CHOWDHRY, J. -
(1.) THIS is a second appeal by the defendant Budhe Ram. One Bhagi had two sons, Dile Ram and Mani Ram. The appellant is the only son of Dile Ram, and the plaintiffs and 'pro forma' defendant belong to the branch of Mani Ram. Budhe Ram applied to the revenue authorities for partition of land in three villages Balaun, Thach & Bahndi. The plaintiffs put in objections that a private partition had already taken place. On their being so directed by the revenue authorities, the plaintiffs filed the present suit for a declaration that by reason of the joint family property having already been partitioned about 25 years previously, the defendant appellant was not entitled to have it repartitioned. Both the Courts below have decreed the plaintiffs' suit, and now Budhe Ram defendant has filed this second appeal. It may be stated 'in limine' that the only point for determination in this appeal is whether the plaintiffs' allegation of private partition is correct. It is not necessary to hold further as to whether the properties were allotted between the two branches as alleged in the plaint. The reason is that this is not a suit for partition but merely for a declaration that, a partition having already taken place, the defendant appellant was not entitled to have it repartitioned.
(2.) IT appears that during the pendency of the suit in the trial Court the plaintiffs applied that at the time of partition a partition deed was executed by the parties and the same had been handed over to the defendant appellant, and that he be required to file the same. The Court gave notice to the defendant to produce the document or show cause against it. The defendant replied that he had no such document, and in fact no such document had been effected. The trial Court allowed secondary evidence to be produced to prove the contents of the partition deed. It was argued by the learned counsel for the defendant appellant that as there was no partition no such deed was ever executed, and that the trial Court should not have allowed secondary evidence to be produced unless it had first arrived at the conclusion that, the original was or appeared to be in the possession or power of the defendant appellant, as required by Section 65, Evidence Act. He further argued that the plaintiffs respondents had also to prove that the document was duly stamped before they could prove its contents by secondary evidence. The testimony of the witnesses Bholu and Premu produced by the plaintiffs as two of the four Panchas who effected the partition and attested the partition deed was criticised as inadmissible since they were illiterate and could not, therefore, be persons who had themselves seen the document, as required by Section 63 (5), Evidence Act. The learned counsel for the defendant appellant further referred to various circumstances negativing the theory of partition set up by the plaintiffs. These were that no mutation in the revenue records was ever made in accordance with the alleged allotment of shares, and that there was great disparity in the shares according to the plaintiffs' case, the area of land allotted to the plaintiffs' branch being greatly in excess of that allotted to the defendant.
The last two circumstances are explicable, and the explanation actually offered by the plaintiffs does not, appear to have been improperly accepted by the Courts below. The plaintiffs' witnesses have stated that allotment of land was made on the basis of areas actually under cultivation and not on the basis of the total acreage. They have further stated that the defendant was compensated by the allotment of a 'gharat'. It is noteworthy that the defendant had not the courage to go into the witness box and deny these facts. This omission on the part of the defendant appellant to come into the witness box is an important circumstance in this case, and I shall advert to it presently. As regards the contention that the alleged partition was not followed by any mutation in the revenue records, it is not an unprecedented phenomenon. In my opinion, the most important fact to be considered in the present case is whether or not a deed of partition was effected, for if the plaintiffs' allegation in that behalf be correct, non production of the document by the defendant raises a strong presumption against the defence contention and in favour of the plaintiffs' case. I, therefore, proceed to take up this important point.
(3.) IT was strenuously argued by the learned counsel for the defendant appellant that no mention of the partition deed was made in the plaint, and that the plaintiffs did not file along with the plaint a list mentioning the partition deed as a document, whether in their possession or power or not, on which they relied as evidence in support of their claim, as required by Order 7, Rule 14, Civil P. C. There can be no doubt about these omissions on the part of the plaintiffs, taut the mere fact that compliance with the provisions of Order 7, Rule 14 was not made did not totally debar the production of the document or its secondary evidence. The Court had the power to allow the production of such a document or secondary evidence relating thereto under Rule 18 of the said Order despite the omission. And the record shows that when the plaintiffs applied to the Court for an order to the defendant to produce, the document, the trial Court passed an order directing the defendant to file the deed or show cause against it after hearing arguments on both sides. The order is a detailed one and dated 26 9 1950. It is noteworthy that no objection was at that stags taken on behalf of the defendant under Order 7, Rule 14. Moreover, any objection based on the provision just mentioned is too late at this stage. For the same reason it is now too late for the defendant appellant to contend that the trial Court should have first recorded a finding that the original deed did exist and was in possession of the defendant and only then permitted the plaintiffs to produce secondary evidence as to the contents of the document.
The parties have produced evidence on the point, and both the Courts below have accepted the evidence produced by the plaintiffs as correct. All that this Court has, therefore, to see is whether the Courts below were right in doing so. That is a privilege, be it noted, which is open to the present defendant appellant on account of the peculiar provisions of para. 32, Himachal Pradesh (Courts) Order, 1948, for otherwise the concurrent finding of fact of the 2 Courts below would have been conclusive against the appellant.;