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2016 DIGILAW 1105 (MP)

Babulal Dhangi v. Ganeshram

2016-12-02

S.A.DHARMADHIKARI

body2016
ORDER 1. Heard finally with the consent of learned counsel for the parties. 2. In this petition under Article 227 of Constitution of India, the petitioner/defendant has challenged the order dated 27.1.2016 passed in COS No.39-A/2012 by Civil Judge, Class-I, Kurwai, District Vidisha, whereby, the learned trial Court without passing speaking order has overruled/deferred the objection raised by the petitioner about admissibility of the “Fard Batwara” and the same has been marked as Exhibit on the ground which is not permissible in the eye of law. 3. Facts giving rise to filing of the present petition are that the respondent No.1/ plaintiff had filed a civil suit against the petitioner by impleading other respondents/defendants with regard to the agricultural land situated in village Parewara, village Chheerkheda and village Dhuwa alleging that it was ancestral property which was partitioned in 20.9.1980 in the presence of Panchas and according to the partition deed each share holder received about 19-19 bigha land. It is alleged that the defendant No.1 was not given any land in village Chheerkheda, therefore, he wants to take an area admeasuring 0.765 hectare in village Chheerkheda which is in possession of the plaintiff on the basis of entry made in revenue record. 4. The written statement was filed by the defendants No.1, 3 and 4 denying the plaint allegations. It is contended that there is no dispute about the ancestral land, but no partition with respect to the land situated at village Chheerkheda and village Parewara was made amongst the plaintiff and the defendants. As such, it was prayed that the suit be dismissed. On the basis of the pleadings, the trial Court framed issue and fixed the case for evidence of the plaintiff who submitted affidavit of chief examination of Ganeshram and cross-examination is yet to be done by the defendants. At the time of additional chief examination i.e. at the time of marking Exhibits, learned counsel for the petitioner/defendants raised objections about admissibility of the “Fard Batwara” for want of stamp duty and registration of documents and contended that the same cannot be exhibited being inadmissible in evidence. In support of his contention, learned counsel for the petitioner relied on the judgment passed by the Division Bench of this Court in Writ Petition No.3805/2008 (Smt. Indra and others v. Gulabchand through LRs. and others). 5. In support of his contention, learned counsel for the petitioner relied on the judgment passed by the Division Bench of this Court in Writ Petition No.3805/2008 (Smt. Indra and others v. Gulabchand through LRs. and others). 5. In the present matter, undisputedly the document is a “Fard Batwara” (partition deed), the same is unregistered and unstamped and therefore it cannot be admitted in evidence for any purpose. Unstamped document would be inadmissible in evidence in view of section 49 of Indian Registration Act. 6. On the other hand, learned counsel for the respondents/defendants submitted that “Fard Batwara” was made in presence of the Panchas which bear signatures of all brothers and Panchas which is basis of the suit, therefore, the same is admissible in evidence. 7. Learned trial Court without deciding the specific objection raised by the petitioner/plaintiff exhibited the document (“Fard Batwara”) as Ex.P-6 and observed that its admissibility shall be decided at the time of decision. 8. The contention of learned counsel for the petitioner is that the order impugned is contrary to law and is also against the well settled principle of law. The trial Court erred in not deciding the objection prior to marking “Fard Batwara” as Ex.P-6. It is further contended that the objection regarding admissibility of the document for want of stamp duty and registration ought to have been decided by the trial Court at the threshold prior to marking document as exhibit. The impugned order is contrary to law, therefore, the same is liable to be quashed. 9. On the other hand, learned counsel for the respondents has supported the findings given by the trial Court and has contended that the trial Court has not rejected the objection raised by the petitioner inasmuch as the same shall be considered at the time of hearing, as such, the order passed by the trial Court needs to be maintained and the petition is liable to be dismissed. 10. Heard learned counsel for the parties at length and perused the record. 11. The Co-ordinate Bench of this Court in the case of Pawan Kumar Pathak v. Mohan Prasad, reported in 2015(3) JLJ 19 =2015(3) MPLJ 148 while considering the admissibility of the document in evidence has held as under :- “10. The larger opined that in civil matters and in view of provisions of Civil Procedure Code, objection needs to be decided at the earliest. The larger opined that in civil matters and in view of provisions of Civil Procedure Code, objection needs to be decided at the earliest. Order 13 rule 4 of CPC makes it clear that every document which has been admitted in evidence in the suit must contain an endorsement regarding the number and title of suit, the name of the person producing the documents, the date on which it was produced and a statement of its having been so admitted. Statutory mandate is that this endorsement must be signed or initialled by the Judge. Sub-rule (2) makes it obligatory on the part of the Judge to make endorsement and sign or initialled it when the document is an entry in a book, account or record. Thus, Civil Procedure Code contains a specific mandatory procedure for the purpose of admitting a document. This procedure is being followed by the civil Courts on regular basis. As per this statutory procedure and principle of stare decisis, I respectfully agree with the view taken by Bombay High Court in Hemendra Rasikal (supra). Since this Court has followed the judgment of larger Bench of Bombay High Court, other judgments cited by the parties are of no assistance.” 12. Procedure has been laid down in Order 13 rule 4 of CPC for marking the Exhibits. The question as to whether the admissibility of the document is to be determined at the time of marking the exhibits or at the earliest possible opportunity. Once inadmissible document is admitted on record without adverting to the objection raised, it creates atmosphere of prejudice affecting the fair trial. In the present case, the petitioner has rightly raised the objection with regard to inadmissibility of the “Fard Batwara” at the time of marking the exhibit. The trial Court without deciding the objection marked “Fard Batwara” as Ex.P-6, which is contrary to the settled legal position. The trial Court has committed error of jurisdiction in not taking into consideration the objection raised by the petitioner before marking “Fard Batwara” as exhibit. In these circumstances, the impugned order dated 27.1.2016 passed in COS No.39-A/2012 by the Civil Judge, Class-I, Kurwai, District Vidisha is set aside. The trial Court has committed error of jurisdiction in not taking into consideration the objection raised by the petitioner before marking “Fard Batwara” as exhibit. In these circumstances, the impugned order dated 27.1.2016 passed in COS No.39-A/2012 by the Civil Judge, Class-I, Kurwai, District Vidisha is set aside. The matter is remanded back to the trial Court to mark the “Fard Batwara” as exhibit strictly as per the procedure laid down in Order 13 rule 4 of CPC and decide the same after considering the objection of the petitioner with regard to stamp duty and registration of the document and shall pass reasoned and speaking order in accordance with law. 13. With these observation, this writ petition stands disposed of. 14. No order as to costs.