Bombay High Court
Umabai W/O. Pralhad Waghmare And ... vs Sahebrao Devidas Waghmare ... on 1 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION No.6861 OF 2015
1. Umabai w/o Pralhad Waghmare,
(Patil), Aged about 73, Occu. Agriculture,
R/o Kurkhed, Tq. Shegaon,
Dist. Buldana.
2. Purushottam Pralhad Waghmare (Patil),
Aged about 52 years, Occu. Agriculturist,
& Service, Aniket Road,Sutala Kd.
Tq. Khamgaon, Dist. Buldhana.
3. Sunita w/o Tejrao Dhande,
Aged about 46 years,Occu. Household,
Aniket Road, Sutala Kd.,
Tq. Khamgaon, Dist. Buldhana.
4. Aruna d/o Pralhad Waghmare (Patil),
Aged about 44, Occu. Household,
R/o Kurkhed, Tq. Shegaon, Dist. Buldana.
5. Shalini w/o Bhagwan Panda,
Aged about 41 years, Occu. Household,
R/o Asalgaon, Tq. Jalgaon, Dist. Buldana. ... Petitioners.
..versus..
1. Sahebrao Devidas Waghmare ( Patil),
aged about 71 years, Occu.l Agriculture,
R/o Kela Nagar, Khamgaon,
Tq. Khamgaon, Dist. Buldana.
2. Baliram Devidas Waghmare ( Lpatil),
aged about 66 years, Occu. Agriculture,
R/o Kurkhed, Tq. Shegaon, Dist. Buldana.
3. Gopal Devidas Waghmare ( Patil),
Aged about 59 years, Occu. Business,
R/o Adarsh Nagar, Near Wan Pakalap,
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Shegaon,Tq. Shegaon, Dist. Buldana.
4. Ashok Devidas Waghmare (Platil),
Aged about 56 years, Occu. Agriculture,
R/o Kurkhed, Tq. Shegaon, Dist. Buldana.
5. Kamalabai wd/o Pandurang Awachar,
Aged about 68 years, Occu. Household,
R/o Awar, Tq. Sangrampur,
Dist. Buldana.
6. Chandraprabha w/o Mahadeo Tikar,
Aged about 53 years, at Kolari,
Tq. Khamgaon, Dist. Buldana. .... ... Respondents.
.......................................................................................................................................................
Mr.D.L. Dharmadhikari, advocate for petitioners.
Mr. V.K. Gulhane, advocate for respondents.
.......................................................................................................................................................
CORAM : A.S. CHANDURKAR,
J.
DATED : 01 st
JULY, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard finally with
consent of the learned counsel for the parties.
2. The petitioners are aggrieved by the order passed by the trial
court below Exh.20 thereby refusing permission to the original plaintiffs to
adduce secondary evidence in respect of document dated 20 th July, 1962
which was a receipt of partition executed by Devidas Shivram Waghmare in
favour of Pralhad Shivram Waghmare.
3. It is the case of the plaintiffs that in the suit filed by them for
partition and separation possession it has been pleaded by them that there
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was oral partition amongst the sons of Shivram Waghmare in July,1962.
When the suit was fixed for evidence, the petitioners gave a notice to the
defendants to produce on record original receipt dated 20.7.1962 executed
by Pralhad and Devidas in favour of Janabai. In response thereto, the
defendants denied the existence of said document. According to the
petitioners, though a photocopy of the document dated 20.7.1962 being a
receipt of partition executed by Devidas in favour of Pralhad was filed on
record, the original of the said document was lost. A police complaint was
thereafter lodged. In that background, the petitioners moved an application
below Exh. 20 for permission to lead secondary evidence. This application
has been rejected by the trial court.
3, Shir D.L. Dharmadhikari, learned counsel for the petitioners
submitted that a photo copy of the receipt of partition dated 20.7.1962
executed by Devidas in favour of Pralhad was filed on record but the original
was lost. He submitted that in terms of provisions of Section 65 of the Indian
Evidence Act, 1872, a case for leading secondary evidence was made out.
The trial court, however, misconstrued the earlier order and rejected the
application.
4. Shri V.K. Gulhane,, the learned counsel for the respondents
supported the impugned order. According to him, there was no case made
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out to lead secondary evidence. He submitted that though the plaintiffs were
in possession of the original document, they had given notice to produce the
said document at Exh.15. He, therefore, submitted that the application was
rightly rejected.
5. It is not in dispute that in the application below Exh. 15 it was
pleaded by the plaintiffs that a photo copy of the receipt of partition dated
20.7.1962 executed by Devidas in favour of Pralhad was filed on record.
There was another document of the same date of which production was
sought. The defendants denied existence of the other document. The stand
of the petitioners that the original receipt of partition executed by Devidas in
favour of Pralhhad was also supported by the police complaint made on 30 th
July, 2014. In that back ground, the requirements of Section 65 of the
Indian Evidence Act, 1872 were fulfilled and therefore permission to lead
secondary evidence with regard to said receipt ought to have been granted.
The trial court, however, misconstrued the application filed below Exh. 15
and passed the impugned order. There is failure to permit the plaintiffs to
lead secondary evidence in the present facts of the case and hence a case for
interference in writ jurisdiction has been made out.
In view of aforesaid, the order dated 10.9.2015 passed below
Exh. 20 is set aside. The plaintiffs are permitted to lead secondary evidence
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only in respect of receipt of partition dated 20.7.1962 executed by Devidas
Shivram Waghmare in favour of Pralhad Shivram Waghmare. The writ
petition is allowed in aforesaid terms with no order as to costs.
JUDGE
Hirekhan
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