Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 1470 (JHR)

Md. Anis Ansari v. Md. Ushman @ Unush

2008-12-17

D.G.R.PATNAIK

body2008
JUDGMENT : Prayer in this writ application is for setting aside the order dated 20.02.2008 (Annexure-6), passed by the 6th Additional District Judge, Dhanbad in Title Appeal No. 10 of 2006, whereby the petitioner’s prayer for allowing him to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, has been rejected. 2. The petitioner was the defendant No. 2 in the Title (Partition) Suit No. 28 of 1996 filed by the Respondent No. 1/plaintiff seeking relief for a decree for delivery of the partition and separate possession of his two-thirds share in the land and the property mentioned in the schedule of plaint. The plaintiff/Respondent No. 1 had claimed that his father, late Jumai Mian purchased 3 Kathas of land out of 53 Bigha within Thana No. 121, Khata No. 29, Khewat No. 4, Plot No. 84/85 by virtue of a Hukumnama on payment of Salamee of Rs. 40/-from the erstwhile landlord, namely, Dijapada Chakravarty and Avay Pado Chakravarty in the year 1947. After the demise of his father on 16.12.1971, the plaintiff became the sole owner of the property. Some time in the year 1994, the defendant no. 2, who is admittedly the grand-son of late Jumai Mian had occupied one room within the suit property allowed by the plaintiff on temporary basis. Taking advantage of his entry into one room, the defendant no. 2, namely, the present petitioner occupied all the other rooms as well on 07.03.1995. When the plaintiff demanded that he should vacate the premises, the defendant no. 2, namely the present petitioner refused to vacate and on the other hand demanded partition of the property. The petitioner-defendant no. 2 had contested the suit mainly on the ground that the land described in the schedule of the plaint lies in Plot No. 86/93 and not in the Plot Nos. 84/85. The said land and the house premises as described in the Schedule to the plaint belongs actually to the plaintiff/defendant no. 1 and is situated just adjacent east of the land purchased by his ancestor Abdul Subhan. The plaintiff is not the son of late Jumai Mian and, as such, the appellant being the grand-son of late Jumai Mian, the entire property had devolved upon the appellant as per the Sunni Mohammadan Law. 1 and is situated just adjacent east of the land purchased by his ancestor Abdul Subhan. The plaintiff is not the son of late Jumai Mian and, as such, the appellant being the grand-son of late Jumai Mian, the entire property had devolved upon the appellant as per the Sunni Mohammadan Law. In support of his contention that the land described in the Schedule of the plaint did not correspond to the actual identity of the lands as entered in the Revenue records, the appellant had referred to the Khatiyan claiming that in Khewat No. 4, there is no Khata bearing Khata No. 29 and further on the ground that the property described by the plaintiff in the Schedule to the plaint does not pertain to the Plot No. 84/85. Disputing the identity of the property mentioned in the schedule of the plaint, the petitioner had pointed out before the court below that whereas the plaintiff’s claim is that the schedule property is situated in Khata No. 29, Khewat No. 24 but the record of rights, namely the Khatiyan shows that there is no Khata No. 29 in Khewat No. 24, rather it is in Khewat No. 8. The Title Partition Suit was decreed in favour of the plaintiff/defendant No. 1 by the trial court vide its judgment and preliminary decree dated 07.12.2005, which was passed on contest against the present petitioner. Against the judgment and decree, the petitioner preferred Title Appeal No. 10 of 2006, which is presently pending in the Court of the 6th Additional District Judge. 3. Heard the learned counsel for the petitioner, learned counsel for the Respondent-State as also the learned counsel for the Respondent no. 1. 4. The main ground advanced by the petitioner/appellant in the aforesaid Title Appeal was that the learned trial court did not consider the fact that the very identity of the property mentioned in the Schedule of the plaint was in dispute and that the description of the property as given by the plaintiff does not correspond with the entries in the Khatiyan. The grievance of the appellant, as raised in his appeal was that despite the fact that the copy of the Khatiyan was filed by the plaintiff but the learned trial court did not venture to adduce the same in evidence in the suit nor did the trial court accept the same as part of the evidence. The grievance of the appellant, as raised in his appeal was that despite the fact that the copy of the Khatiyan was filed by the plaintiff but the learned trial court did not venture to adduce the same in evidence in the suit nor did the trial court accept the same as part of the evidence. According to the petitioner, the Khatiyan pertaining to Khewat No. 4, has been recorded in the name of one Kokil Bouri and the Khata No. 29 does not fall within the Khewat No. 4. On the other hand, the lands in Khewat No. 8 under Khata No. 29 stands recorded jointly in the name of Bhushan Dhobi, Panu Dhobi and others having equal shares. It is further contended that though the petitioner had obtained the certified copy of the Khatiyan of Khewat No. 8 but the learned trial court did not admit the same in evidence though the certified copy of the Khatiyan being a public document it ought to have been marked as Exhibit in evidence. Demanding that the aforesaid certified copy of the Khatiyan pertaining to Khewat No. 8, is relevant and important document, which would be necessary for proper adjudication of the dispute, the petitioner had prayed before the court below to admit the same in evidence. 5. The petitioner’s prayer was contested by the plaintiff/Respondent no. 1 before the learned court below on the ground that the petitioner being the defendant no. 2 did not raise any such pleading with reference to the Khatiyan of Khewat No. 8 in his written statements nor did he file the certified copy of the Khatiyan in course of trial although the same was in his possession ever since he obtained the certified copy of the Khatiyan in the year 2001 and neither did he make any prayer before the trial court to accept the document in evidence. The petitioner’s prayer was contested on the further ground that the plaintiff’s case was based entirely on the Hukumnama and the document, which the petitioner/defendant had wanted to introduce in evidence, was totally irrelevant in respect of the issues involved in the suit. 6. The petitioner’s prayer was contested on the further ground that the plaintiff’s case was based entirely on the Hukumnama and the document, which the petitioner/defendant had wanted to introduce in evidence, was totally irrelevant in respect of the issues involved in the suit. 6. Accepting the objections, advanced by the plaintiff/Respondent No. 1 that despite being in possession of the documents since more than four years prior to the date of passing of the impugned judgment of the trial court, the appellant did not file the document in the suit, even though the trial court had itself demanded of him to produce the document and therefore the appellant cannot be allowed to adduce the document in evidence at a belated stage, so as to fill up the lacunas of his case, the lower appellate court rejected the petitioner’s application by the impugned order. 7. The petitioner had assailed the impugned order on the grounds that the same has not been passed in accordance with the provisions as laid down under Order 41 Rule 27 of the C.P.C. resulting in grave injustice to the petitioner. 8. The provision of Order 41 Rule 27 of the Code of Civil Procedure regulates the production of additional evidence in appeal and allows the same only under certain conditions. Prominent among these conditions are that the Court from whose decree, the appeal is preferred, had refused to admit evidence, which ought to have been admitted or the party seeking to produce the additional evidence establishes that notwithstanding the exercise of diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence to produce the appeal at the time when the decree in the appeal against was passed. In the present case, the petitioner/appellant having himself failed to produce the document at the trial, the question of the trial court to accept the same in evidence does not arise. Furthermore, the petitioner has not established either of the conditions aforestated. Furthermore, as it appears, the learned lower appellate court did not require the document, sought to be produced by the appellant, for the purpose of enabling it to pronounce judgment or for any other substantial cause. Furthermore, the petitioner has not established either of the conditions aforestated. Furthermore, as it appears, the learned lower appellate court did not require the document, sought to be produced by the appellant, for the purpose of enabling it to pronounce judgment or for any other substantial cause. In the opinion of the lower appellate court, the main issues in the suit was on the basis of the Hukumnama and the materials already on record, was sufficient for enabling it to decide the issues. 10. In the light of the above facts and circumstances, I do not find any infirmity or impropriety in the impugned order of the learned court below. There being no merit in this writ application, the same is hereby dismissed at the stage of admission itself.