Rajnarain Tiwari @ Rajnandan Tiwari vs Deo Narain Tiwari and Others

R.N. Prasad, J.—The Plaintiff-opposite party filed a Title Suit 124 of 1992 against the Defendant Petitioner and others for declaration that deed of gift executed by Defendant No. in favour of Defendants No. 3 and 5 is null and void. The Defendant appeared in the and filed a written statement stating herein that there was no unity of title and possession between the parties. They had separated in the year 1990 in mess as well cultivation and partitioned all the movable and immovable properties by metes bound. The suit was taken up for hearing. The Plaintiff adduced evidence and evidence was closed. The Petitioner Defendant in the suit, filed a petition for if direction to the Plaintiff to produce original Yadast/Panchnama. The photo copy of the said Panchnama was also filed. The Plaintiff opposite party filed a rejoinder stating therein that no such document was executed nor the original of such document was in his custody. The Court hearing the parties dismissed the petition filed by the Petitioner vide order 18.12.2000 on the ground that there such pleading in the written state. The Petitioner, thus, has challenged the said order in this civil revision petition.

Learned Counsel for the Petitioner pointed out the rejection of the petition of Petitioner is contradictory to provision whereas learned Counsel for the opposite party submitted that since there as no pleading, the Court is justified in sing the petition filed by the Petitioner.

It is evident from the materials on that specific defence of the Defendant in written statement was that the properties were partitioned earlier to the execution deed of gift. The petition was for calling for the original Yadast/panchnama from the Plaintiff. The said petition was rejected by the impugned order on the ground that there was no such pleading. In this regard it would be relevant to mention that if the pleading is not specifically made and yet the deed is covered by an issue by implication and the parties knew the said plea was involved in the trial, then mere fact that he was not specifically taken in the pleading could not necessarily disentitle a party from relying upon the document and in such a case the objection would be purely a formal and technical. The document in question is merely a mode of partition and has only evidentiary value and for that there is no need of specific reading because of the fact that the pleading was already in the written statement that there was a partition. The document would be considered in support of the partition. The Plaintiff-opposite party has right to say that there was no such partition/custody of the original but for that stand the petition cannot be rejected as it is merely a piece of evidence, which was considered at the time of final adjudication of the suit.

Therefore, on consideration the civil revision petition is allowed. The order impugned is hereby set aside. The Petitioner shall be at liberty to lead oral and documentary evidence in support of his pleading and the mode of partition.