Ahmad Ali v. Doctor H. Rahman

====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER 2 Patna High Court CWJC No.704 of 2013 (3) dt.04-02-2013 3 04-02-2013 Heard learned counsel for the petitioner and the counsel appearing on behalf of the respondents. The petitioner is the plaintiff before this Court. A suit has been filed on behalf of the plaintiff seeking following relief:- i) That his title and possession over the suit lands be declared and that the sale deed executed by these defendants 2nd set would not have any effect on the right, title or interest in favour of defendant 1st set. ii) Possession of the plaintiff may be confirmed on the suit land. iii) The defendants may be restrained interfering in the peaceful possession of the lands in question. The facts are that one Abdul Gafoor was admittedly the recorded tenant of the suit lands. In the year 1992, a suit was filed in which Abdul Gafoor was the defendant. The suit was decreed in favour of Sheikh Zainul Haque against the recorded tenant. Ultimately the lands in question were auction sold. It is said that the said sale certificate was prepared in the name of Hurmat Ali on 6.8.1937. It has been pointed out by the plaintiff that in the sale certificate, two mistakes occurred, firstly, the plot was wrongly mentioned as Plot No. 740 instead of 742. Secondly, 3 Patna High Court CWJC No.704 of 2013 (3) dt.04-02-2013 the lands were described as 8 decimals, whereas the actual measurement of the land is 6 decimals. The plaintiff claims to be the heir of said Hurmat Ali. The case of the defendant is that he is the purchaser from the heirs of Abdul Gafoor after a private partition within the family of the said Abdul Gafoor. It is his specific case that he is in possession of the land in question and he has perfected his right by way of adverse possession. It is the specific case of the defendant that the sale certificate is a fraudulent document, it was never produced at any stage by the plaintiff and it cannot be corrected after 76 years. The present suit was dismissed as a result of which the plaintiff-petitioner has filed a Title Appeal No. 19/2009. In the title appeal he has filed an application under Order 41 Rule 27 for brining some additional evidence on record. The Court below has rejected the application which has given rise to the present writ application. The two documents which are purported to be brought on record are the decree and records of Title Suit No. 94/1932 which are within the jurisdiction of the Court hearing the appeal i.e. the judgeship at Patna, the second document is a Khatiyan recorded in the name of Abdul Gafoor. With regard to the Khatiyan in the name of Abdul 4 Patna High Court CWJC No.704 of 2013 (3) dt.04-02-2013 Gafoor, this Court does not think that it is essential to bring that on record as both the parties admit that Abdul Gafoor was the recorded tenant. Thus, it would serve no purpose and requires no evidence to prove this aspect of the matter. The petitioner’s prayer to bring the records of Title Suit No. 94/1932 on record and for the purposes of marking them as exhibit cannot be faulted with it as it is not a surprise to either of the parties and is part of the Court records. It is true that the petitioner ought to have brought this material on record, specifically, when the defendant has denied and specifically pleaded that the sale certificate is forged one and does not relate to Plot No. 742 taking into consideration that one of the pleadings of the parties is that due to mistake of the office that has crept into the sale certificate this fact would require adjudication. This aspect of the matter has been considered by the Trial Court when it says that the question as to whether it is possible to correct the sale certificate after 76 years would be considered and adjudicated during the final disposal of this appeal. Since the Trial Court is of the opinion that this matter would be taken into consideration while hearing the appeal, there is no reason why the Court should reject the application even if due diligence has not been applied in this case. This document ought to be considered by the Court to 5 Patna High Court CWJC No.704 of 2013 (3) dt.04-02-2013 consider whether Abdul Gafoor or his sons had a right to sell the suit premises. It may be made clear, that merely by bringing certain documents on record, the Court would not be judging the value of these documents until they are considered in a full fledged hearing. Considering that the records and the judgment in the suit are public documents, no formal proof would be required and as such there is no question of any further delay in disposal of the appeal on account of marking the judgment of the title suit as an exhibit on behalf of the appellant. In the result, this Court sets aside the order impugned dated 24.8.2009, passed in Title Appeal No. 19/2009 and directs that the appeal may be expedited and the parties are directed to co-operate with the Court and not take unnecessary time in this case. This writ application is allowed. Sanjay/- (Sheema Ali Khan, J.)