose of deciding the matter in controversy. The learned Counsel further pointed out that as the petitioners have failed to establish the relevancy of the said document the question of granting any leave to the petitioners would not arise. The learned Counsel has relied upon the judgment of the learned Single Judge of this Court reported in AIR 1980 BOMBAY 387 in the case of RamnathNandlal Dhoot & Co. and another V/s. B.R. Shroti and Others. and has stressed the observations made therein that leave to produce such document can be allowed only after such document would help the Court to decide the matter in controversy. The learned Counsel has taken me through the application filed by the petitioners and pointed out that nothing has been disclosed to establish the relevancy of the said document to decide the matter in controversy. The learned Counsel further points out that the ground on which the application has been filed has already been rejected by this Court whilst passing the said order disposing of the Writ Petition filed by the petitioners. The learned Counsel as such submits that the above petition deserves to be dismissed. 9. The learned Counsel further points out that the ground on which the application has been filed has already been rejected by this Court whilst passing the said order disposing of the Writ Petition filed by the petitioners. The learned Counsel as such submits that the above petition deserves to be dismissed. 9. I have carefully considered the submissions of the learned Counsel and have also gone through the records. On perusal of the written statement filed by the petitioners, there is a specific averment therein referring to the said Deed of Partition. It is not in dispute that the partition document which is referred to in the pleadings of the petitioners is the one sought to be produced by the present application under consideration. Apart from that, on perusal of the lease agreement relied upon by the petitioners for the purpose of claiming that they are the lessees of the suit property there is a specific recital therein which discloses that the person who had allegedly leased to the petitioners one Savlo Mukund Naik Beri became the owner of the suit property by virtue of the said Deed of Partition dated 7/06/1950. Besides that Shri Usgaonkar, fairly does not dispute that the Deed of Partition pertains to the suit property. Considering the said aspect and taking note of the fact that the nexus between the matter in controversy and the document has been prima facie established the question of contending that the said document has no relevancy at this stage would not arise. Taking note of the stand taken by the respondents in denying the execution of the lease agreement itself the said document would prima facie otherwise assist the Court in deciding the matter in controversy. Be that as it may, it is clarified that the findings with regard to the relevancy of the document are only prima facie findings and the same have to be considered by the Court while appreciating the evidence on record while disposing of the suit on its own merits. The contention of Shri Usgaonkar, the learned Counsel appearing for the respondent no.1 to the effect that the said document is not relevant cannot be accepted. The contention of Shri Usgaonkar, the learned Counsel appearing for the respondent no.1 to the effect that the said document is not relevant cannot be accepted. Once it is not in dispute that the said document relates to the suit property whether such document would decide the matter in favour of either of the parties is a matter which would have to be adjudicated only on merits after the evidence is recorded of both the parties. Apart from that, the document which is sought to be relied upon is executed between the ancestors of the respondents themselves and as such there is no reason for the respondents to oppose production of such document at this stage. This Court whilst passing the order disposing of the said Writ Petition has specifically given liberty to the petitioners to file an appropriate application in case relevancy of the document is established. In the present case, the petitioners have produced correspondence with the Archeological Department to disclose that the plan referred to in the said document is not available with the Authorities. 10. Hence, I find that there was no justifiable reason for the learned Judge to refuse leave to the petitioners to rely upon the said document. No doubt the petitioners would have to prove the contents of the document in accordance with law. The judgment of the learned Single Judge relied upon by Shri Usgaonkar is not applicable to the facts of the present case for the aforesaid reasons. The relevancy of the document has been prima facie established as stated herein above. The letters sought to be relied upon by the petitioners would also have to be duly proved in accordance with law. In view of the above the impugned order cannot be sustained and deserves to be quashed and set aside. 11. Considering the stand taken by the petitioners which has resulted in unnecessary delaying the matter, I find that the petitioners should have been more diligent in relying upon the document at the time of the filing of the written statement as the document was also referred to in the alleged lease agreement. Having failed to do so, I find that the respondents should be compensated with costs. The costs are quantified at Rs.2,000/-. 12. In view of the above, I pass the following order: ORDER (i) The impugned order dated 3/05/2011 is quashed and set aside. Having failed to do so, I find that the respondents should be compensated with costs. The costs are quantified at Rs.2,000/-. 12. In view of the above, I pass the following order: ORDER (i) The impugned order dated 3/05/2011 is quashed and set aside. (ii) Leave to produce the said Deed of Partition dated 7/06/1950 and the two letters dated 4/02/2009 and 23/02/2009 is granted subject to payment of costs of Rs.2,000/-as condition precedent to the respondents. (iii) Rule is made absolute in the above terms. (iv) Petition stands disposed of.