Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11084 of 2011 ====================================================== 1. Ram Janam Sharma Late Kamta Sharma Village Suhari, Pargana Sanout, P.S. Mufassil, Dist. Gaya 2. Sita Ram Sao Late Shankar Sao Village Bhadja, Pargana Maher, P.S. Mufassil, Dist. Gaya .... .... Petitioner/s Versus 1. Baijan & Ors Mahavir Vilage Bhadja, Pargana Maher, P.S. Mufassil, Dist. Gaya 2. Mahanju Navgodva Vilage Bhadja, Pargana Maher, P.S. Mufassil, Dist. Gaya 3. Jamal Mian Isaque Mian Village Bhadja, Pargana Maher, P.S. Mufassil, Dist. Gaya .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Jitendra Prasad Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER 6 11-01-2013 This writ application has been filed against the order passed by the Additional Sessions Judge, Fast Track Court No. I, Gaya in Title Appeal No. 08 of 2010/54 of 1998 by which the petitioners’ prayer under Order 41 Rule 27 of the Civil Procedure Code has been dismissed. The petitioners’ case is that the lands of plot no. 560 were the khatiyani lands of Kali Dusadh of village Bhadeja and the lands of C.S. Plot No. 562 were recorded in the name of one Baldeo Singh, son of Sheo Ratan Singh of village Surhari. The above recorded tenant is said to have sold the suit lands to 2
Legal Reasoning
Patna High Court CWJC No.11084 of 2011 (6) dt.11-01-2013 2 / 5 Abdul Aziz and Moghal Mian. The name of Abdul Aziz and others were recorded in the Sherista of Zamindar on the basis of the aforesaid sale deed. The vendee aforesaid paid rent to the Ex-landlord and was granted rent receipts. Abdul Aziz and Moghal Mian sold the land to one Banwari Gope, who gifted the aforesaid land in the year 1984 to his wife and son. The plaintiffs are said to have purchased 37‰ decimals of land on 14.02.1987, subsequently, the plaintiffs had purchased the lands by several sale deeds. The lands were recorded in the name of respondents, and as such, the plaintiffs have filed a suit for declaration of his right, title and possession. The defendants were noticed in this case. They appeared but did not file their written statement, although several opportunities were given to them and ultimately, they left pairvi in the case. The Trial Court after considering the evidence, dismissed the suit on the ground that the plaintiffs had not brought on record the sale deeds executed by Baldeo Singh, Abdul Aziz and Moghal Mian in the year 1919, the sale deed of Banwari Gope executed in the year 1935 and the deeds of gift executed by Banwari Gope in favour of his son and wife. Being aggrieved by the judgment passed by the 3 Patna High Court CWJC No.11084 of 2011 (6) dt.11-01-2013 3 / 5 Munsif II, Gaya, the appellants-petitioners filed an appeal. In the said appeal, they filed an application under Order 41 Rule 27 of the Civil Procedure Code seeking permission of the Court to adduce additional evidence. The grounds taken on behalf of the appellants-petitioners were that the original documents were with them but due to the fault of the Counsel and his Clerk, they could not be exhibited during the hearing and it was only when the judgment was delivered that the petitioner could bring this fact to the notice of the Counsel, who realized that a mistake had been committed and as such, they filed this application under Order 41 Rule 27 of the Civil Procedure Code. The provisions of Order 41 Rule 27 of the Civil Procedure Code reads as follows:- “27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if – (a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due 4 Patna High Court CWJC No.11084 of 2011 (6) dt.11-01-2013 4 / 5 diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever, additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” This Court would refer to the proviso (aa) and (b) of Rule 27 which provides that the party may produce additional evidence, if it is found that even after exercise of due diligence, he was not able to produce the evidence at the time when the decree was passed. Sub-Rule (b) also provides that the Appellate Court would have the right and the power to ask the party to produce evidence in order to enable him to pronounce a judgment or for any other substantial cause. In the present case, the petitioners have given the reasons for not being able to produce evidence in question. In my opinion, the Court ought to have considered 5 Patna High Court CWJC No.11084 of 2011 (6) dt.11-01-2013 5 / 5 that since the petitioners have the original copy of the sale as well as the deeds of gift from where the plaintiffs have derived title, the Court ought to have considered, that since the original documents are available with the petitioners, they should be brought on record, so that the Court would be able to consider as to whether the documents so produced validly show and trace the title of the lands in question, especially in view of the fact that the person who could have been adversely affected by this order has not turned up to put a counter claim and the case is basically hinged on the fact that the names of the tenants have been wrongly recorded in the Government Sherista. The petitioners should not be punished because of the laxity of the Counsel especially as they had produced the original documents at the very initial stage of filing of the plaint.
Decision
In the result, the order dated 06.05.2011 passed in Title Appeal No. 8 of 2010 is set aside. Counsel for the petitioners may take steps accordingly. This writ application is allowed. Prabhakar Anand/- (Sheema Ali Khan, J)