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2013 DIGILAW 45 (CAL)

Braja Gopal Maity v. Narendra Nath Bera

2013-01-30

TOUFIQUE UDDIN

body2013
JUDGMENT Toufique Uddin, J. 1. The present application being CAN No. 7531 of 2012 has been submitted under Order XVI Rule 27 of the Code of Civil Procedure. The case of the petitioner is that the above mentioned Second Appeal was filed in the Hon'ble Court in 1994 against the judgment and decree dated 10th December, 1993 passed in Title Appeal No. 59 of 1993. The said appeal was admitted on 18.2.97. During pendency of the appeal due of subsequent events some documents have been collected by the applicant and the applicant wants to file such documents as additional documents for proper adjudication. The defendant/respondent made two applications to the Block Land & Land Reforms Officer, Khejuri-II for having his name recorded as Bargadar in respect of the plot nos. 854, 855, 856 861, Khatian No. 577 of Mouza Mehdinagar, Dist. Purba Medinipur being Operation Barga Case No. 51 of 1990 and for recording his name as raiyati settlement under the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975 in respect of plot No. 855, Khatian No. 577 of Mouza Mehdinagar, Dist. Purba Medinipur being Case No. 2 of 1994. By order dated 5.2.1991, the Operation Barga Case No. 51 of 1990 has been dropped. Again a Misc. Case (suo motu) was started by the Revenue Officer on 4.10.1991 for recording the name of the defendant/respondent as Bargadar. By order dated 14.10.1993 passed by the Revenue Officer the proceeding being Misc. Case No. 41 of 1991 has been disposed of with the order holding inter alia that "Sri Narendra Nath Bera, s/o. Late Raghunath Bera is the bargadar in respect of the plot No. 854 and plot No. 856 for at least 15 years. Hence may be recorded as Bargadar against the two plots". Sri Narendra Nath Bera made his application for recording his name as Bargadar in respect of plot nos. 854, 855, 856 and 861 JL No. 577 of Mouza Mehdinagar, Dist. Purba Medinipur but the Revenue Officer passed order in favour of Bera in respect of two plots only nos. 854 and 856. 2. Challenging the order passed by the Revenue Officer an appeal under Section 54 of the West Bengal Land Reforms Act being Appeal Case No. 78(T) of 1994 was preferred. Purba Medinipur but the Revenue Officer passed order in favour of Bera in respect of two plots only nos. 854 and 856. 2. Challenging the order passed by the Revenue Officer an appeal under Section 54 of the West Bengal Land Reforms Act being Appeal Case No. 78(T) of 1994 was preferred. The said appeal has been disposed of by order dated 30.6.1998 with the observation made inter alia that "i) the lower court has disposed of the case during pendency of the rule of the Hon'ble High Court, Kolkata. ii) the case was heard ex parte, and iii) one Revenue Officer has dropped the case suo motu before disposal of the rule". Accordingly, the judgment and order has been passed with the observation inter alia that "Hence it is ordered that the appeal is allowed and the judgment of the lower Court in Misc. Case No. 41 of 1991 is set aside. The case is remanded to the Block Land & Land Reforms Officer concerned for hearing after complying with the Hon'ble High Court's order strictly and giving opportunity of being heard to both the parties." 3. During pendency of the Second Appeal the defendant/respondent filed another application for recording his name as raiyati settlement under the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975 in respect of plot No. 855, Khatian No. 577 of Mouza Mehdinagar, Dist. Purba Medinipur being Case No. 2 of 1994. By order dated 4.5.94, the said case was disposed of with observation that "Hence I am of the opinion that the name of the petitioner will be recorded in the R.O.I. against the plot No. 855 measuring 08 decimal under the act of West Bengal Acquisition of Homestead Land, 1975 A.D. as raiyat. Now, a new Khatian No. 291/1 against the land schedule will be opened and should also be demarcated by the Amin immediately on the concerned Mouza map. 4. Challenging the order passed by the Revenue Officer in Case No. 2 of 1994 an appeal was filed under Section 9 before the Appellate Authority being Appeal Case No. 77(T) of 1994. On 27.10.98, the said appeal was disposed of with the observation that "i) in his judgment the Ld. 4. Challenging the order passed by the Revenue Officer in Case No. 2 of 1994 an appeal was filed under Section 9 before the Appellate Authority being Appeal Case No. 77(T) of 1994. On 27.10.98, the said appeal was disposed of with the observation that "i) in his judgment the Ld. Special Officer has maintained that the enquiring Officer had submitted a report where the enquiring officer said that the petition is been possessing the land by making dwelling house since 1984. But no petition will be considered where the possession is after 26th June, 1975; ii) at the time of disposal of the case, the lower court, the petitioner had 1.16 acres of land including homestead land. Therefore, the judgment passed by the lower court is based on nullity. After hearing the said appeal has been disposed of by the order inter alia "Hence it is ordered that the appeal is allowed and the judgment of the lower court in H.S. Case No. 2 of 1994 is set aside. The B.L. & L.R.O. will correct the R.O.R. accordingly". 5. The respondent filed a Homestead Case being Case No. 2 of 1994 for settlement of the suit property i.e. plot No. 855. On the other hand, the learned Appellate Court has come to the conclusion with the wrong finding that the defendant/respondent made the prayer for recording his name as Bargadar in respect of the suit plot. The above documents have been collected during pendency of the Second Appeal and could not be marked exhibit as evidence. Those are very vital and relevant to adjudicate the real controversy of the parties. The petitioner submits that the documents as Annexure P/1. P/2, P/3 & P/4 of the instant application are very much essential for proper adjudication and/or disposal of the Second Appeal. The petitioner further submits that unless the necessary order be passed in the application to treat the above mentioned documents as an additional evidence in the Second Appeal, the applicant will be highly prejudiced. 6. Now, the point for consideration is if the prayer under Order XVI Rule 27 of the Code of Civil Procedure can be entertained in the case of Second Appeal. 7. To begin with some lines need to be incorporated. 8. 6. Now, the point for consideration is if the prayer under Order XVI Rule 27 of the Code of Civil Procedure can be entertained in the case of Second Appeal. 7. To begin with some lines need to be incorporated. 8. In order to ensure observance of natural justice and fair play and also for abundant precaution, notices were issued to the respondent but still then none cared to appear on behalf of the respondent. Therefore, I was left with no alternative but to take up the appeal ex parte. 9. It was contended by the learned counsel for the appellant inter alia that during pendency of appeal radical development has taken place and until and unless those new facts are brought before the learned Court, it will be very difficult to come to a positive finding in order to render proper justice. Therefore, the petitioner wants to adduce further evidence in regard to the points as mentioned in the petition itself. The concerned documents are Annexures P/1, P/2, P/3 and P/4 which require to be treated as additional documents according to the prayer of the appellant. In support of his contention, learned counsel for the appellant cited before me a good number of decisions as reported in (2008) 5 SCC 444 ; AIR 2009 Supreme Court 354; AIR 2006 AP 142 and (2008) 8 SCC 511 coupled with interpretation of a statute as available in the decisions as reported in (1998) 3 SCC 218 and AIR 1993 Supreme Court 2288 as well as the impact of Article 141 of the Constitution of India as discussed in the decisions as reported in AIR 1985 SC 621 and AIR 1986 SC 468 . 10. I have tried to examine the nature of the additional evidence sought for Regarding record of rights and barga cases some findings have been arrived at by the concerned authority. Those findings appear to have direct impact in the main appeal itself. That apart the decision as referred above (supra) permit in exceptional cases the appellant to present his prayer for taking additional evidence under Order XVI Rule 27 of the Code of Civil Procedure. 11. Therefore, I am of the considered opinion that such documents as mentioned in the petition itself are required to be taken into consideration for proper adjudication. 12. 11. Therefore, I am of the considered opinion that such documents as mentioned in the petition itself are required to be taken into consideration for proper adjudication. 12. Therefore, the appeal is allowed partially and the judgment and decree passed by the learned Assistant District Judge, 2nd Court, Contai, Midnapore on 10th December, 1993 in Title Appeal No. 59 of 1993 thereby setting aside the judgment and decree dated 6.4.93 passed by the learned Munsiff, First Court, Contai in Title Suit No. 170 of 1990 is hereby set aside. 13. The appeal be sent back on remand to the learned trial court for taking additional evidence as sought for after giving the Opposite Party/respondent to cross-examine the witnesses only in respect of the points as mentioned in the petition. Thereafter, on hearing of both sides and considering the materials on record already existing as well as the new materials to be taken into evidence under Order XVI Rule 27 the learned trial court shall dispose of the suit in accordance with law. 14. The entire exercise is to be completed by 4 months from the date of receipt of this order. 15. The CRAN No. 7531 of 2012 is disposed of. 16. No order as to costs. 17. Let the LCR & copy of judgment be sent down to the learned court below immediately. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.