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2009 DIGILAW 1332 (JHR)

Suraj Prasad Jaiswal v. Soni Kumar

2009-10-14

D.N.PATEL

body2009
Order The present petition has been preferred against the order passed by learned Sub-Judge-II. Ranchi dated 7th June, 2008 in Title Suit No. 8/2007 upon two different applications, which were preferred by the petitioner (original plaintiff) on 14th May, 2008, one for further production of the document. The said document is an application, preferred by defendant nos. 1 to 4 under Section 26 of the Urban Land Ceiling Act, 1976 (for sale of three decimals of land) by way of Miscellaneous Application No. 2711 of 2006 before the concerned authority under the Act, 1976. Another application preferred before the trial Court was to send the agreement to sell dated 3rd June, 2006 to the handwriting expert mainly for the fact that defendant nos. 2 to 9 are alleging that the agreement to sell is a fabricated document and not signed by them. These two applications, preferred by petitioner-original plaintiff, have been brushe aside by the common order dated 7th June, 2008 and, therefore, the present petition has been preferred by the petitioner (original plaintiff). 2. I have heard learned counsel appearing for the petitioner (original plaintiff), who has submitted that Title Suit No. 8/ 2007 has been preferred by the petitioner on the basis of an agreement to sell dated. 3rd June, 2006, which was signed by the defendants with respect 10 11 decimals of land. For three decimals of land, an application was preferred under Section 26 of the Act, 1976 by defendant nos. 1 to 4 for grant of permission to sell all these land to the wife of the original plaintiff. Thus, this document affects the very root of the case and, therefore, an application was preferred on 14th May, 2008 for production of the said document before the trial Court. Another application was preferred on 14th May, 2008 for sending the agreement to sell to the handwriting expert, as defendant nos. 2 to 9 are denying to have signed upon the said document. No prejudice is going to be caused to the petitioner if these applications are allowed. The stage of taking evidence of defendant nos. 2 to 9 has not yet closed. Thus, when the stage of taking evidence of the plaintiff as well as that of defendant no. 2 to 9 are denying to have signed upon the said document. No prejudice is going to be caused to the petitioner if these applications are allowed. The stage of taking evidence of defendant nos. 2 to 9 has not yet closed. Thus, when the stage of taking evidence of the plaintiff as well as that of defendant no. 1 is going on, the trial Court ought to have allowed these two applications, one for further production of the document and another for sending the agreement to sell to the handwriting expert. This aspect of the matter has not been properly appreciated by the trial Court and hence, the impugned order deserves to be quashed and set aside. 3. I have heard learned counsel appearing for the contesting respondent nos. 2 to 9 (who are original defendant nos. 2 to 9), who has submitted that an application was preferred under Section 26 of the U.L.C. Act, 1976 for getting permission of sell of the land in favour of the wife of the plaintiff and, therefore, it is not a relevant document for deciding the dispute between the original plaintiff and the defendants and, therefore, rightly, the said application was dismissed by the trial Court. Secondly, it is argued that so far as agreement to sell is concerned, except defendant no. 3, all the defendants have denied their signatures and, therefore, there is no need to send the document to the handwriting expert and, therefore, this application has also been correctly dismissed by the trial Court. 4. Learned counsel for respondent no. 1 (original defendant no. 1) submitted that he accepts the argument, canvassed by the counsel for the petitioner (original plaintiff) and, therefore, the impugned order deserves to be quashed and set aside. 5. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case and looking to the impugned order, I hereby, quash and set aside the order passed by learned Sub-Judge-II, Ranchi dated 7th June, 2006 in Title Suit No. 8/2007, mainly for the following facts and reasons:- (i) The present petitioner is the original plaintiff, who has instituted Title Suit No. 8/2007 for specific performance on the basis of an agreement to sell, executed by the defendants dated 3rd June, 2006 for 11 decimals of land, which has been narrated as suit property in the plaint. (ii) It appears from the facts of the case that the stage of taking evidence of defendant nos. 2 to 9 has not yet closed, but, so far as plaintiff and defendant no. 1 is concerned, stage of taking evidence is closed. (iii) It also appears from the facts of the case that original plaintiff wants to present the document, which is an application, preferred by original defendant nos. 1 to 4 to the concerned authority under the U.L.C. Act, 1976, whereby, an application was preferred for getting permission for sale of the land in the urban area, under Section 26 thereof to the wife of the original plaintiff. By this document, plaintiff alleges that agreement to sell dated 3rd June, 2006 was true, correct and genuine and, therefore must be ordered to be performed by the defendants. This application was only for three decimals of land, but, it affects the whole title suit, which is for eleven decimals 01 land and, therefore, the said application, preferred by original defendant nos. 1 to 4 under Section 26 of the U.L.C. Act, 1976 is most vital and relevant document and production thereof, ought to have been permitted by the trial Court. (iv) Looking to the facts of the case, no prejudice is going to be caused stage of taking evidence is still going on the side of the defendants. This aspect of the matter has not been properly appreciated by the trial Court, which is an error apparent on the face of the record. (v) An application was also preferred by the original plaintiff dated 14th May, 2008 for sending the agreement to sell dated 3rd June, 2006 to the handwriting expert as defendant nos. 2 to 9 are denying their signatures upon the said document. It has been observed in the impugned order especially in paragraph no. 6, which is as under:- 'The defendants have specifically pleaded and disposed that Ext.-A is a forged and fabricated document.” In view of this denial and looking to the controversy and dispute between the parties, no prejudice is going to be caused to the defendant nos. 2 to 9, if the document of agreement to sell (Exhibit-A) is sent to the handwriting expert. On the contrary, sending of this document to the handwriting expert will facilitate the trial Court for giving correct conclusion about the dispute between the parties to the suit. 2 to 9, if the document of agreement to sell (Exhibit-A) is sent to the handwriting expert. On the contrary, sending of this document to the handwriting expert will facilitate the trial Court for giving correct conclusion about the dispute between the parties to the suit. This aspect of the matter has also not been properly appreciated by the trial Court. (vi) Learned counsel appearing for the petitioner (original plaintiff) submitted that stage of taking evidence of plaintiff was closed down somewhere in the month of March or April, 2008 and immediately, an application was given on 14th May, 2008 and, therefore, these application ought to have been allowed by the trial Court. I am in full agreement with the arguments, canvassed by the counsel for the petitioner (original plaintiff). Stay of further proceedings before the trial court was also granted by this Court on 22nd July, 2008. 6. Looking to the over all dispute between the parties and the evidence on record and the reasons stated hereinabove, I hereby, quash and set aside the order passed by learned Sub-Judge-II, Ranchi dated 7th June, 2008 in Title Suit No. 8/ 2007 at Annexure-4 to the memo of the writ petition and I hereby, allow both the applications, preferred by the petitioner (original plaintiff) dated 14th May, 2008; one for production of the document under Section 26 of the U.L.C. Act, given by original defendant nos. 1 to 4, and another for sending the agreement to sell dated 3rd June, 2006 to the handwriting expert with a cost of Rs. 2,000/- (Rupees two thousand only). This cost will be deposited before the trial Court and will be paid to defendant nos. 2 to 9 by the petitioner (original plaintiff) upon proper application. 7. The writ petition is, hereby, allowed with the aforesaid directions.