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2018 DIGILAW 1445 (JHR)

Md. Jalaluddin v. Md. Mustafa

2018-07-05

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioner, appellant in Title Appeal No. 25 of 2009, is aggrieved of rejection of his application filed under Section 75(b) and 75(c) read with Order 41, Rule 23 CPC for framing additional issue - "Whether any of the heirs of recorded tenant of Hassan Ali was an evacuee under section 2(D) of Administration of Evacuee Property Act, 1950?". 2. Title Suit No. 7 of 1997 was instituted by the petitioner for a decree for declaration that the suit property is the joint family property of the plaintiff and defendant no. 1 and for a decree for partition to the extent of half share for the plaintiff in the suit property. Subsequently amendment in the plaint was permitted and certain paragraphs were deleted/modified. Initially, in paragraph no. 5 of the plaint the plaintiff pleaded that the entire suit property was joint in occupation, however, instead of /rd share of Gulzar Ali entire suit property was put on auction and the defendant no. 1-Md. Mustafa purchased the same in his name. Through amendment the plaintiff has inserted that, "but in the sale certificate the evacuee property has been recorded in the name of Gulzar Ali". 3. In the suit, following issues were settled by the trial court: (1) Is the suit maintainable in present form ? (2) Whether the plaintiff has any cause of action to sue the suit ? (3) Is the suit barred by law of Limitation ? (4) Whether the suit property is joint and coming on joint ownership of both parties ? (5) Has the order and decree passed by A.D.J.I Sahibganj in T.A. No. 75/73 obtained fraudulently and is illegal, void and not binding on the plaintiff ? (6) Whether the plaintiff is entitled to get reliefs claimed ? (7) To what other relief or reliefs the plaintiff is entitled to ? 4. During the trial the plaintiff examined 3 witnesses and the defendants have also examined 3 witnesses besides producing as many as 32 documents. After a full-fledged trial the suit was dismissed on contest. The plaintiff thereafter filed Title Appeal No. 25 of 2009, in the pending appeal the aforesaid application for framing an additional issue and for remanding the suit under Order 41, Rule 23 CPC was filed which has been dismissed by the appellate court vide impugned order dated 16.06.2012. After a full-fledged trial the suit was dismissed on contest. The plaintiff thereafter filed Title Appeal No. 25 of 2009, in the pending appeal the aforesaid application for framing an additional issue and for remanding the suit under Order 41, Rule 23 CPC was filed which has been dismissed by the appellate court vide impugned order dated 16.06.2012. Contending that the appellate court while dismissing the aforesaid application has committed patent error of record when it has recorded a finding that plaintiff has admitted that the entire suit property was declared evacuee property and the defendant no. 1-Md. Mustafa has purchased the same in public auction, the learned Senior counsel for the petitioner submits that not only the application for framing additional issue has been rejected illegally by the appellate court, the aforesaid finding would prejudice the appellant in Title Appeal No. 25 of 2009. 5. As noticed above, the plaintiff has no doubt admitted that the defendant no. 1-Md. Mustafa has purchased the evacuee property in an auction sale, however, the plaintiff has asserted that only /rd of the suit property was the evacuee property and not the entire property. In the Title Suit No. 7 of 1997 the trial judge has declared that the entire suit property was not the joint property of the plaintiff and the defendant no. 1. Evidently, the plea taken by the petitioner is on merits of the matter. The trial court has returned a finding on appreciation of the evidence led by the parties and on that count no additional issue is required to be framed. In the impugned order dated 16.06.2012, in the penultimate paragraph where the appellate court has recorded that, "it has been admitted that the property is declared evacuee", the expression "entire" is missing and while so, anxiety of the petitioner that the appellate court has held that entire suit property is evacuee property is misplaced. Moreover, the aforesaid issue would be finally decided in the pending appeal. 6. In the above facts, finding no infirmity in the impugned order dated 16.06.2012 the writ petition is dismissed. 7. Interim order dated 27.08.2012 stands vacated. 8. Let a copy of the order be transmitted to the trial court through Fax.