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2012 DIGILAW 1723 (RAJ)

Radha Charan v. A. D. J. (F. T. ) No. 1, Dholpur

2012-08-07

BELA M.TRIVEDI

body2012
Hon'ble TRIVEDI, J.—With the consent of the learned counsels for the parties, the petition is finally heard and decided at the admission stage. 2. The petitioner-plaintiff, by way of present petition, has challenged the legality of the two orders dated 8.2.10 and 2.12.10 passed by the Addl. District Judge (FT) No.1, Dholpur (hereinafter referred to as 'the trial court') in Civil Suit No. 53/06, whereby the trial court after recasting the issue No.10 decided the same as the preliminary issue. 3. Briefly stated, the facts of the case are that the petitioner-plaintiff has filed the suit against the respondents-defendants seeking partition of the suit properties. In the said suit, the respondents-defendants filed the written statement contending interalia that the family settlement had already taken place in the year 1965 and the plaintiff was separated from the Joint Hindu Family since then, and thereafter a memorandum was reduced in writing on 31.3.90. It appears that from the pleadings of the parties, the trial court had framed the issues, however an application was moved by the respondents-defendants for correcting the issue No.10 framed by the trial court. The trial court after hearing the learned counsels for the parties vide the order dated 8.2.10 re-framed the issue NO.10 to the effect that, whether the document dated 31.3.90 executed on the basis of the oral partition is admissible in evidence, though insufficiently stamped and unregistered document? The trial court also directed that the said issue No. 10 shall be decided as the preliminary issue. The trial court thereafter vide the order dated 2.12.10 held that the said document dated 31.3.90 was only a memorandum of partition and not the partition deed, and therefore, did not require registration under the Registration Act and also was not chargeable to stamp duty under the Rajasthan Stamp Act. Being aggrieved by the said orders dated 8.2.10 and 2.12.10, the present petition has been filed invoking Article 227 of the Constitution of India. 4. The learned senior counsel Mr. R.K. Mathur for the petitioner pressing into service the provisions contained in Order XIV Rule 2 of CPC submitted that the issue No.10 being not the issue of law, it could not have been decided as preliminary issue and the trial court had committed a manifest error in deciding the said issue as preliminary issue. The learned senior counsel Mr. R.K. Mathur for the petitioner pressing into service the provisions contained in Order XIV Rule 2 of CPC submitted that the issue No.10 being not the issue of law, it could not have been decided as preliminary issue and the trial court had committed a manifest error in deciding the said issue as preliminary issue. According to him, whether the document was a memorandum of partition or the partition deed itself would be a matter of evidence and a mixed question of law and fact, which could not be decided as the preliminary issue. 5. However, the learned senior counsel Mr. J.P. Goyal for the respondents submitted that the petitioner did not object to the trial court passing the order on 8.2.10 for deciding the issue No.10 as the preliminary issue and the said order remained unchallenged. According to him, the learned counsel for the petitioner also participated in the arguments when the said issue was being decided by the trial court as preliminary issue, and because the said issue was decided against the petitioner, he has challenged the same by way of present petition. Mr. Goyal submitted that the petitioner having not challenged the earlier order dated 8.2.10, was estopped from challenging the subsequent order dated 2.12.10. 6. At the outset it is required to be noted that the court could decide the issue as the preliminary issue only when the issue relates to the issue of jurisdiction of the court or a bar to the suit created by any law for the time being in force, in view of Order XIV Rule 2(2) of CPC. As transpiring from the orders under challenge, the issue No.10 re-framed by the trial court vide order dated 8.2.10 pertained to the admissibility of the document dated 31.3.90 as it was neither registered nor properly stamped. Such an issue could not be said to be an issue pertaining either to the jurisdiction of the court or to a bar to the suit created by any law for the time being in force. Hence, the trial court was not justified in passing the order dated 8.2.10 for deciding the said issue as preliminary issue under Order XIV Rule 2(2) OF cpc. Hence, the order dated 8.2.10 passed by the trial court was in utter disregard of the said provisions and could not be sustained. Hence, the trial court was not justified in passing the order dated 8.2.10 for deciding the said issue as preliminary issue under Order XIV Rule 2(2) OF cpc. Hence, the order dated 8.2.10 passed by the trial court was in utter disregard of the said provisions and could not be sustained. In the said order the trial court had also re-framed the issue No.10 to which none of the parties had any objection, and hence the said order is set aside only to the extent of directing to decide the said issue No. 10 as preliminary issue. 7. So far as the order dated 2.12.10 is concerned, it appears that by passing the said order, the trial court has decided the said issue No.10 in favour of the respondent-defendant without there being any evidence adduced by the parties as to whether the document dated 31.3.10 was a mere memorandum of partition or a partition deed itself requiring registration and proper stamp duty. It is needless to say that whether a document is admissible or not would be a matter of evidence, and could not be decided without granting the opportunity to the parties to lead evidence or to challenge the genuineness of the said document. Hence, the trial court could not have come to the conclusion, without any evidence on record, that the said document was merely a memorandum of partition and not the partition deed itself. The said order dated 2.12.10, therefore is also illegal and the same deserves to be set aside. However, it is observed that it will be open for the respondents-defendants to prove the said document for the purpose of being read in evidence, and it will be open for the petitioner-plaintiff to raise objections against the admissibility of the said document at the time of trial of the suit. 8. In view of the above, the order dated 8.2.10 to the extent it has directed to decide the issue No.10 as preliminary issue and the order dated 2.12.10 passed by the trial court being illegal and erroneous, they deserve to be set aside and are accordingly set aside. The petition stands allowed accordingly.