IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.2408 OF 2019 AND WRIT PETITION NO.15372 OF 2019 (GM-CPC) Between:
1. SMT. REVAMMA DIED BY LR’S 1(1) Y S POORNACHANDRA S/O LATE Y S SADASHIVAPPA AGED ABOUT 66 YEARS, 1(2) Y S MURUGENDRA S/O LATE Y S SADASHIVAPPA AGED ABOUT 64 YEARS PETITIONERS NO.1 AND 2 R/AT SHIVASADHANA, JAVENAHALLI MATT ROAD, UTTHARA BADAVANE HASSAN – 573 201.
1(3). Y S MANOHARA D/O LATE Y S SADASHIVAPPA W/O M C SHIVAKUMAR AGED ABOUT 60 YEARS, R/O MINT APARTMENT, BOGADHI MYSORE – 570 001.
... PETITIONERS (BY SRI. HALESHA R.G., ADV.) AND 1. Y.P. NIRMALA W/O A R SHANTHAPRASANNA D/O LATE PUTTANANJAPPA AGED ABOUT 61 YEARS, RESIDENT OF YASLURU VILLAGE SAKALESHPURA TALUK HASSAN DISTRICT 2. A R SHANTHAPRASANNA S/O LATE A R RUDRAPPA AGED ABOUT 65 YEARS RESIDENT OF YASLURU VILLAGE SAKALESHPURA TALUK HASSAN DISTRICT BOTH ARE R/O. YASLURU VILLAGE, SAKALESHPURA TALUK, HASSAN DISTRICT – 573 201.
... RESPONDENTS (BY SRI K.B. SHIVAKUMAR, ADV.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 2.7.2018 AND 7.1.19 ON I.A.NO.1 IN O.S.NO.24/2016 ON THE FILE OF THE SENIOR CIVIL JUDE AND JMFC AT SAKALESHPURA, HASSAN DISTRICT, PRODUCED AT ANNEXURE-F & ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiffs filed the present writ petitions against the order dated 02.07.2018 on I.A. made in O.S.No.24/2016 on the file of the Senior Civil Judge and JMFC at Sakaleshpura, Hassan District, allowing the application filed by the defendant No.1 under Order 8 Rule 1(b) R/w Section 151 of Code of Civil Procedure on payment of cost of Rs.100/- subject to proof, relevancy and admissibility of the documents and order dated 07.01.2019 permitting the defendants to mark the ‘Jubane Hisse Pathra’ dated 19.02.1974 only for the purpose of existence of the property and for its identity, the said document is required to be marked in the evidence.
2. The plaintiffs filed suit for partition and separate possession in respect of suit schedule properties contending that the suit schedule properties are the joint properties of plaintiffs and defendants, there was no partition and they are entitled for the relief sought for. Defendants filed written statement denying the averments made in the plaint and contended that in view of the earlier partition under the said Jubane Hisse Pathra dated 19.02.1974, the suit filed by the plaintiff for partition and separate possession is not maintainable and sought for dismissal of the suit.
3. When the matter was posted for defendant’s evidence, at that stage, defendant No.1 filed I.A. under Order 8 Rule 1(b) R/w Section 151 of Code of Civil Procedure to condone the delay in producing the documents i.e., unregistered Jubane Partition Deed dated 19.02.1974 along with tax register extract issued by the Hassan Municipality for the year 1991-92, 1997, 1998, 1999, 2001, 2002 and RTC extract. The said application was resisted by the plaintiffs.
4. The trial Court by the order dated 02.07.2018 allowed the said application on payment of cost of Rs.100/- subject to proof, relevancy and admissibility of the document. Thereafter on 07.01.2019 after hearing both the parties on admissibility of the document under the name and style ‘Jubane Hisse Pathra’ dated 19.02.1974, learned Judge has observed that this Court by order dated 02.07.2018 allowed the application subject to proof, relevancy and admissibility of the documents. At the time of further chief examination of D.W.-1, the plaintiffs opposed to mark this document. It is well settled principle of law that mere marking of document does not dispense with its proof. The party who produce the document and who relies on the same has to prove the same in accordance with law. Hence, for the purpose of existence of property, its identity, the said document is required to be marked in evidence. Accordingly, it was marked. Hence, the present writ petitions are filed.
5. I have heard the learned counsel appearing for the parties to lis.
6. Sri Halesha R.G., learned counsel appearing for the petitioners contended that the impugned order passed by the trial Court dated 07.01.2019 allowing the application filed by defendant No.1 under Order 8 Rule 1(b) R/w Section 151 of Code of Civil Procedure for production of unregistered partition deed dated 19.02.1974 and tax register extract issued by the Hassan Municipality and RTC extract and permitting the defendant No.1 to mark the said document for the purpose of existence of the property and its identity is erroneous and contrary to material on record. He would further contend that the defendants in the written statement have contended that in view of the Jubane Hisse Pathra dated 19.02.1974, there was a partition. Therefore, the suit is not maintainable. It is necessary to produce the said document before the Court. It is an unregistered instrument which is not permissible in evidence even for collateral purpose until the same is impounded inview of the provisions of Section 17 and 49 of the Registration Act, 1908.
7. In support of his contention, learned counsel has also relied upon the decision of the Hon’ble Supreme Court reported in AIR 2018 SC 3057 in the case of Sita Ram Bhama V/s. Ramvatar Bhama. Therefore, he sought to allow the present writ petition.
8. Per contra Sri K.B. Shivakumar, learned counsel for the respondents sought to justify the impugned order passed by the trial Court and contended that mere allowing the application filed by the defendant No.1 under Order 8 Rule 1(b) R/w Section 151 of Code of Civil Procedure and permitting the defendants to produce the documents i.e., unregistered partition deed dated 19.02.1974, tax register extract issued by the Hassan Municipality for the year 1991-92, 1997, 1998, 1999, 2001, 2002 in respect of the property in question and RTC extract which are necessary documents tobe produced before the Court to prove that the suit of the plaintiffs is not maintainable. Therefore, the learned Judge on 02.07.2018 has rightly allowed the application permitting the defendants to mark the documents subject to proof, relevancy and admissibility and ultimately by the order dated 07.01.2019, the learned Judge permitted the defendants to mark the documents only for the purpose of existence of the property in question and its identity. He further contended that in view of the provisions of Section 49 of the Registration Act, for collateral purpose, unregistered document can be marked. Therefore, he sought to dismiss the writ petition.
9. Having heard learned counsel for the parties, it is not in dispute that the plaintiffs filed suit for partition and separate possession in respect of the suit schedule properties and contended that the suit properties are joint properties of the plaintiffs and defendants. The same is denied by the defendants and contended that there was a partition in the family under the name and style called as ‘Jubane Hisse Pathra’. Therefore, the very suit filed by the plaintiffs is not maintainable. When the matter was posted for defendant’s evidence, at that stage, defendant No.1 filed application under Order 8 Rule 1(b) R/w Section 151 of Code of Civil Procedure to condone the delay in producing the said partition deed and revenue documents. The said application came to be allowed subject to proof of relevancy and admissibility. When the matter was heard on both sides, the learned Judge proceeded to pass the order permitting the defendants to mark the said Jubane Hisse Pathra dated 19.02.1974 in the evidence only for the purpose of existence of the property in question and for its identity.
10. The Hon’ble Supreme Court considering the provisions of Sections 17 and 49 of the Registration Act, 1908 in the case of Sita Ram Bhama V/s. Ramvatar Bhama, it has held as under:
“In suit for partition, unregistered document can be relied upon for collateral purpose i.e., severancy of title, nature of possession of various shares but not for primary purpose i.e., division of joint properties by metes and bounds.
Further unstamped instrument is not admissible in evidence even for collateral purpose, until same is impounded.”
11. In view of the dictum of the Hon’ble Supreme Court stated supra, in a suit for partition, unregistered document is not admissible in evidence even for collateral purpose, until the same is impounded and to pay stamp duty together with penalty.
12. For the reasons stated supra, the trial Court is directed to impound the document in view of the impugned order passed by the trial Court permitting the defendants to mark the Jubane Hisse Pathra dated 19.02.1974. Even for the existence of the property and its identity, the said document cannot be marked unless it is duly stamped and duty and penalty is paid. In view of the above, the impugned order has to be modified.
13. In view of the above, the writ petitions filed by the plaintiffs are allowed in part. The impugned order passed by the trial Court dated 07.01.2019 has to be modified confirming the order passed on 02.07.2018 allowing the application for production of documents. The trial Court is directed to impound the Jubane Hisse Pathra dated 19.02.1974 and pass appropriate orders in accordance with law on payment of stamp duty and penalty. On such payment, the defendants are permitted to relay upon the said document.
Ordered accordingly.
Sd/- JUDGE PN/-