ORDER
N. Prusty, J.
1. Even though the matter is listed for order, on consent of Learned Counsel for both the parties, the same is taken up for final disposal at the stage of orders.
2. This writ petition has been filed by the defendant challenging the order dated 3.5.2004 passed by the Learned Judge (Senior Division), Sambalpur in Title Suit No. 73 of 2001 whereby an unregistered partition deed tendered by the plaintiff was admitted in to evidence only to the extent to show severance of joint status of the joint family and not to prove the partition by metes and bounds amongst the members of the joint family.
3. Heard Mr. Kanungo, Learned Counsel for the petitioner and Mr. Pujari, Learned Counsel for the opposite parties.
4. Mr. Kanungo, Learned Counsel for the defendant/petitioner submits that it is well settled that an unregistered partition deed is inadmissible in evidence to show that there is partition between the members of the joint family by metes and bounds and in case such an objection is raised by the defendant, it has to be raised at the time when the document is tendered for admission and the Court has to judicially determine the matter. In Support of his above contention, Mr. Kanungo, Learned Counsel relied upon and cited the decision of the Apex Court in the case of J. Chand and Ors. v. P. Surana and the decision of this Court in the case of Dandapani Sahu v. Kshetra Sahu . Wherein it has been held that the statements contained in an unregistered partition deed that there was a partition by metes and bounds amongst the members of the joint family is inadmissible in evidence. As such the unregistered deed of partition should not have been admitted by the Learned Trial Court into evidence.
5. Mr. Pujari, Learned Counsel appearing on behalf of the plaintiffs/opposite parties submits that no illegality has been committed by the Learned Court in admitting the unregistered deed of partition, only to show the severance of joint status between the member of the joint familyand not for the purpose of partition by metes and bounds. As such no illegality has been committed by the learned Trial Court.
6. In the case of Javerchand and Ors. , it has been held :
Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 (Stamp Act) comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.
7. In the case Dandapani Sahu v. Kshetra Sahu and Ors. it has been held by this Court :
There is no dispute over the proposition that the. unregistered partition deed can be used as evidence to show severance of joint status and it is inadmissible to prove the actual allotment of specific properties to the different shares. The only interesting question for consideration is whether the statement in the unregistered partition deed that there was a partition by metes and bounds amongst the members of the joint family is admissible in evidence. On a plain reading, such statement appears to be clearly hit by Section 49(c) of the Act (Registration Act). Partition is a “transaction” which affects the immovable property comprised in the partition deed as to what was a joint ownership is converted into separate ownership of the different members in specific shares. Such a statement in the unregistered partition deed is, therefore, inadmissible in evidence.
8. Considering the submissions made by Learned Counsel for both the parties and after going through the decisions relied upon by the Learned Counsel as well as the impugned order, in my considered opinion, no illegality, irregularity or manifest error of law has been committed by the Learned Trial Court in rejecting the contention of the petitioner/defendant No. 1 that the unregistered partition deed is totally inadmissible in evidence and in accepting the said deed only for the purpose to show the severance of joint status of the joint family, but not with regard to partition of metes and bounds amongst the members of the family which would be a ‘transaction’ in respect of immovable property.
9. As such I am not inclined to entertain this writ petition and interfere in the matter.
10. The writ petition is accordingly dismissed.
11. However, it is made clear that while the case shall be posted finally for argument after closure of the evidence, both the parties shall also be at liberty to make their respective contention with regard to contents of the said unregistered deed of partition and as to what extent the said deed can be accepted and in case such contentions are made, the same shall be decided by the Learned Trial Court keeping in view the settled position of law in this regard.
12. Since this is a suit of the year 2001 and by virtue of order of this Court the proceeding of the suit has been stayed since 2004, Learned Trial Court shall do well to expedite the hearing of the suit and dispose of the same as early as practicable, if the suit is otherwise ready for hearing in its chronological order as well as there is no other impediment for proceeding with the hearing of the suit.
13. Urgent certified copy of this order be granted on proper application.