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2010 DIGILAW 972 (CAL)

Jyotsna Kundu v. Rukmini Dutta

2010-08-13

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. THE judgment of the Court was as follows: After closure of evidence of both the parties, the plaintiffs filed an application for examining another witness, viz., Banku Behari Pal in the suit. The plaintiffs' said application was rejected by the learned Trial Judge vide Order No. 135 dated 19th April, 2006. 2. THE plaintiffs are aggrieved by the said order. Hence, the plaintiffs have come before this Court with this application under Article 227 of the Constitution of India. Heard the learned Advocates appearing for the respective parties. Considered the materials-on-record including the impugned order. 3. LET me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. 4. THE plaintiffs/petitioners filed the partition suit against the defendants claiming their 1/2 share in the suit property. Though they have not stated in the plaint as to how they acquired interest in the suit property to the extent of 1/2 share therein but in course of evidence, they stated that they acquired 1/2 share in the suit property by virtue of two separate registered gift deeds executed by five co-sharers of the suit property. After the closure of evidence of both the parties, the plaintiffs wanted to examine another witness to establish that apart from the interest which they have acquired in the suit property by virtue of those registered deeds of gift, they have also inherited some shares in the suit property from their mother, Annapurna Kundu on her death. 5. ON perusal of the plaint, this Court finds that the plaintiffs have not claimed in the plaint that their mother was a co-owner of the suit property. The plaintiffs have also not claimed that on the death of their mother, they inherited some shares in the suit property. 6. IN the absence of such basic pleadings in the plaint, this Court does not find any justification to allow the plaintiffs to examine the other witness for establishing their claim that apart from the share which they have acquired in the suit property by virtue of the deeds of gift from some of the co-sharers, they also inherited some sharers from their mother on her death. Accordingly, this Court holds that the learned Trial Judge did not commit any illegality in rejecting the petitioners' prayer for examining another witness after the closure of evidence of the parties in the suit. 7. IN such view of fact, the instant revisional application deserves no merit for consideration. The revisional application, thus, stands rejected.