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2017 DIGILAW 916 (JHR)

Gopi Sahu v. Manu Ram Kashyap

2017-06-12

AMITAV K.GUPTA

body2017
ORDER : The petitioner is the original defendant in Title Partition Suit No. 87/94 & appellant in Title Appeal No. 58 of 2003 presently pending in the Court of learned A.J.C.-XIII, Ranchi. He has filed the instant writ petition under Article 227 of the Constitution of India challenging the order dated 11.5.2017 of learned A.J.C.-XIII and for recalling the order dated 3.5.2016 whereby the application under Order XLI Rule 27 filed by the petitioner for marking the documents as Exhibits has been rejected. 2. Sans the details, it is noticed that the father of the respondent No. 1 had filed Title Partition Suit No. 84 of 1994 against the petitioner which was decided against the petitioner by judgment and decree dated 30.4.2001 & 10.5.2001 by the learned lower court. Petitioner/defendant challenged the decree in Title Appeal No. 58 of 2003, now pending in the Court of learned A.J.C.-XIII, Ranchi. 3. During hearing of Title Appeal the petitioner sought for adducing additional evidence under Order XLI Rule 27 C.P.C. for bringing on record previous partition deeds dated 4.7.1976 (or 4.4.1976), 23.1.1977 & 14.9.1980 alleged to be essential in adjudication of the controversial issues in the appeal. The appellate court vide order on 8.8.2012 (Annexure-I) without going into the merit of the documents permitted the documents to be kept on record observing that their relevancy shall be considered at the time of final hearing of the appeal. 4. Subsequently petitions dated 12.8.2013 and 2.9.2013 were moved by the petitioner/Appellant under Order XLI Rule 27 seeking for bringing on record four sale deeds (all dated 20.11.2010 and 21.12.2010) through which the plaintiffs/opposite parties had transferred some portion of land which were vested in the name of the ancestors of the petitioner/defendant/appellant through previous partition deeds dated 4.7.1976 and 14.9.1980. By order dated 25.11.2013 the appellate court permitted the copy of sale deeds to be kept on record for considering them at the time of hearing on merit. 5. It appears that similar prayer was made by the petitioner vide petitions dated 24.11.2015, 27.11.2015 and 25.3.2015 for marking the partition panchnama dated 4.7.1976 and 14.9.2008 along with the copies of four sale deeds but the appellate court by order dated 4.12.2015 and 23.2.2016 simply directed the documents to be kept on record for examining the relevancy at the time of hearing on merit. 6. 6. A review petition against the order dated 23.2.2016 was also flied which was rejected by order dated 23.2.2016 by the appellate court. The said order was challenged in W.P.(C) No. 1517 of 2016 before the High Court which was withdrawn with a liberty to approach the appellate court. 7. In the light of the direction in W.P.(C) No. 1517 of 2016, once again a petition filed on 31.3.2016 for marking the document earlier taken on record as exhibits, but it was rejected vide order dated 2.4.2016 by the learned appellate court reiterating the earlier finding dated 23.2.2016. Lastly, on 23.4.2016 the petitioner again moved a petition before the appellate court praying for marking the document already taken on record while relying on the decision of the Hon'ble Supreme Court reported in 1963 SCC 1526 : AIR 1963 SC 1526 (Constitution Bench), but the same was rejected vide order dated 3.5.2016 (Annexure-11) by the appellate court in view of the finding recorded in W.P.(C) No. 1956 of 2016. The appellate court held that the petition was moved just to delay the disposal of the appeal which was pending since 2003. In the present writ order of rejection dated 11.5.2017 of the petition dated 9.6.2016 for recalling the order dated 3.5.2016 has been challenged on the ground that the prayer for marking the document as exhibit by way of additional evidence has been passed by the appellate court which is against the settled proposition of law. 8. The main grievance of the petitioner is that the petitioner had initially in written statement pleaded about the previous partition, but could not produce partition deed/panchnama dated 4.7.1976 and 14.9.1980 as because they were not traceable and could be made available to the petitioner only on 22.10.2011 and filed another partition deed dated 23.1.1977 which was already marked Exbt.-B in favour of the petitioner. 9. Learned counsel for the petitioner has vehemently argued that without bringing these papers in evidence on record and the document of sale deed executed by the plaintiff's side after the judgment and decree in the suit, no effective and legal decision can be rendered hence, these documents ought to have been marked as exhibits. 10. Considering to the contention of the learned counsel for the petitioner, this Court is of the view that the matter can be disposed off at the admission stage itself. 10. Considering to the contention of the learned counsel for the petitioner, this Court is of the view that the matter can be disposed off at the admission stage itself. On perusal of the orders of the court below (copies filed), it transpires that in the orders narrated above, the learned appellate court has admitted (although the O.P. side denied) the issue of previous partition being raised by the petitioner/defendant in the original suit and even one partition document dated 23.1.1977 has been taken on record as Exbt.-B at the behest of the petitioner/defendant. Learned court below has not expressed the view that these documents were otherwise irrelevant or not important for just decision in the case. It has ordered to keep these documents on record observing that they shall be examined on merit at the time of hearing of the appeal. One fails to comprehend as to how the learned appellate court would consider the documents unless they have been formally proved as per law of evidence. It is settled that these documents cannot be considered at the time of hearing of appeal on merit unless they are proved and marked as exhibits. 11. It is manifest from the orders of the appellate court that the petitioner has raised a contentious issue of previous partition which was being consistently denied by the plaintiff/O.P. and without taking these documents on record by way of formal proof or otherwise in accordance to law perhaps appellate court will not be in a position to pronounce effective decision in the matter. The Constitution Bench decision cited by the petitioner lends support to the arguments advanced by petitioner to the effect that unless the documents sought by the petitioner were proved and marked as exhibits as per law, they could not be considered by the appellate court in any manner whatsoever. 12. So far as two orders passed by this Court in W.P.(C) Nos. 1517 & 1956 of 2016 dated 4.3.2016 and 26.4.2016 are concerned, I find that they did not touch the merit and question raised by the petitioner. 12. So far as two orders passed by this Court in W.P.(C) Nos. 1517 & 1956 of 2016 dated 4.3.2016 and 26.4.2016 are concerned, I find that they did not touch the merit and question raised by the petitioner. As far as the question of acceptability of copies of four sale deeds all dated 20.11.2010 and 21.12.2016 are concerned, obviously the subsequent transfer of lands involving the alleged shares given in the previous partition is not going to affect the merit of the appeal because by the doctrine of lis pendens under Section 52 of the T.P. Act any purchaser/transferee pendente lite is bound by outcome of the suitor appeal. 13. Learned appellate court is directed to pass order afresh in relation to the prayer of the petitioner for marking the documents of previous partition as exhibits in the light of the observation made herein above. With the aforesaid direction, the writ petition stands disposed off. However, it is made clear that this Court has not expressed any view or opinion on the merit of the case and court below should not be prejudiced by any observation made hereinabove.