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2024 DIGILAW 716 (GAU)

Gande Ray v. Malati Choudhury

2024-05-17

DEVASHIS BARUAH

body2024
JUDGMENT : Heard Mrs. R. Choudhury, the learned counsel appearing on behalf of the Petitioners and Mr. A. Dasgupta, the learned Senior counsel assisted by Mr. A. Das, the learned counsel appearing on behalf of the Respondents. 2. This is an application under Article 227 of the Constitution challenging the order dated 06.06.2023 passed in Misc. (J) Case No.43/2023 arising out of Title Suit No.98/2021 by the Court of the Munsiff, Bongaigaon. 3. The facts involved which led to the filing of the instant application is that the plaintiffs have filed a suit seeking declaration of their right, title and interest in respect to the suit land; for declaration that the defendants have no right, title or interest over the suit land described in Schedule-B or any part thereof; for recovery of khas possession in favour of the plaintiffs by evicting the defendants and their men from the suit land; for declaration that the inclusion of the name of the Defendant No.1 in the periodic Khiraj Patta No.60, Dag No.191 at revenue Village, Dolaigaon under Revenue circle, Bongaigaon is illegal and the name of the Defendant No.1 be struck off from the record of rights etc. 4. The defendants filed their written statement denying to the case of the plaintiffs. However, it is relevant to take note of that at Paragraph No.15 of the said written statement, it was mentioned that the Schedule-A land was originally owned by one Shri Khargeswar Ray. Upon his death, the said Schedule-A land devolved upon his three sons i.e. Shri Ananda Mohan Ray, Shri Dambarudhar Ray and Shri Pankaj Ray. It was further mentioned that after the death of the original pattadar, i.e. Shri Khargeswar Ray, both the brothers approached the Defendant No.1 as well as her husband who was a railway employee to dispose their share portion of the land measuring 2 Bighas to meet up their financial crisis. It was also mentioned that these two brothers who were the sons of Late Khargeswar Ray sold their portion in favour of the Defendant No.1 and subsequently, at the time of field mutation, the said suit land was mutated in the name of Defendant No.1 by way of relinquishing as per the order dated 19.03.1997 of the Assistant Settlement Officer, Bongaigaon Revenue Circle, Bongaigaon. 5. 5. In view of those statements being made, the plaintiffs filed an application under Order XVI Rule 1(3) of the Code of Civil Procedure, 1908 (for short “the Code”) for the purpose of calling the Circle Officer, Bongaigaon as well as the Sheristadar, RKG Branch, Bongaigaon as witnesses as well as also calling for certain documents. This application was registered and numbered as Misc. (J) Case No.43/2023. This application was rejected by the learned Trial Court vide an order dated 06.06.2023 primarily on the ground that as the facts stated by the plaintiffs have not been denied and disputed by the Defendants, there was no necessity for calling for the concerned documents along with the concerned officials to prove the said contentions raised by the plaintiffs. Being aggrieved, therefore, the instant application has been filed. 6. I have heard Mrs. R. Choudhury, the learned counsel for the Petitioners and Mr. A. Dasgupta, the learned Senior counsel assisted by Mr. A. Das, the learned counsel appearing on behalf of the Respondents and duly considered their respective contentions. 7. This Court had duly perused the plaint wherein it has been categorically mentioned that the defendants did not have any right, title and interest over the suit land. This Court had also taken note of the written statement and more particularly paragraph No.15 wherein it has been categorically mentioned as to how the right over the suit land accrued upon the Defendant No.1. The plaintiffs in order to prove their case had wanted to call the concerned Circle Officer as well as the Sheristadar along with those documents which have been mentioned in the said application. The learned Trial Court rejected the said application on the ground that the Opposite Party had duly accepted those documents. But the fact remains that the plaintiffs are entitled to produce the primary evidence of those documents and for the purpose of proving the said primary evidence, the Circle Officer or any person duly authorized by the Circle Officer as well as the Sheristadar or any person duly authorized by the Sheristadar are also required to be examined. Else, this lacuna in the evidence may at a later stage affect the rights of the plaintiffs. Under such circumstances, this Court therefore interferes with the order dated 06.06.2023 passed by the learned Trial Court in Misc. Else, this lacuna in the evidence may at a later stage affect the rights of the plaintiffs. Under such circumstances, this Court therefore interferes with the order dated 06.06.2023 passed by the learned Trial Court in Misc. Case No.43/2023 and allows the application filed under Order XVI Rule 1(3) of the Code in terms with the prayer contained therein at Paragraph No.7. 8. It has been brought to the notice of this Court that the learned Trial Court had permitted the amendment of the plaint at the stage of arguments of the suit and thereafter, the suit was kept at the stage of arguments without giving any opportunity to the defendants to file their amended written statement. It is the opinion of this Court that in view of the amendment made to the plaint and more particularly when pleadings have been inserted by way of paragraph No.8(i), a right accrues upon the Defendants to file an additional written statement, if they so desire. However, there was no opportunity being granted to the defendants to do so. 9. Under such circumstances, this Court in exercise of its supervisory jurisdiction grants 30 (thirty) days time from today to the defendants to file an additional written statement i.e. by 21.06.2024. This Court fixes the matter before the learned Trial Court on 21.06.2024 and as observed the defendants would be at liberty to file their additional written statement. Subsequent thereto, the learned Trial Court shall pass appropriate orders in view of the interference so made by this Court to the order dated 06.06.2023 so that the relief so sought for at paragraph No.7 of Misc. (J) Case No.43/2023 is given due effect. 10. With above observations and directions, the instant petition stands disposed of.