John Oraon v. Bardani Orain, W/o Late Dhan Kunwar Oraon
2017-11-29
SHREE CHANDRASHEKHAR
body2017
DigiLaw.ai
ORDER : 1. Aggrieved of order dated 22.04.2017 passed in Title Suit No. 10 of 2007 by which an application for marking attested copy of a complaint submitted by defendant no.3 to the Superintendent of Police, Gumla has been rejected, the petitioners have approached this Court. 2. Title Suit No. 10 of 2007 was instituted by John Oraon and others. The suit was instituted for a decree of declaration of plaintiffs' right, title, interest and possession over the suit properties. Permission granted in Permission Case No. 516 of 2006-2007 vide order dated 07.11.2006 and the deed dated 08.12.2006 executed by defendant nos. 1 and 2 in favour of defendant no. 3 were also challenged by the plaintiffs. The plaintiffs have pleaded that the parties are governed by customary law under which a widow is not entitled to inherit the property left by her husband. She can seek maintenance only till her death or till she remarriages. It is pleaded that land comprised under Khata no. 90 at Khariapara at Gumla is recorded in the name of Simon Oraon, Naiman Oraon, Kaila Oraon, Soma Oraon, Charo Oraon and Buda Oraon in the record of rights. Through the genealogical table the plaintiffs have pleaded how the suit schedule land came in their possession. It was pleaded that the defendant nos. 1 and 2 are strangers to the family and the defendant no. 3 who is married to a Muslim has lost her status as Schedule Tribe. The suit was contested by the defendants by filing written statement. In the pending suit an application was filed by the plaintiffs for calling the original of the document. This document is a complaint made by defendant no. 3 to the Superintendent of Police, Gumla objecting to false implication of her husband in a dacoity case. By an order dated 23.02.2010 the application filed for calling for the original application was allowed, however, it was not produced. In the meantime, the trial in the Title Suit No. 10 of 2007 proceeded and the parties led their evidence. By an order dated 05.05.2015 defendants' evidence was closed and the suit was posted for argument on 19.05.2015. After argument on behalf of the defendants was heard on 11.07.2016 and 16.07.2016, an application under Section 151 CPC was filed by the plaintiffs for marking of the attested copy of the application and taking it as secondary evidence.
By an order dated 05.05.2015 defendants' evidence was closed and the suit was posted for argument on 19.05.2015. After argument on behalf of the defendants was heard on 11.07.2016 and 16.07.2016, an application under Section 151 CPC was filed by the plaintiffs for marking of the attested copy of the application and taking it as secondary evidence. This application stood dismissed for default on 17.01.2017. Thereafter, defendants' arguments was again heard on 10.04.2017 and 13.04.2017. At this stage, the plaintiffs filed another application on 13.04.2017 with a similar prayer for marking attested copy of the application in the suit. This application has been dismissed by the trial judge by the impugned order dated 22.04.2017. 3. Referring to paragraph no. 12 of the plaint in Title Suit No. 10 of 2007, Mr. Arun Kumar, the learned counsel for the petitioners contends that the plaintiffs have claimed that the defendant no. 3 is married to a Muslim person and thus she has lost her status as Schedule Tribe and, thus, sufficient foundation has been laid by the plaintiffs for taking this document on record. The learned counsel for the petitioners submits that attested copy of the application submitted by the defendant no. 3 would corroborate the stand of the plaintiffs that defendant no. 3 is married to the Muslim person and while so, this is a relevant document which would help the court deciding the controversy involved in the suit effectively. It is further contended that once the application for calling for the original application stood allowed on 23.02.2010, provision under Section 65 of the Evidence Act would be attracted and the court was under a duty to take the attested copy of the application of the defendant no. 3 on record. 4. A bare reading of the plaint in Title Suit No. 10 of 2007 would disclose that there is no reference of the application submitted by defendant no. 3 to the Superintendent of Police, Gumla. Claim of the plaintiffs is that the defendant no. 3 has lost her status as belonging to the Schedule Tribe community, for which the plaintiffs are required to lead evidence. Once it is found that parties have closed their evidence, it must be construed in law that the parties must have led their best evidence during the trial.
Claim of the plaintiffs is that the defendant no. 3 has lost her status as belonging to the Schedule Tribe community, for which the plaintiffs are required to lead evidence. Once it is found that parties have closed their evidence, it must be construed in law that the parties must have led their best evidence during the trial. Merely because the document exists, on acquiring of knowledge of such document, without proper pleading the parties cannot be permitted to produce such document and that too at the stage of argument, except where such document falls under the category of public document and it has some relevance to the controversy involved in the suit. Admittedly, attested copy of application does not fall under the category of public document. May be, the application submitted by defendant no. 3 would have some relevance to the controversy involved in the suit, without proper pleadings in the plaint, this document has rightly not been taken on record by the trial judge. Order dated 23.02.2010 by which original application was called from the office of Deputy Superintendent of Police, Gumla would not make a document public document which otherwise is not a public document. 5. In the above facts, finding no infirmity in the impugned order dated 22.04.2017, the writ petition is dismissed.