Civil Revision Petition No. 4950 of 2011. Case: Lakkoji Mohana Rao Vs Lakkoji Viswanadham and Ors. High Court of Andhra Pradesh (India)
| Case Number | Civil Revision Petition No. 4950 of 2011 |
| Counsel | For Petitioner: P. Raj Kumar, Adv. and For Respondents: G. Surapu Naidu, Adv. |
| Judges | B. Chandra Kumar, J. |
| Issue | Stamp Act (2 of 1899) - Sections 35, 2(15); Registration Act (16 of 1908) - Sections 17(1)(b), 4(C) |
| Citation | AIR 2012 AP 110 |
| Judgement Date | December 16, 2011 |
| Court | High Court of Andhra Pradesh (India) |
Judgment:
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Being aggrieved by the order dated 21-09-2011, passed in I.A. No.115 of 2011 in O.S. No.55 of 2005 on the file of Junior Civil Judge, Pathapatnam, Srikakulam District, the present Civil Revision Petition is filed.
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The Petitioner herein is the first Defendant in O.S. No.55 of 2005, first Respondent herein is the Plaintiff and the Respondents Nos.2 to 4 herein are the Defendants Nos.2 to 4 in the said suit.
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The brief facts of the case are as follows: The petitioner herein is the elder stepbrother of the first respondent-plaintiff. The petitioner herein, his mother and his elder sister filed O.S. No.87 of 1976 on the file of Principal Senior Civil Judge, Srikakulam against the first respondent herein and his elder sister for partition of the family land and the house property, the said suit was decreed. In the Appeal i.e. in A.S. No.163 of 1978, the District Court, allowed the Appeal in part and accordingly final decree was passed in I.A. No.450 of 1978 and in terms of the said final decree, the properties were partitioned and possession was delivered to each of the parties in E.P. No.61 of 1983, since then, the parties are in possession of their respective allotted shares. The first respondent herein filed O.S. No.55 of 2005 alleging that the petitioner herein has been attempting to trespass into the land allotted to him. The petitioner herein has admitted about passing of the decree in O.S. No.87 of 1976 and also about the execution proceedings, but his main version is that there was no actual delivery of the properties as per the proceedings in E.P. No.61 of 1983, though it was only a paper delivery. His main case is that after conclusion of the E.P. proceedings, the parties were not satisfied and the disputes were not ended, then both the parties approached the elders and as per the advice of the elders, the properties were again partitioned on 14-03-2004 and since then the petitioner herein is in possession and enjoyment of those properties.
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The further case of the petitioner is that the settlement entered into before the elders was reduced into writing in the month of March, 2004 and signed by both the parties and attested by elders. It is also his case that the present case has been filed on the evil advice of one Guntamukkala Malati Rao of Chatlathandara village without any cause of action. In the above circumstances, the petitioner filed I.A. No.115 of 2011 under Order VIII, Rule 3 C.P.C. to receive the document dated 14-03-2004 and mark the same as an exhibit on his behalf. His main case is that he could not file the said document when he was examined as it was misplaced and that the said document is highly essential for just determination of the case.
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The first respondent-plaintiff opposed the marking of the said document. His case is that the parties have partitioned their properties long back and the first respondent-plaintiff is in possession and enjoyment of the plaint schedule properties and that the alleged partition deed, dated 14-03-2004 is forged one and created for the purpose of this case. It is also his case that the said document requires registration and it is not stamped, so it cannot be looked into.
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The lower Court dismissed the said petition holding that the said document cannot be marked since it is neither stamped nor registered and the same is inadmissible in evidence for any purpose under Section 35 of the Indian Stamp Act, 1899 and also under Section 49 of the Registration Act, 1908.
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Sri P. Raj Kumar, learned counsel for the petitioner, submits that the petitioner could not file the document when he was examined as the document was misplaced and that the document is necessary for the just conclusion of the case. It is also submitted that the petitioner filed the said document only for the purpose of proving his possession over the suit schedule property and not for the purpose of proving his title. It is also argued that since the suit is for bare injunction the lower Court ought to have allowed the application and received the document for collateral purpose to enable the petitioner to prove his possession.
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The learned counsel for the petitioner has relied on the case between Khaja Habeebuddin v. Md. Ibrahim and others, 2004 (4) ALD 84, wherein, a suit for partition was filed in the year 2001, the defendants pleaded that there was prior partition way back in the year 1957, they filed the partition deed dated 15-07-1957 and an award dated 16-08-1957, it was held that the documents can be received in evidence for collateral purpose i.e. to show the severance of status and nothing more. For the same proposition he has relied on the case between Chinnappareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy and others, AIR 1969 AP 242. Reliance is also placed in the case between Roshan Singh and others v. Zile Singh and others, AIR 1988 SC 881, wherein it was held that a mere agreement to divide does not require registration. He has also relied in the case between Smt. Kaheeda Moin and others v. Md. Iqbal Ali and others, 1998 (5) ALT 704: (1999 AIHC 162) wherein it was held that unregistered partition deed can be admitted in evidence for collateral purpose for proving the factum of partition and nature of possession of the parties. He has also relied on the case between Amangenti Prameela and another v. P. Venkat Reddy by LRs and others, 2004 (3) ALD 66, wherein it was held that a Xerox copy can be admitted as secondary evidence. Reliance is also placed on the case between Pariti Suryakanthamma and another v. Saripalli Srinivasa Rao and another, 2010 (2) ALD 847, in support of his contention that an unregistered and unstamped document can be received in evidence for collateral purpose. For the same proposition, he has relied on the case between K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564: (AIR 2008 SC (Supp) 850).
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Sri G. Surapu Naidu, learned counsel for the first respondent-plaintiff submits that the suit in O.S. No.55 of 2005 filed by the first respondent was decreed long back and the parties were put in possession of the property in E.P. No. 61 of 1983 long back and since then the first respondent has been in possession of the same property. It is also his submission that the alleged document filed at a belated stage cannot be received unless valid reasons are shown for not producing the document along with the written statement, in support of which he has relied on the case between Voruganti...
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