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2017 DIGILAW 470 (JHR)

Mohan Mahto v. State of Jharkhand

2017-03-06

APARESH KUMAR SINGH

body2017
ORDER : Heard counsel for the petitioner, State and the private respondents. 2. The learned appellate court of Additional District Judge-XII, Hazaribag in Title Appeal No.47/2012 has refused to accept additional evidence under Order 41 Rule 27 of the Code of Civil Procedure preferred by the plaintiffs-appellants to adduce copy of the writ petition of the private respondents being W.P.(C) No. 6923/2004 and the affidavit filed by the respondent- Divisional Forest Officer, Hazaribag. Learned counsel for the petitioner submits that these documents were obtained after the judgment passed in Title Suit No.132/2001 by the court of Civil Judge (Senior Division), Hazaribag dated 6th July 2012. Learned counsel further submits that the plea taken by the defendants in the suit is untenable on facts and based upon fabricated documents. The plaintiffs as well as the defendants both have sought to establish their case on the basis of Hukumnama. The defendants in the writ petition have sought for removal of certain barbed wire and pillar from their land which have been demarcated by the respondent no.2. 3. The respondent- Divisional Forest Officer has, however, contested the case by filing counter affidavit and claimed that the land in question is a forest land over which forest pillar nos.13, 14, 15 and 16 are in existence. The forest demarcated land has never been released by the department. Therefore, claim of the said petitioners is baseless and on the basis of forged and fabricated papers including the documents of Hukumnama. Learned appellate court, however, has observed that the writ petition is simply pending and no final judgment has been passed in that respect. It has also been observed that both the parties had produced their evidence after sufficient opportunity before the trial court leading to passing of the impugned judgment and decree. Mere filing of the pleadings of the writ petition, when no final decision has been taken thereupon by this Court, could not be of any consequence of being adduced as an additional evidence. Accordingly, the prayer has been rejected. 4. Learned counsel for the petitioners submits that the State also being a party did not file any written statement in the suit. The stand of the State would, therefore, be material for proper adjudication of the case. 5. Considered the submissions of the counsel for the petitioners, State and the private respondents. 6. Accordingly, the prayer has been rejected. 4. Learned counsel for the petitioners submits that the State also being a party did not file any written statement in the suit. The stand of the State would, therefore, be material for proper adjudication of the case. 5. Considered the submissions of the counsel for the petitioners, State and the private respondents. 6. The opinion of the learned appellate court in disallowing the evidence adduced by the appellants at this stage when the appeal is ripe for hearing, cannot be held to be suffering from error in law for the reasons that the plaintiffs have, during pendency of the suit from 2001 itself till 2012, never ventured to adduce these documents before the learned trial court. If it appears to the appellate court, however, that it requires any such documents to be produced or witness to be examined to enable it to pronounce judgment or for any substantial cause as per the provisions of Order 41, Rule 27(1)(b) it is always open for the appellate court to do so. The appellate court in that context may keep it in mind whether the stand of the State in the matter is necessary for final adjudication of the dispute between the parties. In that event it may resort to the provisions of Order 41, Rule 27(1)(b) of the Civil Procedure Code. 7. With these observations, this writ petition is disposed of, however, without interfering in the impugned order.