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2001 DIGILAW 484 (PAT)

Kaviraj Jaideo v. Sri Suresh Chaturvedi

2001-06-26

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This appeal is directed against the judgment and decree passed by Sri R.K. Singh, Additional Subordinate Judge-II Judge-ll Barh in Title Appeal No. 4 of 1977. The appellate court passed the impugned judgment and decree, after the appeal was preferred before him against the judgment passed by the learned Additional Munsif, Barh in Title Suit No. 78 of 1967/ 60 of 1976 The defendant of the suit was the appellant in the first appellate court and the plaintiff of the suit is the appellant before this Court. The suit was decreed by the trial court and then on appeal, the judgment was passed by the Sub-ordinate Judge, Barh, remanding the suit to the lower court for fresh judgment. 2. It was submitted before me that the plaintiff-appellant filed the suit for declaring of his right and title on the basis of sale-deed dated 29.7.1963 and for confirmation of possession or, in the alternative, recovery of possession. 3. in fine, the case of the parties in the lower court was that defendant nos. 9 and 10 of the suit were two brothers and they had entered into partition after the death of their father. The plaintiff claimed the sale-deed from defendant no. 10 and the defendants also claimed the same from defendant no. 10 which was executed by defendant no. 10 and subsequently also by defendant no. 9 who was in jail on the date of execution of the sale-deed in favour of defendants. So there was delay in registration of the sale- deed which was dated 10th September 1966. The case of the plaintiff appellant was that mother of the two defendants (defendant nos. 9 and 10) was alloted with certain properties for maintaining herself and the rest of the properties was divided between the two brothers. The plaintiff purchased the lands allotted to the defendant no. 10. However, the defendant- respondent purchased the suit land from defendant nos. 9 and 10 but their sale-deed was illegal. 4. The (earned trial court decided the suit in favour of plaintiff-appellant. However, the appellate court held that certain amendments allowed to the plaintiff was not incorporated and, moreover, the trial court failed to consider the statement of witnesses in cross-examination.The trial court also failed to consider the relative value of the date of registration of the sale-deed of the defendant and its subsequent registration. However, the appellate court held that certain amendments allowed to the plaintiff was not incorporated and, moreover, the trial court failed to consider the statement of witnesses in cross-examination.The trial court also failed to consider the relative value of the date of registration of the sale-deed of the defendant and its subsequent registration. Certain Yaddasts were filed by the defendants during the course of hearing which could not be exhibited for they were impounded and no impounding fee was paid. So the appellate court held that the judgment of the trial court sufferred from non-consideration of certain vital facts and, hence, remanded the suit to the lower court for fresh decision, after offering opportunity to the parties to lead fresh evidence. 5. The appellants lawyer submitted before me that the appellate court did not examine the evidence adduced by the parties and it shifted its responsibility and passed the judgment merely on technical ground and, hence, the order of remand passed by the first appellate court deserves to be set aside. 6. Contention of the appellant is whether the documents not admitted into evidence may be considered. If amendments are allowed, the amended pleading forms part of consideration and the pleadings are the main planks on which the case of the parties depends and plays a crucial role in deciding the rights and liabilities of the parties to the suit. So, of course, if certain amendments are allowed and not incorporated, I think, the judgment of the trial court will suffer on account of non-consideration of these amended pleadings. The order of remand, therefore, does not suffer from any illegality or irregularity on this score. 7. So far other grounds of remand are concerned it relate to the consideration of relative value of the date of execution and registration of a particular sale-deed. The established principle of law is that the title originating from the sale-deed passes on the date of its execution. The registration of the sale-deea makes it only enforceable in the court of law so, of course, the date of registration of the sale deed was an important factor to be considered regarding its validity. The plaintiff-appellant had not sought, perhaps, the setting aside of the defendants sale-deed and the appellate court has taken note of this fact. The registration of the sale-deea makes it only enforceable in the court of law so, of course, the date of registration of the sale deed was an important factor to be considered regarding its validity. The plaintiff-appellant had not sought, perhaps, the setting aside of the defendants sale-deed and the appellate court has taken note of this fact. Therefore, if any amendment was allowed regarding original plaint, it needed to be incorporated in order to give a proper finding. 8. So far the admission of the Yaddast as exhibit is concerned, it transpires from appellate courts judgment that this memorandum of partition was filed by a witness of the defendants, when he was being examined in court. There is a stage of the suit at which parties are directed to file documents. The parties must, therefore, file the documents at that stage and, for late filing, there must be satisfactory explanation. Moreover, when the memo of partition was impounded by the court and the impounding fee was not paid, it was the fault of defendant. Therefore, I am of the opinion that the memorandum of partiton cannot be admitted into evidence because the defendants themselves failed to get document admitted by their own laches. So far the direction of remand to the lower court for fresh evidence, I think, this was also not necessary. 9. However, in view of the discussions made above, I think the remand order does not suffer from any illegality or irregularity necessitating this court to interfere. Hence, this appeal is dismissed and the order of remand passed by the first appellate court is confirmed, but subject to the observations and directions made regarding the memo of partition filed by the defendants and the additional evidence, as mentioned in the preceding paragraphs.