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Petitioners have filed the present petition being aggrieved by the order dated 10.12.2018 passed by IInd Civil Judge, Class-II, Sardarpur, district Dhar in COS No.76-A/17 whereby the trial Court has allowed the application filed by the plaintiff under sections 33 & 35 of the Indian Stamp Act and sent the document to the Collector (Stamps) for payment of stamp duty.

Facts of the case are as under:

2. Respondent No.1/plaintiff preferred a civil suit against the petitioners and respondents No.2 to 5 in respect of an agricultural land bearing survey No.1934 area 0.941 hectare situated at village Ledgaon, Tehsil Sardarpur, district Dhar (for short 'the suit property') seeking a decree of declaration to the effect that he is the sole owner of the suit property by virtue of family settlement and partition which took place on 29.05.1993. The plaintiff also prayed for a decree of perpetual injunction. The defendants filed written statement denying the averment made in the plaint. Thereafter, trial Court framed issues on 23.08.2016. The plaintiff submitted the affidavit of his witnesses under Order 18 Rule 4 of the CPC.

4. Present petitioners filed a writ petition No.7622/2016 before this Court and by order dated 30.07.2018 the writ petition was allowed and set aside the order dated 08.11.2016 and held that the deed is an instrument of partition and not a memorandum of partition, hence stamp duty was required to be paid keeping in view the Indian Stamp Act, Schedule 1-A Item No.(52).

5. After the aforesaid order, on 11.10.2018 the plaintiff filed an application under sections 33 & 35 of the Stamp Act for sending the partition deed for stamping. Even the aforesaid application has been opposed by the present petitioners by filing reply that the partition deed produced by the plaintiff is neither an original document nor a carbon copy, therefore, it is not an instrument under section 2(14) of the Indian Stamp Act, hence the photocopy of the instrument cannot be impounded and sent to the Collector for validation of the said document. By impugned order dated 10.12.2018, learned trial Court has allowed the application and sent the document to the Collector for payment of stamp duty. Being aggrieved by the aforesaid order, petitioners/defendants No.3 & 4 have filed the present petition before this Court.

6. Shri A.S.Garg, learned Senior Advocate appearing for the petitioners submits that sections 33 & 35 of the Indian Stamp Act are applicable to the original instrument and not to the photocopy of the instrument. Section 2(14) of the Indian Stamp Act also deals with the instrument. By submitting the photocopy the document cannot be validated.

In support of his contention he has placed reliance over the judgment passed by the Apex Court in the case of Jupudi Kesava Rao vs. Pulavarthi Venkata Subbarao & others AIR 1971 SC 1070; judgments of this Court in the case of Sugreeva Prasad Dubey and others vs. Sitaram Dubey 2004 (1) MPHT 488 and Abhiyank Builders Ltd. and another vs. Daulat Singh and others 2016 (2) MPLJ 450.

9. While answering objections No.1, 7 & 8, the trial Court has held that the partition deed dated 29.05.1993 produced by the plaintiff being a carbon copy is a primary evidence, therefore, he is not required to obtain a permission to prove it as secondary evidence. The trial Court has also rejected other objections by order dated 08.11.2016. The defendants challenged the aforesaid order before this Court by way of writ petition No.7622/2016. Learned counsel appeared for the petitioner in the writ petition No.7622/2016 had straight away drawn attention of the Court towards the partition deed dated 29.05.1993 as well as para-4 of the plaint and submitted that it is a partition deed and not a memorandum of partition, therefore, the petitioners had confined the petition only in respect of payment of stamp duty for the said partition deed. This Court has accepted the contention and held that it is a partition deed and stamp duty is required to be paid and accordingly allowed the application filed under section 151 of the CPC. Shri Garg, learned Senior Counsel submits that the writ Court has set aside the entire order dated 08.11.2016 as a whole, therefore, all the findings recorded by the trial Court in the order dated 08.11.2016 have been set aside. Though the petitioners have challenged the entire order dated 08.11.2016 before this Court but they confined the writ petition only to the issue of stamp duty payable on a partition deed. They specifically argued that the deed dated 29.05.1993 is a partition deed and not a memorandum of partition. This Court has held that the stamp duty is liable to be paid and accordingly the plaintiff filed an application under sections 33 & 35 of the Indian Stamp Act which has been allowed by the trial Court.