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2018 DIGILAW 396 (JHR)

Chandrika Prasad v. Laljee Sao

2018-02-15

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. – Themselves adopting a strange procedure in Title Appeal No.09 of 2012 by filing application under Order XLI Rule 27 (1) (aa) C.P.C, the petitioners feel aggrieved of rejection of the said application by order dated 10.09.2015. 2. Title Suit No.29 of 1999 was instituted by the petitioners for a decree of declaration of their right, title and interest based on the title of the vendor-Mostt. Budhani Sahun comprised in plot no.1228 at village-Hariharpur, district-Garhwa. The sale deed no.6641 of 1975 executed by a person allegedly impersonating Mostt. Budhani Sahun was also challenged. The suit was dismissed by judgment dated 20.03.2012. Aggrieved, the petitioners preferred Title Appeal No.09 of 2012. In the pending appeal for taking sale deed no. 188 of 1992 as additional evidence, an application was filed on 03.12.2013. This application has been rejected by the impugned order dated 10.09.2015. 3. Referring to decision in "North Eastern Railway Administration, Gorakhpur Vrs. Bhagwan Das" reported in (2008) 8 SCC 511 , the learned counsel for the petitioners submits that for arriving at a just decision in the case sale deed no.188 of 1992 is a vital piece of evidence which should have been taken on record by the appellate court. It is contended that once a plea of forgery has been raised, sufficient opportunities should have been granted to the plaintiffs to prove their case. 4. Rule 27 to Order XLI C.P.C mandates that no additional evidence shall be permitted at the appellate stage. This statutory prohibition has however exceptions carved out under clauses (a) (aa) and (b) to Rule 27. Under Order VII Rule 14 C.P.C the plaintiff is required to produce a document on which his claim is based at the time of presentation of the plaint, and if such document is not in possession of the plaintiff he is required to aver in the plaint in whose possession the said document is. In Title Suit No. 29 of 1999 there is no whisper of sale deed no.188 of 1992. Challenge thrown by the plaintiffs in the suit is to the sale deed no. 6641 of 1975. Under sub-rule (3) to Rule 14 of Order VII C.P.C an application for taking additional evidence can be made by the parties, however, power of the court under this provision must be confined to the pleadings of the parties. Challenge thrown by the plaintiffs in the suit is to the sale deed no. 6641 of 1975. Under sub-rule (3) to Rule 14 of Order VII C.P.C an application for taking additional evidence can be made by the parties, however, power of the court under this provision must be confined to the pleadings of the parties. A document which has no reference in the pleadings of the parties, in exercise of power under Order VII Rule 14(3) C.P.C cannot be taken on record except in cases of public document and, that too, if the document has relevance in the context of pleadings of the parties. No doubt an application under Order XLI Rule 27 C.P.C is required to be decided at the time of final hearing, on admitted facts, when it is found that there is no reference of sale deed no. 188 of 1992 in the plaint presented by the plaintiffs, rejection of the application for taking additional evidence requires no interference. 5. Finding no substance in the writ petition, it is dismissed.