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2023 DIGILAW 261 (MP)

Ashok Singh v. Yashpal Singh

2023-02-13

SATYENDRA KUMAR SINGH

body2023
JUDGMENT 1. This petition under Article 227 of the Constitution of India has been preferred against the order dtd. 7/1/2023, passed by the Court of 2nd Civil Judge, Senior Division, Bhind, whereby petitioners' application filed under Order VI Rule 17 CPC, application under Order VIII Rule 1 CPC and application under Sec. 33 of the Evidence Act were rejected. 2. Brief facts giving rise to this petition are that Late Surajkumari alias Surajkunwar w/o Late Kayam Singh was the owner of agricultural lands bearing survey nos. 53(1.22 hect.), 369(0.042 hect.), 382(0.26 hect.), 794(0.38 hect.), 803(0.68 hect.), 887(0.52 hect.), 1229(0.24 hect.), 1645(0.28 hect.) and 1668(0.28 hect.), situated at village Barakala, District Bhind alongwith 1/3 rd share of the lands bearing survey no.839(0.4 hect.) and 843(0.94 hect.), situated in the same village. After the death of Late Surajkumari, the petitioners filed an application bearing Revenue Case No.71/10-11 A-6 "Yashpal Singh Vs. Ashok Singh" before the Court of Tahsildar Bhind, for mutation of the aforesaid lands, which are disputed, on the ground that the said lands were undivided ancestral property of the petitioners and Late Kayam Singh, wherein after the death of Kayam Singh, his wife Surajkumari was having limited right and after her death, petitioners became the owner of the said property. Learned Court of Tahsildar Bhind vide order dtd. 30/3/2013 mutated the disputed lands in the name of the petitioners. 3. Thereafter, the respondents no. 1 to 4, filed a Civil Suit bearing No.43-A/2014 before the Court of Second Civil Judge, Senior Division, Bhind for declaration of their title over the disputed lands and also for the possession of the same stating therein that they are sons of the brother of Late Surajkumari, and since Surajkumari was not having any issue and was living with the respondents no. 1 to 4, therefore, she vide registered 'Will dtd. 1/1/2011' bequeathed the disputed land to the respondents no. 1 to 4, hence, after the death of Surajkumari, the respondents no. 1 to 4 have become the owner of the disputed lands. During trial of the above Civil Suit, at the stage of defence evidence, the petitioners, filed an application dtd. 1 to 4, therefore, she vide registered 'Will dtd. 1/1/2011' bequeathed the disputed land to the respondents no. 1 to 4, hence, after the death of Surajkumari, the respondents no. 1 to 4 have become the owner of the disputed lands. During trial of the above Civil Suit, at the stage of defence evidence, the petitioners, filed an application dtd. 8/12/2022, under Order VI Rule 17 read with Sec. 151 of CPC, seeking permission to amend para 1 and 2 of their written statements and to correct the name of the husband of Late Surajkumari as Kayam Singh, instead of Kayam Singh alias Kalyan Singh, and also the word "plaintiff" instead of "defendant." On 14/12/2022, they filed another application under Sec. 33 of the Indian Evidence Act for taking certified copy of the statements of a witness Krishna Avtar, recorded before the Court of Tahsildar, Ex.D/4, as defence evidence. On 15/12/2022, they filed another application under Order VIII Rule 1 read with Sec. 151 of CPC for taking certified copy of the photo voter list, showing the name of the husband of Late Surajkumari as Kayam Singh. Learned Trial Court vide impugned order rejected all the aforesaid three applications, hence, this petition has been filed. 4. Learned counsel for the petitioner, submits that it is apparent from the written statement filed by the petitioners that the name of the husband of Late Surajkumari alias Surajkunwar was Kayam Singh, and petitioners have specifically denied the fact that respondents no. 1 to 4 were having any relationship with Surajkumari, therefore, it cannot be said that the petitioners by way of proposed amendments want to withdraw any admission and have filed the amendment application just to fill up any lacuna. Admittedly, the petitioners had filed the revenue case bearing No.71/10-11/A-6, wherein statements of witness Krishna Avtar were recorded in the presence of the respondents. Now Krishna Avtar has died, therefore, his statements recorded in the aforesaid case, Ex.D/4, are relevant and admissible under Sec. 33 of the Indian Evidence Act. Certified copy of the photo voter list, showing the name of the husband of Surajkumari, is material as the respondents no. Now Krishna Avtar has died, therefore, his statements recorded in the aforesaid case, Ex.D/4, are relevant and admissible under Sec. 33 of the Indian Evidence Act. Certified copy of the photo voter list, showing the name of the husband of Surajkumari, is material as the respondents no. 1 to 4, themselves objected on the admissibility of the photocopy of the said photo voter list, hence, learned Trial Court has committed error in rejecting petitioners' applications filed under Order VI Rule 17 CPC, under Sec. 33 of the Evidence Act and under Order VIII Rule 1 CPC. The impugned order is not sustainable, thus, the same may be set aside. 5. Heard learned counsel for the petitioners and perused the record. 6. Upon perusal of the written statement filed by the petitioners before the Court of Second Civil Judge, Senior Division, District Bhind in Civil Suit No.43-A/2014, it is apparent that the petitioners, while denying the pleadings of para 1 and 2 of the plaint, filed by the above respondents, have stated in para 1 of their written statements the name of the husband of Late Surajkumari alias Surajkunwar as Kayam Singh alias Kalyan Singh and in para 2 of their written statement, they have denied the fact that the respondents no. 1 to 4, have any relationship with Late Surajkumari. Therefore, the proposed amendment sought by the petitioners by way of their application dtd. 10/12/2022 filed under Order VI Rule 17 read with Sec. 151 of CPC seems not required as their pleadings will be read as a whole, which clearly suggest that the word "defendant" has mistakenly written in place of "plaintiffs." 7. So far as the petitioners' application filed under Order VIII Rule 1 read with Sec. 151 of CPC is concerned, admittedly, the photocopy of photo voter list, wherein the name of the husband of Late Surajkumari alias Surajkunwar is mentioned as Kayam Singh, in the absence of any opposition by the respondents no.1 to 4, has already been taken on record and has been exhibited as Ex.D/4, therefore, the certified copy of the same is not required to be taken on record. 8. So far as the petitioners' application filed under Sec. 33 of the Indian Evidence Act is concerned, this fact appears undisputed that the statements, Ex. 8. So far as the petitioners' application filed under Sec. 33 of the Indian Evidence Act is concerned, this fact appears undisputed that the statements, Ex. D/4, of the witness Krishna Avtar were recorded before the Court of Tahsildar Bhind in the Revenue Case No.71/10-11/A-6, which was filed by the petitioners for mutation of the same disputed land, wherein respondents had objected the petitoners' application for mutation on the ground that the disputed lands were bequethed to them by Late Surajkumari. Admittedly, Krishna Avtar has died, therefore, findings rendered by the learned Trial Court that his statements, Ex.D/4, are not relevant in the civil suit only on the ground that Krishna Avtar was not party in that case and was only a witness appears misconceived, and hence requires recosideration. 9. In view of the aforesaid discussion, the petition is dismissed with respect to the orders passed in respect of the application, filed under Order VI Rule 17 CPC, and also in respect of the application, filed under Order VIII Rule 1 CPC. But, with respect to the order passed in respect of the application, filed under Sec. 33 of the Evidence Act, the petition is partly allowed and the said order passed withregard to the above application, filed under Sec. 33 of the Evidence Act, is set aside with a direction to the learned Trial Court to reconsider the same in accordence with law after giving opportunity of hearing to both the parties.