Bhagwan Das Tiwari vs Prakash Chandra Tiwari

Sujoy Paul, J.—The singular point needs to be decided in this matter is whether the photocopy of partition deed was rightly rejected by the Court below by holding that it cannot be treated as secondary evidence u/s 65 of the Evidence Act.

The respondent/plaintiff filed a Civil Suit for partition and permanent injunction in respect of a property which was allegedly jointly purchased by plaintiff and defendant by registered sale deed dated 24.5.1986. During the pendency of suit, the petitioner/ defendant preferred an application u/s 151 CPC. In the said application, defendant stated that the original copy of partition deed is with the plaintiff and, therefore, he be directed to produce the same. The plaintiff, in turn, stated that no such partition had ever taken place and, therefore, there is no question of keeping its copy. The plaintiff stated that he does not have copy of original partition deed. The Court below by order dated 13.12.2012 (Annexure R-1) rejected the said application of the defendant by holding that since plaintiff has denied about any such partition, no directions can be issued to the plaintiff to produce the said document. At this stage, the defendant filed another application u/s 64 and 65 of the Evidence Act dated 17.1.2013 (Annexure P-3). The plaintiff filed its reply (Annexure P-4). The Court below by impugned order rejected the said application and disallowed the prayer for treating the photocopy of partition deed as secondary evidence.

Shri Rajeev Shrivastava, learned counsel for the petitioner, submits that photocopy of partition deed dated 1.6.1987 has already been filed by the defendant before the trial Court. The original copy of said deed was in the possession of plaintiff. A notice u/s 66 of Evidence Act was sent to the plaintiff expecting that he will file original copy of partition deed before the Court but plaintiff has denied about such partition deed and, therefore, since at the time of partition the original deed was kept by the plaintiff, the photocopy be admitted as secondary evidence. The allegations were denied by the plaintiff in his reply dated 13.3.2013. By placing heavy reliance on Nawab Singh Vs. Inderjit Kaur, Shri Shrivastav submits that in the facts and circumstances of this case, the photocopy can be admitted as secondary evidence as per Section 65(a) of Indian Evidence Act, 1872.

Shri Rajeev Raghuvanshi, learned counsel for the respondent, on the other hand, supported the order. He submits that defendant has filed a photocopy. Photocopy shows that it is notarized but not registered u/s 17 of the Registration Act, 1908. If the original partition deed itself is not registered, then even original is not admissible in evidence. Thus, the question of accepting the photocopy of such document as secondary evidence does not arise. He supported the order of Court below. In this regard he relied on H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam, and Vijendra Singh and Others Vs. Deena and Others, By placing reliance on Smt. J. Yashoda Vs. Smt. K. Shobha Rani, it is alleged that Court below has not committed any legal error and such photocopy cannot be admitted as secondary evidence.

I have heard the learned counsel for the parties and perused the record.

In nutshell two questions emerge from the rival contentions of the parties--

(1) Whether the photocopy of partition deed is admissible in evidence when it''s original is not registered u/s 17 of the Registration Act, 1908?

(2) Whether the photocopy aforesaid can be treated as secondary evidence u/s 65 of the Act?

Question No. (1):-The Court below in no uncertain terms opined that the photocopy of partition deed shows that the alleged original is not registered under the Registration Act. Thus, even original is not admissible in evidence and, therefore, there is no question of treating the photocopy of it as secondary evidence. The petitioner neither assailed this finding in the body of petition, nor advanced any argument in this regard. The whole argument of Shri Rajeev Shrivastava is confined to Section 65(a) of the Act. As per Section 17, it cannot be disputed that if there was any original partition deed, it was required to be compulsorily registered u/s 17 of the Registration Act. Section 49 deals with effect of non-registration of documents required to be registered. This section makes it clear that no document which is required to be registered u/s 17 shall be received as evidence of any transaction effecting such property or conferring such power. Section 49(c) makes it crystal clear that when a document needs to be registered, is not registered under the Act, it cannot be received as evidence. In Koushal Kishore and Another Vs. Krishnakant Chaturvedi and Others, , a Division Bench of this Court opined that when a document was compulsorily registrable, such document cannot be used even for collateral purpose. In Badrilal and others Vs. Manibai and others (2006(41) A/C 122 (M.P.), this Court dealt with the photocopy of partition deed. The relevant portion reads as under:-

During trial of the suit, petitioners sought permission to bring on record the partition deed and tender it in evidence. Respondents opposed the prayer. By the order impugned, learned trial Judge refused permission, and held that in view of the statutory bar, the unregistered partition deed is inadmissible in evidence.

Learned Counsel for petitioners contended that the trial Judge failed to see and appreciate that statutory bar u/s 49 of the Indian Registration Act is inapplicable and the document could be received in evidence for collateral purposes. Per contra, learned Counsel for respondent No. 1 and 2 supported the order impugned and submitted that no interference is warranted with it.

After having heard rival submissions and going through the material available on record, I find no merit and substance in the present petition.

Section 17 of the India Registration Act refers to the documents that are required to be registered. Section 49 ibid provides for the consequences of non registration of such of documents which require registration. One of the consequences is that such unregistered document cannot be received as evidence of terms of any transaction affecting immovable property comprised therein.

(Emphasis supplied).

Considering the aforesaid, I find no legal infirmity or illegality in the finding of the Court below on question No. 1. The Court below has given a plausible finding that the photocopy of alleged original cannot be received as secondary evidence when the original itself is not registered.

Since the first question is decided against the petitioner, the second question need not be answered.

The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner. This view is taken in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil,

There is no ingredient on which interference can be made. Petition fails and is hereby dismissed. No cost.