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2015 DIGILAW 241 (JHR)

Kameshwar Prasad Sharma v. Saidun Khatoon

2015-02-12

SHREE CHANDRASHEKHAR

body2015
ORDER : Seeking quashing of order dated 11.08.2005 in Title Appeal No.24 of 2003 whereby, the application under Order 41 Rule 27 CPC has been dismissed, the present writ petition has been filed. 2. The brief facts of the case are that, a title suit being, Title Suit No.12 of 1986 was filed by the petitioner seeking a declaration of right, title and interest over the suit property. The case of the plaintiff is that the suit property was purchased by the original defendant vide Sale Deed dated 10.01.1962 who, in turn conveyed the same in favour of the plaintiff vide registered Sale Deed dated 25.05.1966 and the plaintiff is in possession thereafter. A proceeding under Section 144 Cr.P.C was initiated between the plaintiff and the original defendant. The defendant appeared in the proceeding of the present suit and filed written statement, challenging the sale deed as a false, forged and manufactured document. The suit was dismissed vide order dated 29.07.2003 and the petitioner preferred Title Appeal No.24 of 2003. The petitioner, for the first time, came to know about sale deed executed by one Jagannath Prasad in the year, 1982 and thus, he filed an application under Order 41 Rule 27 CPC in the pending Title Appeal. The said application dated 11.03.2005 has been dismissed by the trial court. Aggrieved, the petitioner has approached this Court. 3. Heard learned counsel appearing for the petitioner and perused the documents on record. 4. The learned counsel for the petitioner submits that the original defendant executed a gift deed in the year, 1970 in the name of his daughter however, the property purchased by the petitioner was not included in the gift deed. The defendant purchased some land in the year, 1982 from one Jagannath Prasad through a sale deed in which, Schedule of the property is appended, which would disclose that on the eastern side of the suit property, the land of one Kameshwar Prasad Sharma is situated and thus, the sale deed of the year, 1982 executed in favour of the defendant was necessary for arriving at a correct decision in the matter. Relying on decision in “State of Rajasthan Vs. T.N. Shahni and Ors.”, reported in (2001) 10 SCC 619 and in “Union of India Vs. Relying on decision in “State of Rajasthan Vs. T.N. Shahni and Ors.”, reported in (2001) 10 SCC 619 and in “Union of India Vs. Ibrahimuddin and Anr.”, reported in (2012) 8 SCC 148 , the learned counsel for the petitioner submits that the application under Order 41 Rule 27 CPC, even if filed at an early stage, can be decided only at the time of final hearing and not before that and thus, the trial court committed an error in dismissing the application dated 11.03.2005. 5. A perusal of the plaint of Title Suit No.12 of 1986 indicates that the petitioner has set up a case that he purchased the suit scheduled property vide registered Sale Deed dated 25.05.1966 and came in possession of the same. Thereafter, the petitioner applied for mutation and paid rent to the State of Bihar. Except a reference of the proceeding under Section 144 Cr.P.C. initiated by the SubDivisional Magistrate between the parties, the plaint does not contain any other averment. The schedule of the property in the plaint is given as under: “In village Sisai P.S. Sisai, District Gumla Plot no. 2481 under Khata No.122 area 0.49 decimals” 6. As noticed above, the suit was dismissed on 29.07.2003 and a title appeal was filed by the petitioner. From the impugned order dated 11.08.2005, it appears that the title appeal was fixed for final hearing. The learned trial court has recorded a finding that the sale deed of the year, 1982 is not necessary for deciding the title appeal. The title suit remained pending for 17 years however, the plaintiff did not take any step for bringing the sale deed of 1982 on record. No reason except that, he came to know about the sale deed of the year, 1982 during the pendency of the title appeal, has been disclosed by the petitioner for not bringing the said document on record. In the decisions cited by the learned counsel for the petitioner, the Hon'ble Supreme Court has held that where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders its imperative that it may be allowed to be permitted on record, such application may be allowed. It has further been held that the true test is, whether the appellate court is able to pronounce judgments on the materials before it without taking into consideration the additional evidence. It is noticed in the impugned order dated 11.08.2005 that the case was fixed for the final hearing and thus, all the materials were before the trial court. The trial court has recorded a finding that the additional evidence sought to be brought on record is not necessary for deciding the issue involved in the title appeal. In Ibrahimuddin's case, the Hon'ble Supreme Court has observed as under: “40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.” 7. In view of the above discussion, I am of the opinion that impugned order dated 11.08.2005 does not suffer from any infirmity and accordingly, the writ petition is dismissed.