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2023 DIGILAW 981 (JHR)

Sonia Devi v. Kedar Rajak

2023-08-03

PRADEEP KUMAR SRIVASTAVA

body2023
JUDGMENT : 1. Heard learned counsel for the plaintiffs/petitioners and learned counsel for the respondents. 2. Instant petition has been preferred under Article 227 of Constitution of India for quashing the impugned order dated 09.02.2023 (Annexure-3) passed by learned Court of Civil Judge-III (Senior Division), Jamtara, in Original Suit No.26 of 2013, whereby and whereunder, learned court below has dismissed the application dated 04.02.2023 of the defendants/petitioners praying for admitting and marking the document as exhibit (certified copy of voter list) as a public document requiring no formal proof and material piece of evidence for just decision of the suit. 3. Petitioners/plaintiffs have filed aforesaid Original Suit claiming following reliefs : (i) for partition of suit schedules “A”, “B”,”C” and “D” prosperities of the plaint. (ii) A final decreed demarcating by metes and bounds the share of the plaintiff as per preliminary decree. (iii) Separate possession through the process of the court. (iv) Cost of the Suit. (v) Such other relief as the plaintiffs may be found entitled to in equity and justice. Argument on behalf of the Petitioners 4.(i) Learned counsel for the petitioners has submitted that the plaintiffs/petitioners are heirs of recorded tenant Sobhi Dhobha, whereas the defendants/respondents or heirs of recorded tenant Katkaha Dhobha, both were recorded tenants and all along separate agnates and tenants and used to cultivate their land separately through mutual arrangements and as per convenience without partition by metes and bounds. (ii) The plaintiffs/petitioners started cultivating the portion of the Suit land possessed by their father personally, which caused annoyance to the defendants/respondents and they started interfering in the possession of the plaintiffs/petitioners by means of various false cases and threatened to oust from the suit land. (iii) Original defendant Nos.1-5 and 7 filed their written statement controverting the averment of the plaint and prayed for dismissal of the suit. (iv) During pendency of the Suit, the application dated 04.02.2023 for Exhibiting, voter list of late Rakhel Dhobha of village Kharkokundi for the year 1958 was adduced in evidence for marking Exhibit and the defendants/respondents also filed their rejoinder (Annexure-2). (v) After hearing both parties, illegal and erroneous order has been passed only on technical ground that document has been sought to be proved at belated stage when the case was fixed for argument. (v) After hearing both parties, illegal and erroneous order has been passed only on technical ground that document has been sought to be proved at belated stage when the case was fixed for argument. Hence, impugned order is fit to be set aside and plaintiffs/petitioners may be permitted to exhibit the document relied upon to be proved. Argument on behalf of the Respondents 5.(i) Controverting the aforesaid points of argument raised by learned counsel for the plaintiffs/petitioners, learned counsel for the defendants/respondents has vehemently argued that voter list of late Rakhal Dobha has no concern with the issues involved in the present case which is a suit of partition. (ii) Further, there is specific pleading in the plaint that Rakhel Dobha died about 45 years ago and his property was inherited by plaintiffs/petitioners. Plaintiffs/petitioners have whispered nothing as to for what reasons, they want to adduce the voter list of Rakhal Dhobha as evidence. The application of the plaintiffs/petitioners was misconceived and filed at fag end of trial without any cogent reasons, hence, rightly rejected by learned trial court. There is no illegally or infirmity in the impugned order calling for any interference by way of this petition, which is fit to be dismissed. Discussions, Reasons and Order 6. Admittedly, Original Suit is pertaining to partition Suit between the parties of Suit Scheduled Property. In order to substantiate the averments of plaint, plaintiffs/petitioners have already adduced their evidence and defendants/respondents have also concluded their evidence. 7. From perusal of the impugned order as well as application for adducing additional evidence filed by plaintiffs/petitioners and its rejoinder submitted by defendants/respondents, it appears that plaintiffs/petitioners have not disclosed any valid reasons as to why the document sought for adducing in evidence is necessary to arrive at just and right decision of the case. Upon enquiry by this Court, learned counsel for the plaintiffs/petitioners has submitted that as per written statement of the defendants/respondents Rakhal Dhobha died in the month of December, 1954 leaving behind no issue, hence, his property devolved upon his surviving uncle Katkahain Dhoba and his son Rameshwar Dhobha and his sons. The voter list of the year 1958 shows the name of Rakhal Dhobha as voter, which proves that he was alive till 1958. The voter list of the year 1958 shows the name of Rakhal Dhobha as voter, which proves that he was alive till 1958. At this juncture, it is relevant to observe that the voter list of a person showing his name in a particular year as voter is not substantial proof of him being alive or dead. It only authorises casting of vote by that persons and nothing else. The plaintiffs/petitioners have already adduced their evidence in order to substantiate their case and there was no relevancy of the present evidence, hence, no leave was accorded to adduce the said voter list in evidence. It is not necessary that court should accord permission/leave to adduce every document in evidence in the nature of public document at any stage of the proceeding at the wish of the parties. Plaintiffs/petitioners have to stand on their own legs by proving their own case through cogent and reliable evidence. 8. Considering the overall aspects of the case along with impugned order, I do not find illegality or infirmity calling for any interference in the impugned order. Hence, this C.M.P. is dismissed.