Imtayaz Ahmad, Son of Abdul Rauf Khan v. Md. Gayasuddin Khan, Son of Tajuddin Khan
2018-12-12
SHREE CHANDRASHEKHAR
body2018
DigiLaw.ai
JUDGMENT : The petitioner, who is the plaintiff in Title Suit No. 23 of 2009, is aggrieved of the order dated 08.02.2018 by which his application for adducing the rent receipts as additional evidence has been declined. 2. Contention raised on behalf of the petitioner is that any evidence which is necessary for adjudication of the real dispute involved in the suit can be taken in evidence with leave of the court and this power under Order VII Rule 14(3) CPC must be exercised for arriving at a just conclusion in the case. 3. Title Suit No. 23 of 2009 has been instituted for a decree for declaration that the plaintiff is the rightful holder of the suit property and alternatively, if he is found not in possession vacant possession of the suit property should be delivered to him through process of the court. He has laid a claim over the suit property by virtue of gift deed dated 21.03.1972 executed by Abdul Aziz Khan. The plaintiff has pleaded that Partition Suit No. 30 of 1926, which was instituted for the share of Most. Umar Jahan Bibi and her son namely, Tajuddin Khan claiming 6 Pai zamindari interest and 1 anna 8 pai milkiyati and 10 pai mokari share, was finally decreed and the land comprised in Plot No. 501 came in the joint share of the said Most. Umar Jahan Bibi, Tajuddin Khan and Saleem Khan and Most. Umar Jahan Bibi and Tajuddin Khan orally settled the land in favour of the ex-landlord namely, Md. Abdul Aziz Khan who remained in possession of the said land as Bakast. At the time of vesting the ex-landlord filed return under Section 3(B) of Bihar Land Reforms Act with respect to the lands comprised in Plot No. 501 and rent receipt was issued in his name. The plaintiff has further asserted that adjacent to Plot No. 501, that is, on Plot No. 500, he has constructed his residential house in which with permission of the ex-landlord he has constructed pacca well, septic latrine and kutcha mud-built house. 4. The defendant has contested the suit by setting-up a case that in Partition Suit No. 30 of 1926 Most. Umar Jahan Bibi and her son namely, Tajuddin Khan were allotted 0.07 acres land in Plot No. 501. The case set-up by the plaintiff that Most.
4. The defendant has contested the suit by setting-up a case that in Partition Suit No. 30 of 1926 Most. Umar Jahan Bibi and her son namely, Tajuddin Khan were allotted 0.07 acres land in Plot No. 501. The case set-up by the plaintiff that Most. Umar Jahan Bibi and Saleem Khan orally settled the suit land in favour of Abdul Aziz Khan has been disputed by the defendant. In fact, the defendant has claimed that Saleem Khan died much before filing of Partition Suit No. 30 of 1926. There is a reference of Title Suit No. 84 of 1946 allegedly instituted by Abdul Aziz Khan with his uncle Abdul Sattar Khan in which Most. Umar Jahan Bibi and Tajuddin Khan were defendants and in this suit 0.07 acres land comprised under Plot No. 501 was the subject matter. The suit was dismissed and the Miscellaneous Appeal No. 120 of 1947 preferred against the order dated 07.05.1947 passed in Title Suit No. 84 of 1946 was also dismissed. 5. The aforesaid facts thus disclose that both parties have laid their claims over the suit land and they have pleaded that rent receipts were issued in their name. In paragraph no. 3 of the plaint, the plaintiff has specifically pleaded that rent receipt was granted to him. In their rejoinder/objection, filed to the application dated 17.08.2015 which was filed by the plaintiff for leave of the court for adducing the rent receipt as additional evidence, the defendant has pleaded that he has filed Revision No. 94 of 2009 on 21.04.2012 against the order by virtue of which rent receipt has been granted to the plaintiff. It thus stands admitted by the defendant that rent receipt has been issued in favour of the plaintiff. Only objection raised by the defendant to the application filed by the plaintiff to adduce the rent receipt was that the rent receipt sought to be adduced as additional evidence was issued on 05.02.2009, that is, after institution of the suit. 6.
It thus stands admitted by the defendant that rent receipt has been issued in favour of the plaintiff. Only objection raised by the defendant to the application filed by the plaintiff to adduce the rent receipt was that the rent receipt sought to be adduced as additional evidence was issued on 05.02.2009, that is, after institution of the suit. 6. By now it is well-accepted that powers of the court under Order VII Rule 14 (3) CPC are wide and parties to a suit can be permitted to lead additional evidence provided there is proper foundation in the plaint for the evidence now sought to be adduced and such evidence is essential for adjudicating the real dispute involved in the suit and for arriving at a just conclusion in the case. The rent receipt has been issued after institution of the suit and therefore, there was no occasion for the plaintiff to aver in the plaint in whose possession the rent receipt was. Whether the rent receipt produced by the plaintiff is genuine or not is an issue which cannot be decided at this stage. There is proper foundation in the plaint (para 3) for leading evidence on possession of the plaintiff over the suit land. In view of the rival claims over the suit land by both the parties, the rent receipt becomes an important piece of evidence and if a party to the suit seeks permission to produce rent receipt, normally the court should exercise powers under Order VII Rule 14(3) CPC. In the present case, the trial Judge has adopted an erroneous procedure and has dismissed the application of the plaintiff for adducing additional evidence on a wrong factual and erroneous legal premise. 7. Viewed thus and for the reasons indicated hereinabove, the impugned order dated 08.02.2018 is set-aside. The application dated 17.08.2015 filed by the plaintiff stands allowed, however, of course, the defendant shall be granted opportunity to lead evidence in rebuttal. 8. The writ petition stands allowed, in the aforesaid terms.