Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 1508 (JHR)

Lalit Kumar Singh v. Lawangi Bibi

2018-07-11

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioners are aggrieved of order dated 04.04.2017 passed in Title Suit No. 29 of 2004 by which their application dated 01.10.2016 filed for recalling the order dated 20.09.2016 has been rejected. 2. Plea taken by the petitioners, who are defendants in the suit, is that if further opportunity to examine their witness is not granted and records of Case Nos. 5 of 1997 and 13 of 1997 from the Court of Deputy Commissioner Land Reforms are not called for, it would cause irreparable loss to them. 3. Title Suit No. 29 of 2004 was instituted by Lawangi Bibi for a decree for declaration of her Kaiyami occupancy right over the suit property and for a declaration that she is entitled to be recognised as occupancy raiyat by creating Jamabandi in the revenue records in her name. The plaintiff has pleaded that schedule-A land is recorded as occupancy raiyati land during the last cadestral survey and settlement operation in the name of Butan Jolha and his son Anayat Mian. Producing a genealogy table of Butan Jolha, the plaintiff has described how the suit schedule property came in possession of Ser Ali Mian after vesting of the zamindari. She claims that Ser Ali Mian was illiterate and she also is a rustic and illiterate lady who does not recognise the rent receipts. The defendants contested the suit by filing a written statement taking a stand that the ex-landlord Dilip Narayan Singh is not represented through all his legal heirs and successors and in fact the recorded raiyat Butan Mian and Anayant Mian surrendered the land in khata no. 24 and 42 orally shortly after the completion of survey and settlement operation. There is a reference to Partition Suit No. 11 of 1920 in which the defendants have claimed that Babu Dilip Narayan Singh, ancestor of the defendants being ex-landlord of village-Rohila was allocated 6 Annas share and separate Takhta for that was carved out in terms of the preliminary decree passed in the partition suit. However, in the written statement there is no reference of Case No. 5 of 1997 and Case No. 13 of 1997 allegedly pending in the Court of Deputy Commissioner Land Reforms. 4. On admitted facts, plaintiff''s evidence was closed on 14.03.2013 and by an order dated 05.04.2013 the defendants were directed to produce their evidence. However, in the written statement there is no reference of Case No. 5 of 1997 and Case No. 13 of 1997 allegedly pending in the Court of Deputy Commissioner Land Reforms. 4. On admitted facts, plaintiff''s evidence was closed on 14.03.2013 and by an order dated 05.04.2013 the defendants were directed to produce their evidence. By an order dated 14.05.2015 the defendants'' evidence was closed. This order would reflect that sufficient opportunity was granted to the defendants for producing their witnesses and in process cost was also imposed upon them. It appears that by an order dated 07.10.2015 the defendants were again permitted to lead further evidence and after about one year, defendants'' evidence was again closed after granting sufficient opportunity to them by an order dated 20.09.2016. Seeking recall of order dated 20.09.2016, the petitioners filed an application on 01.10.2016 which has been dismissed by the impugned order dated 04.04.2017. In this order the trial judge has recorded that on several occasions the defendants were granted last opportunity to produce their witnesses and cost was imposed upon them for their default in not producing their witnesses or as a condition for reopening their evidence. In fact the defendants have failed to comply with order dated 29.04.2015 and they have not deposited the cost which was imposed upon them for reopening their evidence. It is also to be kept in mind that the defendants have already examined as many as nine witnesses and sufficient opportunities have been granted to them for leading their evidence. In so far as record of Case Nos. 5 of 1997 and 13 of 1997 is concerned, there is no reference of these cases in the written statement nor, except stating that this is a relevant document, the defendants have indicated relevance of record of the aforesaid cases. There is no foundation laid in the written statement and suddenly at the fag end of the trial additional evidence cannot be introduced by the defendants. 5. Finding no infirmity in the impugned order dated 04.04.2017, the writ petition is dismissed.