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2017 DIGILAW 91 (JHR)

Bal Kishun Sao v. Md. Usman

2017-01-12

APARESH KUMAR SINGH

body2017
ORDER : 1. Heard learned counsel for the petitioner. 2. There is an interim order operating since 19.02.2004 wherein proceedings in Title Appeal No. 43 of 1996 pending in the Court of 6th Additional District Judge, Giridih has been stayed. On the previous occasion counsel for the petitioner was present, however, since there was no representation on behalf of the respondents, the matter was adjourned. 3. Petitioner is aggrieved by the order dated 25.09.2003 passed in Title Appeal No. 43 of 1996 whereunder the application under order XLI Rule 27 of the Code of Civil Procedure for adducing additional evidence of certified copies of two sale deeds dated 01.03.1976 and 23.12.1978 have been rejected. Learned Appellate Court after discussion on the application of the petitioner and taking note of the background facts has held that such additional evidence could not be allowed at that stage rather that can be considered at the time of final hearing of the Appeal. Petition under Order XLI Rule 27 of the CPC was, however, rejected directing the parties to come ready for hearing of the appeal on 12.11.2003. 4. Petitioner had set up a case through his plaint as recorded in the impugned order as well that land having an area of 6 and ½ decimals in suit plot no. 362 under Khata No. 86, Mouza-Gandey were recorded in the raiyati right in the name of Jairam Mushar. His descendant Chhotu Mushar came in possession over the land by inheritance and had conveyed the lands through sale deed in favour of the plaintiff on 26.02.1983. Application for mutation by the plaintiff was allowed, which aggrieved the defendant -Birendra Sao, who went in Mutation Appeal No. 97 of 1984-85. The same was also dismissed on 25.09.1986. However, according to plaintiff, the defendant-Birendra Sao choose to illegally convey the title and ownership of an area comprising suit land to several persons in order to defeat the right of the plaintiff and establish an illegal claim of his ownership through his father Nunu Ram Kandu. The legal heirs of defendant no. 12 since deceased have been substituted by his legal heirs and are respondent nos. 12 to 18 herein. Vendees of Defendant No.12 were also impleaded as defendant in the suit and are respondent nos. 1 to 11 and 13 in the present writ petition as well. The legal heirs of defendant no. 12 since deceased have been substituted by his legal heirs and are respondent nos. 12 to 18 herein. Vendees of Defendant No.12 were also impleaded as defendant in the suit and are respondent nos. 1 to 11 and 13 in the present writ petition as well. Defendant-Birendra Sao in his written statement had set up a case that Jairam Mushar surrendered the land of Khata No. 86 to the then landlord about more than 50 years back and thereafter nothing was heard of him or his sons or his grand-sons. The then landlord resumed khas possession of the land of Khata No. 86 and was treated as his Bakast Land. That Nunu Ram Kandu father of defendant no. 12 took raiyati settlement of 0.21 acres of land of plot no. 361 Khata No. 86 of village Gandey from Kashim Bazar Estate in the year 1950-51 followed by delivery of possession and acceptance of annual rent. Defendant Nos. 1 to 11 and 13 are alleged to have purchased the land from Defendant No. 12. In the background of the immediate relevant facts discussed in the impugned order as well, the plaintiff-petitioner lost before the learned Trial Court in Title Suit No. 20 of 1987 where he had sought declaration of his right, title and interest over the suit land and that sale deed executed by the defendant no. 12 were void, inoperative and not binding upon the plaintiff. He had also made an alternative prayer for restoration of possession if found dispossessed of the suit land during pendency of the suit. Having lost before the Trial Court, petitioner preferred Title Appeal No. 43 of 1996. These two sale deeds said to be executed by one Chhotu Mushar and Gagwa Mushar descendants of Jai Ram Mushar of plot no. 362 under Khata No. 86, Mouza- Gandey by sale deed dated 01.03. 1976 and 23.12.1978 were sought to be adduced as additional evidence. 5. Learned counsel for the petitioner submits that the whole plea of the defendant no. 12 of having derived title over the suit land through his father Nunu Ram Kandu on raiyati settlement through ex-landlord on surrender of the land of Khata no. 1976 and 23.12.1978 were sought to be adduced as additional evidence. 5. Learned counsel for the petitioner submits that the whole plea of the defendant no. 12 of having derived title over the suit land through his father Nunu Ram Kandu on raiyati settlement through ex-landlord on surrender of the land of Khata no. 86 by Jai Ram Mushar more than 50 years back stood negated by these two conveyance sale deeds executed by the descendants of Jai Ram Mushar in the year 1976 and 1978. These two sale deeds came to the knowledge of the petitioner/appellant after adjudication of the suit. Therefore they were sought to be adduced as additional evidence. It is submitted that the conveyance deed of land adjacent plot to plot no. 362 by the descendants of the said Jai Ram Mushar are sufficient evidence to dislodge the case of the defendants before the Appellate Court. Therefore, the said documents were sought to be produced as additional evidence. It is submitted that the learned Appeallate Court was of the opinion that the said additional evidence cannot be allowed at that stage though it can be considered at the time of final hearing of the appeal. Appellant petitioner would be satisfied if it is allowed opportunity to adduce additional evidence at the time of final hearing of the appeal, which has remained pending till date. 6. Learned counsel for the petitioner has relied upon a judgment rendered by the Hon’ble Supreme Court in the case of Union of India Vrs. Ibrahimuddin and another reported in (2012) 8 SCC 148 in support of his submission. It is submitted that in that case Hon’ble Court has held that such additional evidence even if filed during pendency of the appeal is to be heard at the time of the final hearing of the appeal, at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. It is submitted that petitioner has adequately explained that these two deeds were not within its knowledge at the time of adjudication before the learned Trial Court. Ingredient of Order XLI Rule 27 are also met. It is submitted that petitioner has adequately explained that these two deeds were not within its knowledge at the time of adjudication before the learned Trial Court. Ingredient of Order XLI Rule 27 are also met. It is submitted that in case additional evidence is considered necessary by the learned Appellate Court to pronounce the judgment, application of the petitioner should not have been rejected. It is further submitted that in case such additional evidence is allowed to be taken on record, the Respondents in appeal also do have opportunity to adduce evidence in rebuttal. 7. Respondent however have after service of notice not chosen to file any counter affidavit in the present writ application. 8. I have considered the case of the parties in the light of the materials on record and have also gone through the impugned order. Perusal of the impugned order shows that the rival stand of Plaintiff and Defendant in the plaint and written statement have been duly taken note of by the Appellate Court. The Appellate Court has also after consideration of the plea come to the conclusion that additional evidence could not be allowed at that stage though it can be considered at the time of final hearing of the appeal. However formal rejection under Order XLI Rule 27 CPC has aggrieved the petitioner to approach this Court. In the circumstances this Court is of the opinion that the learned Appellate Court would allow the petitioner to move fresh application for adducing additional evidence in the nature prayed for, as the case is at the stage of final hearing. The impugned order dated 25.9.2003 shall not come in the way of the learned Appellate Court to consider the application of the petitioner in accordance with law. 9. It goes without saying that the defendant would also be allowed opportunity for rebuttal in case such evidence is taken on record. The proceedings of the appeal has remained stalled for more than 12 years by now on account of the pendency of the writ application. It would therefore be expedient to direct the learned Appellate Court to make endeavour to decide the main appeal within a reasonable time, preferably within a period of 4 months from the date of receipt of the copy of this order. 10. The writ petition is allowed in the manner and to the extent indicated herein above. It would therefore be expedient to direct the learned Appellate Court to make endeavour to decide the main appeal within a reasonable time, preferably within a period of 4 months from the date of receipt of the copy of this order. 10. The writ petition is allowed in the manner and to the extent indicated herein above. Interim order dated 19.2.2004 stands vacated. Petition allowed